Bunker Hill & Sullivan Mining & Concentrating Co. v. Empire State-Idaho Mining & Developing Co.

• Decision Date: 06 May 1901
• Docket Number: 630.
• Citation: 109 F. 538
• Parties: BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO. v. EMPIRE STATE-IDAHO MINING & DEVELOPING CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

109 F. 538

BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO. v. EMPIRE STATE-IDAHO MINING & DEVELOPING CO. et al.

No. 630.

United States Court of Appeals, Ninth Circuit.

May 6, 1901

Curtis H. Lindley and John R. McBride, for plaintiff in error.

W. B Heyburn, E. M. Heyburn, and L. A. Doherty, for defendants in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This is an action of ejectment, in which the plaintiff in error was plaintiff in the court below. It involves an underground segment of a mineral-bearing ledge claimed by the plaintiff in the action to be a portion of the Stemwinder mining claim which claim confessedly is, and was at the time of the alleged trespass upon it by the defendants, owned by the plaintiff. The case comes here on the judgment roll. Annexed to the findings of the court, and made a part of them, is a diagram showing the Stemwinder, Emma, and Last Chance mining claims, with the vein passing through each of them in a northwesterly and southeasterly direction, which diagram is here inserted, to illustrate the positions and claims of the respective parties:

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The defendant Last Chance Mining Company is shown by the findings to be the owner of the Emma and Last Chance claims. Both of the latter were patented by the United States more than five years prior to the commencement of this action. The Stemwinder has not been patented. Each of the claims was located in the year 1885. When the claimant of the Emma applied to the government for a patent therefor, the claimant of the Stemwinder filed in the land office an adverse claim to that portion of the ground in conflict between the two claims, and thereafter brought an action in the district court of the First judicial district of the then territory of Idaho to establish the alleged priority in location of the Stemwinder over the Emma, but which action resulted in a judgment establishing the priority of the Emma. In respect to the Stemwinder and Last Chance claims the court below found--

That the Last Chance lode mining claim, as shown on said diagram A above (the diagram already set out), was located by its original claimants subsequent to the location of the Stemwinder, and although the worded notices of each dated on the same day of September, 1885, the Stemwinder discovery and location was made prior to the said Last Chance, and its rights attached first to the ground now in dispute between the parties; and I find that upon an application for patent to the Last Chance lode mining claim, as described in said diagram, no adverse claim was made by the said Stemwinder owners to the ground in conflict as shown on said diagram and that the said Last Chance Mining Company received their patent therefor as so described, and is entitled to all the rights conferred by such patent.'

The eighth, ninth, tenth, eleventh, and twelfth findings of fact are as follows:

'Eighth. That there is a large ledge or lode of mineral-bearing rock and earth in place which enters the southerly end line of the Stemwinder lode claim, approximately having the course and width shown on the diagram A, and passing on its course through the said Stemwinder, the said Emma, and the said Last Chance lode claims, and having a dip southwesterly of from 35 to 40 degrees from the perpendicular; and, on its descent into the earth, developments show that it passes far beyond the surface of each of the said claims, and said vein or lode has its apex in each of said claims to the extent indicated on said diagram. Ninth. That the lines which cross said lode on its course through the Emma claim are not parallel, and so converge in their prolongation to the westerly that planes drawn downward along the course of said lines intersect each other at a point marked 'X' on said diagram, and the rights of the owners of the said Emma lode claim to the lode cease at that point. Tenth. That the lines, a, b, c, d, on said diagram, correctly show the lines on the surface, projected from the southeasterly and northeasterly corners of the Stemwinder lode claim, and indicate its right to follow the lode on its descent westerly, except as modified by the rights which defendants are adjudged to have by virtue of these findings. Eleventh. That the defendants have lode which lies between a plane drawn downwards along the line marked 'a, b,' and the plane of the south end line of said Last Chance claim drawn perpendicularly downwards along and projected to the point Z on said diagram, and assert right and title to same. Twelfth. That the allegation in the answer of the defendant Last Chance Mining Company (subdivision 8), as set forth in answer to the first cause of action in plaintiff's complaint, and also in its answer to the second cause of action therein, that the plaintiff's action is barred by virtue of section 4036 of the statute of limitations, is not sustained by the evidence.'

The conclusions of law reached by court below are as follows:

'The plaintiff's action is not barred by law. That the plaintiff is entitled to recover from the defendant that portion of the lode or vein sued for which lies in the triangular space bounded by perpendicular planes passing through lines described as follows: Commencing at a point where the south line of the Emma, prolonged westerly, intersects the south line of the Last Chance, and indicated on said plat A by the letter 'X'; thence westerly along the prolongation of said Emma line . . . feet, to the point where the same is intersected by the original south line of the Stemwinder prolonged westerly, and indicated upon said plat A by the letter 'Y'; thence easterly along said prolonged line of the Stemwinder . . . feet to the intersection of said south line of the Last Chance prolonged westerly, and indicated upon said plat by the letter 'Z'; and thence to the place of beginning . . . feet along said south line of the Last Chance and its prolongation,-- the right of said plaintiff to said segment of said lode or vein being hereby denied to all other portions of said vein or lode sued for in this action by plaintiff, and not contained in above description.'

Judgment was entered accordingly, from which the present appeal was taken. In its opinion the court announced its conclusion in these words:

'My conclusion is that the Stemwinder owns only so much of the apex of the ledge, measured along its center, as lies between its south line as originally located and the south line of the Emma, and that, in following the ledge on its downward course, it must be between the prolongation of the planes passing through these lines, which would end at their point of convergence indicated upon the plat by the letter 'Y.' There is another view which might by taken of the Stemwinder's right; that is, that its south boundary line should be considered established, and that another line parallel to it should be established at the point where its ledge passes into the Emma, as was done by the supreme court in the Del Monte Case, supra. Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co., 171 U.S. 55, 18 Sup.Ct. 895, 43 L.Ed. 85. This rule would be followed here, but for the priority of the Emma.'

The priority of location of the Emma over the Stemwinder claim is not only found as a fact by the court below, but is conceded by the plaintiff in error; and the plaintiff further concedes, not only in its brief, but in its complaint, that the Emma has the right to follow the vein in its dip between vertical planes drawn through its converging end lines to the point of their intersection. The underground segment of the vein included within the triangle formed by the prolongation of those two vertical converging end lines and the westerly side line of the Emma, as well as the surface and everything under the surface of the Emma, claim, is thereby eliminated from controversy. Notwithstanding the location and rights of the Emma, the Stemwinder claim was so located as to include within its lines a considerable portion of the Emma's surface. The lines of the Stemwinder that cross the vein are parallel, are therefore, in law, the end lines of that claim, whether so intended by the locator at the time of its location or not. Mining Co. v. Tarbet, 98 U.S. 463, 25 L.Ed. 253; Argentine Min. Co. v. Terrible Min. Co., 122 U.S. 478, 7 Sup.Ct. 1356, 30 L.Ed. 1140; King v. Mining Co., 152 U.S. 222, 14 Sup.Ct. 510, 38 L.Ed. 419. No doubt, the owner of the Emma could have lawfully prevented any intrusion upon his claim, and have maintained the exclusive possession thereof. As said by the supreme court in Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co., 171 U.S. 55, 83, 18 Sup.Ct. 895, 43 L.Ed. 85:

'A party who is in actual possession of a valid location may maintain that possession an exclude every one from trespassing thereon, and no one is at liberty to forcibly disturb his possession or enter upon the premises. At the same time the fact is also to be recognized that these locations are generally made upon lands open, uninclosed, and not subject to any full actual occupation, where the limits of possessory rights are vague and uncertain, and where the validity of apparent locations is unsettled and doubtful. Under those circumstances, it is not strange-- on the contrary, it is something to be expected, and, as we have seen, is a common experience-- that conflicting locations are made, one overlapping another, and sometimes the overlap repeated by many different locations. And while in the adjustment of those conflicts the rights of the first locator to the surface within his location, as well as to veins beneath his surface, must be secured and confirmed, why,' asks the court, 'should a subsequent location be held absolutely

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