83 P. 648 | Utah | 1905
after stating the case as above, delivered the opinion of the court.
The main question, which resulted from the issues raised by the pleadings that formed the basis of inquiry and submission at the trial and which we will consider in the first instance, is whether the court erred in finding that the- vein or lode mentioned in those pleadings, at its apex and on its northwesterly course or strike, crosses the western side line of lot 38 and wholly departs from that lot at a point 690 feet north of its south end line, and north of that point does not
In determining this question the surface of lot 38, the ex-tralateral rights of that lot, the dip and strike of the vein, and the underground workings of the mines are important factors. The extralateral rights, upon which the appellant has founded its claim to the ore bodies in dispute, accrued to it as owner of lot 38 by virtue of the provisions of section 2322 of the Revised Statutes of the United States [U. S. Comp. St. Ii901, p. 1425], whereby the owner of a mining claim has a right to follow, between vertical planes drawn downward through the end lines of the location, a vein having its apex within the limits of such claim on its dip to the deep, although such vein may so far depart from a perpendicular in its course downward as to extend outside of the vertical side lines of the surface location. The ore bodies in controversy, however, being located without the limits of lot 38, and underneath the surface of the Silveropolis and Consort mining claims, the appellant, notwithstanding the law of Congress, is met at the very threshold with the presumption that they belong to the respondent, the owner of those claims. Where a person, natural or artificial, owns a patented mining claim, although the statute reserves the right to locators of
“Within the lines of each location the owner shall be regarded as having full right to all that may be found, until some one can show a' clear title to it as a part of some lode or vein having its top and apex in other territory. To state the proposition in other words, we may say that there is a presumption of ownership in every locator as to the territory covered by his location, and within his own lines he shall be regarded as the owner of all valuable deposits, until some one shall show by preponderance of testimony that such deposits belong to another lode having its top and apex elswhere.” (Leadville Min. Co. v. Fitzgerald, 4 Mor. Min. Rep. 38; Con. Wyo. Gold Min. Co. v. Champian Min. Co. [C. C.], 63 Fed. 540; Doe v. Waterloo Min. Co. [C. C.], 54 Fed. 935; 1 Snyder on Mines, secs. 766, 783, 789.)
To overthrow this presumption and establish its right to enter its neighbor’s ground to extract ore, the burden of proof was upon the defendant, and it was incumbent upon it to show, by a preponderance of the evidence, not only that the apex and strike of the vein were in lot 38, north of the south end line of the Silveropolis mining claim extended, and to the 1,100-foot line, but also to show that, between planes drawn vertically downward through that end line and the 1,100-foot line, the vein from its apex on its dip was continuous; that its continuity extended to and through respondent’s ground; and that the ore bodies in question formed a part of the vein. In other words, the burden was upon the
We concede, as claimed by the appellant, that a patent to a mining claim raises a conclusive presumption that there is the apex of a vein within the patented ground (1 Lindley on Mines, sec. 305) ; but there is no presumption that it is the apex of the vein in dispute, and such presumption applies equally to the Silveropolis and Consort mining claims as to lot 38, and does not shift the burden of proof in this case as to the apex and continuity of the vein and ore in controversy. The appellant, however, insists that the evidence clearly establishes that the apex and strike of the disputed vein do in fact continue in lot 38 to and beyond the 1,100-foot line, that the vein is persistent in its continuity on its dip to the ore bodies in question, that such ore bodies constitute a párt of the vein, and that the court erred in its findings, inter alia, that the vein, at its apex and on its strike, wholly departed from lot 38 at the point designated, on a northwest course, because, as is claimed, the evidence is insufficient to sustain such findings. In reply to this contention, the respondent insists that as to whether the vein, claimed to include the ore bodies, at its apex and on its strike continues in lot 38 to and beyond the 1,100-foot line, or whether it departs wholly from that lot, on its strike, at the point found by the court, the evidence is conflicting, and invokes the rule, long firmly established within this jurisdiction, that where in a case in equity there is a substantial conflict in the evidence this court will not disturb the findings, unless they are so manifestly erroneous as to demonstrate some oversight or mistake which affects the substantial rights of the appellant. The appellant, however, claims there is no such conflict in the evidence as to
Respecting the geological features of the country in which the properties are located, there is practically no conflict. It is shown that the mines are found in a lime belt which covers about two square miles, and is the great producing area of the Tint-ic district. In some places the limestone beds are upturned, large areas tilted upon edge, the beds dipping nearly vertically down; while in other places they dip at lower angles, and in special areas the dips are quite uniform; and again, though, it seems, not frequently, anticlinals exist. This limestone is surrounded on all sides, except the north, by igneous rocks. The sedimentary rocks are broken up andfractured, evidently the'result of igneous intrusion. The limestone carries some iron, the different forms of iron oxide, also some manganese, and in places the limestone is crushed, crumbled, and brecciated. How these beds of organic sediment were dislocated, bent, and upturned is not free from doubt. Maybe, and most likely, these things were accomplished by some kind of volcanic action, which igneous intrusion indicates, and much fracturing may have been caused by internal shrinkage through nature’s cooling processes. Whatever the cause, the disturbance is apparent from the evidence. The surface of the limestone area, wherever exposed, is marked with innumerable seams, cracks, and small fissures filled with carbonate of lime, stainq¿ more or less with iron, and sometimes manganese. Quartz, spar, and other materials, characteristic, in general, of mineral-bearing limestone areas, are present, and in places the surface material is brecciated and recemented. A trace of minerals, of one or more of the preci-
The leading witness for the defendant, Mr. Akers, an expert of much scientific knowledge, after testifying that the Mammoth was a fissure vein, and that it was not an individual fissure, but consisted of a series or many approximately parallel fissures, or breaks, in the mountain fractures, said: “Taking this individual vein, this broad, beautifully defined fissure, that I personally have traced for a distance of between 3,000 and 4,000 feet on the surface, we find that it is clearly defined on the surface, and so clearly and distinctly differentiated from the adjacent country that I could identify all points generally along the course of that vein. I could stand at one end and, as far as the configuration or topography of the country permitted, see how that vein ran; and to guide me in the other direction, namely, the southerly, a portion of the ground not in controversy at all, I could see the vein there through extensive workings for say 1,000 or 2,000 feet.” And then, after refer■ring to the condition of the vein, the deposition of the ore by replacement or metasomatic change, the eroding of the surface, and to geological events which, he says, transpired in the making of the vein, claiming that the first great dynamic disturbance was the crushing that resulted in the formation of the Finn dyke, and that the second great disturbance, or convulsion, consisted of the fracturing of the great.mass of
While-the defendant’s witnesses are-emphatic in asserting an apex in lot 38, and clearly defined differentiation of the surface of that lot from the adjacent country, none of them attempted to locate upon the surface or fix the hanging or foot wall of the vein, north of the Silveropolis south end line extended, nor north of the point at the Cunningham stope, where the court found the vein departed from the lot; and yet, if its differentiation be so clear that, “to recognize its boundaries,” one, as claimed by Mr. Akers, need but look at the surface, aside from the open cuts, the query naturally and logically arises why, in a controversy of this magnitude, its vital and decisive point the apex of the vein, its boundaries were not traced and definitely fixed within the disputed territory. Why was such a point, where such immense interests are involved, and where counsel distinguished for ability were searching every nook, every avenue, for facts favorable to their cause, left to mere conjecture, to mere inferences from disputable surface appearances? The only answer which this voluminous record affords comes from the witnesses for the plaintiff, and that answer has the support of the findings of the court. These witnesses, after, looking at the same open cuts and tunnels, observing the material exposed, and
Dr. Talmage, a geologist and expert of eminent ability, who made his first examination of that section of country about 1884, and knew the surface boundaries of lot 38, upon further special examination of the open cuts and surface of that lot and of the country adjacent for the purposes of the trial, testified that there was “no surface evidence of an outcrop of a vein well defined farther north,” on lot 38, than “incline No. 1, just north of the Gulf stope,” and, after describing the open cuts and conditions on that lot and stating that the rock exposed in tunnel B was was country limestonewith cracks and fissures filled with calscpar stained with iron and manganese, he said: “Broto one end of the limestone area to the other I have failed to find any part of it where the limestone is exposed, that such conditions are not to befoundf’Mr. Tyler, also an expert of undoubted ability and of extended experience, after thorough examination of both properties, said that, outside of the dykes, the surface indications on lot 38,
The evidence also shows that numerous samples were taken from the various open cuts and exposures, but, with few exceptions, the assays of those samples, taken north of the Sil-veropolis south end line extended, revealed either nothing or but a trace in any of the precious metals, and the few exceptions yielded little more than a trace — simply such results as may be obtained, at least according to the evidence of the plaintiff, in many portions of that limestone country where no vein exists, or beyond the limits of any vein. An examination of the evidence discloses the fact that the witnesses on one side differ widely from those on the other in their statements respecting an apex at the surface in -lot 38 north ■of the Cunningham stope, and in numerous instances as to facts and appearances. Such examination shows not merely a conflict, but that the question whether or not the surface, north of the point mentioned, discloses an apex of a vein in that lot, is answered in the negative by' a preponderance of the proof on the subject. It is quite clear that the findings of the court have strong support in the testimony relating to the surface.
Do, then the underground workings and explorations reveal the existence of a vein, which has an apex within the limits of lot 38, from the Silveropolis south end line exten-ed north to the 1,100-foot line or beyond, and which on its dip extends to and embraces the ore bodies in dispute ? Or does the vein, which, as found by the court and admitted by the parties, crosses the south end line of lot 38 and continues northerly, within the limits of that lot, to a point 690 feet from that end line, continue thence northerly parallel with the western side line of that lot, or at that point change its course or strike to and thence continue in a northwesterly course in the direction of the lines U-T and T-S, and embrace on its dip those ore bodies? On this subject the contention
In deciding these contentions, it behooves us to look at the formations — the geological facts which, the proof shows, the development of the mines has brought to view — and see where such facts place the northerly portion of the vein, at its apex, on its strike, and on its dip, which admittedly exists in the southerly end of lot 38. Mr. Akers says the Con-don tunnel contains the highest underground workings on the properties, the tunnel itself being driven through country limestone to the dyke; that the entire cross-cut is in shattered, broken, stained, and altered vein material; and that the Condon winze down to the Finn level, and the O’Brien winze to the 300 or Mammoth tunnel level, are in the same material. ■ These are the winzes through which the appellant claims to trace the vein on its dip to the 300 level, and thence down through other works to the lower levels; but it must be remembered that the appellant’s witnesses regard broken and fractured limestone, and any kind of stained and brecciated matter, as vein material, regardless of value in metal. From an examination of the diagrams in the statement of the case, and evidence of these witnesses referred to, it will be seen
Speaking of the cross-cut in the Finn tunnel, Mr. Learned says, from station 03, where it leaves the main tunnel, westerly through 021, 21, and 22, to its face, it is in broken lime, and that “broken lime is generally vein lime in that mine;” and this kind of vein material, with occasional dyke, brecciated, and stained matter unmineralized in the sense of the federal statutes, is substantially all that is claimed by ■ these witnesses to appear in the drifts, cross-cuts, and branches driven in that northern territory, on the Plummer, the 300, and, in fact, the lower, levels of the Mammoth, and likewise as to the drifts, branches, and cross-cuts on the various levels of the Grand Central, both east and west of the line of stoping or ore channel. It is true, Mr. Akers says the Plummer tunnel is in vein and ore at the south end, and to its north end shows ore in places, shattered lime, and vein matter; but he does not identify the places, if any, where ore appears to the north end, and north of the East raise stope the tunnel runs along the foot wall of the dyke, which is not mineralized, except in the vicinity where the main vein passes through it. The statement, therefore, does not justify an inference that ore occurs on that level north of that stope. That it occurs south thereof, and is in the main vein, is admitted. He also says that the cross-cut of the Finn tunnel level is “within view, and within a few feet of it ore might be disclosed;” but, if such be the case,
The Mammoth workings on the 400 level extend north only to within about 50 feet of the 1,100-foot line, and Mr. Akers says the “dyke and the vein” are “closely intermixed.” No ore is shown north of the Silveropolis south end line extended, except in the vicinity of and southward from the Betsy stope, which, according, to the testimony of Mr. Akers and other witnesses, is in the east branch of the vein. The Bush winze extends to this level at the north end of that stope, and is within the same branch of the vein. Between stations 101 and 103, a winze goes down to the old stope above the 500 level, and the Hatton raise extends to the 500. Between the 400 and 300 levels is the 80-foot level, which appears to be in ore, as also the Bucket raise down to the 400 at or near the north end of the Betsy stope. The points clustering near the north end of that stope are of interest and will be adverted to later herein. Some of them are openings through which witnesses of appellant claim they have traced the dip of the vein, from the Finn tunnel down to the 500 and lower levels, and there is evidence that the Betsy stope connects in ore with the large stopes to the south, where the main vein is admitted to exist. Mr. Akers claims that on the 400 level, 45 feet north of the south end line of the Golden King claim, the vein “forks; one portion continuing approximately in the direction of the main vein, and the other diverging more to the northwest.” Assuming this to be correct, it follows that the one branch courses in the direction of the Betsy stope, and the other in the direction of the point where the vein is claimed to pass through the dyke, and that each fork must
Tbe workings on tbe 600 level also present tbe appearance of ore fading out as one proceeds north or south from tbe main ore bodies.. Tbe Earl raise extends up to tbe 500, and tbe stope on this 600 level represents an immense ore body extending down to tbe 800 level, and is one of the ore bodies and part of tbe vein in dispute. Mr. Akers says in bis opinion tbe back vein or fissure is a “stringer or dropper” from tbe main vein; that the vein consists of a series of fractures, having a course generally of N. about 20° E. in the upper portions and that tbe great ore bodies and vein on this level, clear down to the 800, are in a vein having an apex within and on either side of tbe side lines of lot 38, although he admits tbe distance, on an incline from tbe west side line of that lot to tbe ore of tbe Grand Central on tbe '600, would be' about 1,500 feet. When we come to consider the dip of the vein, as it appears in evidence, it will be seen that this position of the witness is involved in difficulty. ‘ The west cross-cut from station 49, he says, has reached the vein in Silveropolis ground, and the east cross-cut from station 643 is through blocky lime for 468 feet, and here, be says, encounters an independent vein, while Mr. Mclntire says tbe west cross
On tbe 800 level tbe Tranter drift connects tbe two mines. Tbe foot wall of tbe vein bas not been located, but Mr. Akers thought be found tbe hanging wall 20 feet northwest of station 24 in tbe King William claim, and that there tbe vein passed “out of working to tbe northeast.” Reference to tbe evidence of tbe appellant in detail respecting lower levels is
" Respecting the back fissure, Mr. Mclntire, speaking of the 800 level, says, from station A, near the Silveropolis south end line extended, through stations 153, 155, and 151, to the 1,100-foot line, it is called the “back fissure.” So ores he, claims to occur east of station 33, at a raise and in a drift, thence to the 1,100-foot line, on the 700, and at station 40 to that line on the 600, and in a drift running through stations 80, past raise on Silveropolis south end line extended, 81, 82, 583, to 542, are all in the back fissure. He says on the 400 level the back fissure extends from the raise north of station 92, thence north through stations “a,” “b,” “c,” and “d” to the face, and thence on through station 99, being, where it crosses the Silveropolis south end line extended, 90 feet west of the yrest side line of lot 38, and that, on the 300 level, the main drift, run across that south end line through stations 9
The evidence to which reference has thus been made is believed to be fairly characteristic of the vast amount of proof on the part of the appellant respecting the underground workings, and from this review of the proof it may be seen that wherever the workings may extend, whatever material the witnesses may claim to have found in them exposed, whatever streaks of vein and vein material may have been disclosed, the fact stands out clear that the ore is always found near the line of the great ore bodies, whether they be on the strike or on the dip of the vein, northwesterly beyond the Cunningham stope — a question yet to be determined. Upon such review and an exhaustive examination of this voluminous testimony, it must be admitted that the boundaries of the vein,
Before referring to the testimony on the other side, it may be observed that the witnesses for the respondent do not differ from those of the appellant as to the existence and character of the vein in the south end of lot 38 to the north end of the Cunningham stope, the location and character of the ore bodies in dispute, including the Butterfly and Betsy stopes, the existence and location of the dykes, nor as to the workings on each level; but they are not always in harmony as to what the workings on the different levels disclose. -
Prof. Jenny, a scientific expert of much experience, says the vein or lode, “both in its outcrop at the surface and in depth, passes wholly on its strike out of lot 38” at a point, on the west side line of the lot, about 87 feet southerly from the Silveropolis south end line extended, and that the ore situated beneath the Silveropolis and Consort mining claims forms a part of a vein or lode having its apex within the surface boundaries of those claims, and that the Betsy stope is in a part of the back fissure. Respecting the territory north of the end line mentioned, and easterly of the line T'-S, his testimony is to the effect that the developments on each level, from the Finn tunnel down to the 900 level, and below, show that the workings in those northern parts are in barren material, except the back vein or fissure, which appears to practically fade out before it reaches the 1,100-foot line; that the various levels, in that section, are driven mostly through broken and fissured lime rocks, in places through brecciated material and the dykes; that, on the Grand Central side, the sedimentary beds are as much broken, stained, and fractured as on the side of the Mammoth, except where the dykes occur; that the vein consists of a series of fissures, has its general
The foregoing testimony is fully corroborated by that of other witnesses for the respondent. In fact the proof of the respondent in general shows that, apart from the ore bodies or ore channel and dykes, the limestone, as revealed by the workings, is as much broken, stained, fractured, and fissured on the Grand Central side as on that of the Mammoth, and that the developments on the various levels north of the ore bodies along the line U-T, and east of--those along the line T-S, disclose no more mineralization than may be found in places all over that limestone country. Mr. Tyler says the east 600 cross-cut of the Mammoth, from station 643 to 641, which is in the triangle between the dykes and very much fissured and broken, is the only portion of the cross-cuts in the Mammoth ground that compares with the Openings and condition of the Grand Central 200 cross-cut. Speaking of the boundaries of the vein, Col. Wall, an expert quite familiar with the formations in the region of these mines, says they are the limits of the ore; that, as shown by the workings, limestone appears everywhere within a few inches or feet of the ore; and that the width of the ore through the Grand Central is irregular, 10 to 40 feet, “in places as much as 100 feet, or even a little more.” The testimony of the respondent is clear that the vein was formed by replacement or metasomatic action, and the leading witness for the appellant admits that to some extent it was so formed. Mr. Brooks says the vertical distance from.the surface to the 1,900 level is 1,800 feet and the angle of dip over 86° from the horizontal. Mr. Tyler says that from the top of the winze on the 400 level of the Grand Central, where ore appears, to the ore cut by the plane K-K on the 1,000 level, the westing of 95 feet is made, giving an angle of dip of 82° from the horizontal, and that the angle of dip from the top of the ore
In addition to the great mass of testimony of both parties respecting the underground explorations in these mines, it is shown that very numerous samples were taken from the material found in the drifts, cross-cuts, and workings, on the various levels, north of the Silveropolis south end line ex-, tended; but, excepting those from the vicinity of the back fissure and the line of stoping or ore channel, the assays in evidence, like those from the surface samples, indicate no mineralization not common generally throughout that limestone area. The evidence on both sides relating to the surface and to the underground explorations, to which reference has been made, is deemed to fairly show the conditions and geological facts of those portions of the properties which will be affected, either directly or consequentially by this decision, and also of those portions, not affected by the result hereof, which have an important bearing upon what is involved. There is a mass of testimony, however, relating to ground and objects of some importance, which has been given due consideration, but to which specific reference is impracticable.
It is apparent from the testimony referred to, as well as from all the evidence, that there is, to say the least, some conflict, not only as to the conclusions of the witnesses drawn from the physical facts, but as to the facts themselves — as to what things actually exist and may be seen upon the surface and in the mines. As instances: The witnesses for the appellant, looking at the open cuts, say vein material is exposed; the witnesses for the respondent, looking at the same cuts, say country rock. The former say the broken, stained, and fractured rock is peculiar to lot 38, and shows the outcropping of a vein; the latter, that such rock is found everywhere in the lime belt, wherever exposed by erosion or otherwise. The former say the occasional breccia, the calcite seams, and
Suppose, however, notwithstanding there is a conflict in tbe evidence, we assume, without deciding, that such conflict relates, as is insisted by the appellant, only to the opinions of witnesses as to what the physical facts show, and that the rule, invoked by the respondent, should not, under the circumstances, be enforced, the question then is, was the court justified, under the evidence, in holding that the vein departed, at the point designated in the finding, from lot 38 on a northwesterly course, and did not return to that claim north of that point ? In determining this question it becomes important to consider the nature and principal characteristics of this vein, and, in connection therewith, some prominent geological features disclosed by the evidence. Before doing, this, it will be well to notice that the appellant contends that the vein consists of a series of parallel fissures in limestone, the ore being mixed up with broken, shattered rock; that the vein is so constituted both at the surface and at depth; and that the limits of the vein are coextensive with the limits of the broken, crushed, seamed, and fissured limestone. Upon this theory it is insisted that, while the broken, stained, and shattered material carries little of the valuable metals on and near the surface, it is vein matter and evidence of vein, and that the court erred'in charging the jury that the apex of a fissure vein is the highest point at which vein matter is found, and “by vein matter in this connection I mean rock or earth containing mineral in quantities appreciably greater than is found in the general mass of the mountain.” Whether or not this instruction is erroneous we need not stop to
“It was therefore a proper exercise of authority for tbe judge in this case to examine tbe evidence in tbe case for himself and determine tbe questions at issue between tbe parties according to tbe weight of evidence, notwithstanding tbe proceedings taken with tbe jury and tbe verdict returned; and -having, in exercise of that authority, made and filed bis written decision, in which tbe facts found corresponded with the verdict of tbe jury, error cannot be predicated on bis findings, if they are sustained by tbe evidence, notwithstanding tbe previous instructions to tbe jury; for, having tbe right to disregard tbe verdict, be bad also tbe right to disregard the instructions to the jury that rendered tbe verdict. It is true that tbe decision of tbe court and tbe verdict of tbe jury were in harmony; but tbe decision of tbe court is tbe judgment of tbe court, and this judgment was warranted by tbe evidence or it was not. If it was not, a new trial should be granted. If it was, it cannot be reversed, except upon other grounds.” (Sweeter v. Dobbins, 65 Cal. 529, 4 Pac. 540; Schneider v. Brown, 85 Cal. 205, 24 Pac. 579, 21 L. R. A. 33, 33 Am. St. Rep. 209.)
In determining tbe question before us, however, whether tbe finding of the court was warranted by tbe evidence, it is important to consider what constitutes a vein or lode. It will hardly be contended that, merely because rock is broken, crushed, shattered, and even fissured, it constitutes a vein within tbe meaning of tbe laws of Congress. All miners of any experience, as well as men of scientific research, know
Mr. Justice Field, in the Eureka Case, 4 Sawy. 302, Fed. Cas. No. 4,548, said:
“It is difficult to give any definition of the term as understood and used in the acts of Congress, which will not be subject to criticism. A fissure in the earth’s crust, an opening in its rocks and strata made by some force of nature, in which the mineral is deposited, would seem to be essential to the definition of a lode, in the judgment of geologists. But to the practical miner, the fissure and its walls are only of importance as indicating the boundaries within which he may look for and reasonably expect to find the ore he seeks. A continuous body of min-eralized rock, lying within any other well-defined boundaries on the earth’s surface and under it, would equally constitute, in his eyes, a lode. We are of opinion, therefore, that the term as used in the acts of Congress is applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock.”
In Iron Silver Min. Co. v. Cheesman, 116 U. S. 529, 6 Sup. Ct. 481, 29 L. Ed. 712, the Supreme Court of the United States adopted a definition of vein given by Mr. Justice Hallett in the same case, as follows:
“To determine whether a lode or vein exists, it is necessary to define those terms; and, as to that, it is enough to say that a lode or vein is a body of mineral, or mineral-bearing rock, within*575 defined boundaries in tbe general mass of tbe mountain. In this definition tbe elements are tbe body of mineral or mineral-bearing rock and tbe boundaries. With either of these things well established, very slight evidence may be accepted as to tbe ex; istence of tbe other. A body of mineral or mineral-bearing rock in tbe general mass of tbe mountain, so far as it may continue unbroken and without interruption, may be regarded as a lode, whatever tbe boundaries may be. In tbe existence of such body, and to tbe extent of it, 'boundaries are implied. On tbe other band, with well-defined boundaries, very slight evidence of ore within such boundaries will prove tbe existence of a lode. Such boundaries constitute a fissure, and if in such fissure ore is found, although at considerable intervals and in small quantities, it'is called a lode or vein.”
So, in United States v. Iron Silver Min. Co., 128 U. S. 673, 9 Sup. Ct. 195, 32 L. Ed. 571, Mr. Justice Field said:
“By ‘veins or lodes,’ as here used, are meant lines or aggregations of metal embedded in quartz or other rock in place. Tbe terms are found together in tbe statutes, and both are intended to indicate tbe presence ofmineral in rock.” (Cheesman v. Shreeve [C. C.], 40 Fed. 787; Hyman v. Wheeler [C. C.], 29 Fed. 347; Leadville Min. Co. v. Fitzgerald, 4 Mor. Min. Rep. 380.)
In all these definitions, as will be noticed, tbe essential elements of a vein are mineral or mineral-bearing rock and boundaries, and no • doubt that, when one of these elements is well established, “very slight evidence may be accepted as to the existence of tbe other.” - It would seem, therefore, that where one claims extralateral rights under the acts of Congress, because of a vein existing and apexing in his ground, but which has no well-defined boundaries, he, when his claim is controverted, must, in order to exercise such
It is insisted for the appellant, however, that “a lode, within the meaning of the statute, is whatever the minor can follow with a reasonable expectation of finding ore;” that, though he sees no ore, yet, if he sees gangue and vein matter, he discovers the lode; and that whatever material would be sufficient to render valid a location thereon would be sufficient evidence of apex to justify one in following therefrom downwards, beyond the side lines of the location, in the same kind of material, to and beneath the surface of his neighbor’s property. We do not thus interpret the law. What may constitute a sufficient discovery to warrant a location of a claim may be wholly inadequate to justify the locator in claiming or exercising any rights reserved by the statutes. What constitutes a discovery that will validate a location is very a different thing from what constitutes an apex, to which attaches the statutory, right to invade the possession of and appropriate the property which is presumed to belong to an adjoining owner. The question of a sufficient discovery of a vein, or of the validity of a notice of location, upon which the cases cited by the appellant on this point are authority, is substantially different from one relating to the continuity of a vein on its dip from the apex, and which tests the rights of the undisputed owner of the surface to what lies underneath and within his own boundaries. It is the object and policy of the law to encourage the prospector and miner in their ef
“In determining what constitutes such a discovery as will satisfy the law and form the basis of a valid mining location, we find, as in the case of the definition of the terms ‘lode’ or ‘vein’ that the tendency of the courts is toward marked liberality of construction where a question arises between two miners who have located claims upon the same lode or within the same surface boundaries, and toward strict'rules of interpretation when the miner asserts rights in property which either prima facie belongs to some one else or is’ claimed under laws other than those providing for the disposition of mineral lands, in which latter case the relative value of the tract is a matter directly in issue. The reason for this is obvious. In the case where two miners assert rights based upon separate alleged discoveries on the same vein, neither is hampered with presumptions arising from a prior grant of the tract, to overcome which strict proof is required. In applying a liberal rule to one class of cases and a rigid rule to another, the courts justify their action upon the theory that the object of each section of the Revised Statutes, and the whole policy of the entire law shoiild not be overlooked.” (1 Lindley on Mines [2 Ed.], see. 336.)
“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, it is a very different question from telling a jury that the geological fact of the continuity of the vein to a certain point may be determined by what a practical miner might do in looking for some hoped-for continuity.” (Migeon v. Mont. Cent. Ry. Co., 77 Fed. 249, 23 C. C. A. 156; Bonner v. Meikle [C. C.], 82 Fed. 697; United States v. Iron Silver Min. Co., 128 U. S. 673, 9 Sup. Ct. 195, 32 L. Ed. 571.)
Reverting to the characteristic of a vein or lode, appearing from the definitions above quoted, that its filling must consist of a body of mineral or mineral-bearing rock, what value such material should contain is a matter not devoid of difficulty, and no standard of value applicable to all such cases has yet, and probably never will be, devised. It must necessarily depend upon the characteristics of the district or country in which the vein or lode, in any particular instance claimed to exist, is located, and upon the character, as to boundaries, of the vein itself. If the country rock, or the general mass of the mountain outside of the limits of the vein, is wholly barren, slight values of the vein material, as before stated, would seem to satisfy the law; but if, on the other hand, the rock of the district generally carries values, then undoubtedly the values in the vein material, where the boundaries of the vein are not well or not at all defined, either on the surface or at depth, should be in excess of those of the country rock, else there can be no line of demarkation, nor, where the rock is generally broken, shattered, and fissured, anything to separate it from the adjacent country. Values, therefore, of the filling of a vein, must be considered with
“The definition of a lode must always have special reference to the formation and peculiar characteristics of the particular district in which the lode or vein is found.” (Bonner v. Meikle, supra.)
Now, weighing and considering the evidence, which we have already examined, in the light of the foregoing definitions, adopted and announced by the most eminent tribunal in this country, and bearing in mind the characteristics of a vein to which we have adverted, the conclusion seems inevitable that no vein that will satisfy the demands of the law has been shown to exist north of the north end of the Cunningham stope, or north of the Silveropolis south end line extended, within the limits of lot 38, which from its apex on its dip extends to and includes the ore bodies in question.
Looking again at the surface of lot 38, through the evidence, we see, it is true, outside the dykes, broken, shattered, and fractured rocks, seams filled with calcite, or calcareous matter, in places bxecciated material, and stains of different oxides of iron and occasionally of manganese; but what we conceive fo be a decided preponderance of the evidence shows that these same conditions of the rock and earth appear in the same manner and to about the same extent throughout the limestone area north of that end line, except in the vicinity of the line of stoping and of the dykes. The evidence respecting the surface, considered all together, conveys the idea that generally the portion of the country referred to, including lot 38 north of the Cunningham stope, presents substantially the same appearance, except in the vicinity of the dykes, the back fissure, and ore bodies, and that wherever the rock is exposed, by erosion or otherwise, its broken, fractured, and seamed condition is visible. So, as we have seen from the review of the evidence, the same similarity of appearances and conditions of rock and material exists beneath the
It is true, tbe appellant claims tbe open cuts and tbe workings at depth are substantially all in vein material; but, as we have seen, in tbe judgment of tbe appellant’s witnesses,
Upon very careful scrunity of the 'evidence, we are of the opinion that the court did not err in rejecting the theory that the limits of fracturing constituted the limits of the vein, nor in holding that the vein existing in the south end of lot 38 did not continue in that lot north of the north end of the Cunningham stope. Where, then, and in what direction, does the vein proceed on its strike from that stope, and where are its boundaries or limits ? That the Mammoth vein was formed by replacement — by replacing the limestone, molecule for molecule, with mineral through the thermal and chemical waters, or corroding vapors or solutions, ascending from the deep through the fissure or series of fissures constituting the lode — and that, where the ore appears, the fissure or opening was widened and large cavities created and filled with ore, through metasomatic action, appears manifest from the evidence. The acid and corrosive solution acting upon the limestone corroded it or dissolved it, and the limestone thus precipitated the ore by depositing it out of the solutions. Thus, evidently, the ore bodies were built up particle by particle by dissolving the limestone and precipitating the ore, or by replacing the limestone with ore. It appears in evidence that great masses of ore are found in which the original bedding planes can yet be traced, these planes not having been obliterated by the metasomatic change. These things are not denied by the witnesses for the appellant, but, on the contrary, its leading witness admits that
Reverting to the geological features, just mentioned and before referred to, we will first notice the dip of the vein and back fissure, and here the appellant in its contention encounters a serious obstacle; for in vain will the record be searched for a degree of inclination that would carry a vein from lot 38 to the ore bodies in dispute. The vein and ore bodies, wherever explored, occupy almost a vertical position. As we have shown by a review of the evidence, at the Mammoth shaft the vein and ore go to the deep so nearly vertical that on the 1,900 level, a distance of 1,800 feet, the westing is but 100 feet, and the dip over 86° from the horizontal. The dip of the back fissure is shown to be about the same from the Finn tunnel to the 800 level, a distance of 688 feet; the Finn tunnel being 92 feet and the 800 level 135, west of the west side line of lot 38, making a westing of but 43 feet and a dip if 86%°. So we have seen that, -on the Grand Central side, from top of the winze on the 400 down to the 1,000 level, the dip is 82° from the horizontal, and that along the line U-T, where the ore bodies in dispute occur, the dip is 75° to 80° degrees from the horizontal. Now, considering the dip of the vein, as thus shown in both mines, in connection with the long distance, apparent from the surface maps, intervening between the west side line of lot 38 and the ore bodies and vein on the Grand Central side, is it not
The back fissure is a geological feature of much importance. Mr. Akers, as previously shown, states that the main vein forks, on the 400 level, north of the south end line of the Golden King claim, and the easterly portion continues northerly on the east side of the dyke. If this be true, then this fork must constitute the back fissure, which appears to be feathering out north of the Betsy stope near the 1,100-foot line. Through this fissure the Betsy stope and the various openings mentioned are connected with the main vein at or near the Cunningham stope, and doubtless form a part of it. It is clear, from the testimony and maps or diagrams, that practically all the ore, north of the Silveropolis south end line extended, which has been referred to in evidence, was either in or connected with the back fissure, or was in the 'broken and crushed country in the vicinity of the junction of the dykes, and where the fork, which Mr. Akers says diverges to the northwest, passes through the dykes. The Betsy stope is admittedly in the back fissure, north of that end line, on the east side of the Finn dyke, and the great Klondyke stope is immediately west and to the south of the Betsy stope in the crushed country referred to. That the various ore deposits, including those stopes found immediately
The appellant contends, however, that the vein from the
The Finn dyke has a course N. about 15° to 20° E., and the appellant claims the foot wall of the dyke is coincident with the hanging wall of the vein in controversy; but, as we have seen, no vein has been established along the dyke, except the back fissure, which seems to fade out near the 1,100-foot line. The Coates dyke courses nearly north and south with a dip almost vertical — a little inclined to the west The Finn has a dip to the west of 80° to 85° from the horizontal, and is irregular in width, ranging from 15 to 40 or 50 feet, and where it unites with the Coates dyke the lime breccia is probably 120 to 125 feet wide. On the different levels the two dykes are close together. Their junction is practically
The position that faulting occurred after the deposition of ore, and that the vein was faulted, obscured, practically lost, by the movements along the dyke, is also in harmony with the conduct of the appellant during all the years of operation in the mine; for while, many years ago, the Cunningham stope was worked down to the 300 and the Betsy down to the 500 level, both stopes lying immediately east of the Finn break, the great Klondyke stope, on the 400 level, lying immediately west of - the Betsy stope but a little farther south, in the crushed material of the breaks, was not disturbed until a comparatively short time before the commencement of this litigation. It is true, several of appellant’s witnesses say there is continuous ore from the Betsy and Cunningham stopes to the Klondyke, and that the latter stope was not worked at the time of operations in the former stopes because the ground was considered dangerous; but is that the real reason why the operations were not extended to that vast ore body? Was not the ground, when that ore body was in fact discovered and the ore extracted, just as dangerous as during all tire years from the time of the operations in the Cunningham and Betsy stopes ? Is it not a'reasonable inference, from the circumstances, that the faulting of the country along the Finn dyke and the consequent dislocation of the vein, had so obscured the ore that it never, during that long period of time from the operations in the other stopes until after the discovery of ore to the west by the respondent, occurred to the operators of the Mammoth mine or to its experienced miners that ore existed west of the dyke ? It does seem unreasonable that an intelligent management would permit this vast deposit of ore to remain unexplored, untouched, for so many years, the very time during which the shaft was being
To further show the improbability of the existence of such a vein, take the circumstance that the two lines, the line of apex, claimed by the appellant to continue parallel with the side lines of lot 38, or N, about 18° E., and the line of stop-ing, from the. Silveropolis south end line extended, running N. 10° to 15° W., which, proceeding north, are constantly diverging; could it be claimed, with any degree of plausibility, that, after apoint had been reachedwhere the divergence had resulted in a distance of a mile or more between the lines, that a vein extending from that line of apex, on its dip, yet intercepted any ore that might exist, at such northern point, on the Grand Central 400, or 500, or lower levels extended? Surely there is not, in this voluminous record, even in the most extravagant statements of witnesses as to what constitutes a vein, any testimony showing a dip of any vein, or even of a bedding plane, which would make such a thing possible. Outside of this circumstance and the fact that all the prominent geological features, as we have seen, point with entire unanimity to the location of the Mammoth vein, on its strike, as being practically as represented by the stoping along the lines W-U, TJ-T, and T-S, and indicating that the vein passed through the dykes on its strike and not on its dip, there is yet another circumstance tending to show that such is the location and strike of the vein; and that is that on the
In. passing to this branch of the ease, it may be observed that the offer to amend the pleadings was occasioned by the action of the trial judge in filing a written opinion in the cause, aside from the findings, wherein, among other things,
Nor can the opinion thus filed herein be made the sole basis for amendment of the pleadings, where, as here, there is no variance between the pleadings and proof, and no offer of further proof under the proposed amendment. That there was no variance is clear, because the contention on each side was fairly within the scope of the pleadings, and all the evidence was introduced in support of one or the other of these contentions, and corresponds with the allegations in the pleadings, and because the facts in evidence show no apex or vein in the Golden King and Bradley such as is claimed by the judge to exist. Not only was there no offer or further proof, but counsel for appellant in their brief insist there was no further evidence to present, that the “evidence as to the physical facts on both sides was complete,” and that “every level, every drift, every opening, every ore occurrence, had been
If such amendments, under such circumstances, were sanctioned, the ingenuity of counsel would not fail in pointing out, upon each successive defeat, a new avenue leading to another experiment, until the bankruptcy of the litigants would finally end the controversy. In Warner v. Godfrey, 186 U. S. 365, 22 Sup. Cf. 852, 46 L. Ed. 1203, the complainant filed his bill in equity to set aside a conveyance on the ground of actual fraud, and, being defeated, obtained leave to amend his bill, claiming the same relief, but upon the ground of constructive fraud. The trial court found that the charges of actual fraud were unfounded, and in this the appellate court of the District of Columbia concurred, but held that ‘ ‘from another point of veiw, made clear by the testimony, though it may not be specifically presented by the pleadings/’ acts ’constituting “legal or constructive fraud,” the plaintiff was entitled to prevail, reversed the decree dismissing the bill, and directed the lower court to permit an amendment. The bill was amended accordingly, and a decree entered in
“It would be highly inequitable to permit a litigant to press with the greatest pertinacity for years unfounded demands for specific and general relief, however much confidence he may have had in such charges, necessitating large expenditures by the defendants to make a proper defense thereto, and then, after the submission of a cause, when the grounds of relief actually asserted were found to be wholly without merit, to allow averments to be made by way of amendment, constituting a new and substantive ground of relief.” (1 Ency. Pl. & Pr. 584-586; Gubbins v. Laughtenschlager [C. C.], 75 Fed. 615; Metropolitan Nat. Bank v. St. L. Dispatch Co. [C. C.], 38 Fed. 57; Marshall v. Golden Fleece M. Co., 16 Nev. 156, 180; Page v. Williams, 54 Cal. 562; Richard v. Hupp [Cal.], 37 Pac. 910; Chicago, etc., Ry. Co. v. Third Nat. Bank, 134 U. S. 276, 10 Sup. Ct. 550, 33 L. Ed. 900; Shawper v. Chamberlain, 113 Iowa 742, 84 N. W. 661, 86 Am. St. Rep. 411.)
This suggestion of the trial judge, that there was a vein apexing in the Golden King and Bradley that embraced the disputed ore bodies, was a new theory in the case. So far as the record shows, during all the years the mine had been operated, such a vein had remained undiscovered. Nor had such a theory ever suggested itself to any of the eminent counsel or experts during either of the trials. The judge himself says that the conclusions which he has “deduced from the testimony differ widely from the views of both parties to the cause.” He asserts that this vein exists and terminates in its course northward at station 427 of the 400 level, and that the ore bodies underlying the Silveropolis and Consort mining
Not unmindful of the grave responsibility that attaches to the final decision of a case of such magnitude and importance, we have examined with commensurate caution the voluminous mass of evidence, in extended and deliberate discussion have announced our views upon the various questions involved, and have come to the inevitable conclusion that the appellant has shown no right of recovery under its counterclaim and no right to amend its pleadings.
The judgment must therefore be affirmed. It is affirmed, with costs.