17 Mont. 100 | Mont. | 1895
This case was tried in the district court after the decision of King v. Amy & Silversmith Min. Co., 9 Mont. 543, and before the reversal of that decision on appeal to the United States supreme court (152 U. S. 222, 14 Sup. Ct. 510). The case was tried upon the assumption that the law as attempted to be declared in 9 Mont, was correct. The district court instructed the jury upon this theory, and the judgment gave to the Niagara people the two-thirds value of the ore taken by the Black Rock east of the point where the apex of the vein passed entirely into the Niagara ground, namely, point A on the diagram-. No exceptions to these instructions were preserved or specified so that they can now be reviewed. But since the trial of the case at bar, and perfecting the appeal to this court, the United States supreme court has reversed our decision in the Amy & Silversmith case.
The Black Rock people argue that, although they are not now in a position to urge error in the instructions (that is to say, that which they now claim to be error by reason of the United States supreme court decision of the Amy & Silversmith case) still they can raise the same point upon the ground that the pleadings do not support the judgment. Their argument to this effect is that the pleadings, alleging the facts as detailed in the statement above, do not warrant the judgment
We shall not renew the discussion of the cases upon this question decided by the United States supreme court prior to May 21, 1890, the date of our decision of the Amy & Silversmith case. Our best construction of those decisions is found in our opinion in that case. We there met the problem which had for years engaged the earnest attention of lawyers who had to do with mining litigation, — i. e. the preservation of the intent of the mininu statutes when thev ^e applied to a location in which exploration has demonstrated that the apex and strike of the vein do not pass through both end lines of the location. We gave our best endeavor and research to that decision, and arrived at a result which we were willing to concede was not wholly in accord with the decisions of the United States supreme court upon that subject, but which we believed could, with a very little effort, be reconciled with those decisions, and which we were wholly satisfied was the only practicable working solution of the problem in all its phases, and which we were also wholly satisfied was fully within the intent
But to the subject in hand. As noted above, we shall not go to the decisions back of our Amy & Silversmith opinion. 9 Mont. 543. We are satisfied with that discussion of the subject, and the review of the authorities up to that date. We shall take up the subject as it has been developed since our decision in that case. The history of the discussion is found, chronologically, in the following cases : King v. Amy & Silversmith Con. Min. Co. (May 21, 1890) 9 Mont. 543, 24 Pac. 200; Tyler Mining Co. v. Sweeney (January 16, 1893) 4 C. C. A. 329, 54 Fed. 284; King v. Amy & Silversmith Mining Co. (March 5, 1894) 152 U. S. 222, 14 Sup. Ct. 510; Last Chance Mining Co. v. Tyler Mining Co. (April 9, 1894) 9 C. C. A. 613, 61 Fed. 557; Consolidated Wyoming Gold Mining Co. v. Champion Mining Co. 63 Fed. 540; Del Monte Mining & Milling Co. v. New York & L. & C. Mining Co. (March 13,
The cases cited above in 4 C. C. A. 54 Fed. 9 C. C. A., 61 Fed. and 157 U. S., 15 Sup. Ct., are different appeals and discussions of the same case. In the Amy & Silversmith case the apex of the vein crossed the claim as indicated in the diagram used in that opinion, and which is reproduced here, marked “Figure 2
The vein dipped to the north. We held that the right of the Amy & Silversmith to follow the vein on the dip was bounded by a perpendicular plane extending into the earth at the point where the apex crossed the Amy & Silversmith north side line, the point marked e on the diagram, Fig. 2, and which plane was parallel to the end lines of the Amy & Silversmith claim, and extending north of the Amy & Silversmith north side line. We quoted section 2322, Rev. St. U. S., which is as follows : ‘ ‘ The locators of all mining locations * * * shall have the exclusive right of possession and enjoyment of all * * * veins, lodes and ledges, throughout their entire depth, the top or apex of which lies inside of such surface lines, extended downward vertically, although such veins, lodes or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession
We then said: “As said by Mr. Justice Field. (Iron Silver Min. Co. v. Elgin Mining & Smelting Co., 118 U. S. 206, 6 Sup. Ct. 1177): ‘This section appears sufficiently clear on its face. There is no patent or latent ambiguity in it. * * * The difficulty arising from the section grows out of its application to claims where the course of the vein is so variant from a straight line that the end lines of the surface location are not parallel, or, if so, are not at a right angle to the course of the vein.’ We may add to these words that further difficulties arise when we are obliged to apply the statute to facts not wholly within its contemplation. If a mining location be made regularly, — made so that the strike of the vein crosses the location from end line to end line, and at right angles to said end lines, — there is nothing in the statute to construe or interpret. (Mining Co. v. Tarbet, 98 U. S. 469; Iron Silver Min. Co. v. Elgin Mining & Smelting Co., 118 U. S. 205, 6 Sup. Ct. 1177; Argentine Min. Co. v. Terrible Min. Co., 122 U. S. 485, 7 Sup. Ct. 1356.) ‘There is no patent or.“latent ambiguity. ’ But when -veins or their strikes cross the side lines, or a side line and end line, at all conceivable angles, difficulties confront the courts that can be best met by legislative aid. Until such aid is invoked, the courts must follow the statute and previous construction as closely as the varying facts will permit. (Iron Silver Min. Co. v. Elgin Mining & Smelting Co., 118 U. S. 208, 6 Sup. Ct. 1177.) The history of mining has proven that the law of May 10, 1872, and amendments thereto, do not afford clear, adequate, and simple solution for some of the practical conditions that arise in the development of the mining industry. The case at bar is a notable instance. It is a first impression in this court, and all other appellate courts.’’
After stating what we understood to be the meaning of the words “dip,” “strike,” etc., as used by miners and in the
We have always been of opinion "that this is the keynote of the interpretation of section 2322, Rev. St. U. S.; that is to say, if the miner has the apex in his location, he is to have the vein, and he has as much length of the vein on the strike, no matter how deep he may go in the dip, as he has length of apex within his surface lines, whether that apex reaches the surface or is found beneath the same, within the planes of his exterior boundary lines extending downward perpendicularly. This, in our opinion, is what section 2322 says in plain language.
Continuing further in the Amy & Silversmith case, we said: ‘ ‘It seems that such grant by the statute to the miner, in view of the geological facts and history of veins, and particularly their almost universal tendency to depart from a perpendicular in their course downward, was deemed to secure to him a more satisfactory title than' he would obtain if he were compelled to locate a parallelogram on the surface of the earth, as under the Spanish mining law, and take all and only that portion of the solid contents of the earth included in a parallelopidedon formed by dropping vertical planes downward on the line of each side of such parallelogram; and the intent of the
We are still of opinion that the loss which a miner should suffer if he is obliged to make his location before he can trace the apex and strike of the vein for its whole distance, and thus makes his location irregularly, should be the loss of so much length of the vein on the strike as by his irregular location he has failed to obtain of length on the apex. If this be the consequence which he is to suffer by reason of his irregular location, he loses simply that which he failed to locate, and he does not lose the vein of which he has located the apex. That he is to have the vein when he has the apex, we believe is the intent of the mining law. (Rev. St. U. S. § 2322.)
We said further in the Amy & Silversmith case: “But in order for the miner to make his location in exact conformity with the intent of the law, he must know, when he fixes his exterior boundaries, what the true strike of the vein is. If he knows this, he will locate so that the strike shall pass through the middle of each end line, leaving 300 feet of surface on each side of the vein. But the true strike is often ascertainable only after immense sums of money are expended in development. He has 2o days, under our statute, to determine this important matter, which may take years to fully demonstrate. If in this helpless condition the prospector commits an error of geological judgment, and upon such error he expends the toil of years, and that toil has wrought its reward, W.e are of opinion that the statute should be so construed as
We then proceeded to review the contentions of counsel in the case, and to discuss, as we understood them, the three leading cases in the United States supreme court, namely: Mining Co. v. Tarbet (the Flagstaff case) 98 U. S. 463; Iron Silver Mining Co. v. Elgin Mining & Smelting Co. (the Horse-shoe case) 118 U. S. 196, 6 Sup. Ct. 1177; Argentine Min. Co., v. Terrible Min. Co., 122 U. S. 478; 7 Sup. Ct. 1356.
We then offered the -following solution of the problem, and decided the case upon the principle, as found on page 575 of 9 Mont., as follows: “These three United- States cases have compelled that court to endeavor to cast into the Procrustean bed of the’- statute individuals that strained the mold into which they were forced. But we believe that we may legitimately conclude from those cases that, in the facts now before us, the principle is that the north side line of the Amy terminates-the strike - of the vein, and that the dip must be controlled by the planes of the original end lines. The Amy people may follow their dip north of their north side line, but only as it lies between the planes of their end-lines, as below considered. The object of parallelism in- the end lines is that the locator may have his full- section of the lode in its entire depth. But the determination of the strike of the Amy at -a point on the side line deprives them of the dip northwest of that point, because the dip, in ’that portion, lies under the apex of the Non-Consolidated. The law- intends that the plane of-the end line shall operate as a boundary to the dip, and so operate at the point where the strike is ended. If the strike reached the original end line, as in a regular location, the bounding plane would there- operate upon-the dip.- If the strike, by reason of its going out of a side line, falls short of-reaching the original end line plane, that plane must take eff-’ feet where the strike -in fact ends; that is; at-a point on-the'
As noted in the Amy & Silversmith case, the difficulties arise in applying the United States mining statutes to accidentally irregular locations; that is, locations where it is developed in time, and by explorations, that the apex and strike pass through the side lines, or a side line and an end line (as in the case at bar), or enter and pass out of the same side line. We essayed in that case a solution of this difficulty which could be applied to every irregularity, and which would secure absolute uniformity in all complications, and give to every mining location, as the statute intended and declared, the whole vein, in its whole depth, to the extent of the length of the apex which was located. We thought that we had accomplished that result. With due deference to those who have differed from us, we think so still.
The principle which we sought to maintain in the Amy & Silversmith case found its first approval in an appellate court in Tyler Mining Co. v. Sweeney, 4 C. C. A. 329, 54 Fed. 284. In that case the United States circuit court of appeals, Ninth circuit, discussed the extralateral rights of a location where the apex and strike passed through a side line and an end line. The situation differed from that of the Amy & Silversmith case, as in that case the apex and strike passed through both
The opinion of Judge Hawley then quotes the Amy & Silversmith case (9 Mont, and 24 Pac.) as to the principle therein announced. That case went back for trial, and appeared again in the circuit court of appeals as the Last Chance Mining Co. v. Tyler Mining Co. (April 9, 1894) 9 C. C. A. 613, 61 Fed. 557, and in the opinion the court adhered to the principle of the Amy & Silversmith case. In the meantime the Amy & Silversmith case had been reversed by the United States supreme court, March 5, 1894 (152 U. S. 222, 14 Sup. Ct. 510). But that decision is not mentioned in the Last Chance case (9 C. C. A. and 61 Fed.), and does not seem to have been considered by the circuit court of appeals. That court said : ‘ ‘ The right of each party to follow the lode on its strike or true course lengthwise is terminated at the point where the lode crosses the side line of the Tyler and Last Chance locations; but each company would have the right to follow the lode, the top or apex of which is within its surface lines, on its dip, not upon its strike, upon a vertical plane drawn downward parallel to the end line, at the point where the strike of the lode ended; that is, at the point where the lode, in its lengthwise course, intersects the side lines of the claims. The Tyler would be entitled to all that portion of the lode that lies
As the United States Amy & Silversmith decision was not mentioned in 9 C. C. A. and 61 Fed., although preceding it in time, we may treat the- United States decision as being subsequent. In that case, after stating the facts and the contentions, the United States supreme court said : “Section 2322, cited above, declares that the locators of all mining locations shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their location; and also the exclusive right of possession and enjoyment of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes or ledges may -so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of said surface location. The surface side lines, extended downward vertically, therefore determine the extent of the claim, except when in its descent the vein passes outside of them, and the outside portions are to lie between vertical planes drawn downward through the end lines. The difficulty in the present case arises from the course of the vein or lode upon which the Amy location was made. It is evident that what are called side lines of the location, as shown in the diagram, are not such in fact, but are end lines. Side lines, properly drawn, would run on each side of the course of the vein or lode distant not more than three hundred feet from the middle of such vein. In the Amy claim the lines marked as side lines cross the course of the strike of the vein, and do not run parallel with it. They, therefore, constitute end lines.- • It is true the lines are not drawn with the strict care and accuracy contemplated by the statute, and which could only have been done with more perfect knowledge of the true course or strike of the vein from further developments. But, as was said in this court in Iron Silver Mining Co. v. Elgin Mining & Smelting Co., 118 U. S. 196, 207, 6 Sup. Ct. 1177: ‘If the first locator will not
We understand that the United States supreme court not only reversed our judgment, but discarded as untenable the principle upon which we pronounced it. This decision was received with regret, not only by the bench and bar in the mining regions, but by both practical and scientific miners. The regret was greater in that the decision emanated from, as we said in the Amy & Silversmith case, “ Mr. Justice Field, the judicial father of the mining law in the United States, a jurist who has illuminated this topic of the law by not only his profound learning, but by his practical experience in mining affairs.
As an indication of the reluctance with which courts inferior to the United States supreme court have accepted the reversal of the principle of the Amy & Silversmith case we notice the case of Del Monte Mining & Milling Co. v. New York & L. C. Mining Co. (Cir. Ct. D. Colo.; March 13, 1895) 66 Fed. 212.
In that case the court had before it the conditions of an apex and strike passing through an end line and side line. Judge Hallett, district judge, to whom courts and counsel in the mining regions are greatly indebted for his learning, which has been applied to this class of litigation, said :
“ If the strike of the lode in the New York location kept its course from end to end of the location, the right to follow the lode outside the location would not be denied. As, however, it departs on its strike from the location on the east side, and not from the north end, it is said that the claim has no end lines, or, at all events, none that can be recognized as limiting the right to any part of the vein outside of the exterior lines of the claim. This is asserted as a proposition of law deducible from several decisions of the supreme court that the lines of a location crossed by the apex of a vein on its strike shall, as to such vein, be regarded as end lines, whatever their position may be; and, if this proposition be accepted, the south end line and east side line, intersected by the outcrop of this lode,
It is also true that in Judge Hallett’s case the facts differed from the Amy & Silversmith, in that the apex crossed a side line and an end line, instead of two side lines as in the Amy & Silversmith case. But Judge Hallett applied the principle of the Amy & Silversmith, and he so applied it after, as we understand, the United States supreme court had repudiated it.
One month after Judge Hallett’s decision — that is, on April 15, 1895, — appeared the decision in the United States supreme court in last Chance Mining Co. v. Tyler Mining Co., the case which we have formerly encountered in 54 Fed., 4 C. C.
“Our conclusions in this respect obviate the necessity for considering another very interesting and somewhat difficult question presented by counsel. It will be seen from the diagram that according to the original location of the Tyler claim the vein enters through an end, passes out through a side line, while by the amended location it passes in and out through end lines. Of course, if the latter is a valid location, the owner of the claim would unquestionably have the right to follow the vein on its dip beyond the vertical plane of the side line. But, if it were not,- and the original location was the only valid one, has the owner the right to follow the vein outside any boundaries of the claim extended downward ? It has been held by this court in the cases heretofore cited that, where the course of a vein is across instead of lengthwise of the location, the side lines become the end lines, and the end the side lines; but there has been no decision as to what extraterritorial rights exist if a vein enters at an end and pass out at a side line. Is that a case for which no provision has been made by statute ? Are the parties left to the old rule of the common-law that the owner of real estate owns all above and below the surface, and no more ? Or may the court rely upon some equitable doctrine, and give to the owner of the vein the right to pursue it on its dip, in whatever direction that may go, within the limits of some equitably created end lines ? If the common law rule as to real estate obtains in such a case, then, of course, on the original location the owners of the Tyler claim would'have no right to follow the dip of them vein outside the vertical plane of any of its boundary lines; and, even if the amended application was perfectly valid, the question would arise whether the rights acquired under it related back to the date of the original location, or arose simply at the time of the amendment, -in which case there would be no doubt of the fact that
Mr. Justice Brewer wrote the opinion. There was no dissent. We assume that Mr. Justice Field concurred. The fact that the United States supreme court said in this case (with the justice concurring who wrote the Amy & Silversmith decision) that it had never given any decision as to what extraterritorial rights exist if a vein enters at an end line and passes out at a side line, we think is a sufficient warrant to us to reopen the discussion as to what principle of decision should apply in these irregular locations.
We can see but two solutions of the difficulty presented in this case: One is to say that when the apex and strike cross a located side line, such side line becomes an end line, in accordance with what we understand to be the decision in the Flagstaff case and in the Amy & Silversmith case in the United States supreme court. The other is to apply the Amy & Silversmith doctrine as announced in 9 Mont.
We will examine what seems to us to be the legitimate results of the first proposition. Turning again to the diagram, Fig. 1, the located east end line of the Niagara claim must still remain an end line. "It was located as such, if that means anything; and the apex and strike pass through it, which fact, under any view, means everything. So this line is, and must remain, an end line. Then we have the south side line of the Niagara, also an end line, because the apex and strike pass through it. So we have two end lines not parallel to each other, but at an angle to each other not far from a right angle. But the end lines must be parallel. The result is that the Niagara cannot follow its dip at all. But the statute says it may follow the dip. These difficulties do not come to us at all as a surprise. We clearly foresaw them, and pointed them out in the Amy & Silversmith case, 9 Mont. 571, 24 Pac. 200. Thus we find that the Niagara claim, under these views, must be relegated to the common law. It owns downward inside of the perpendicular planes of its surface lines. But this result is not
For example, again, in this case, reverse the the direction of the dip, and assume that it goes north, then the Niagara people would take all of the vein between the downward planes of the end line and side lme, — the lines E F and E EL on the diagram. They would get a fan-shaped section of the vein, rapidly increasing in size with every foot downward. That is to say, such would be the result, unless we adhere to the common law rule, and have no extralateral rights at all. The plain fact is that to call the side line an end line in this case leads us into consequences that totally upset the .whole intent of the law. We cannot subscribe to any such doctrine. These contemplations are not at all new to us. We pointed out these difficultions and absurdities in the Amy & Silversmith case, and we then hoped that they would not again threaten the disturbance of the rights intended to be given by the mining statutes. We feel now, as we did in the Amy & Silversmith case, that we are not able to take the responsibility of any such destructive construction. And why, indeed, should a located side line be converted into an end line by a court ? The locator never so intended it. ELe made the side line the long line, 1,500 feet in length, intending it to be generally parallel to the vein. The, law never intended that such a side line should be an end line.. If the side line is to become an end line and the end line a side-, line, then the court working this readjustment of the lines: puts the side lines at a distance from the center of the, lode-, much greater than 300 feet. What would be done with those-lines, and this extra surface taken in by them ? Shall they be; left so that they will include 1,000 or 1,500 feet in width when»
As we leave this confusion, and turn to the other solution, —that of the Amy & Silversmith case in 9 Mont., — difficulties disappear, and there is light upon the whole path. We can, then, do, as the United States supreme court said in its decision in the Amy & Silversmith case, on page 228, 152 U. S., and page 510, 14 Sup. Ct.: “The most that the court cando, where the lines are drawn inaccurately and irregularly, is to give to the miner such rights as his imperfect location warrants, under the statute;” that is to say, we can give to the miner, or rather the law, as we construe it, gives to the miner, as much length of strike, no matter how deep he goes upon the dip, as he has length of apex; and he loses in strike and dip only what he has failed to get in apex. That is what the district court, in this case, following the Amy & Silversmith case, 9 Mont. 543, 24 Pac. 200 accomplished. It gave to the Niagara the ore on the dip east of the point where the apex and strike crossed the south side line of the Niagara. This is what the circuit court of appeals did in Tyler Mining Co. v. Sweeney, 4 C. C. A. 329, 54 Fed. 284, and Last Chance Min. Co. v. Tyler Min. Co., 9 C. C. A. 613, 61 Fed. 557. This is what the circuit court of the District of Colorado did in Del Monte Min. Co. v. New York & L. C. Min. Co., 66 Fed. 212. This is what we understand the United States supreme court suggested in Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 15 Sup. Ct. 733, that it might do.
The language of Judge Hawley and Judge Hallett in those decisions is very apt when they suggest that, if the apex and
' Perhaps we can more effectively describe the principle for which we contend as follows: Put one side of a square on the located east end line of the Niagara (line B D, Fig. 1), and let the other end of the square be long enough to reach the point where the strike and apex leave the Niagara ground (point A, diagram); then run this square up and down the east end line (line D B, diagram), and that line extended south, and run the square all over the perpendicular plane of this line; then the successive points which the long end of the square reaches will be the points beyond which, to the west, the Niagara people may not follow the vein on the dip, and beyond which, to the east, the Black Bock people may not come. Thus the Niagara is keeping upon the dip of the vein within its end lines, and it is not following the strike of the vein outside of any line. The principle might also be further illustrated by imagining a pair of draftsman’s parallel rulers. One ruler is placed on the east end line of the Niagara (the line B D); its parallel is pushed out to the point where the apex crosses the side line (the point A), and set. The plane dropped perpendicularly from the westerly ruler would form
Of course we understand the difference between the doctrine of the United States supreme court, which commences with the Flagstaff case, and received its last treatment in the Amy & Silversmith case, and our theory which we held in the Amy & Silversmith case. The supreme court doctrine seems to be that the side lines which are marked as such on the ground, namely, the 1,500 feet lines, as the side lines, and the 600 feet lines as the end lines, are not in fact the side lines and end lines; but what are the side lines and the end lines is to be determined by the subsequent demonstration of where the apex and strike cross the locator’s lines; The trouble with the theory is that it leaves the determination of the boundaries to subsequent development, which may require years, and it calls that an end line which was never located as such, and it makes the side lines 600 feet long only, when the statute says they may be 1,500 feet, and makes the end lines 1,500 feet long when the statute says they shall not be over 600, and it gives a surface of more than 300 feet on each side of the center' of the lode. We cannot be persuaded to think that this is the intent of the statute. As we noted in the Amy & Silversmith case, the difficulties of this construction did not fully appear in the Flagstaff and Argentine cases, where, as we understand, the strike and apex of the vein were practically at right angles to the length of the location. (9 Mont. 574, 24 Pac. 200.) But the theory meets great difficulty when' applied to veins which have a general course lengthwise of the location, and which happen to slip out of the location by a side line before the end line is reached.
Again, we fully understand that the situation in the case at bar and the Tyler case and the Del Monte case differs slightly from that of the Amy & Silversmith case. In the Amy & Silversmith the vein passed through two side lines. In the case .at bar and the other cases it passes through a side line and an end line. But we contend that the same reasoning applies to both situations; that is, that the miner shall have as much vein
What we contend for is a uniform construction of the law; a construction which will give the vein on the dip to every locator who has the apex in his location, and not give it to one who has the apex, and withhold it from another who as fully has the apex; that shall give it to the Amy & Silversmith and the Niagara as well. Let us do this, and make estates in mines uniform under the law. This seems to us more reasonable than to apply a construction which will give to one locator the estate which the law contemplates and deny it to another.
The United States supreme court in Last Chance Mining Co. v. Tyler Mining Co., 157 U. S. 683, 15 Sup. Ct. 733, observing the possibility or probability of being at some time obliged to apply its Flagstaff and Amy & Silversmith rule to the situation of a vein passing through a side line and an end line, seemed to shrink from the consequences of the doctrine (consequences which we pointed out in our opinion in the Amy & Silversmith case, 9 Mont., at page 571, 24 Pac. 200), and stated that they had never decided what extralateral rights existed in such a situation. They also said : ‘ ‘ May the court rely upon some equitable doctrine, and give to • the owner of
We have hereinbefore, and especially in the Amy & Silversmith case, given the reasons for our belief that such a doctrine can, by a slight effort, be reconciled with the former decisions of the United States supreme court, and that, as Judge Hawley said in the Tyler case, 4 C. C. A. 329, 54 Fed. 292, “this, upon principle, justice, and authority, it seems to us, is the only reasonable construction that can be given to the statute.” We now feel at liberty to follow our convictions and our belief that our view of the law is correct,, by reason of the indication given by the United States supreme court (157 U. S. 688, 15 Sup. Ct. 733) that they are willing to reconsider (or, as the court puts it, consider) this important principle in the construction of section 2322, Rev. St. U. S. We shall accordingly adhere to the principle of our Amy & Silversmith decision, and hold in this case that the judgment of the district ’ court. was within the law when it gave to the Niagara people the ore found on the dip of the Niagara vein south of their south side line, and east of the point where the apex and strike of the Niagara vein crossed the bounding side line between the Niagara and the Black Rock.
The appellants also rely upon some alleged errors in the instructions. It is contended by respondents that the errors in the instructions are not properly excepted to. Respondents cite cases from this court upon that subject. But we think the-proper contention should have been as.to whether the errors were specified on the motion for new trial. We are not satisfied that the specification was insufficient. We shall not, however,, pass upon that question, as it has not been clearly or fully argued, and the question of practice is a delicate and troublesome one; but will proceed to an examination of the,instructions. Our doing so cattnotbe a matter of complaint to
Appellants complain that the court instructed the jury in reference to following a vein on its dip beneath the surface, but did not in this instruction inform the jury as to the matter of the parallel end lines. If the appellants mean that the court did not instruct as to the parallelism of the end lines as located, it is sufficient to reply that no contention was made upon this point. The parallélism of the located end lines is conceded, and the court, having adopted the Amy & Silversmith doctrine of this court, proceeded, of course, upon the theory that the original end lines continued to be the end lines.
The Black Bock people contended upon the trial that the ‘ ‘ ore bodies ’’ in question were upon a vein the apex of which was wholly within the Black Bock ground; This was called the “Stoner Vein.” The apex of the Stoner vein, it appears, was on the Black Bock ground. One of the great contentions of fact in the case was that the Stoner vein, from its apex down to the ore bodies, was a continuous vein. Upon this contention, as noted in the statement of the case, the Black Bock failed. It seems to have been established by the decision that the Stoner vein was not continuous to the ‘‘ ore bodies.’ ’
In instructing the jury upon this contention, the court gave them the following: “If you find from the evidence that what has been called in the evidence the “ Stoner Vein ’ is a separate and distinct vein from what is called the “ Niagara Vein,’ and that the apex of said Stoner vein is inside the boundaries of the Black Bock claim, and also find that said Sooner vein connects with said Niagara vein at some point below the surface of the ground, and that such connection is made by following a continuous streak or body of quartz or ore, or by passing through vein matter as defined in these instructions, or by following such material or indications as a practical miner would follow with the expectations of finding ore, then, in such case, defendants are entitled to and are the owners of all quartz, ore, and mineral-bearing rock contained
This instruction, as we have just quoted it, was that submitted. The court, in giving it, struck out the portion which is in italics. Appellants complain of error in striking out that portion. We think in this the court was correct. The question was a geological one, — that is, whether the Stoner vein, in its downward course, connected with the Niagara, — and the court instructed how such connection would be made; that is, by following a continuous streak or body of quartz or ore, or by passing through vein matter, as defined in the instructions. This was a question of geology and of facts in nature. It would have left it to the. jury entirely too indefinitely to have told them that they could find a continuous body of ore by following such indications as a practical miner would follow with the expectation of finding ore. We do not think that this is the method by which geological facts can be established. The application of such language as this which was stricken out of the instruction must not be confused with the use of similar language in reference to finding ore sufficient to support a location of a mine. When it is said that a location may be sustained by the discovery of mineral deposits of such value as to at least justify the exploration of the lode in the expectation of finding ore sufficiently valuable to work (Shreve v. Copper Bell Min. Co., 11 Mont. 309, 28 Pac. 315, and cases therein reviewed), it is a very different question from telling a jury that the geological fact of the continuity of a vein to a certain point may be determined by what a practical miner might do in looking for some hoped-for continuity.
Objection is made to instruction No. 15, in that, as it is contended by counsel, the court assumed that the respondents had established a right to recover. But the court did not make this assumption. The instruction opens with the following language: “Plaintiffs having the burden of proof, they must
Another instruction objected to by appellants is as follows: ‘ <In estimating the value of the ore extracted from the Niagara claim, you will take as a basis therefor the market value of such ores on the dump of the claim, after deducting the cost of mining and hoisting the same. ’ ’
The objection which appellant makes to this instruction, as he states it in his brief, is that he was not a trespasser, and was entitled to his actual expenses in extracting and treating the ore, provided the expenses are reasonable, and as low as the work could be done. He cites us to a number of cases involving questions of accounting between cotenants when one tenant has made necessary improvements on premises, or has extracted ore therefrom.
We are of opinion that the instruction places the appellant upon precisely the ground which he himself claims. The court says that the basis of computation shall be the market value of the ore on the dump after deducting the cost of mining and hoisting the same. By the instruction the appellant is given credit for the cost of mining and hoisting, just as he claims should be. Furthermore, we think that the instruction, by its only reasonable construction, gives the appellant the expense of smelting and reducing the ore. The court says that the basis shall be the market value of the ore on the dump. What is market value ? It is certainly that price for which the ore could reasonably be sold on the market. That market value would, in the mind of a buyer, be necessarily determined by deducting the cost of reducing the ore; that is to say, if a purchaser compute what he would give for the ore he would figure the value of the same on the dump, and then he would deduct from that value the cost of reducing the ore to bullion, and, having deducted that cost, he would make a bid for the ore, and this would constitute the market value. No one could possibly contend that the market value of crude ore was the value of fine silver in such ore. On the other hand, the market value would be the value of fine silver, less the expense of
Appellants object to the refusal of the court to give the following instruction: “The jury are instructed that if they believe from the evidence that the side lines of the Niagara location are practically perpendicular to the vein, then the side lines of said location become the end lines, and the plaintiffs cannot claim the dip beyond the side lines. ’ ’ But there was no evidence whatever in the case, and no contention, to support any such instruction. The side lines of the Niagara not only are not practically perpendicular to the vein, but they are practically not far from parallel to the same. There were no facts in the case to warrant the giving of such an instruction.
Appellants also urge error in the exclusion of certain testimony of a witness — -William E. Hall — offered to be introduced. Mr. Hall was a practical miner. He testified as to what is known as the ‘ ‘Rainbow Lode’ ’ in the Butte district. He said that it was his opinion that the vein on the Black Rock was a part of or an extension of the Rainbow lode. He had examined the Black Rock mine. He saw a fault in that mine. Appellants then offered to prove by Mr. Hall that he had worked five claims on the Rainbow lode, and that the faults which he had found on the Black Rock are characteristic of the Rainbow vein. The testimony was objected to, the respondents stating that, if the appellants intended to prove that this fault in the Black Rock extends to the Alice mine, with which mine Mr. Hall was familiar, they would not object. Appellants stated that they did not intend to prove this. The court sustained the objection, remarking, “If it is for the purpose of attempting to show a condition of affairs here (that is, in the Black Rock) by comparison of what exists in the Alice, or in any other ground outside, unless it is shown that there is a continuity between the conditions which exist there and the conditions found in this ground, ’ ’ the evidence will not be admitted. The objection was sustained.
We are of opinion that the learned judge of the district
Again, appellants contend that the judgment should be reversed because the appellant’s counsel were not present when the verdict was rendered, and thus had no opportunity to poll the jury. Appellants’ counsel had made arrangements with the bailiff that when the jury agreed upon a verdict, he, the bailiff, should call counsel. This was a matter wholly out of the court, and had no place in the proceedings in the court. It appears that the jury came in at a time when all the counsel were absent. The bailiff omitted to send for appellants’ counsel. The counsel made the bailiff his agent for this purpose, and, if such agent omitted to do that which he had agreed to do, we are not prepared to reverse this case for that reason. When it is the fact that the counsel had the privilege of being in the court, if he wished, when the verdict was received, and his accidental absence at that time was not owing to any order or any action of the court, or any conduct by the counsel or parties on the other side, we shall not reverse this judgment for any such reason.
Another ground set up for the granting of a new trial is the alleged misconduct by juror Hess. Hess makes an affidavit that he was ill, and that he agreed to the verdict in order to get discharged from service. But this juror never made any complaint to the court of his illness. When the jury came in and rendered its verdict, he said nothing to the court, and there was no intimation that he was ill, or needed any medical attendance. His alleged illness, and thereby his alleged coercion into the verdict, never appeared until after his discharge and his making an affidavit for the benefit of the appellants. The case was an equity one, the findings were advisory, and
It is also attempted to be shown in juror Hess’ affidavit that the bailiff in charge of the jury was guilty of misconduct. The story that juror Hess tells about the conduct of the bailiff bears upon its face all the appearances of absurdity. Perhaps the district court would have been perfectly justified in disbelieving Hess’s statements in regard to the bailiff without any contradiction, but the affidavit was contradicted in many respects. .The district court was perfectly justified in paying no attention to the showing attempted to be made by the Hess affidavit.
Having reviewed all the questions raised in this case, it is ordered that the judgment, and the order denying a new trial, be affirmed.
Affirmed.
