Barker v. Condon
| Decision Date | 28 May 1917 |
| Docket Number | 3840. |
| Citation | 165 P. 909,53 Mont. 585 |
| Parties | BARKER ET AL. v. CONDON ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; J. B. Leslie, Judge.
Action by Leonie E. Barker and H. P. Brown against Daniel Condon and others. From a judgment for plaintiffs, and an order denying new trial, defendants appeal. Judgment reversed, and cause remanded, with directions to dismiss the complaint.
This action was brought to recover the value of ore taken by defendants from a vein alleged to apex in the Ripple lode mining claim, owned by plaintiffs. Plaintiffs demanded judgment for a perpetual injunction and for the value of the ore extracted.
Defendants in their answer denied that they had extracted ore from any vein having its apex within the Ripple lode, and denied generally the other allegations of the complaint. Further answering, the defendants alleged that the Montana Gold Silver, Platinum & Telurium Mining Company was the owner of the Tom Hendricks and the Sixteen to One lode claims, which at the times mentioned in the complaint, were under lease to the defendants; that the Sixteen to One lode lies between the Tom Hendricks lode and the Ripple lode; that the vein from which the defendants extracted the ore in dispute is the Sixteen to One claim and Tom Hendricks claim, and within the exterior boundaries thereof extended vertically downward; and that no ore was taken from said vein outside of vertical planes drawn through the end lines of said claims.
The case was tried to the court and a jury. At the conclusion of the evidence the case was dismissed as to T. C. Power and Louis Heitman, originally joined as defendants. Plaintiffs offered evidence in support of their contention that the vein from which the ore was taken had its apex in the Ripple claim and was disclosed in a little tunnel within the claim and near corner No. 4. The defendants offered evidence tending to show that the vein from which the ore was extracted was nearly vertical, and that, if it maintained the same dip in its course upward to the surface, would not apex within the Ripple lode. At the conclusion of all the evidence defendants moved for a directed verdict on the ground, among others, that there was no evidence to show that the vein from which the ore was taken had its apex in the Ripple lode. This motion was overruled. The jury brought in its special findings in favor of plaintiffs. The net value of the ore extracted was found by the referee to whom the matter was referred by the court, to be $144.05. Thereafter judgment was entered in favor of plaintiffs. This appeal is from the judgment and from the order denying a new trial.
J. A Walsh, of Helena, and W. F. O'Leary, of Great Falls, for appellants.
Cooper, Stephenson & Hoover, of Great Falls, for respondents.
WORD, District Judge (after stating the facts as above).
All the questions raised by the assignments of error are resolved in favor of the respondents, except one, and that is: Is there any evidence in the record showing, or tending to show, that the vein from which the ore was taken has its apex within the Ripple lode? In view of the admitted fact that the ore extracted came from beneath the surface of the Tom Hendricks and Sixteen to One claims, respondents concede that the burden is upon them to establish their right to go within the boundaries of said claims and extract ore. Have the plaintiffs and respondents discharged this burden resting upon them? Have they established by competent or any evidence the existence, within the lines of their claim, of the apex of the vein or of that portion of the vein from which the defendants extracted the ore sued for? Upon this point the evidence offered by plaintiffs is, in substance, as follows:
John W. Wade testified that he had surveyed the Ripple lode and the tunnels, shafts, and upraises made by plaintiffs in the working and development of that claim. That Exhibit C for plaintiffs was a map of the Ripple lode, showing these workings, drawn to scale, and also included the Sixteen to One and a portion of the Tom Hendricks claims; that the Ripple vein has a north and south course, and dips east into the mountain; that in a little tunnel about 20 feet long, near corner No. 4 of the Ripple lode, and within that claim, there is a well-defined vein about 18 inches or 2 feet wide; that this vein carries ore, has a dip to the east of about 20 feet in 100, and, in the opinion of the witness, is the apex of the Ripple vein and the apex of the vein from which the ore was taken beneath the surface of the Sixteen to One and Tom Hendricks lodes; that upon Exhibit C the witness has drawn a red line, marked "Apex as Developed by Surface Openings," to indicate the cropping or upper edge of the apex of the Ripple vein; that the dotted line at the south end of the claim is an extension of the south end line, marked "3" and "4," in the same direction; that the lines in red, marked "Big Snowy Tunnel" indicate the workings of the defendants beneath the surface of the Sixteen to One and Tom Hendricks claims. The witness concludes that the vein in the little tunnel near corner No. 4 is the apex of the Ripple vein, and the same vein from which the ore in dispute was taken, because it has about the same dip and the same character of ore as has the vein disclosed in the Big Snowy tunnel; because the vein in the little tunnel is on a line with the upraises from the vein to the surface farther north in the Ripple claim; for that the crosscuts on the surface, and made by the Joki tunnel for a distance of nearly 200 feet, and by the Tom Hendricks tunnel, run by the defendants, show that there is no other vein than the Ripple vein from which the disputed ore could come; that the Ripple vein always dips into the mountain, that is, to the east; that the veins below and to the west dip to the west, and that there is no other vein which could apex in the little tunnel near corner No. 4 except the Ripple vein; that most of the openings where they took the dip of the vein are necessarily short, but that the dips show a trend out of the ground that will bring the apex into the red line marked "Apex as Developed by Surface Openings"; that in the Lower tunnel, at a point marked "E-F", about 755 feet north of corner No. 4, the vein is almost vertical; that beyond the south end line of the Ripple claim the development work done by defendants shows that the vein turns southwesterly, and the dip of the vein is about 61 feet in 100, and that, keeping that dip, it would apex below where it does apex near corner No. 4 of the Ripple lode; that at the point "C-D" upon the map, about 390 feet north of corner No. 4, the Lower tunnel is about 250 feet deeper than the Pierce-Westgard tunnel; that in this distance the variation is 31 feet; that the Pierce-Westgard tunnel is 140 feet deeper than the Weidell tunnel, at the point "C-D," and that between these tunnels at this point the vein dips from 20 to 25 feet; that from the Weidell tunnel to the surface there is an upraise 80 feet in length, marked "Weidell upraise"; that the dip of the vein between the surface and the Weidell tunnel is about 30 feet.
On cross-examination the witness Wade testified, in substance as follows: That the Weidell tunnel is about 160 feet above the Westgard tunnel; that at the point "C-D" there is no upraise from the Westgard tunnel to the Weidell tunnel; that the top of the Linquist upraise is 141 feet above the Westgard tunnel, figured vertically; that at the point...
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