Enterprise Min. Co. v. Rico-Aspen Consol. Min. Co., 390.

• Decision Date: 23 February 1895
• Docket Number: 390.
• Citation: 66 F. 200
• Parties: ENTERPRISE MIN. CO. v. RICO-ASPEN CONSOLIDATED MIN. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

66 F. 200

ENTERPRISE MIN. CO. v. RICO-ASPEN CONSOLIDATED MIN. CO. et al.

No. 390.

United States Court of Appeals, Eighth Circuit.

February 23, 1895

The appellant, the Enterprise Mining Company, a corporation, is the owner of the Group tunnel, a tunnel mining claim, under section 4 of the 'Act to promote the development of the mining resources of the United States,' of May 10, 1872 (17 Stat. 93, c. 152; Rev. St. Sec. 2323). It discovered a blind vein in this tunnel, which was not known to exist when the tunnel site was located or when the excavation of the tunnel was commenced. This vein is called the Jumbo No. 2 vein, and it crossed one corner of the Vestal lode mining claim, which is based on a discovery from the surface subsequent to the commencement of the tunnel, and is owned by the appellees the Rico-Aspen Consolidated Mining Company, a corporation, and its associates. The controversy in this case is over ore in this Jumbo No. 2 vein, within the limits of the Vestal claim. The appellees filed a bill to enjoin the Enterprise Company from removing it, and the Enterprise Company answered and filed a cross bill, praying for like relief against the Aspen Company. On the final hearing, the court below dismissed the cross bill, and entered a decree for the relief sought by the original bill. The appeal is from this decree.

This decree was rendered on the theory that the Enterprise Company could not maintain its claim to the ore here in question if the allegations of its pleadings were conceded to be true. The decree, therefore, has the effect of a decision sustaining a demurrer to the pleadings of the appellant. Rico-Aspen Consol. Min. Co. v. Enterprise Min. Co., 53 F. 321. It may be that, upon a subsequent trial of the issues of fact in this case, the court below or the jury to which it may remit these issues will find them otherwise than as we assume them to be in the decision of this case. It is not intended to determine such issues here. We must consider the case on the assumption that the allegations of the pleadings of the appellant are true. Upon this assumption the facts material to the decision of the questions presented by this record are these:

The course of the tunnel is from northwest to southeast. The Vestal lode claim lies nearly parallel to the line of the tunnel, but its nearest corner is more than 300 feet distant from the tunnel, and is about 1,500 feet southeasterly of a line drawn across the fact of the tunnel at right angles to its course. The general course of the Jumbo No. 2 vein is nearly at right angles to the line of the tunnel, and, after it crosses the Vestal claim, it extends into the Jumbo lode mining claim, which is owned by the appellant. The relative location of the tunnel and Jumbo No. 2 vein and the Vestal and Jumbo lode mining claims appears from the accompanying plat:

(Image Omitted) In July, 1887, the line of the Group tunnel was duly located, and the work of excavation commenced. When it had been excavated 400 feet, and in April, 1888, the Vestal lode mining claim was first located. This claim is 1,500 feet long and 300 feet wide. In April, 1890, application was made by the owners of this claim for a patent, and it was entered at the land office June 30, 1890, and was patented February 6, 1892. At the time of its entry at the land office, no discovery of the Jumbo No. 2 vein had been made, and the breast of the tunnel was 750 feet distant from the nearest portion of the Vestal claim. No vein or lode which extended in such a course as to cross the end lines of the Vestal claim could cross the line of the tunnel without a radical change of its course. The Jumbo No. 2 vein does not appear at the surface of the earth, and it was first discovered in the Jumbo lode mining claim September 1, 1891, at a distance of at least 800 feet from the line of the tunnel. At the time of this discovery, the tunnel had been excavated about 1,500 feet. After this discovery, the excavation of the tunnel was pressed forward, in expectation of finding this vein in it; and on June 15, 1892, when the tunnel had been excavated 1,920 feet from its portal, this vein was discovered therein. Immediately upon the discovery of the vein, the Enterprise Company caused the boundaries of the claim, 1,500 feet long and 300 feet wide, to be marked upon the surface of the earth, and caused a certificate of location to be duly recorded, in which it claimed 54 feet along the vein to the northeasterly of the tunnel, and 1,446 feet southwesterly thereof. This claim is called Jumbo No. 2 on the plat. That portion of this vein within the limits of the Vestal claim is about 750 feet from the line of the tunnel.

Charles H. Toll and Joel F. Vaile (Henry M. Teller, Edward O Wolcott, and Adair Wilson were with them on the brief), for appellant.

Charles J. Hughes, Jr., and C. S. Thomas (R. S. Morrison was with them on the brief), for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the facts as above, .

Three questions are presented by this case: (1) Are the owners of a valid tunnel mining claim, under section 4 of the act to promote mining of May 10, 1872 (17 Stat. 92, c. 152; Rev. St. Sec. 2323), who have discovered a blind vein in their tunnel, and have duly located and claimed it, entitled, as against the owners of a lode mining claim located from the surface after the location of the tunnel site, but before the discovery of the vein in the tunnel, to the possession of the vein or lode thus discovered, when such vein was not known to exist prior to the location of the tunnel, but was first discovered in another lode mining claim before its discovery in the tunnel? (2) Are the owners of a tunnel mining claim estopped to maintain their right to a blind vein discovered in their tunnel after a junior lode mining claim discovered from the surface is patented, because, at a time when such blind vein had not been discovered and was not known to exist, they permitted a patent to issue for such claim, which lay more than 300 feet distant from the line of their tunnel, and nearly parallel to it, without making any adverse claim, under section 6 of the act of May 10, 1872 (now section 2325, Rev. St.)? (3) If the owners of a tunnel mining claim are entitled to the possession of any portion of such a vein, to what extent are they entitled to it? The answers to these questions depend chiefly, if not altogether, upon section 4 of the act of May 10, 1872 (now section 2323, Rev. St.), which reads as follows:

'Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel 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 be invalid; but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel.'

The striking characteristic of this section of the act is that it gives the right to the possession of certain veins or lodes to the diligent owner of a tunnel before his discovery or location of any lode or vein whatever, contingent only upon his subsequent discovery of such veins in his tunnel. Veins or lodes discovered on the surface or exposed by shafts from the surface must be found before any right to them vests (Act May 10, 1872, Secs. 2, 5; Rev. St. Secs. 2320, 2324); but this section declares that the owners of a tunnel, by simply locating and diligently prosecuting it, without the discovery of any vein or lode whatever, '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.'

It is contended that the clause 'to the same extent as if discovered from the surface' means that, upon a discovery in the tunnel, the extent of the benefit conferred is to be measured by the other provisions of the law concerning surface locations. But this section itself demolishes this contention. The right to the possession of a vein discovered from the surface would not antedate the discovery, but this section unquestionably gives such inchoate right to the owner of a tunnel before the discovery of any vein or lode. Again, a prior surface location of such a vein on the line of the tunnel after the commencement thereof would not be invalid against a discovery from the surface, but this statute declares that such locations shall be invalid as against the rights of the owner of the tunnel who subsequently discovers the vein therein. This section of the statute, then, and not the provisions of the law relative to surface locations, must be taken to be the measure of the right and title to a vein which the owner of a tunnel acquires by its discovery, and it certainly gives him a far greater and more valuable right than is granted to a prospector upon the surface. The clause 'to the same extent as if discovered from the surface' is evidently used in its natural, customary sense, and it measures the extent, the distance along the lode or vein, to which the right of possession given by the statute extends, and not the general benefits conferred by the discovery. Ellet v. Campbell (Colo. Sup.) 33 P. 521, 526.

It is argued that the owner of a tunnel acquires no...