104 F. 664 | 9th Cir. | 1900
Lead Opinion
(after stating the facts as above). The assignments of error raise but one (Question which need- now be passed upon, all others having been adjudicated, upon the writ of
The defendant in error contends that it is entitled to the vein in its entirety in depth to the easterly of a vertical plane drawn through the line, E, C, upon the theory that the said line is an eud line so far as the Drum Lummon vein is concerned, or, if it be determined that the line, E, C, is a side line, that it is entitled to the entire vein in depth to the southerly of the 108-foot plane.
As to the first contention, it is a well-settled proposition that a mining claim can have but two end lines, and that, end lines having been once established, they become the end lines for all veins found within the surface boundaries. Iron Silver Min. Co. v. Elgin Min. & Smelt. Co., 118 U. S. 196, 207, 6 Sup. Ct. 1177, 30 L. Ed. 98; Walrath v. Champion Min. Co., 171 U. S. 293, 307, 18 Sup. Ct. 909, 43 L. Ed. 170. This court has already determined that the line, E, G, D, is a side line common to the two claims (102 Fed. 430), and therefore it cannot be considered an end line for the Drum Lummon vein.
The second contention of the defendant in error involves the construction of section 2322 of the Revised Statutes. That section provides:
“The locator of a mining location * * * shall have the exclusive right to possess r,ns! enjoy * * * all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically.”
The defendant in error maintains that the words “top or apex” cannot be construed to mean “cop or apex or any part thereof,” and that, .under the strict construction necessary, extralateral rights would not follow when the whole of the apex was not within the surface lines. If this be the correct view of the language of the statute, manifestly neither party herein would be entitled to pursue the vein in depth between the 108-foot plane and the 133-foot plane, since the apex of the vein between those points, while crossing the side lino, is not wholly within either claim. For the purposes of illustration, suppose the vein were regular and vertical for the 25’ feet between the two planes mentioned, crossing the side line at the same angle. The boundary rights between the parties could not then be determined by the application of a vertical plane extending to the center of the earth along the side line, and 25 feet
Upon the question first propounded in this opinion, therefore, the only deduction which can be made from the foregoing views is 1hat inasmuch as neither statute nor authority permits a division of the
Dissenting Opinion
I dissent. The case of Montana Min. Co. v. St. Louis Min. & Mill. Co. (C. C. A.) 102 Fed. 430, referred to in the foregoing opinion, affirmed the existence of extralateral rights in respect to a vein that enters and departs from a side line only of a mining claim, and the judgment in the present case affirms such right on the authority of the decision in tire former case. Yet in neither is the point at all discussed by the court, and in the opinion in the former case there is not a word said from which it can be seen ihat any such point was presented for decision. 102 Fed. 430. The importance of the question, not only to the correct determination of ihe present case, but in respect to other mining claims, is too manifest to require comment. In the former case a petition for rehearing is now pending, and 1 think it should he granted, and that case, together with the present one, set down for réargument, to the end that the question as to whether any extralateral rights exist in respect to any vein that enters and departs from a side line, only, be discussed by counsel, and fully considered by the court, before final determination.