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

• Decision Date: 17 January 1903
• Citation: 134 F. 268
• Court: U.S. District Court — District of Idaho
• Parties: BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO. v. EMPIRE STATE-IDAHO MINING & DEVELOPING CO.

134 F. 268

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

United States Circuit Court, D. Idaho.

January 17, 1903

Syllabus by the Court

Locations may be amended, without the loss of original rights, except those inconsistent with the amendment; but new rights cannot be added which are inconsistent with the acquired rights of others.

Held in accordance with the rulings of the appellate courts, that a junior locator may, for the purpose of acquiring extralateral rights, extend his surface location over prior locations when their owners do not object.

A monument established by the locators of two different claims as the point through which the dividing line between them shall run is not binding upon subsequent purchasers, unless so made of record as to give notice to such purchasers.

The ledge may be followed between the perpendicular planes of its end lines, regardless of the fact that this may be more upon the course than upon the dip of the ledge.

When the mineral-bearing ledge consists of a mineralized zone or belt, without distinct walls, rather than a well-defined ledge, the practical mode of determining its legal width is by the lines beyond which ore is not found, or beyond which such indications of it do not exist, which would encourage the minor to continue his explorations with the expectation of compensation.

The owner of a ledge may follow it continuously and indefinitely except where intersected or crossed by the ledge or underground rights of a prior locator, and beyond such intervening right the junior owner may resume and follow his ledge.

Curtis H. Lindley and McBride & Folsom, for complainant.

W. B Heyburn, for defendant.

BEATTY District Judge.

Complainant as owner of the Stemwinder Mining Claim, in bringing this action to quiet its title to an underground portion of the ledge thereof, admitting the priority of the Emma and Last Chance mining claims, makes no claim to any part of their surface area, nor to any portion of the ledge lying between the extended planes passing through their legal end lines; but it claims that underground portion of the ledge lying between the prolonged planes of the Stemwinder end lines and westerly of the prolonged plane passing through the north end line of the Last Chance, being that space represented upon the following plat (showing approximately the relation of the premises) by the lines X T, X Y, and Y R:

(Image Omitted) The said mining claims were located on September 17, 1885, but by judicial determinations the Emma and Last Chance, owned by the Last Chance Mining Company, have priority of rights. The location of the Stemwinder was amended on May 23, 1887. The Viola, the Skookum, and the San Carlos claims, owned by defendant, were located, respectively, on February 20, April 5, and April 23, 1886. Most of the questions now submitted are involved in an appeal pending in the Circuit Court of Appeals from an order of this court in this case granting a restraining order pendente lite. It is desirable to wait the conclusion of that court; but, as it has been suggested by one of the counsel that action may be delayed until the case on its merits reaches there, it is concluded not to delay.

It has long been held that a mining location may be amended without the forfeiture of any rights acquired by the original location, except such as are inconsistent with the amendment, but new rights cannot be added which are inconsistent with those acquired by other locations made between the dates of the original and the amended location. The amended Stemwinder notice fully states the reasons therefor, and specifically reserves all prior acquired rights. While the new lines are placed almost within the old, they are so laid that in their prolongation westward they leave out on one side and take in on the other small portions of the ledge not included between the original lines. The amended location is valid against any of defendant's locations made after the date of the amended notice, May 23, 1887; but, as to those made between the dates of the original and the amended location, it is void as to any portion of the ledge claimed by the amended location which was not included in the original, in so far as it conflicts with any of defendant's locations involved in this action.

The defendant contends that the south line of the Emma, prolonged westward, should bound the extralateral rights of the Stemwinder. It was so held by this court (108 F. 194), which was reversed by the appellate court (109 F. 538, 48 C.C.A. 665). I now think that this court should have held, as it then suggested, that the north boundary line of the Stemwinder should be one drawn parallel to its north boundary line of the Stemwinder should be one drawn parallel to its souther line at the place where the ledge crosses the Emma line. This would have been consistent with the 'overlap' doctrine and some other rulings, and would have given the Stemwinder the same length of ledge underground that it has of the 'overlap' doctrine and some other rulings, and would have given the Stemwinder the same length of ledge underground that it has of the apex, which in my opinion is the undoubted contemplation of the law. But the complainant is not content with this, and demands that its extralateral rights be limited only by its end lines as laid. If it is correct, then the locator of an unclaimed apex of even 10 feet may overlap other valid locations for 1,490 feet, and thereby claim extralateral rights for the distance of 1,500 feet of all the fractional underground portions of the ledge not included in prior extralateral rights. If this is the law, it must lead to great confusion of rights. It is said that the Supreme Court has in effect so held. I am unable to so read its decisions. I think that the argument in the Del Monte Case, 171 U.S. 55, 18 Sup.Ct. 895, 43 L.Ed. 72, is to the contrary, for on page 85, 171 U.S.,page 907, 18 Sup.Ct., 43 L.Ed. 72, It says: 'Perhaps the rights of the junior locator below the surface are limited to the length of the vein within the surface of the territory patented to him, but it is unnecessary to now decide that matter.'

So far as my attention has been directed, that court has not decided this question, at least not as to the vein upon which the discovery and location is made. The question of doubt with me is concerning the decision of the Court of Appeals in 109 Fed., 48 C.C.A.,where on page 542, 109 Fed.,and page 670, 48 C.C.A., it is said that:

'Across that ledge and on unappropriated public land the locator of the Stemwinder laid his

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