Montana Min. Co. v. St. Louis Min. & Mill. Co. of Montana

• Citation: 147 F. 897
• Decision Date: 13 August 1906
• Docket Number: 1,240.
• Parties: MONTANA MINING CO. v. ST. LOUIS MIN. & MILL. CO. OF MONTANA.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

147 F. 897

MONTANA MINING CO. v. ST. LOUIS MIN. & MILL. CO. OF MONTANA.

No. 1,240.

United States Court of Appeals, Ninth Circuit.

August 13, 1906

This was an action brought in the Circuit Court of the United States for the District of Montana by the St. Louis Mining &amp Milling Company, a Montana corporation, defendant in error against the Montana Mining Company, Limited, a corporation organized under the laws of Great Britain, plaintiff in error, to recover damages for trespass upon a vein of mineral, the top or apex of which lies inside the surface lines of the St. Louis claim, but which vein in its downward course, departing from a perpendicular, crosses the vertical side lines of the St. Louis claim and enters beneath the surface of the adjoining claim owned by the Montana Company where the trespass upon the vein by the Montana Company is charged to have been committed and the appropriation by that company of large quantities of valuable ore extracted from the vein.

The first paragraph of the second amended and supplemental complaint alleged the corporate character of the plaintiff and defendant.

In the second paragraph of the complaint it was alleged that, at the times mentioned therein, the plaintiff was 'the owner of entitled to, and in the actual possession and occupation of, that certain quartz lode mining claim known as the 'St. Louis Quartz Lode Mining Claim,' and of the quartz, rock, and ore, and precious metals contained in any and all veins, lodes, and ledges of mineral-bearing rock through their entire depth, the tops or apexes of which lie within the surface lines of the said fractional portion of said St. Louis lode mining claim, although such veins, lodes, or ledges may so far depart from a perpendicular in their downward course as to extend outside of the vertical side line of the surface of the said St. Louis quartz lode mining claim.'

The complaint contained a full description of this claim by monuments, courses, and distances, concluding with this exception: 'Save and except that portion thereof known as the 30-foot strip or compromise ground which belongs to and is a part and portion of what is known and designated as the Nine Hour lode mining claim.'

In the third paragraph it was alleged 'that the said defendant, Montana Mining Company, Limited, is and was the owner of what is known and designated as the 'Nine Hour Quartz Lode Mining Claim,' situate and being east of the said St. Louis lode mining claim, and including the 30-foot strip or compromise ground aforesaid, and that the discovery, location, and recordation of the said St. Louis lode mining claim and the United States patent therefor was made prior to the discovery, location and recordation and patent to the said Nine Hour lode mining claim.'

In the fourth paragraph it was alleged: 'that the dip of one of the veins having a portion of its top or apex inside of the surface location and patented ground of the said St. Louis mining claim is to the east and dips under and beneath the said Nine Hour lode mining claim, including the said 30-foot strip, or the compromise ground, which is a part and portion of the said Nine Hour quartz lode mining claim, which said portion of said vein has its top or apex within the said St. Louis mining claim as follows, to wit: Commencing at a projected parallel end line of said St. Louis quartz lode mining claim, at a point on the east side line thereof, between corners Nos. 1 and 2, extended vertically downward, whereas it passes through the hanging wall of said vein, lode, or ledge, at a point from which corner No. 1, being the northeast corner of said St. Louis quartz lode mining claim, bears N. 12 deg. 15 min. E., distant 520 feet, where said hanging wall is disclosed at the surface by an upraise of said projected parallel end line, 5 feet west of the east side line of said St. Louis quartz lode mining claim; thence from where said projected parallel end line passes through said east sideline of said claim, and along the east side line of the said claim between corners Nos. 1 and 2, S. 21 deg. 15 min. W. 512.7 feet to a point, being the intersection of the said east side line of said St. Louis quartz lode mining claim, between corners Nos. 1 and 2, with the west line of the said 30-foot strip hereinbefore described; thence S. 50 deg. 50 min. W. 108 feet, and along the west line of the said 30-foot strip, to a projected parallel end line of said St. Louis quartz lode mining claim, extended vertically downward, which passes through the hanging wall with the west line of the said 30-foot strip. That it is also the owner of, in possession and entitled to the possession of, an additional portion of the said apex of said claim lying to the south of the southern point hereinbefore mentioned, a distance of 25 feet, whereas the foot wall of the said vein passes out of the east side line of the said St. Louis mining claim.'

In the fifth paragraph it was alleged: 'That, notwithstanding the right of the said plaintiff in the premises, said defendant, on or about the 30th day of June, 1893, knowingly, wrongfully, and unlawfully, by means of drifts, shafts, tunnels, and underground workings, entered into and upon that portion of the vein, lode, or lead so apexing within the said St. Louis mining claim, and commenced extracting quartz, rock, and ore therefrom, and removing the same, and converting it to his own use and benefit, and are now still removing and converting the same, which said quartz, rock, and ore is of the value of $200,000; on account thereof this plaintiff has been damaged in said sum. That since the filing of the original complaint herein and up to the 26th day of June, 1899, said defendant, Montana Mining Company, Limited, has extracted a large quantity of quartz, rock, and ore from the premises and veins above described and within the planes aforesaid, and converted the same and the minerals therein contained to their own use, of the value of $50,000, and to the damage of this plaintiff in said sum.

'Wherefore, plaintiff prays judgment for the said sum of $250,000, together with its costs and disbursements in this behalf expended.'

A map or plat showing the point at which the said vein enters said St. Louis lode mining claim, as described in the complaint, and the point where the same departs therefrom upon the east line of said claim, is attached to the complaint, marked Exhibit 'A,' and made a part thereof. A copy of this map is annexed to this opinion for reference.

(Image Omitted) The last clause of the complaint relates to the damages alleged to have been sustained by the plaintiff after filing the original complaint and up to the 26th day of June, 1899, which were originally stated as being $50,000, and the total damages as $250,000. This clause was amended by leave of the court at the close of the last trial on June 30, 1905, so as to change the $50,000, therein mentioned to $400,000, making the entire claim for damages $600,000.

The Montana Mining Company answered this complaint June 30, 1899, admitting the allegations contained in paragraphs 1,2, and 3, and setting up the defense of an estopped by deed, as follows:

'And this defendant, further answering, says that the plaintiff is estopped from claiming any of the mineral found, or which may hereafter be found, in said 30-foot strip or compromise ground, for that heretofore, to wit, on or about the 7th day of March, A.D. 1884, one Charles Mayger, who was then and there the predecessor in interest of plaintiff, made, executed, and delivered to William Robinson, James Huggins, and Frank P. Sterling, who were and are the predecessors in interest of this defendant, a bond for a deed, wherein and whereby he covenanted and agreed to convey the said 30-foot strip or compromise ground to the predecessors in interest of this defendant, or their assigns, with all the mineral therein contained, a copy of which said bond is hereto attached, marked Exhibit 'A,' and made a part of this answer; that thereafter and after the said Charles Mayger had obtained a United States patent for the whole of said St. Louis lode mining claim, including said 30-foot strip or compromise ground, the said Mayger, in order to cheat and defraud this defendant, assumed to convey the said compromise ground to the above-named plaintiff; that thereafter this defendant demanded of and from the said plaintiff and from the said Mayger a deed for the said compromise ground in accordance with the terms and provisions of the bond aforesaid, and the said defendant and the said Mayger having refused and declining to make, execute, or deliver such a deed, this defendant thereafter, and on or about the 6th day of September, A.D. 1894, commenced an action in the district court of the First judicial district of the state of Montana, within and for the county of Lewis and 'larke, wherein this defendant was plaintiff and the above-named plaintiff, together with the said Charles Mayger, were defendants, tom compel the specific performance of the said bond for a deed hereinbefore mentioned and set forth; that thereafter such proceedings were had in said action as that on the 1st day of June, A.D. 1895, judgment was duly made and entered therein in favor of this defendant, the plaintiff therein, and against the plaintiff, defendant in said action, whereby, among other things, it was ordered, adjudged, and decreed that the said bond hereinbefore mentioned be specifically performed, and that the defendant, the above-named plaintiff, make, execute, and deliver to this defendant a good and sufficient conveyance in fee simple absolute, free from all incumbrances, for the premises mentioned and described in the complaint in said action and in the bond hereinbefore mentioned; that, in

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