Carson City Gold & Silver Mining Co. v. North Star Mining Co.

• Decision Date: 16 March 1896
• Citation: 73 F. 597
• Court: U.S. District Court — Northern District of California
• Parties: CARSON CITY GOLD & SILVER MIN. CO. v. NORTH STAR MIN. CO.

73 F. 597

CARSON CITY GOLD & SILVER MIN. CO. v. NORTH STAR MIN. CO.

United States Circuit Court, N.D. California.

March 16, 1896

W. H Dickson, A. C. Ellis, and C. W. Kitts, for plaintiff.

Curtis H. Lindley, for defendant.

BEATTY District Judge.

This is an action of trespass brought by the plaintiff, as owner of the Irish-American mining claim, situated in Nevada county Cal., against the defendant, which, as owner of the North Star claim, has followed and worked its ledge, upon its descent, under the surface of the former claim. Each claim is a consolidation of a number of small claims, many, if not all of which were located long prior to the enactment of any mining law by congress, and is patented in the irregular shape and of the unusual size represented upon the following plat; the Irish-American being about 1,500 feet square, with a strip extending from the main body about 600 feet east, and the North Star, lying 300 to 400 feet south, is about 3,100 feet long from east to west and 650 to 1,250 wide. The plaintiff's theory is that the apex of the North Star ledge runs so near northwesterly and southeasterly that, if continued in its course, it would cross the side lines, 1, 2, and 3, 4, of the claim; but that the ledge, in its northwesterly course, before reaching the north side line, is interrupted by a nearly perpendicular north and south fissure, or, at least, a distinct line of change in the geological formation of the country, called, in this case, a 'crossing,' to the west of which the ledge does not appear either upon the surface or in the underground workings. The defendant claims that the apex of its ledge runs in an easterly and westerly direction from end to end, and along the center of its North Star claim, and that its dip is northerly, or practically in the direction of its main working shaft, and, while admitting the existence of the crossing, affirms that the ledge continues to the west of it. The surface of the claim is so covered with soil, and any outcroppings of a ledge that ever may have existed are so obliterated by past mining operations, that very little can now be determined, by surface indications, of the course of the ledge. Perplexity is added from the fact that, over much of the surface, there are many old mining shafts and workings, in which more or less ore has been found, and which are in such relative positions that they are no guide to the location of the course of any ledge. A portion of them are represented on the plat by dots and crosses.

(Image Omitted) 1. During the trial plaintiff objected to defendant's evidence, based upon the North Star claim as patented, and insisted that the claims of which it is composed should be shown as originally located, and that the rights of the parties should be governed by the located lines of those claims, and not by the patented lines of the North Star. This objection was overruled, and as, upon final argument, plaintiff insisted upon its objection, a brief consideration of it will precede any discussion of the other issues. In this objection are involved the questions of the parallelism, and of the intersection by the ledge, of the end lines of the original locations. When those locations were made, there was no law requiring such parallelism, but, independent of all lines, the right to follow the ledge along its course for the full distance claimed, and underground upon its true dip, to any depth, was undisputed. Although section 9 of the act of 1872, in repealing certain parts of the old law, provided that 'such repeal shall not affect existing rights,' the courts have held that, when any claim is patented, those rights are controlled by the patented lines.

If, however, plaintiff's objection could so far prevail that defendant should be compelled to rely upon the original claims as located, instead of upon the North Star patent, it ought to follow that they should be considered as unpatented claims, and all rights which attached to them prior to patent should accrue to defendant; for, manifestly, defendant cannot be deprived of all benefits arising from its North Star patent, as well as those which attached to the original locations while unpatented. Moreover, the defendant, owning the several claims which now compose the North Star, might have procured separate patents for each claim, and in doing so might have so changed the end lines as to make them parallel, just as is always done now in application for patent; and, if the several claims jointly included the entire apex, all the claims could have been so surveyed as to make all the end lines parallel to each other, and thus give it what it now substantially claims by its North Star patent. The defendant has only done, by one act, at less expense, what it lawfully might have done by several acts, at greater expense. The North Star patent is of greater superficial area than any law has ever authorized for a single-ledge location; but it has been held by the supreme court that, while the law prescribes a limitation to the size of a single location, there is no limitation to the number of claims one person may hold by purchase, or that may be included in a single survey, showing only the exterior boundaries, and omitting all interior lines of the several smaller claims. Such was the holding as to agricultural lands in Polk's Lessee v. Wendell, 9 Cranch, 87, and as to placer claims in Smelting Co. v. Kemp, 104 U.S. 636. There appears no reason why the same rule should not apply to quartz claims.

Independent however, of the foregoing consideration, a patent has been granted for the North Star claim. It has passed beyond the field of discussion that a patent cannot be collaterally attacked on account of any question which the land department could lawfully determine before issuing it. Without now defining what questions are settled by the issuance of a patent, it is held that the question of the defendant's right to a patent to the...