Foote v. Nat'l Mining Co.

• Decision Date: 31 January 1876
• Citation: 2 Mont. 402
• Parties: FOOTE, appellant, v. NATIONAL MINING CO., respondent.
• Court: Montana Supreme Court

2 Mont. 402

FOOTE, appellant,

v.NATIONAL MINING CO., respondent.

Supreme Court of the Territory of Montana.

January Term, 1876.

Appeal from Third District, Lewis and Clarke County.

GEORGE B. FOOTE, in person, appellant.

CHUMASERO & CHADWICK, for respondents.

WADE, C. J.

The question presented for our determination in this case relates to the width of a mining lode claim under the act of the legislative assembly of December 26, 1864, which act was in force at the date of the location of the claims in dispute. The respondent maintains that the true construction of the statute authorized the location and pre-emption of fifty feet on each side of the lode, in addition to the width of the lode itself, while the appellant insists that in no case under such statute can a lode claim exceed one hundred feet, and that the fifty feet on each side thereof must be measured from the center of the lode.

The statute in question is as follows: “Sec. 3. Claims on any ??ead, lode or ledge, either of gold or silver, hereafter discovered, ??hall consist of not more than two hundred feet along the lead, ??ode or ledge, together with all dips, spurs and angles eman??ting or diverging from said lead, lode or ledge, as also fifty ??eet on each side of said lead, lode or ledge for working purposes.” Cod. Sts. 522.

The statute seems unambiguous in its terms, and unless its application to its subject-matter renders it doubtful its interpretation ??ill be easy.

Do the words, “Fifty feet on each side of said lead, lode or ??edge,” mean fifty feet from the center thereof?

In construing this language regard must be had to what in truth ?? lead or lode is, and when so tested the problem seems easy of ??olution and free from doubt. A lead or lode is not an imaginary ??ine without dimensions; it is not a thing without shape or form, ??ut before it can legally and rightfully be denominated a lead or ??ode it must have length and width and depth; it must be capable ??f measurement; it must occupy defined space and be capable of ?? dentification. Before a quartz claim can be legally located, a ??ead or lode containing gold or silver must be discovered, and be??ore such discovery can be called a discovery, at least one well-defined ??all or side to the lode must be found. What then is a quartz lode? It is a fissure or seam in the country rock filled with quartz matter bearing gold or silver. This fissure may be wide or narrow; it varies in width from one inch, or even...