Grand Cent. Min. Co. v. Mammoth Min. Co.

• Citation: 83 P. 648,29 Utah 490
• Decision Date: 11 October 1905
• Docket Number: 1431
• Court: Supreme Court of Utah
• Parties: GRAND CENTRAL MIN. CO. v. MAMMOTH MIN. CO

83 P. 648

29 Utah 490

GRAND CENTRAL MIN. CO. v. MAMMOTH MIN. CO

No. 1431

Supreme Court of Utah

October 11, 1905

APPEAL from District Court, Fifth District; T. Marioneaux, Judge.

Action by the Grand Central Mining Company against the Mammoth Mining Company. From a judgment in favor of plaintiff defendant appeals.

AFFIRMED.

C. S Zane, John M. Zane, J. W. Stringfellow and H. L. Pickett, for appellant.

APPELLANT'S POINTS.

The errors assigned are: (1) Upon the giving of certain instructions and the refusal of others requested by the appellant; (2) upon the refusal to allow the filing of an amended counterclaim and in entering its decree and in not allowing a new and original counterclaim to be filed; (3) in denying a new trial; (4) insufficiency of evidence specifying the particulars; (5) in not submitting to the jury the location of the apex.

I.

The error assigned in regard to the finding of the court as to the apex, is, when condensed, as follows: The court erred in finding that the apex departed from lot 38 at the Cunningham stope and did not continue to the northward of that point at least partly in lot 38 up to the 1,100-foot line. The question is raised by the 20th, 21st and 22nd assignments of error.

The only confusion that exists in regard to this matter is not really, upon the evidence, a difference upon the facts, but a difference as to the meaning of words and a difference in the opinion of witnesses as to what is an apex, a difference which arises from conclusions of law.

If the finding of the court were based mainly upon conflicting evidence we would not urge so confidently that the finding of the court was in error. But when the evidence is examined it will be found that there is little if any dispute as to the actual physical facts, but it is when the witnesses are talking about such terms as "vein matter," "vein material," "apex," "outcrop" and "vein," which are all terms depending for their meaning upon the preconceived opinions of the witnesses as to the meaning which the law gives these terms, that we find the actual dispute beginning to arise.

It is said, however, that the definitions of vien and discovery which we have cited in the cases above, are given in controversies between claimants of the same ground, not in cases where the existence and continuity of a vien and extralateral rights are in question. But the statute says no location shall be made of any mining claim until a discovery of a vein therein. (Rev. Stat. U.S. sec. 2330.) The respondent contends that a locator may have a discovery of a vein at the surface, sufficient to fulfill the terms of the statute just mentioned, yet the same discovery will not constitute an apex at the surface. The contention of respondent seems to be a contradiction in terms, and has no support in any adjudicated cases.

II.

The theory of the appellant was this: That if the vein extends upward above where merchantable ore in it is found, and the fissures are found at the surface, and the indications are such that a miner would follow them, and if they were actually followed down in the vein to ore, such occurrences on the surface constituted the apex of the vein and it was immaterial what the vein matter assayed, whether it was rich or poor. This is based upon an expressed ruling of the Utah Supreme Court. (Harrington v. Chambers, 3 Utah 94.) This authority has been followed in the following cases Golden Terror v. Mahler, 4 Morrison Rep. 370; Burke v. McDonald, 2 Idaho 646; Migeon v. Montana Central R. C., 77 F. 249.)

The latter case points out very clearly the distinctions in regard to this matter, and cites former cases which we do not refer to because they are contained in that case.

III.

The court when the verdict was returned stated orally that he was inclined to think that the apex was in the Golden King and Bradley claims belonging to the appellant.

Thereupon the appellant gave notice that if such was the holding it desired to amend, so that its claim of apex in the Golden King and Bradley, would not be cut off.

The court thereupon stated that this right to amend was a valuable right which it would not forestall.

Later the court made its written opinion finding the apex to be in the Golden King and Bradley.

Thereupon before findings or decree was made, the appellant asked leave to file its amended counterclaim setting up an apex in the Golden King and Bradley.

The court refused to allow the amended counterclaim on the ground that the adjudication in this counterclaim would not preclude the appellant from setting up an apex in the Golden King and Bradley, and on the ground that it would be changing the cause of action.

This ruling was made at the instance of the attorneys for the respondent, who claimed that it would be a total change in the cause of action.

The appellant then asked that the decree should be entered without prejudice. This also was denied, and decree entered.

The appellant then asked leave to file an original counterclaim but leave was denied, because it could be set up in a new action.

The counsel for the Grand Central Company conceded that the matters set up in the proposed pleading were not res adjudicata.

Yet it has been held by Judge Marshall in the United States Circuit Court in this very case, that the matter of apex in the Golden King and Bradley is res adjudicata by the decree entered by the judge in the lower court.

This seems to be in accordance with the decision of the circuit court of appeals in the case of Hanley v. Beatty, 117 F. 59.

When the appellant in the lower court asked leave to amend its counterclaim in order to allege its apex in the Golden King and Bradley, the following authorities were cited: Connalley v. Peck, 3 Cal. 75; Neale v. Neale, 9 Wall. 8; Walton v. Jones, 7 Utah 462-556; Clark v. Kirby & Wilson, 18 Utah 262; Mining Co. v. Mining Co., 5 Utah 4-48; Burs v. Franklin Coal Co., 106 Mass. 141; Bernard v. Pomplitz, 160 Mass. 164 and 162; Church v. Holcomb, 45 Mich. 39 and 40; Slater v. Breese, 36 Mich. 77-89 side paging; Hampton v. Nicholson, 23 N.J. Eq. 428; Armstrong v. Ross, 20 N.J. Eq. 121; Ferry v. Pefifee, 18 Wis. top paging 535 and side 510; Rev. Stat. of Utah 1898, sec. 3001 and 3005; Thomas v. Nelson, 69 N.Y. 118.

IV.

The court nowhere in the record gives its reason for approving the verdict of the jury. This court is bound to assume that those reasons are found in the instructions given in the lower court. These instructions constitute the lower court's view of the law and the requests which the lower court rejected, we contend gave the view that should have been taken.

The charge actually given by the court was numbered 9 in which the court charged the jury that the apex of the vein was the highest point at which vein matter was found, and "by vein matter in this connection I mean rock or earth containing mineral in quantities appreciably greater than is found in the general mass of the mountain."

The objections to this charge are apparent. It is a matter of common knowledge that veins are barren in places. The vein matter may not show anything more than a trace of the precious metals. As stated by Judge Hawley (58 F. at page 120): "Every vein or lode is liable to have barren spots and narrow places, as well as rich chimneys and pay chutes or large deposits of valuable ore. When the locator finds the rock in place, containing mineral, he has made a discovery within the meaning of the statute, whether the rock or earth is rich or poor, whether it assays high or low."

Again, it is a phenomena of common occurrence that veins where they are exposed to the action of surface water, become leached out. The minerals are taken up by the percolating water and deposited at lower points in the vein, leaving the upper parts of the vein to show no more than a trace of the precious metals. The lead, gold, silver and copper which were once there in the vein are leached down to a lower level, yet the vein remains with all its marked characteristics. It is on this account that both Mr. Akers, the appellant's expert, and Prof. Jenney, respondent's expert, say that assays are of little value except in connection with the situation surrounding the places from which they are taken. It may very well happen that in this particular vein at the surface we may have pay ore as at the apex stope and at another point on the vein in Tunnel B, or the Pit the vein may be defined yet it will assay little, if any, more than the country rock.

The error of the court is in making the assay value the sole criterion in determining whether a vein exists or not. If at a particular point the vein assays more than the country rock, the court says the vein is present. If at another place the vein assays no greater appreciable value than the country rock, the vein has ceased to exist. But if this rule holds good as you go lengthwise, the vein, is would hold as you go down on the vein. And wherever you find a place in the vein that will not assay more than the country rock, the vein ceases to exist.

V.

The result of this litigation, therefore, would be that ore bodies which the lower court held were apexed in the Golden King and Bradley, and which the court said were recoverable in a proper proceeding, are to be given to the respondent, simply because the lower court, misled by the respondent, made a mistake as to the effect of its adjudication.

It is perfectly plain that if the lower court had supposed that it was cutting off the appellant from all redress that it would have granted leave to amend.

It is just as apparent that if this error is not corrected in this court, the appellant will be denied redress for this error.

The Code is liberal in permitting amendments. This court has...