Black v. Elkhorn Min. Co.

• Decision Date: 25 February 1892
• Parties: BLACK v. ELKHORN MIN. CO., Limited.
• Court: U.S. District Court — District of Montana

49 F. 549

BLACK v. ELKHORN MIN. CO., Limited.

United States Circuit Court, D. Montana.

February 25, 1892

Word Smith & Word, for plaintiff.

Cullen Sanders & Shelton, for defendant.

KNOWLES District Judge.

The plaintiff, Mary A. Black, brought this action to have dower assigned her in the A. M. Holter lode, situate in Elkhorn mining district, Jefferson county, Mont. The complaint sets forth that L. M. Black was the husband of plaintiff; that in his lifetime he was seised of an estate of inheritance in the said A. M. Holter lode; that he conveyed the same to one Burton, and that by mesne conveyances the title possessed by him passed to defendant; that plaintiff did not join in this conveyance to Burton, and never at any time relinquished her dower in anyway in said premises. The defendant, it appears is a corporation. It denies all these allegations of the complaint, and then sets up several averments of new matter constituting a defense to the cause of action set forth in the complaint.

The plaintiff filed her demurrer to this new matter. I find myself somewhat perplexed in considering the same. The first ground set forth in this new matter is to the effect that plaintiff ought not be endowed of the property described in the complaint, because L. M. Black, her husband, was not at the time of his marriage with plaintiff, or at any time thereafter, seised of 'said tenements, with the appurtenances whereof plaintiff claims to be endowed. ' This seems something like the averment of a conclusion of law. The third averment of new matter for a defense is that the Elkhorn Mining Company, the grantor of defendant, being seised of the premises and possessed thereof, applied for a patent to said premises from the United States, and that plaintiff filed no adverse claim to this application, and that on the 19th day of November, 1889, the United States issued a patent to said Elkhorn Mining Company for said land. Considering these two defenses together, and the arguments and briefs of counsel, and it is evident that the two points sought to be presented are: First, that there is no dower in an unpatented mining claim; and, second, that, if plaintiff had any dower-right in such a claim, it was lost by plaintiff failing to file an adverse claim to the application of the Elkhorn Mining Company to patent the same.

The first of these propositions I will now consider. Is there any dower-right in a mining claim, under the laws of Montana? And in answering this question I am called upon to determine what is the nature of the estate in a mining claim. The 2322d section of the Revised Statutes of the United States provides:

'The locators of all mining claims heretofore or which shall hereafter be made on any mineral vein or ledge or lode situate upon the public domain, their heirs or assigns, when no adverse claim exists on the 10th day of May, 1872, so long as they comply with the laws of the United States, and local regulations not in conflict with the laws of the United States, governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their location, and of all veins or lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically.'

I have been unable to find any language similar to this in any deed or other grant. The supreme court, in the case of Forbes v. Gracey, 94 U.S. 762, says:

'The use of the word 'mining' or 'mining claims' is evidently intended to distinguish between the case in which the miner is the owner of the soil, and therefore has a perfect title to the mine, and those in which the miner does not have title to the soil, but works the mine under what is known in the 'mining district,' and what is, as we have said, recognized by the act of congress, as a mining claim.'

At another place in this opinion the court says of a mining claim: 'It is property in the miner of great value. ' And again: 'These claims are subjects of bargain and sale, and constitute, very largely, the wealth of The pacific coast states. ' And again: 'This claim may be sold, transferred, mortgaged, and inherited.'

In all this there is no very clear statement as to the nature of the estate in a mining claim. The only definite proposition is that the miner owning a mining claim does not own the soil embraced within the lines of his claim.

In the case of Erhardt v. Boaro, 113 U.S. 527, 5 S.Ct. 560, the supreme court again say:

'The government of the United States has opened the public mineral lands to exploration for the precious metals, and, as a reward to the successful explorer, grants to him the right to extract and possess the minerals within certain prescribed limits.'

Again:

'Discovery and appropriation are recognized as the source of title to mining claims.'

In the case of Belk v. Meagher, 104 U.S. 279, the supreme court holds this language: 'Congress has seen fit to make the possession of that part of the public lands which is valuable for minerals separable from the fee, and to provide for the existence of the exclusive right to the possession while the paramount title to the land remains in the United States.'

Again, in speaking of the location of a mining claim, it said:

'When perfected, it has the effect of a grant by the United States of the right of present and exclusive possession.'

Taking the statute and these decisions together, and we find that the locator of a mining claim has a 'possessory title;' that it is property, in the highest sense of that term; that it may be sold, mortgaged, and inherited; that he may enjoy this possession, and all lodes whose apex lies within the surface lines of his location, through their entire depth, and that he may mine and extract, and appropriate to his own use, all the minerals therein; and that this right comes by virtue of a grant from the United States, the owner of the soil. Let us turn to some of the decisions of state courts, and see how certain language in private grants have been construed. In the case of Caldwell v. Fulton, 31 Pa.St. 475, in a conveyance in which this language was used, namely, 'also the full right, title, and privilege of digging and taking away stone-coal, to any extent the said George Greer may think proper to do or cause to be done, under any of the land now owned and occupied by the said James Caldwell: provided, nevertheless, the entrance thereto and the discharge therefrom be upon the foregoing described premises,' it was held that all the coal beneath the tract of land occupied by said James Caldwell was conveyed as a corporeal hereditament, and that they did not import simply a license. Here the right to be considered is that, in connection with the possession of the lode, the locator had a right to extract and appropriate all ores found therein, to any extent. The right is unlimited. A grant of coal in place is a grant of it as land. Emery Co. v. Lucas, 112 Mass. 424; Manning v. Frazier, 96 Ill. 279; Hartwell v. Camman, 10 N.J.Eq. 128, There is undoubtedly a distinction to be drawn between a grant of coal or minerals in place, and the grant of the right to extract and appropriate to one's own use such articles. Yet, as in this case, where the right to dig and appropriate such ores is an exclusive right, which passes to one's heirs and assigns, and this right extends throughout the entire depth of the mine, it is very difficult to distinguish it from a case where a man receives the title to coal in place. When a man receives a grant of all the beneficial interest in an estate, he receives the estate. The simple right to dig and carry away ores is an entire thing, and cannot be divided, so as to have the same shared by several under the original claimant or proprietor. 2 Washb.Real Prop. 379. There has never been any doubt but that the locator of a mining claim could give any number of men the right to separately dig and carry away ores generally, or to a specific amount.

There is an interest in land called 'profit a prendre.' It is the right of taking solid, gravel, minerals, and the like from the land of another. Washb. Easem. 11. In the case of Erhardt v. Boaro, supra, the supreme court held that a minor had the right to extract and possess the mineral found in his location. A profit a prendre is an interest in the estate. Post v. Pearsall, 22 Wend. 425; Pierce v. Keater, 70 N.Y. 419....