Alameda Mining Co. v. Success Mining Co.

Decision Date22 November 1916
Citation161 P. 862,29 Idaho 618
PartiesALAMEDA MINING COMPANY, a Corporation, Respondent, v. SUCCESS MINING COMPANY, a Corporation, Appellant
CourtIdaho Supreme Court

Rehearing Denied Dec. 29, 1916.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. William W. Woods, Judge.

Action to obtain a perpetual injunction and to determine the extralateral rights of the defendant to certain mining ground, and to recover damages for the value of ores alleged to have been removed from the Cardiff mining claim; and to quiet title of plaintiff in said Cardiff claim. Judgment for plaintiff. Reversed.

Reversed and remanded. Costs in favor of the appellant. Petition for rehearing denied.

J. F Ailshie and A. G. Kerns, for Appellant.

On the question as to what constitutes a vein or lode, whether the ore deposits be tabular or lenticular or formed in sheets, or are found in seams or fissures, chimneys or a mineralized zone, still it is a vein or lode within the meaning of the law so long as there is a fissure, seam or gouge, or any evidence of mineralization which will lead the practical miner from one ore body to the other and which does in the course of his work so lead him. (1 Lindley on Mines, 3d ed secs. 286--289; 2 Lindley on Mines, sec. 615.)

An apex is, on cited authority, defined to be all that portion of a terminal edge of a vein from which the vein has extension downward in the direction of the dip. (Stewart Min. Co v. Ontario Min. Co., 237 U.S. 350, 35 S.Ct. 610, 59 L.Ed. 991; Lindley on Mines, sec. 310.)

The fact that the vein terminates against the granite or monzonite on the west end in no way interrupts or destroys our extralateral right under the patent and the statute. (Del Monte M. Co. v. Last Chance M. Co., 171 U.S. 55, 18 S.Ct. 895, 43 L.Ed. 72, 19 Morr. Min. Rep. 370; Clark v. Fitzgerald, 171 U.S. 92, 18 S.Ct. 941, 43 L.Ed. 87; Tyler Min. Co. v. Sweeney, 54 F. 292, 4 C. C. A. 329.)

The extralateral right conferred by the statute and conveyed by the patent is determined by the apex on the surface upon which the prospector makes his location, and not upon the levels in the depths of the earth opened and disclosed many years thereafter. (Flagstaff S. M. Co. v. Tarbet, 98 U.S. 463, 25 L.Ed. 253; 1 Lindley on Mines, secs. 318, 319; Carson City Gold & Silver Min. Co. v. North Star Co., 73 F. 597; Pennsylvania Cons. Min. Co. v. Grass Valley Exploration Co., 117 F. 509; Last Chance Min. Co. v. Bunker Hill & Sullivan M. & C. Co., 131 F. 579, 66 C. C. A. 299; Walrath v. Champion Min. Co. , 171 U.S. 293, 18 S.Ct. 909, 43 L.Ed. 170, 19 Morr. Min. Rep. 410.)

The strike or course of a vein on any level is determined by a "horizontal line drawn between its extremities" so far as the vein has been exposed or ascertained with reasonable certainty. (1 Lindley on Mines, sec. 318.)

The court erred in not making a direct and positive finding as to whether the apex of the Granite vein is within the exterior boundaries of the Granite claim. That was the sole and essential issue tendered by the cross-complaint and answer, and under section 2322, Rev. Stats. U. S. (U. S. Comp. Stats. (1916), sec. 4618; 5 F. Stats. Ann., p. 13), a finding therein was imperative. (Lorenzi v. Star Market Co., 19 Idaho 674, 115 P. 490, 35 L. R. A., N. S., 1142; Penninger Lateral Co. v. Clark, 22 Idaho 397, 126 P. 524.)

John P. Gray and Walter H. Hanson, for Respondent.

Where there is evidence to support the finding of the court and the judgment, the judgment will not be reversed. (Brown v. Grubb, 23 Idaho 537, 130 P. 1073; Brinton v. Steele, 23 Idaho 615, 131 P. 662; Smith v. Faris-Kesl Const. Co., 27 Idaho 407, 150 P. 25; Bower v. Moorman, 27 Idaho 162, 147 P. 496; Commercial Trust Co. v. Idaho Brick Co., 25 Idaho 755, 139 P. 1004; Henry Gold M. Co. v. Henry, 25 Idaho 333, 137 P. 523; Hufton v. Hufton, 25 Idaho 96, 136 P. 605.)

The burden was on defendant to establish its rights clearly and satisfactorily. (Consol. Wyoming Co. v. Champion Co., 63 F. 540, 18 Morr. Min. Rep. 113; St. Louis Co. v. Montana Co., 194 U.S. 235, 24 S.Ct. 654, 48 L.Ed. 953; Stewart M. Co. v. Ontario M. Co., 23 Idaho 724, 132 P. 787; Leadville M. Co. v. Fitzgerald, F. Cas. No. 8158, 4 Morr. Min. Rep. 380--385; Duggan v. Davey, 4 Dak. 110, 26 N.W. 887, 17 Morr. Min. Rep. 59.)

The learned counsel who represents the appellant asks this court to overrule the decision which he himself, while a member of this court, announced, which clearly declares the doctrine that the right to pursue a vein extralaterally is limited to an angle of 45 degrees with its course. (Stewart Min. Co. v. Ontario Min. Co., supra; Argentine M. Co. v. Terrible M. Co., 122 U.S. 478, 30 L.Ed. 1140, 17 Morr. Min. Rep. 109; Duggan v. Davey, supra.)

It was not the intention of the law to allow a person to make a location crosswise of the vein, so that the side-lines shall cross it, and thereby give him the right to follow the strike of the vein outside of his side-lines. (Del Monte M. & M. Co. v. Last Chance M. & M. Co., 171 U.S. 55, 18 S.Ct. 895, 43 L.Ed. 72, 19 Morr. Min. Rep. 370.)

The ore bodies in the Cardiff cannot be reached by following downward. (Southern Nevada G. & S. M. Co. v. Holmes M. Co., 27 Nev. 107, 103 Am. St. 747, 73 P. 759.)

The general course of the vein was across the claim, and even though a part of the apex passed through the west end-line, it would not necessarily make that an end-line in law. (Empire State-Idaho M. & D. Co. v. Bunker Hill & S. M. & C. Co., 131 F. 591, 66 C. C. A. 99; Lindley on Mines, sec. 584; Consol. Wyoming M. Co. v. Champion Min. Co., 63 F. 540, 18 Morr. Min. Rep. 113; St. Louis M. Co. v. Montana M. Co., 102 F. 430, 42 C. C. A. 415, 20 Morr. Min. Rep. 507, 186 U.S. 24, 22 S.Ct. 944, 46 L.Ed. 1039.)

It is impossible to start from the ore bodies beneath the Cardiff claim where the trespass has been committed and follow upward along the dip or within 45 degrees of the dip and reach any part of the so-called apex of any of the east-west ore chutes. (King v. Amy & Silversmith Con. M. Co., 152 U.S. 222, 14 S.Ct. 510, 38 L.Ed. 419, 18 Morr. Min. Rep. 76; Jim Butler Tonopah M. Co. v. West End Consol. M. Co. (Nev.), 158 P. 876.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought by the Alameda Mining Company, respondent, against the Success Mining Company, appellant, praying for a perpetual injunction enjoining the Success Mining Company from entering upon or into or excavating and removing ore from the Cardiff mining claim owned by the plaintiff, and for $ 30,000 damages alleged to be the value of ores removed from the said Cardiff claim, and to quiet the title of plaintiff in said Cardiff claim.

The Success company answered, denying the allegations of the complaint, and filed a cross-complaint, alleging the ownership of the Granite mine and of the vein, lode or ledge thereunder, and that the Granite vein apexes within the exterior boundaries of the Granite claim, and that the said vein crosses the east end-line of said Granite claim and that in pursuing said vein on its dip and downward course between vertical planes extending downward through its parallel end-lines, the said vein passes under and beneath the south side-line of said Granite claim into and beneath the surface of the said Cardiff lode claim, and based such claim or right upon the provisions of sec. 2322, U.S. Rev. Stats. (U. S. Comp. Stats. (1916), sec. 4618, 5 F. Stats. Ann., p. 13). This case involves the question of extralateral rights.

Upon the issues made by the pleadings, the case was tried by the court without a jury. By permission of the court the question of extralateral rights was tried first, and it was understood and agreed that if that question were decided in favor of the plaintiff, then the question of accounting should thereafter be tried. After trying the question of extralateral rights, the court made its finding of facts and conclusions of law and entered judgment denying the Success company the right to pursue said vein under and beneath the surface of the Cardiff claim, and denying the Success company any extralateral rights whatever underneath the Cardiff claim.

The question of the value of the ore extracted from the Cardiff claim had not been tried and determined at the time this appeal was taken.

The appeal is from the judgment quieting the title to the Cardiff lode claim in the plaintiff and perpetually enjoining the defendant from asserting any right, title or interest in and to any extralateral rights under said Cardiff lode claim or the ores and minerals therein adverse to the plaintiff.

In limine, respondent has made a motion to dismiss this appeal on two grounds: First, that the appeal is from an interlocutory judgment and not from a final judgment; second, that said appeal is from a decision that is not appealable and is premature.

There is nothing whatever in either of the grounds above stated. The judgment entered is a final judgment, so far as the rights of the Success Mining Company are concerned, in extracting any ore from beneath the surface of said Cardiff claim, and the only matter remaining for determination is the value of the ore which the Success company has extracted therefrom. The judgment decreed that "the defendant be forever enjoined from asserting any right, title or interest in or to the said Cardiff lode claim or the ores and minerals therein, adverse to the plaintiff," thus holding that the Success Mining Company had no extralateral rights within the boundaries of the Cardiff mining claim. The judgment of the court in part is as follows:

"It is now ordered, adjudged and decreed that the title to the Cardiff lode claim be and the same hereby is...

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