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

• Decision Date: 18 October 1897
• Docket Number: 341.
• Citation: 83 F. 658
• Parties: CARSON CITY GOLD & SILVER MIN. CO. v. NORTH STAR MIN. C0.
• Court: U.S. Court of Appeals — Ninth Circuit

83 F. 658

CARSON CITY GOLD & SILVER MIN. CO. v. NORTH STAR MIN. C0.

No. 341.

United States Court of Appeals, Ninth Circuit.

October 18, 1897

This is an action of trespass brought by the plaintiff in error, as owner of the Irish-American mining claim, situated in Nevada county, Cal., against the defendant in error, which, as the owner of the North Star claim, has followed and worked its lode upon its descent under the surface of the Irish-American claim. Both claims are patented, and each claim, as patented 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 was patented in the irregular shape, and of the unusual size, represented upon the diagram hereinafter inserted. The questions presented by the writ of error are based upon the alleged insufficiency of the findings of the circuit court to support the judgment rendered in favor of the defendant in error. The cause was tried before the court without a jury. The court found, among other things, that: (3) On or about December 7, 1877, the government of the United States, in pursuance of the provisions of chapter 6, tit. 32, of the Revised Statutes of the United States, issued and delivered its patent to one Michael McDonough, conveying the mining ground and claim statute in Grass Valley mining district, county of Nevada and state of California, known as and called the 'Irish-American Mine,' described as follows: Lot 68 in township 16 N., range 8 E., and lot 53 in township 15 N range 8 E., Mount Diablo meridian,-- in the official plats of the mineral surveys of the government of the United States. That said patent was issued subject to the following conditions and stipulations, to wit: 'First, that the grant hereby made is restricted to the land hereinbefore described as lots Nos. 53 and 68, with twenty-three hundred and seventy-six and sixty-six hundredths linear feet of the Irish-American quartz mine, vein, lode, ledge, or deposit, for the length aforesaid, throughout its entire depth as aforesaid, together with all other veins, lodes, ledges, or deposits, throughout their entire depth as aforesaid, the top or apex of which lies inside the exterior lines of said survey; second, that the premises hereby conveyed, with the exception of the surface, may be entered by the proprietor of any other vein lode, ledge, or deposit, the top or apex of which lies outside the exterior limits of said survey, should the same, in its downward course, be found to penetrate, intersect, extend into, or underlie the premises hereby granted, for the purpose of extracting such other vein, lode, ledge, or deposit.' (4) That on the 26th day of June, 1894, the plaintiff in this action became the owner of said Irish-American mine, as described in finding 3, by mesne conveyances from said patentee, and ever since said last-named date has been, and now is, the owner, in possession, and entitled to the possession, of, all and singular, said property. (6) That at all times mentioned in plaintiff's complaint, and for more than 30 years prior, to the commencement of this action, the defendant, North Star Mining Company, its predecessors and grantors, were the owners in possession, and entitled to the possession, of all that certain mine and mining claim situate in Grass Valley mining district, Nevada county, state of California, known as and called the 'North Star Mine,' a particular description on the metes and bounds of said claim being contained in said finding, containing 'sixty-five (65) acres and fifteen-hundredths (15/100) of an acre of land, more or less.' (8) That said North Star mine of defendant is situated in a southerly direction from the Irish-American mine of plaintiff, the north boundary of said North Star mine being at an average distance southerly from the south boundary of said Irish-American mine 430 feet. The end lines of said North Star mine are as follows: The course called for in the description contained in finding 6, between stakes N.S. No. 1 and N.S. No. 2, N., 15 degrees E., 14.97 chains, is the west end line of said North Star mine; and the course connecting stake N.S. No. 4 with N.S. No. 5, S., 30 feet W., 10 chains and 30 links, is the east end line of said claim. Said end lines are not parallel, but converge in the direction of the dip of the North Star ledge, hereinafter mentioned. That within the surface boundaries of said North Star mine, as hereinbefore described, there is a ledge of rock in place, known as and called the 'North Star Ledge'; and, to the extent hereinafter specified, said ledge has its tip or apex wholly within said surface boundaries. That the general course or strike of said ledge is N., 81 degrees, 15 feet W., or S., 81 degrees 15 feet E., and the top or apex thereof transverses approximately the center of said (patented surface area of said North Star) mine. On its eastward course it crosses said east end line at a point thereon distant 200 feet northerly from the stake marked 'N.S. No. 5,' referred to in the description contained in finding 6. On its westward course, said top or apex of said ledge, so far as hitherto developed and established, continues to a point 2,200 feet from the east end line, measured on the course or strike N., 81 degrees 15 feet W., which said point, for the purpose of identification and reference, is hereby designated as the western terminus of said top or apex of said ledge. (9) 'That the title of said defendant to said North Star mine and said North Star ledge is as follows: On September 15, 1869, and for many years prior thereto, the North Star Gold-Mining Company, the immediate predecessor in title of said defendant, was, as against every one save and except the government of the United States, the owner of the North Star ledge, with the right to follow the same to any depth on its downward course into the earth. That on said September 15, 1869, and under and by virtue of the provisions of an act of congress entitled 'An act granting the right of way to ditch and canal owners over the public lands and for other purposes,' of July 26, 1866, said North Star Gold-Mining Company made application to the government of the United States to enter and receive a patent for said ledge, together with so much of the surface ground adjoining the same as was reasonably necessary for the purpose of working said ledge; and as was authorized by the local rules and regulations of miners which were then in force in the locality where said ledge was situated. That thereafter, in pursuance of said application so made, and on August 11, 1875, the government of the United States issued its patent to said North Star Gold-Mining Company, conveying, all and singular, said North Star mine, as described in finding 6, together with said North Star ledge, throughout its entire depth, together with all other veins, lodes, ledges, and deposits, throughout their entire depth, the tops or apices of which lie inside of the exterior lines of said mine as hereinbefore described. (That said North Star claim was originally composed of a number of smaller claims, which were consolidated into one patent, as the North Star claim, and that the lines, exact locality, or area of such original claims were not shown upon the trial, except so far as the patented lines of the North Star patent establish, or tend to establish, such facts.) That thereafter, and on or about June 16, 1884, said North Star Gold-Mining Company sold and conveyed all of said property to the defendant herein, which thenceforward has continued to be, and now is, the owner thereof.' (10) That said North Star ledge descends into the earth in a northerly direction, and at an angel of about 25 degrees from the horizon, and, in its downward course, passes outside of the planes drawn vertically through the north side line of said North Star mine, and enters the land adjoining, and reaches, penetrates, extends into, and underlies the said Irish-American mine, the property of the plaintiff herein. (11) That upon said ledge, at a place therein within the boundaries of said North Star mine, defendant and its grantors and predecessors in title have sunk an inclined shaft, and extended the same to the present depth of 2,600 feet or thereabouts, and by means of said shafts and drifts, levels, and stopes extended therefrom, in said ledge, have for more than 30 years last past been engaged in extracting and removing from said ledge ore and mineral bearing rock therefrom. That for more than 25 years next preceding the commencement of this action, with the full knowledge of the owners of said Irish-American mine described in said plaintiff's complaint, the defendant and its grantors have been in possession of and working said North Star ledge, and extracting and removing ore and mineral bearing rock therefrom, underneath the surface of said Irish-American mine, by means of said inclined shafts, drifts, levels, and stopes. That all of said work and extraction and removal of ore and material by said defendant and its grantors have been upon said ledge (which has its apex wholly within the lands and premises of defendant) hereinbefore described, and all of the mineral deposits heretofore or now appropriated by any of said underground works of said defendant are parts of said ledge. That the defendant never at any time entered upon the lands or premises described in plaintiff's complaint as the 'Irish-American Mine,' or any portion thereof, except upon and in the lawful pursuit of and following its said North Star ledge on its downward course as it penetrates into said premises described in said complaint, underneath the surface thereof, as hereinbefore set forth. That substantially all of the excavations, openings, drifts,...