Anaconda Copper Mining Co. v. Pilot-Butte Mining Co.
| Decision Date | 04 October 1915 |
| Docket Number | 3700. |
| Citation | 156 P. 409,52 Mont. 165 |
| Parties | ANACONDA COPPER MINING CO. v. PILOT-BUTTE MINING CO. |
| Court | Montana Supreme Court |
On Rehearing, March 20, 1916.
Appeal from District Court, Silver Bow County.
Action by the Anaconda Copper Mining Company against the Pilot-Butte Mining Company. From an order granting an injunction pendente lite, defendant appeals. Remanded, with directions to modify order.
See also, 153 P. 1006.
The following plats are referred to in the opinion:
(Image Omitted)
John J McHatton, of Butte, for appellant.
L. O Evans, of Butte, W. B. Rodgers, of Anaconda, and D. Gay Stivers and D. M. Kelly, both of Butte, for respondent.
This appeal presents for review an order of the district court granting an injunction pendente lite. The plaintiff is the owner of the Badger State and Emily claims, and the defendant owns the Pilot claim to the north. The situation of these claims and the question propounded for solution are best illustrated by the subjoined diagrams, which are sufficiently accurate for all purposes of this appeal. As between the Badger State and the Emily, the former is the senior location. Each of these claims was originally located so that it is entitled, prima facie, to extralateral rights. There is some controversy as to whether there is in fact one broad vein or at least two distinct veins; but the trial court found generally for the plaintiff, and for the purposes of this appeal we shall assume, without deciding, that plaintiff's theory of distinct veins is correct.
The south vein, hereafter referred to as the Badger State vein for convenience only, passes through the Emily west end line and through the south side line into the Badger State at the point B. The north vein, which will be designated the Emily vein, likewise passes through the Emily west end line and through the south side line into the Badger State at A (Fig. 1). These veins dip to the north and about 900 feet below the surface unite on the dip, and from that point the one vein so far departs from a perpendicular on its descent into the earth that, in the neighborhood of the 1,800-foot Badger State level, it passes beyond the Emily north side line and into territory beneath the Pilot surface. The trial court enjoined the defendant from mining upon this vein beneath the Pilot between a plane drawn through the Emily west end line and a plane drawn through the Badger State east end line projected north indefinitely. By eliminating all other questions which we deem inconsequential, we have for determination the single inquiry: Was the order justified?
The plaintiff does not attempt to defend the order in terms, but insists that if the planes as drawn were employed merely as a convenient means of describing the territory to be protected, and if the defendant is not injured thereby, the order should be affirmed, even though there cannot be any justification, from a technical point of view, for projecting the planes as was done in the order, and of the correctness of this there cannot be any question.
The first contention of plaintiff is that the Badger State is entitled to extralateral rights on the Badger State vein under the Pilot surface between a plane through the Badger State east end line projected north indefinitely, and a plane parallel thereto drawn through point B, and for the purposes of this appeal defendant concedes this contention.
Plaintiff insists, further, that the Emily is entitled to extralateral rights on the Emily vein beneath the Pilot surface between a plane drawn through the Emily west end line D, E, projected north indefinitely, and a plane parallel thereto drawn through A, C (Fig. 1). The defendant's theory is that the right of the Emily to follow the vein under the Pilot surface is limited between a plane drawn through the Emily west end line D, E, and a plane parallel thereto drawn through B, F (Fig. 2). Figure 1 illustrates the plaintiff's view, figure 2 the theory of defendant, and figure 3 is a cross-section showing the union of the two veins, and the dip of the consolidated vein. If the Emily rights be established in harmony with plaintiff's contention, then the defendant is not injured by the order as made. If, on the other hand, defendant's theory is correct, the order is too broad, for a triangle formed by lines drawn through B, F, C (Fig. 2) is not included within the extralateral rights of either of plaintiff's claims and should be exempted from the operation of the injunction, leaving the Pilot free to prosecute its mining operations within so much of the triangle as lies within its surface boundaries, upon the theory that the ores therein belong to it by virtue of its common-law rights.
It is claimed for the contention of the plaintiff that it is warranted by the express language of section 3 of the act of May 10, 1872 (c. 152, 17 Stat. 91, U.S. Rev. Stat. § 2322), and by the construction given that statute by federal courts in cases presenting like questions. The effect of the statute invoked is that discovery upon a vein which cuts at least one of the parrallel end lines of a claim and has its apex within the surface lines of the claim extended downward vertically, gives to the locator exclusive possession of the surface and of all veins, lodes, and ledges therein throughout their entire depth, although such veins, lodes, or ledges so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such location.
It is immaterial to this discussion whether the Badger State vein, as we have denominated the south vein, is the discovery or a secondary vein in the Badger State claim, or whether the Emily discovery was upon the Emily vein, as we denominate the north vein. Upon the assumption that the Emily claim has within its surface boundaries 600 feet or more of the apex of the Emily vein, the language of the statute above is invoked to justify the Emily in claiming extralateral rights along that vein for an equal number of feet beneath the Pilot surface below the 1,800-foot level, notwithstanding the union of the Badger State and Emily veins above the point where the Emily north side line is crossed by the consolidated vein. If the provision of section 2322 above was the only applicable statute, the correctness of the plaintiff's position would afford reasonable ground for debate; but the history of our mining laws and the construction which we deem it necessary to give to the entire act of May 10, 1872, remove the question presented upon this appeal from the realm of doubt.
Section 4 repeats this language in substance. Nothing whatever is to be found in the act or in the local rules and regulations, so far as our investigation goes, as to the relative rights of each of two locators whose veins united on the dip beneath the earth's surface. When such a condition arose, it was necessary to make an equitable division of the vein at and below the point of union, or the right of one claimant had to yield to the paramount right of the other. The theory of a division of the vein never found favor with the miners or with the courts, but the maxim, "First in time is strongest in right," was applied in the absence of express statutory enactment to the contrary. When the act of 1872 above was passed, the subject was placed beyond the pale of controversy, by crystallizing the maxim into statutory law. Section 2336, U.S. Rev. Stat., provides:
"And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection." If the early miner was led to believe that the right to follow his discovery vein on the dip between the planes of his end lines was absolute, he was soon disabused of his illusion. If his vein dipped beneath his side line into prior patented agricultural land, he discovered that his right was cut off and that the common law interposed to stay his mining operations. Amador Medean Gold Min. Co. v. South Spring Gold Min. Co. (C. C.) 36 F. 668. If in pursuing his vein on the dip he came into contact with the asserted right of a prior locator on the same vein, the maxim "First in time is strongest in right" took from him that which he assumed to be his own and gave it to the older location. Tyler Min. Co....
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