Ajax Gold Min. Co. v. Hilkey

• Decision Date: 02 March 1903
• Citation: 31 Colo. 131,72 P. 447
• Parties: AJAX GOLD MIN. CO. v. HILKEY et al.
• Court: Colorado Supreme Court

72 P. 447

31 Colo. 131

AJAX GOLD MIN. CO. v. HILKEY et al.

Supreme Court of Colorado

March 2, 1903

Appeal from District Court, Teller County.

Action by the Ajax Gold Mining Company against E. J. Hilkey and others. From a judgment for defendants, plaintiff appeals. Reversed.

Colburn, Dudley & Helm, for appellant.

Temple & Crump, for appellees.

CAMPBELL C.J.

This is an action by the owner of the Victor Consolidated against the owner of the Triumph mining claim to recover for the value of ores taken from a vein within the limits of the Triumph lode of which both parties assert ownership. The defendants say the ores belong to them, because the vein from which they were extracted is within the outer boundaries of their location, while plaintiff's ownership is based upon an apex right, under section 2322, Revised Statutes of the United States [U. S. Comp. St. 1901, p. 1425].

Only one important question is raised by the appeal of the apex claimant, who failed below, and this arises out of the following instruction given to the jury at the instance of the defendants: 'If you believe from the evidence in this case that the discovery lode of the Victor Consolidated claim passes out of either side line of that claim before reaching the northerly end line of said claim, as originally located then the rights of the plaintiff to any ore outside the surface boundaries of said claim in any vein having its apex within such claim are limited to two parallel bounding planes, one drawn through the southerly end line of said Victor Consolidated claim as originally located, and the other passing through the said claim parallel to said southerly end line at the point where such discovery vein may have been shown to depart from its side lines, if such departure has been shown.' Both parties agree that by it the jury were, in effect, told that, if the discovery vein of a lode mining claim on its strike departs through a side line, no extralateral rights attach to any other vein apexing within the claim beyond the point of such departure. The question thus presented seems not to have been expressly determined by the Supreme Court of the United States or any of the inferior federal or state courts. In the absence of any decision at all construing the act of Congress, we would not have much, if any, doubt as to its meaning. Its language is broad enough to sustain appellant's contention that the owner of a lode mining claim has extralateral rights in and to all veins the top or apex of which lies within its surface lines extending downward vertically to the extent, at least, of the length of the apex within such boundaries, even though the discovery vein on its strike does not cross both end lines; for the statute provides that owners of such claims '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 entive 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 only express limitation to this comprehensive grant is found in the proviso of the same section, which declares that the right of possession to such outside parts of veins 'shall be confined to such portions thereof as lie between vertical planes drawn downward as aforesaid, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of said veins or ledges.' There does not seem to be anything ambiguous or uncertain in this language, and indeed, appellees' counsel are disposed to concede that, taken literally, it affords some warrant, at least, for appellant's position; but they say that by numerous decisions construing the statute the courts have enunciated several propositions that somewhat restrict its apparent scope. Appellees' position cannot be better presented than in the language of their learned counsel, and a statement of their propositions serves to bring out sharply the respective contentions so ably argued on both sides. The following map will also aid in an understanding of the controversy:

(Image Omitted)

The apex of the discovery vein of the Victor Consolidated is represented by b, b'. It enters the claim at the south end line, and its course in the main runs parallel with the claim as surveyed, but passes out through the east side line about 1,000 feet from the south end line. a, a', is the vein which, as contradistinguished from the discovery vein, we call the 'secondary vein,' which the evidence tended to show passes diagonally across the location, entering it through the west, and leaving it through the east, side line. The Triumph claim is correctly delineated on the map. If the ore taken from the underground workings of the Triumph was taken from any vein apexing within the Victor Consolidated--as some of the evidence tended to show--it was from this so-called secondary vein. Stating the contention again in a concrete form, the jury were told if the discovery vein of the Victor Consolidated crossed the east side line at c', then the rights of the plaintiff to ore outside of its surface boundaries in any vein having its apex therein is limited to two parallel bounding planes, one drawn through the south end line, 1, 4, of the location, as originally established, and the other passing through the claim at the point where the discovery vein leaves the east end line, and parallel to the south end line at c, c'. The north end line, or bounding plane, of this right, is the dotted line c, c', and the south bounding plane the south end line of the location, 1, 4. Plaintiff's extralateral rights as to all veins within the surface lines were, by this instruction, restricted to that part of the claim south of the line, c, c', and in that part between this line and the north end line of the claim he was given none whatever, though about 500 feet of the apex of the secondary vein was found in this latter segment.

The three propositions of law said to be established by the decisions, of which the fourth one stated by appellees is said to be a necessary corollary, are: (1) There can be but one set of end lines or bounding planes for a single location, and these limit the extralateral right upon all lodes or veins apexing therein. (2) These end line or bounding planes are determined by the strike of the discovery vein with reference to the located side and end lines of the claim. (3) Where the apex of the discovery vein passes through one end and one side line, the extralateral right upon such vein will be bounded by a vertical plane drawn downward through the cressed end line, and another vertical plane parallel thereto, but operating at the point where the apex leaves the side line. The fourth pro...