79 F. 733 | 9th Cir. | 1897
(after stating the facts). It is claimed that the court erred, among other things, in finding, as a conclusion of law:
“That the plaintiff, the Tyler Mining Company, is entitled to judgment against the Idaho Mining Company and the Republican Mining Company for the possession. of those certain premises described in the complaint and in the agreed statement of facts, to wit, that certain ledge or vein in x>laee bearing valuable minerals, having its outcrop and apex within the limits of the Tyler mining claim, as described in said agreed statement of facts, with the right to follow, as against the Rexrablican and Idaho Mining Comxianies, such ledge or vein upon its descent into the earth to any depth between the two perpendicular planes continued in their own direction i>ast through the two end lines of the Tyler claim, as the same is now described in the xiatent issued by the United States for such claim, even though such vein shall extend outside the vertical side line of said Tyler mining claim, and under the Republican Fraction, the Last Chance Fraction, and the Skookum Fraction mining claims, claimed by said defendant the Republican and Idaho Mining Companies.”
The contention of the plaintiff in error is that the defendant in error has no extralateral right to follow the lode or vein in the Tyler mining claim in its downward course beyond the southerly side line of the Tyler claim, for the reason that, as is shown in the diagram, the lode or vein passes through the side line of the Tyler location. It is further contended that any rights which the defendant in error may have by virtue of its ownership of the Tyler claim must date from the establishment of “the intermediate end line first made on the ground after the commencement of this action.”
Both of these questions have heen decided by this court adversely to the contention of plaintiff in error. It is well settled by numerous deeisious of the supreme court that where a case lias been brought before an appellate court, and there decided, a second writ of error brings up nothing for review but tlie proceedings subsequent to the mandate; that the appellate court is not bound to consider any of the questions which were before the court on the first writ of error.
In Roberts v. Cooper, 20 How. 481, the court said:
“Tt lias been settled by the decisions of 1lds court that after a case has been brought here and decided, and a mandate Issued to the court below, if a second writ of error is sued out, it brings up for revision nothing but the proceedings subsequent to (he mandate. INone of the questions which were before the court on the first writ of error can be reheard or examined upon the second. To allow a second writ of error or appeal to a court of last, resort on Hie same questions which were open to dispute on the first would lead to endless litigation. In chancery, a bill of review is sometimes allowed on petition to tlie court; but there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate on chances from changes in its members. See Sizer v. Many, 16 How. 98; Corning v. Iron Co., 15 How. 466; Rose v. Himeley, 5 Granch, 515; Canter v. Insurance Co., 1 Pet. 511; The Santa Maria, 10 Wheat. 431; Martin v. Hunter’s Lessee, 1 Wheat. 301; and Sibbald v. U. S., 12 Pet. 488.”
In 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 court decided that where a lode enters an end line of a regularly located mining claim, and runs in its course lengthwise, uearly parallel with the side lines of the claim for tlie greater part of the length of the claim, the owners of the claim are not deprived of the exiralateral rights attached to the claim, under the provisions of section 2322, Rev. St., because the lode or vein crosses a side line before reaching the other end line; that the true construction of the statute is that, when the lode or vein crosses a side line before reaching the other end line, the owner’s extralateral rights will extend from the end at which the lode enters to the point on the lode at which it crosses tin1 side line. Numerous authorities were cited in support of these views. The following additional authorities sustain the principles therein announced: Consolidated Wyoming Gold Min. Co. v. Champion Min. Co., 63 Fed. 540, 546; Del
In reply to the criticism of counsel with reference to the right to draw the intermediate end line at the point where the lode crosses the southerly side line of the Tyler, we quote the language of Judge Hallett in Del Monte Mining & Milling Co. v. New York & L. C. Min. Co., supra, as follows:
“It is said that we cannot make a new end line’at the point of divergence or elsewhere, because the court cannot make a new location, or in any way change that made by the parties. Iron Silver Min. Co. v. Elgin Min. & Smelting Co., 118 U. S. 196, 6 Sup. Ct. 1177. This, however, is not necessary. We can keep within the end lines fixed by the locator in respect to any extra-lateral right that may be recognized without drawing any line; and, if there be magic in the word ‘line,’ it will be better not to use it.”
In Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 696, 15 Sup. Ct. 733, the court declined to consider this question, because, under the views expressed by the court upon another branch of the case, it was deem.ed unnecessary so to do.
There is' no decided case to which our attention has been called in opposition to the views heretofore expressed by this court upon the questions’ involved in this case. The judgment of the circuit court .is affirmed, with costs. ■
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