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

• Decision Date: 06 June 1904
• Docket Number: 950.
• Citation: 131 F. 591
• Parties: EMPIRE STATE-IDAHO MINING & DEVELOPING CO. v. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

131 F. 591

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

No. 950.

United States Court of Appeals, Ninth Circuit.

June 6, 1904

F. T Post (W. B. Heyburn, of counsel), for appellant.

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

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This is an appeal from a decree quieting the appellee's title, as against the appellant, to the Stemwinder lode claim and defining its extralateral right in and to the ledge apexing within the surface boundaries of the claim. Annexed to and made a part of the decree is the following diagram indicating the location of the various claims mentioned in the record, and the course of the vein in question:

(Image Omitted) 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 marked on the diagram 'Stemwinder Amended Location,' except except such portions thereof as are included within the surface lines of the Emma and Last Chance claims, and excepting, also, such parts of the lode or vein having its apex within the Stemwinder boundaries as lie within the surface lines of the Emma and Last Chance, and as lie underground between planes drawn downward through the end line of the Emma claim produced southwestwardly to their intersection, and between planes drawn downward through the end lines of the Last Chance claim extended indefinitely in their own direction. The bill alleges that the course of the apex of the vein 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 veins so apexing within the surface lines of the Stemwinder, throughout its entire depth, on its downward course between the end-line planes, as indicated in the diagram, except such parts thereof as are embraced by the end-line planes of the Emma and Last Chance claims. The bill avers that the appellant claims an estate or interest adverse to the appellee in the Stemwinder claim, and in such part of its vein as lies westerly of and beyond a vertical plane drawn downward through the westerly boundary of the Stemwinder claim, and northwesterly of and beyond a vertical plane drawn downward through the northwesterly boundary of the Last Chance claim, and between vertical planes drawn downward through the end lines of the Stemwinder claim, extended westwardly indefinitely in their own direction; that the claim of right so asserted by the appellant is false and groundless, and a cloud upon the appellant's title; that since September 1, 1899, the appellant by means of underground workings, of which it has exclusive possession and control, has penetrated into that part of the underground vein so claimed to lie within the Stemwinder's extralateral boundaries, and beyond the end-line plane of the northern boundary of the Last Chance claim; and that the said underground vein, where so penetrated, contains large and valuable ore bodies, which appellant is extracting, and threatens to extract, unless enjoined from so doing.

The demurrer of the plea filed by the appellant to the bill in the court below were before this court, and were here considered and determined, on the appellant's appeal from the order of the trial court awarding the appellee an injunction. The decision here was that the bill was good and sufficient, and that the plea, in both of its branches, was bad. Empire State-Idaho M. & D. Co. v. Bunker Hill & Sullivan M. & C. Co., 58 C.C.A. 311, 121 F. 973. That decision has become the law of the case, and those points, again elaborately discussed by counsel for appellant, are not open to further consideration.

The appellant, in its answer to the bill, denies that the appellee is now, or ever was, in the possession of, or entitled to the possession of, the Stemwinder lode claim, as described in the bill, or was ever in the possession of any part of the Stemwinder lode claim, except as particularly set forth in the answer; denies that the diagram annexed to the bill as an exhibit correctly shows the surface boundaries of the Stemwinder claim, or the course of the apex of the vein, or of any veins, at the surface through that claim, or that such vein or any vein passes through the surface of the Stemwinder claim as shown upon that diagram. The appellant admits in its answer that there is within what it terms the pretended Stemwinder claim, and within the Emma and Last Chance lode claims, a vein of mineral-bearing rock, but denies that the general course or top or apex of the same at the surface is as stated in the bill, or as shown upon the diagram annexed thereto; denies that the Stemwinder claim has any northerly boundary line, except as the southerly line of the Emma lode claim may be so considered; denies that the lode or vein has a downward course as indicated upon the diagram annexed to the bill, and denies that it passes on its downward course between the end lines claimed by the appellee as the end lines of the Stemwinder claim, or extends indefinitely beyond a vertical plane drawn through the line claimed by the appellee as the westerly boundary thereof; denies that the appellee is or ever was the owner in fee of the Stemwinder claim, or is or ever was the owner in fee or at all of the vein beyond the westerly line of the Stemwinder claim; denies that the appellant claims any estate, right, title, or interest in the Stemwinder claim, and denies that the appellee has any interest, right, or title to any vein which may intersect or lie within the Stemwinder claim after such vein has departed from the exterior boundary lines thereof, or to any vein lying westerly of and beyond the westerly boundary line of the Stemwinder claim, or beyond the northwesterly boundary line of the Last Chance claim, between vertical planes drawn through the end lines of the Stemwinder, as claimed by the appellee; denies that the Stemwinder claim is of any value, but admits that the portion of the vein in controversy is of the value of $50,000. The appellant then alleges that it is the owner of the ledge and ore bodies here in controversy, because of its ownership of the San Carlos lode claim; that the vein in which the said ore bodies lie passes on its strike or course through both end lines of the San Carlos claim, and outcrops throughout the entire length thereof, and descends into the earth on planes drawn through the end lines thereof in a southerly direction to and through the ore bodies claimed by the appellee in this suit, and that such ore bodies are the property of the appellant by reason of the fact that they are a part of the lode having its top or apex within the San Carlos claim, and are reached through continuous workings on that claim, following on the downward course of the ledge within planes drawn ont the end lines thereof, and not otherwise; that the Stemwinder claim is unpatented, and that its boundaries are not marked upon the ground at all; that it lies far to the east of the ledge and ore bodies sought to be recovered in this suit, and has no connection therewith; that there is no means of approach to said ore bodies or to said portions of the ledge from the Stemwinder claim, and that no developments from the Stemwinder claim to the ore bodies in controversy have been made, and that there are intervening between the said ore bodies and the Stemwinder claim the Emma and Last Chance patented mining claims, belonging to the Last Chance Mining Company, not a party to this suit; that, in a suit heretofore pending and determined in this court, the Last Chance Mining Company was adjudged to be the owner of the Last Chance and Emma lode claims, and of the ledge and ores therein, as against the appellee, by reason of priority and right of title thereto; that the appellee has no right of way or ingress or egress through said Emma and Last Chance claims, and has no right to follow from the Stemwinder claim to the ore bodies in controversy through or over the Emma and Last Chance claims. The appellant then alleges that the Stemwinder claim, such as it is, is junior in point of time and right to the Viola, San Carlos, and Skookum lode claims, owned by the appellant; that the Stemwinder claim never did extend north of the south line of the Emma claim, as patented, and that the locators and claimants of the Stemwinder claim, under whom the appellee claims title, did, by agreement, in conjunction with the owners of the Emma and Last Chance claims, erect a monument on the south line of the Emma claim for the purpose of marking the extreme northern limit of the Stemwinder claim, and of any right which that claim had on the surface or underground; that no stakes or monuments marking the pretended north end line of the Stemwinder claim, or marking any corner or line of that claim, were ever placed on or within the Last Chance or Emma claims with the consent of the owners thereof, but that every attempt to place any stakes of the Stemwinder upon the Emma or Last Chance claims was forbidden and prevented by such owners, and the parties so placing said stakes were compelled to withdraw them, and that, in order to definitely establish the limit of the Stemwinder location to the northward, the said monument was erected jointly by the owners of the Emma and Last Chance and Stemwinder claims; that, in patenting the Emma lode claim, the said monument was recognized as the boundary, and the official line established thereon; that, notwithstanding the said monument and the patenting of the said Emma claim, the successors in interest of the Stemwinder claim undertook to ignore the said boundary and the monument, and, upon...