Fissure Min. Co. v. Old Susan Min. Co.

• Decision Date: 03 December 1900
• Citation: 22 Utah 438,63 P. 587
• Court: Utah Supreme Court
• Parties: FISSURE MINING COMPANY, APPELLANT, v. OLD SUSAN MINING COMPANY, RESPONDENT

63 P. 587

22 Utah 438

FISSURE MINING COMPANY, APPELLANT, v. OLD SUSAN MINING COMPANY, RESPONDENT

Supreme Court of Utah

December 3, 1900

Rehearing denied December 26, 1900.

Appeal from the Fifth District Court Juab County. Hon. E. V Higgins, Judge.

Action to determine an adverse right to certain mining ground. From a judgment for defendant, plaintiff appealed.

Affirmed.

J. H Moyle, Esq. and D. H. Wells, Esq., for appellant.

The location of the General Sheridan tunnel was not made in accordance with the law. 1 Lindley on Mines, Secs. 472, 475; Land Office Regulations, 20-26; 2 Lindley on Mines, p. 1189.

The only tie in the Franklin notice is to the Clift, and the only reference in the Clift notice to any natural object or permanent monument is as follows: "This claim shall be known as the Clift Mining Claim and was known as the Susan Ledge, about two miles south of Diamond." This is insufficient in law. U. S. Revised Statutes, Sec. 2324; Darger v. Le Sieur, 8 Utah, 160; Drummond v. Long, 13 P. 543.

Work has never been prosecuted on the General Sheridan tunnel site with reasonable diligence and the exemption from annual labor laws of 1893 and 1894 did not apply to tunnel sites.

There is no such thing as resumption of work on an abandoned claim or tunnel; the effects of abandonment can only be cured by a valid relocation. Lindley on Mines, Sec. 643.

The tunnel site law is designed to encourage hazardous and conjectural exploration, and its rewards are deemed commensurate with the diligence required. Enterprise M. Co. v. Rico Aspen Coms. M. Co., 66 F. 201. See Judge Lindley's comment in his book on Mines at Sec. 488.

The law itself only gives the tunnel locator the right to veins "not previously known to exist." Enterprise M. Co. v. Rico Aspen Com. M. Co., 167 U.S. pp. 113-4.

The construction of the law contended for by respondent would permit a mere tunnel to tie up the public domain to a monopolistic extent, and the law abhors a monopoly as much or even more than a forfeiture. Lindley, Section 624; Chambers v. Harrington, 111 U.S. 357.

E. D. R. Thompson, Esq., for respondent.

This Court has frequently held that where there is a substantial conflict in the evidence as to certain facts, that it would not disturb the judgment of the lower court. McCornick v. Mangum, et al., 57 P. 428, and cases there cited.

The sole question is, Did the Court err in holding that the work for the Franklin lode could be done through the General Sheridan tunnel site and that it could apply on the same? Sec. 2324 U. S. Statutes, Amendment of February 11, 1875; 1 Lindley on Mines, Sec. 491, page 603; Book v. Justice Co., 58 F. 107.

It having been found as a fact that the respondent did not abandon the bore of the tunnel, had the lower court the right to decree the possession of the bore of the tunnel and dumping ground to the respondent? Lindley on Mines, Sec. 491, page 603, Vol. 1; 2d Lindley on Mines, page 791, foot note 4; Morrison's Mining Rights, 10th ed., p. 211.

Where work is done within the limits of the group of claims in furtherance of the common system of development, there must, it is true, be a community of interest in each claim, but this interest need not be of a strictly legal nature, and testimony may be admitted to show an oral agreement that such claims were located in the name of one person for the common benefit of others. 2d Lindley on Mines, Sec. 630, p. 789; Ebberly v. Carmichael, 42 P. 95.

MINER, J. BARTCH, C. J. and BASKIN, J., concur.

OPINION

MINER, J.

This action was brought to determine the adverse right to certain mining claims, by the appellant against the respondent, and to obtain a patent under Sec. 2326 R. S. U.S. The appellant claims the Fissure and Contrary lodes which were located in June and July, 1896, respectively. The respondent claims the General Sheridan Tunnel site located in 1892, on what is called the Calumet claim, and which in its course crosses the Franklin, Calumet and Clift claims. Respondent also claims the Franklin lode claim located in 1893, the Calumet located in 1899, and the Calumet No. 1, located in 1899, the last being a blind vein claimed under the General Sheridan tunnel site, which was discovered during the prosecution of the work in said tunnel, and is claimed by the respondent under Sec. 2323 R. S., U.S. A conflict is alleged to exist between the Contrary and Fissure lodes claimed by the appellant and the Franklin and Calumet lodes and the General Sheridan tunnel claimed by respondent. The former overlap the latter claims in part. All of the respondent's claims were located by Dennis Sullivan from whom title was derived.

The court found, among other facts, that Dennis Sullivan, respondent's grantor, performed the annual assessment work for the Franklin lode for the year 1895 by work performed in the General Sheridan tunnel, and that the work so performed was worth more than $ 100, and that since the year 1894 the work on the Franklin lode has been done each year through the General Sheridan tunnel or through the shafts or drifts in the Clift lode which adjoins the Franklin; that the course of the tunnel is across and through the Franklin and Clift lodes which belong to the respondent and which adjoin each other, and that any work done in said tunnel or shafts materially tended to the development of the Franklin and Clift lodes; that all the work done on the tunnel and the Franklin claim since the year 1895, was done for the purpose and intention of having it apply upon the annual assessment work for the Franklin and Clift lodes, and not for the purpose or intent to use said tunnel as a means for the discovery of blind veins or ledges, but that the work done in said tunnel was not performed with such diligence as would entitle the owner to any blind veins discovered therein under Sec. 2323 R. S., U.S. and that the work on said tunnel has not been abandoned; that in July, 1899, the defendant located a blind vein or ledge called the Calumet No. 1, discovered in said tunnel.

As conclusions of law, the court found that the work on the said tunnel was not prosecuted with such diligence so as to entitle the defendant to the blind vein or ledge found under the tunnel; that the respondent is the owner and entitled to the possession of the general Sheridan tunnel site, and to 50 feet each side of the mouth thereof extending in front 100 feet for dumping purposes; that the bore of the tunnel had not been abandoned; that the respondent was the owner and entitled to the possession of the Franklin lode mining claim together with all the conflicting area, and that the appellant was not entitled to any part of the Fissure...