23 P. 547 | Idaho | 1890
Lead Opinion
(After Stating the Facts). — There are three principal points in this case: 1. Is the plaintiff the owner of the mining grounds claimed by him, so as to be entitled to invoke the aid of this court to prevent the acts complained of ? 2. Is
As to the question of nonjoinder of parties plaintiff, that is not properly in issue on an application for an injunction against ..the acts of a stranger to the property threatened with injury. A party may intervene to protect by injunction his own interests, as well as the interests of his cotenants. But, if this were otherwise, the deeds to plaintiff introduced in evidence on the hearing cover all the interests of each of those persons in each of the three claims alleged by the plaintiff to belong to him, except said W. B. Heyburn, who is not shown to have any interest in either of said claims; and from the evidence there appears to be no ground for such claim.
We may first inquire, then, as to whether the plaintiff has shown sufficient to give him a standing in court. This case seems to have been tried, in part at least, upon the theory and tacit understanding that prima facie proof of the plaintiff’s title was all, on the question of location, that need be shown in such a case as this. After some evidence had been put in by the plaintiff tending to show the validity of his location of the Apex claim the court asked: “Are you gentlemen going into matters showing everything which goes to show a valid location? Plaintiff’s Counsel: We do not want to. Defendant’s Counsel: We do not either. Plaintiff’s Counsel: We just propose to make a prima facie case” — and passed immediately from the subject of the Apex location (which to that point had been the subject of the evidence) to the location of the Kambler. This may not be considered as a stipulation releasing the plaintiff from the obligation to introduce further evidence on the location of the Apex, or that the evidence already in made a prima facie case of location; but it seems to express the mutual understanding between the court and the counsel on either side as to the theory and rule of law on which the case was to be heard and determined; and may well have had an effect in restricting the amount of evidence which either side might deem necessary after making a prima facie case. It is not to be presumed that the defendant, on a preliminary motion, and especially under such circumstances, would introduce all the evidence he would on the trial.'
We may then turn to the main and last consideration in this case, and inquire whether the evidence taken shows that the injury complained of is in fact being done. We have before said that, prima facie, a miner is confined within the boundary lines of his claim. Section 2322 of the Bevised Statutes of the United States, provides, among other things, that the owner of a mining claim “shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and 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.” The claim of the defendant is that the veins of ore on which the defendant admits it is working are veins, the top or apex of which lies inside of the side lines of the Sierra Nevada claim. On the other hand, the plaintiff avers that the apex of such veins is not within the side lines of the Sierra Nevada claim, and hence that the defendant has no right to follow it within the plaintiff’s lines. His theory is that the true apex of the lode is in his Apex claim, and that its strike is nearly at right angles with the western side line of the Sierra Nevada claim, and that the dip of the vein matter is more to the south than is claimed by the defendant. But the plaintiff also urges that, wherever the apex of this vein may be, or if it have no apex at all, but is simply a blanket vein, if its apex be not between the defendant’s side lines, the defendant has no right to follow it into the plaintiff’s grounds, or within the boundaries of the claims of which the plaintiff is in possession. That is a proper construction of the law. The defendant’s right to that ore, if he have such right, must be based solely upon the fact that the vein has its apex within its own side line. The difficulty in determining this matter is greatly increased by the
It is proved without a question that the plaintiff sunk a shaft from about midway between the side lines of the Apex claim, ■and near the eastern end line, in what is described as 'ledge matter,” consisting of quartzite, talc, and some ore, at a considerable deflection to the south from a vertical line, following the dip of this so-called “ledge matter” in its several variations, but always inclining to the south, a distance of about one hundred and fifty feet, and was led thereby upon and into the underground workings of the defendant; that such shaft, in its descent, when the defendant’s work was struck, had passed beyond the side line of the Apex claim, a considerable distance into the Eambler grounds; that in the descent the plaintiff found some ■ore before reaching the defendant’s works, and had put some in sacks before reaching the lagging over the defendant’s tunnel. This so-called “ledge matter” is testified to as continuous. It is55 worthy of note that the ore which the defendant was tunneling and stoping out was, in character, carbonate and galena.
Tunnel A is a working tunnel, and some distance below the plane of the mineral and of the tunnels upon the ore. All the tunnels, B, C, D, E, are claimed by the defendant to enter on the outcrop of the ledge; but the elevations marked on exhibit "X” show that such outcrop is not an apex or crest of a vein dipping laterally from it, but that it is an outcrop on the mountain side of a mineral deposit, nearly horizontal in position, but rising slightly as it recedes into the hill, and at right angles with a line formed by the mouths of these tunnels. All these tunnels run on the footwall, or. rather on the bedrock or floor of the ore deposits. Here there can be no dispute as to the respective elevations of the mineral at the points named. The elevation of the bottom of the mouth of tunnel B is three thousand four hundred and fifteen feet. At its face, in the Rambler claim, it is three thousand four hundred and nineteen feet — a rise of four feet. The elevation at the mouth of tunnel C, distant from B about one hundred and fifty feet, is three thousand four hundred and thirty-eight feet. At a point a little over
Bpt, further considering the tunnel developments, there is not one of them that does not leave the line of the Sierra Nevada outcrop, practically, at right angles to it — each, as testified by the defendant’s witnesses, upon a vein of mineral, and pursuing an almost due.westerly course; .tunnel B, at least, running over six hundred feet — and all ending among the stopes, uniting these tunnels at their westerly ends. Not one tunnel indicates a lead in the direction of what the defendant claims as the apex of its mining claim; but all of them do indicate an extension of the mineral belt or zone westerly, at almost right angles from the defendant’s outcrops, longitudinally with the side lines of plaintiff’s claims, through and westerly of 'the point reached-by the-plaintiff’s shaft, from what is called the "discovery point” of the Apex claim, the bedrock or floor of the whole system rising slightly from the outcrop on the Sierra Nevada as the system, zone, or mineral belt and the defendant’s tunnels reach to the
From these and other like facts, it seems to us as plain that defendant shows no reason whatever to justify it in extending its works, and extracting the ore in this mineral ground west of its own side line of the Sierra Nevada claim, and within the boundary lines of the plaintiff’s mining claim. The order denying the injunction should be overruled, and a temporary injunction should issue, as prayed in the complaint. It is so ordered.
Concurrence Opinion
Specially Concurring. — Upon the record we have in this matter, were it a hearing upon the merits, I would hesitate to agree to a reversal; for, from the examinations I have been able to make of the testimony, I think its weight seems to be with the defendant. This, however, is not to settle the title to the ground in controversy, but only to preserve its value until that title can be settled upon full hearing. Admitting the defendant is right, the inconvenience to it from an injunction will be less than' would be the damage to plaintiff should he prove to be right. Always, in questions of injunction oh the working of mines, the doubt should be resolved in favor of granting the writ. There is evidence for and against plaintiff’s claim of a ledge in his Apex ground, and in the shaft therein ; but the undisputed fact, which with me is almost controlling, is that the various workings of the Sierra Nevada show a nearly flat vein, with a much more decided dip to the south than to the
Dissenting Opinion
Dissenting. — The plaintiff is the owner of what is termed the “Apex mining property,” situated in Yreka mining district, Shoshone county, Idaho. This property is composed of three claims, called the “Tip Top,” “Apex,” and “Rambler.” The defendant, a corporation, is the owner of the Sierra Nevada mining claim. The properties of plaintiff and defendant join, the three first-named claims lying along the west side line of the Sierra Nevada. Plaintiff asks that 'a writ be issued, restraining the defendant from mining and extracting ore from within the grounds of the Rambler mining claim. Defendant admits that it is extracting ore from within the lines of the Rambler, but avers that it has a lawful right so to do, by reason of the alleged fact that in crossing the west side line ci the Sierra Nevada, and entering the ground of the Rambler, it is following a vein upon its dip, the apex of which is within the boundary lines of the Sierra Nevada. Plaintiff admits that, if defendant is following a vein upon its dip, the apex of which lies within the defendant’s lines, it has, a perfect right so to do, but avers that defendant is not following the vein upon its dip, but upon its strike. It is conceded by counsel that the vein in controversy is situated on or is a part of the great mineral ledge or vein beginning with the Sullivan, in Milo gulch, and extending to the Eureka, in Government gulch, a distance of about two
rf the general strike or trend of the vein is in an easterly and westerly direction, it must necessarily cross the side lines of the Sierra Nevada on its strike; and, if it so crosses the Sierra Nevada on its strike, it must pass through the Apex property on its strike, and its true dip would, under the showing made, be to the south. If, on the other hand, the general strike or trend of the vein is north and south, and admitting that it crosses the Sierra Nevada in a northwesterly and southeasterly direction, then, as a matter of course and as a matter of fact, its true dip could not be either to the north or south. It must be either to the east or west, or to the southwest or northeast, depending upon the question as to whether there is a considerable variation in the vein from a direct course of north and south. It is not necessary for me to deal extensively with the authorities cited, for the reason that no serious legal propositions are in dispute. As before stated, it is almost entirely a question of fact; certain legal propositions being, perhaps, more or less involved.
I cannot assent to the conclusion that it is the duty of the defendant to show that plaintiff is not the owner of the surface ground embraced within the lines of the Bambler. I believe the correct determination of this phase of the question to be as follows: Plaintiff must show, by a preponderance of evidence, that he is entitled to the writ asked for by reason of his ownership of the ground, and must also prove his ownership of the ground by a preponderance of testimony. Having established his title to the Bafnbler (sufficiently, at least, for the purposes of this action), and thus becoming the legal owner, prima facie, of all ore found within its boundary lines, it would devolve upon defendant to show by a preponderance of testimony that it was
The court in this instance would not, of course, try the title to the surface ground of either of the properties involved. It would devolve upon the plaintiff, however, to show prima facie, a valid location; and this must depend, first, upon a valid discover, otherwise plaintiff would simply appear on behalf of the United States to enjoin the defendant from mining in ground that did not belong to it, or from unlawfully following its vein beyond its side lines. Such a position is not assumed by plaintiff, but reliance is placed upon the prima facie discovery.
Plaintiff seems to rely upon two theories, as nearly, at least, as I am able to ascertain his exact claim. One is that his location is based upon the actual discovery of the Sierra Nevada vein, as the term "vein” is commonly understood, within the lines of the Apex; and that the Sierra Nevada location was made upon the same vein as it extended in an easterly and westerly direction through the ground covered by the Sierra Nevada- location. It is also proposed to place this ease within the rule laid down in Eureka Con. Min. Co. v. Richmond Min. Co., 4 Saw. 302, Fed. Cas. No. 4548, reprinted in 9 Morr. Min. Rep. 578. At least, whether plaintiff relies upon the Eureka v. Richmond decision or not, the opinion presented is based upon that theory. This may be due to the fact that counsel for plaintiff, during his very forcible presentation of the case, always referred to the vein as a zone or belt. In the opinion rendered, it seems to be treated as a zone or belt. The conclusion must be reached, not from the evidence submitted in the case, but from the declarations of counsel. This theory is that what has heretofore been called a “vein,” extending from the Sullivan location in Milo gulch to the Eureka location in Government gulch, is
Having defined a “lode,” within the meaning of the act of Congress, to be, under some circumstances, a zone or belt of mineral, Justice Field discusses the vein in controversy in the Eureka-Richmond case, and says: “We find that it is contained within clearly defined limits, and that it bears unmistakable marks of originating, in all its parts, under the influence of the same creative forces. It is bounded on the south side for its whole length, at least so far as explorations have been made, by a wall of quartzite of several hundred feet in thickness, and on its north side, for a like extent, by a belt of clay or shale ranging in thickness from less than an inch to seventy or eighty feet. At the east end of the zone, in the Jackson mine, the quartzite and shale approach so closely as to be separated by a bare seam less than an inch in width. From that point they diverge until, on the surface in the Eureka mine, they are about five hundred feet apart; and on the surface in the Richmond mine, about eight hundred feet. The quartzite had a general dip to the north at an angle of about forty-five degrees; subject to some local variation. As the course changes, the clay or shale is more
Thus, in the Eureka case, we have a belt of mineralized limestone, lying between formations of quartzite and shale. The ore is found in pockets or bodies, regardless of any uniformity in course, except as to the general course of the entire belt. Justice Field also defines a “lead” to be a vein or seam or strata indicating mineral, and, followed by the miner, takes him to the body of ore he seeks. Of course, it is understood that this vein or seam or strata must be in place; and by being “in place” it means that the mineralized substance, whatever it may be, is presented in a separate and distinct form from that which lies upon either side of it; although, perhaps, it is not necessary for the discovery that both walls be perfectly defined, and the vein, as a fissure vein, be perfectly demonstrated.
Plaintiff does not pretend that he has a vein of pay ore from the surface in the Apex ground to the point where the workings of the Apex come in conflict with those of the Sierra Nevada. He claims a seam of mineralized talc, iron, and quartzite, considered by him as an indication of ore, and that, as a miner, he believed would lead him to ore. Starting on this seam at the surface, he followed it until he reached the workings of the Sierra Nevada, and he therefore claims that the finding of ore justified his theory in following the indications mentioned. To justify the location of material of this sort in the mind of a practical miner, and in the absence of knowledge on his part that he would find a body of ore by sinking the shaft, whether he had indications of mineral or not, it is doubtful if he would expend very much money in following such an indication, unless it lay between well-defined walls, and was, in fact, a fissure vein. Then he would spend a large or a small sum of money, depending upon how strong the indications were, and whether or not he might be an adventuresome or a very conservative miner. In this case the plaintiff was bound to discover the ore, because the defendant was already taking it from the ground beneath his shaft; and, as a matter of course, it was only a ques
Again, the quartzite belt is not sufficiently defined by any of the witnesses to authorize a court in sending the question to a jury on that issue. There must be something more to this belt to make it a mineralized zone, within Justice Field’s decision, than iron-stained quartzite. By the witnesses referred to, the Sierra Nevada vein is described as a very strong and powerful one. That it should stain the adjoining rock for a greater or less distance along its entire course is not at all remarkable, and would, perhaps, be expected. In defining the character of this fissure, the witnesses describe it as being incased within walls of quartzite, with a gangue between the ore body and the walls. The only thing to indicate that it is a part of a belt is that both walls are of quartzite, and this only demonstrates that it is not a contact vein.
To return to the theory that it is a belt or zone of mineral, composed of many veins and deposits, it must be borne in mind that no witness has defined it. In the Eureka case, the mineral belt, which was held to be a zone, was confined within well-defined walls of quartzite and shale; and the only thing remarkable about the vein in that case was its extraordinary width and narrowness at different places. There is no evidence whatever as to the well-defined limits, or as to the lead in question being incased between walls of any character. Proceeding on this theory, the plaintiff followed a seam composed of tale, iron, and
In passing from the belt or zone theory of the plaintiff (if it ma,y be said that the plaintiff has any such theory), which is,, that a location anywhere on the belt, outside the lines of any other valid claim, is good, I can state that, if plaintiff had established a case sufficient to bring the issue at bar within the rule laid down in Eureka Con. Min. Co. v. Richmond Min. Co this investigation would assume more difficult proportions. Within the zone or belt theory, a location was made upon the Apex and Eambler. The examination of the witnesses shows that the discovery amounted to iron, manganese, and iron-stained quartzite. So far as any evidence has been introduced on the subject, such is the general character of the entire mountain. Again, I say, whether this mountain is in itself a vein,, lying between distinct formations and containing different veins and pockets, as in the Eureka-Eichmond case, there is not sufficient evidence to show; and, unless it does come within that rule, it is clear that no valid discovery was made on these claims lying to the west of the Nevada, unless the course of the vein is east and west, and not northwest and southeast. Under the theory adopted in the opinion just submitted, the location of the Apex is valid, because, if I correctly understand it, it is. higher on the surface of the mountain than the location in the-Sierra Nevada. Carrying out this theory, if the entire mountain is a vein, the one who finally locates on the very summit has the apex of the vein. Three or four locations of this character, if such reasoning be correct, will secure all the ore in the Coeur d’Alene.
Plaintiff, however, maintains that the true dip can and should be ascertained from the workings within the Sierra Nevada. The defendant relies upon what the workings in the mine demonstrate, as well as upon the well-known course of the vein. I am of the opinion that the true dip of this vein may be more correctly ascertained by examining the map showing the general course of the vein along its entire known length, in connection with the workings, than by attempting to settle it from the dip in the comparatively few feet exposed in the workings of the Sierra Nevada.
It is claimed by plaintiff that the general course is easterly and westerly; and by the defendant, that it is northwest and southeast. Plaintiff urges, in vindication of his theory, that, while the vein dips to the southwest, it dips to the south more than to the southwest, and that this fact is demonstrated by the
Conceding that the true course of this vein is northwest and southeast, the true dip, at right angles with that course, would be southwest; which would certainly be parallel with the Nevada end lines, making said end lines practically at right angles with the true course of the vein, and the side lines substantially parallel therewith. This conclusion as to the dip and strike of the vein is based upon taking into consideration the entire course of the vein between the points indicated, the statements of witnesses, and the admissions of counsel. I do not believe the true dip of this vein can be ascertained from the underground workings in any one ruine on its course, at the depth as yet attained by any of these properties. No doubt the entire vein runs in waves, as it crosses gulches and climbs mountains, until it straightens up under the mountains, or passes beyond the effect of surface disturbances.'