Calhoun Gold-Min. Co. v. Ajax Gold-Min. Co.

• Decision Date: 20 November 1899
• Citation: 59 P. 607,27 Colo. 1
• Parties: CALHOUN GOLD-MIN. CO. v. AJAX GOLD-MIN. CO.
• Court: Colorado Supreme Court

59 P. 607

27 Colo. 1

CALHOUN GOLD-MIN. CO. v. AJAX GOLD-MIN. CO.

Supreme Court of Colorado

November 20, 1899

Appeal from district court, El Paso county.

Action by the Ajax Gold-Mining Company against the Calhoun Gold-Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. E. So Relle, for appellant.

Colburn & Dudley and J. C. Helm, for appellee.

GABBERT J.

Appellee the owner of the Monarch, Mammoth Pearl, Ajax, and Champion lode mining claims, commenced this action in the court below to recover damages, and restrain appellant, as defendant from removing ore claimed to be within the boundaries of these claims, and to which it asserted it was entitled by virtue of such ownership; and also to restrain defendant from prosecuting work upon a tunnel which the latter was excavating underneath such claims. Defendant answered justifying its removal of ore and excavation of the tunnel upon two grounds: (1) That it was the owner of the Victor Consolidated claim, the vein of which crossed each of those embraced within the claims of plaintiff. (2) That it was the owner of the Ithica tunnel site, projected across these claims, by virtue of which it was entitled to extend a tunnel underneath them; that in prosecuting work thereon it had penetrated the claims of plaintiff, and discovered, located, and claimed numerous blind veins underneath the surface of such claims; that it had also cut the vein of its Victor Consolidated claim in this tunnel underneath the surface of plaintiff's claims, and removed ore therefrom of the value of $400; and that it claimed to be entitled to excavate and run this tunnel for the purpose of discovering such blind veins, to work and remove ore therefrom, and from its Victor Consolidated vein. By stipulation, the Champion was dropped from the case. Upon the issues made by the pleadings, the facts thereby admitted, a stipulation as to those controverted, and certain documentary evidence, the cause was tried to the court, which resulted in a judgment adjudging plaintiff to be the owner in fee of each of its lode claims in controversy in their entirety as patented, and, inter alia, with respect to veins, 'together with all veins, lodes, or ledges having their tops or apexes therein, and including all that portion of the said Victor Consolidated vein within the side and end lines of the plaintiff's said claims extended downwards vertically'; for damages in the sum of $400; and also enjoining defendant from prosecuting work upon or extending its tunnel underneath the claims of plaintiff; and, with respect to removing ore, enjoined defendant (employing the language of the judgment) 'from further taking out, extracting, or removing ore, by means of said tunnel or otherwise, from within the side and end lines of plaintiff's said claims extended downward vertically.' From this judgment the defendant brings the cause here on appeal.

The following reproduction of the plat, which the parties stipulated below was correct, showing the relative location of the respective properties over which this controversy arises, will materially aid in understanding the questions involved:

(Image Omitted) The controversy over the right of appellant to extend its Ithica tunnel is from the point where it enters the Monarch on the southerly side, and from thence across the claims of plaintiff. The blind leads discovered are in that portion of the tunnel between the point where it enters plaintiff's claims on the south and the breast of its excavation. The vein of the Victor Consolidated is also cut in this tunnel at point marked '961.' The conflict in the lode claims of the respective parties is included in the territory bounded by the south side line of the Monarch, the north side line of the Mammoth Pearl, and the side lines of the Victor Consolidated between these two lines. We are relieved from stating the pleadings to any considerable extent, or determining the questions of law thereby presented, because on the trial below it was stipulated that the following are involved: 'First. Whether or not the Ithica tunnel, in such pleadings described, is entitled to a right of way through plaintiff's lode claims. Second. Whether or not defendant has acquired, by virtue of said tunnel and tunnel-site location, the ownership and right to the possession of the blind veins cut therein, to wit, veins or lodes not appearing on the surface, and not known to exist prior to the date of location of said tunnel site. Third. Whether or not defendant is the owner and entitled to the ore contained in the vein of its Victor Consolidated claim within the surface boundaries, and across plaintiff's lode claims. Fourth. Whether or not the defendant may in this cause introduce evidence for the purpose of showing that there was no discovery of mineral in place on the Monarch and Mammoth Pearl claims of plaintiff prior to the location of said tunnel site.' From the pleadings, evidence, and stipulation of the parties, the facts established, so far as material to the controverted questions of law involved, are: That each of appellee's claims was located prior to either the lode claim or tunnel site of appellant; that the receiver's receipt on each of the claims of appellee issued prior to the location of the tunnel site, and prior to the issuance of receiver's receipt on the Victor Consolidated; that the patents upon the lode claims of appellee issued prior to the patent on the lode claim of appellant; that the patent to the Apex issued prior to the location of the tunnel site, and on the Mammoth Pearl and Monarch subsequent to such location; that the vein of the Victor Consolidated was discovered and located from the surface, was not known to exist prior to such discovery, extends throughout the entire length of that claim, and on its strike crosses each of the veins in the claims of appellee upon which they were respectively discovered and located; that the tunnel cuts numerous blind veins underneath the surface of the claims of appellee, which do not appear upon the surface, and were not known to exist prior to the location of the tunnel; that the vein of the Victor Consolidated was cut in this tunnel underneath the claims of appellee, and ore of the value of $400 removed therefrom. It also appears that the patents upon the lode claims of appellee embrace the conflict with the Victor Consolidated without any reservation as to either surface or veins, and in this respect conform to the receiver's receipts upon such claims; that the patent on the Victor Consolidated excludes the surface in conflict with the claims of appellee, and all veins having their apex within such conflict, which are the same exceptions contained in the receiver's receipt for that claim; that the portal to the Ithica tunnel site was, at the date of its location, on public domain; that work thereon was prosecuted diligently, and that the location of such tunnel was in all respects regular; that all necessary steps were taken by appellant to locate the blind veins cut in such tunnel, which are in controversy in this case; that the record titles of the claims of appellee are vested in it, and the record titles of the Victor Consolidated, the Ithica tunnel site, and blind veins discovered therein underneath the claims of appellee are vested in appellant. The record discloses that appellant offered testimony tending to prove that at the date of the location of its tunnel site mineral in place had not been discovered on the Monarch and Mammoth Pearl lode claims. The rights of the parties depend principally upon a construction of the following sections of the Revised Statutes of the United States:

'Sec. 2322. The locators of all mining claims heretofore made or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as they comply with the laws of the United States, and with state, territorial, 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 locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins, lodes, or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end-lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another.

'Sec 2323. Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnels shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line of such tunnel of veins or lodes not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall...