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

• Decision Date: 16 February 1903
• Docket Number: 895.
• Citation: 121 F. 973
• Parties: EMPIRE STATE-IDAHO MINING & DEVELOPING CO. v. BUNKER HILL & S. MINING & CONCENTRATING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

121 F. 973

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

No. 895.

United States Court of Appeals, Ninth Circuit.

February 16, 1903

W. B Heyburn, for appellant.

Curtis H. Lindley, Henry Eickhoff, M. A. Folsom, and John R McBride, for appellee.

The appellee, the Bunker Hill & Sullivan Mining & Concentrating Company, a corporation, brought its bill in equity against the appellant, the Empire State-idaho Mining & Developing Company, to quiet title to the Stemwinder lode mining claim in Shoshone county Idaho. The controversy relates more particularly to extralateral rights, and it may be best explained by reference to the following diagram:

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The bill avers that the appellee owns and is in possession of the Stemwinder claim, the surface ground of which is indicated by the parallelogram a-- b--d-- c, excepting thereout such portions as are included within the surface lines of the Emma and Last Chance lode claims; also excepting parts of the lode or vein which lie within the surface lines of the Emma and Last Chance claims, and such parts thereof as lie within the extralateral rights of said last-named claims as the planes thereof extended indicate upon the said diagram. The bill alleges that the course of the apex at the surface is as shown upon the diagram, and that its downward course is westwardly; that the appellee owns and is in possession of all of the said vein throughout its entire depth on its downward course between the endline planes of said Stemwinder claim marked upon the diagram respectively b-- a-- e-- f and d-- c-- g-- h, excepting therefrom such underground parts of said vein as are included within planes drawn through the end lines of said Emma lode claim from 1 to y, and vertical planes drawn through the end lines of the Last Chance claim, 2-- 1-- 5 and 3-- 4-- 6. The portion of the underground vein which is in controversy is defined by planes 3-- f and g-- h, the same being the end lines of the Stemwinder extended beyond the planes of the end lines of the Emma and Last Chance claims. The bill avers that the appellant claims an interest adverse to the appellee in that portion of said vein which lies northerly and westerly of the northerly end line plane of the Last Chance claim, 2-- 1-- 5, and that such claim is false and groundless, and is a cloud upon the appellee's title; that since September 1, 1899, the appellant, by means of underground works, of which it has exclusive possession and control has penetrated into that part of the underground vein so claimed to lie within the Stemwinder extralateral boundaries, and beyond the end line plane of the Last Chance northern boundary, and that said underground vein, where so penetrated, contains large and valuable ore bodies which the appellant is extracting and threatens to extract and remove unless enjoined. Upon the filing of the bill an application was made for an injunction. The application was heard upon affidavits and counter affidavits, and thereupon the appellant was enjoined from extracting such ore pending the suit. On July 12, 1902, the appellant filed a demurrer and an answer to the bill under a stipulation providing that the demurrer should not be deemed to be waived by the answer, and thereafter the demurrer was argued and was overruled. Upon application of the appellant, the injunction order was thereafter vacated, and a further hearing was had upon the application for an injunction, and on the pleadings and the affidavits which were already on file. The court again enjoined the appellant as before. From that injunction the present appeal is taken. See 106 F. 471; 108 F. 189.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge, after stating the case as above, .

It is assigned as error that the court overruled the plea which was filed by the appellant at the time of the hearing of the application for the injunction. The matter of the plea was first, a former judgment between the two parties; and, second, another action pending. The plea of a former judgment alleges: That on September 29, 1898, an action at law was commenced by the appellee against the appellant and the Last Chance Mining Company, in which the appellee alleged that it owned the Stemwinder mining claim, together with the lode or vein above referred to, and on its downward course, including the ledge and ore bodies which are in controversy in the present suit, and that the appellant and the Last Chance Mining Company were in possession of said ore bodies, and demanded judgment for the recovery and possession of the said property, and for the sum of $200,000 damages for ore extracted therefrom. That the defendants therein answered, denying the title of the appellee and its possession, and denying that the appellant was in possession of said lode, or had extracted therefrom the ore as charged in the complaint. That the said cause was tried before the court without a jury, and a judgment was rendered in favor of the plaintiff therein as to that portion of the Stemwinder lode lying between lines drawn on the plane of the south side line of the Emma claim and the south end line of the Stemwinder claim extended in their own direction, but in favor of the defendants therein as to all of the ground claimed by the Last Chance Mining Company in its answer in said action. That upon separate writes of error from this court to review said judgment that portion of the judgment of the Circuit Court in favor of the defendants was affirmed, and that portion thereof in favor of the plaintiff in said action was reversed. The plea of the pendency of another suit alleged that a suit in equity was brought by the appellee against the appellant, the appellee alleging therein the same facts as in its present bill in this suit, and praying for the same relief. As to the first portion of the plea it is sufficient to say that the premises in controversy are not the premises in controversy herein, and that no final judgment is pleaded. The reversal of a portion of said judgment by this court upon the writ of error was a reversal of the whole thereof, and operated to set aside the affirmance of the judgment which was adjudged upon the first writ, and to remand the cause for a new trial. Montana Mining Comapny v. St. Louis Mining & Milling Co., 186 U.S. 24, 22 Sup.Ct. 744, 46 L.Ed. 1039. The plea of another suit pending refers to a suit in equity which was ancillary to the action of ejectment just referred to. It was brought for the purpose of preserving, pending the law action, the ore bodies lying within the conflicting segments claimed respectively by the owner of the Last Chance and the appellee herein. The appellant claimed no right to the ores in controversy, but it denied that...