Grant v. Pilgrim

• Decision Date: 16 March 1938
• Docket Number: No. 8463.,8463.
• Citation: 95 F.2d 562
• Parties: GRANT et al. v. PILGRIM.
• Court: U.S. Court of Appeals — Ninth Circuit

95 F.2d 562 (1938)

GRANT et al. v. PILGRIM.

No. 8463.

Circuit Court of Appeals, Ninth Circuit.

March 16, 1938.

COPYRIGHT MATERIAL OMITTED

Chas. E. Taylor and Cecil H. Clegg, both of Fairbanks, Alaska, and Ira S. Lillick and Edwin L. Gerhardt, both of San Francisco, Cal., for appellants.

Julien A. Hurley, of Fairbanks, Alaska, for appellee.

Before WILBUR, DENMAN, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

This is an appeal by O. M. Grant, David Mutchler, and John Mutchler from a decree against them declaring a trust in favor of appellee Edna G. Pilgrim to certain interests in a mining lode claim, together with a money award against each in an accounting of the proceeds of mining on the claim conducted by them and one George Mutchler. George Mutchler was named as a defendant, but was not served with process, and did not appear in the case as a party, although he appeared as a witness.

Two lode mining claims join with a common northerly and southerly line. One called the Irishman No. 1, or Irishman, lies to the east, and one called the Wasp, lies to the west of this line. There is a claim called Irishman No. 2, but it is not involved in this action.

The plaintiff in the trial court, appellee here, owns a one-half undivided interest in the Irishman and is cotenant with the owners of the other one-half interest, the defendant Grant and his grantees. Grant and George Mutchler were prospecting the Wasp claim while they were mining on the Irishman side of the separating line. While thus engaged, they purchased the Wasp for $300.

The plaintiff alleges and the court found that while they were thus engaged they discovered that the vein in which they were mining was under the surface of the Irishman and was in fact an extension of a lode having its apex or top under the surface of the Wasp claim. That is, while the upper portion of the ore-bearing vein was on the Wasp, it slanted easterly on its downward course until it passed under the surface of the Irishman claim. This is called the "dip" of the ledge. The apex is the top of the ledge as it extends lengthwise along the claim.

The owners of a claim containing the apex of a mining vein, either outcropping or not, may follow this vein along its dip under the surface of any other claim within the end lines.

"The locators * * * shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations." 30 U.S.C.A. § 26, Rev.St. § 2322.

If, then, the apex of the ledge being mined is situated within the Wasp's boundaries or under the Wasp's surface, the minerals in this ledge under the surface of the Irishman and between the Wasp end lines extended may be taken by the Wasp owners.¹ 30 U.S.C.A. § 26, Rev.St. § 2322; Tyler Mining Co. v. Last Chance Mining Co., 1895, C.C., 71 F. 848; Lindley on Mines, 3d Ed. § 581 et seq. The right to take minerals in such circumstances is called "extralateral" rights. All minerals lying below and within a claim's boundaries belong prima facie to such claim, but such claim yields to this "extralateral rights" rule.

Grant and the defendants, so plaintiff alleges, secretly and fraudulently purchased the Wasp, thereby acquiring extralateral rights pertinent to such lode which constitutes an outstanding adverse title to her title and interests in the Irishman. As a cotenant plaintiff claims the right to share in the purchase, and upon learning of it she promptly tendered payment to Grant and George Mutchler, the purchasers, of one-half the purchase price, but this they refused to accept.

A dispute exists between the parties as to the correct location of the line dividing the two claims. If the plaintiff is right, the mining shaft is sunk immediately east of the line dividing the two claims and practically all of the paying ore has been extracted from beneath the surface of the Irishman. If Grant and the Mutchlers are right, this paying vein is under the surface of the Wasp. The trial court found in favor of the plaintiff upon this issue.

The location of the line between the Irishman and the Wasp depends on where the southwest corner of the Irishman was placed, since there is no dispute about the position of the northwest corner, or of any of the other corners. Putting it more definitely, defendants claim the southwest corner is considerably to the east of the location the plaintiff claims it to be.

We use a reproduction of Defendants' Exhibit C for clarity and for survey data.

NOTES EXPLAINING THE MAP:

The map is a reproduction to scale of Defendants' Trial Exhibit C.

In the original the scale of 1 inch equals 200 feet and in the reproduction 1 inch equals 400 feet.

The southerly extension line from corner 3 of Irishman No. 1 is marked "S. 8° 01' W. 1633 ft. Cor. No. 3. Sur. 847," on the original.

The southerly extension line from corner 4 of Irishman No. 1 is marked "S. 0° 30' W. 2087 ft. to cor. No. 3 Sur. 847" on the original.

The shaded drawing north-center Irishman represents the "Irishman Lode" workings.

The irregular drawing near southeast corner Wasp represents the "Wasp Lode" workings.

By extending the southerly line of Irishman westerly by the proper scale 154.5 feet and conecting the point so ascertained with corner 1, or the northwest corner of Irishman, it will be seen that the mine workings on the Wasp lode fall to the east of this line, which is the true dividing line between the Wasp and the Irishman claims.

This is in complete accord with Earl Pilgrim's testimony that the true line between the Irishman's northwest and southwest corners passes immediately west of the Wasp lode shaft.

The extralateral rights of the Wasp lode owners as the dip extends easterly under the Irishman are confined to the area lying southerly of the Irishman north line and northerly of an extension across the Irishman of the Wasp's southerly line.

The true line between Wasp and Irishman, and the extension of the Wasp end lines across the Irishman, are sketched in by dashes and are not parts of the exhibit as introduced in evidence.

The locator of the Irishman, Earl Pilgrim, testified that he and Grant staked the claim in June, 1928; that in 1933 the southwest stake was gone; he found a stake below the road at approximately where Grant had placed it on a former location of a claim called "Gold Lode"; this stake was marked "southwest corner Irishman No. 2." The distance between the place where he staked the southwest corner and this stake was approximately 155 feet. Grant testified that the stake marked "southwest corner Irishman No. 2" was the true southwest corner of Irishman No. 1, that he had mistakenly written a "two" on the stake instead of a "one." Pilgrim also testified that later he went upon the ground with surveyor, John Quenboe, and pointed out the place where he put the southwestern stake of the Irishman No. 1, and that, further east, he and Quenboe found the stake Grant had mistakenly marked "southwest corner Irishman No. 2."

The point indicated by Pilgrim, as the true location of the southwest corner, is 154.5 feet from the Grant, or last mentioned, stake. The shaft almost intersects the line between the claims; it is a "little bit" east of the line.

Pilgrim testified that he built a cabin on the Irishman near the place he and Grant had put the southwest corner stake, but not the one Grant mismarked, long before any dispute arose.

To find that the Grant stake correctly indicates the disputed southwest corner would be to find that Pilgrim had deliberately built his cabin some one hundred and more feet westerly of his own line.

The reproduced map (Defendants' Exhibit C) was prepared by a surveyor by the name of E. F. Wann. This map is drawn to scale of 1 inch to 200 feet. (Reduced by one half in the reproduction.) By scaling along an extension of the west end line of the Irishman claim on this map to a point 154.5 feet westerly, and then connecting this point with the northwestern corner of the Irishman as it is located on this map, most of the Wasp lode workings will be shown to lie on the Irishman side of the line. Other calculations on maps and surveys introduced, using only such parts thereof substitute word "as" are ascertained from known data, snow confirmation of the correctness of this location of the line connecting the southwest and northwest corners. (True line sketched on map in dashes.)

The plaintiff testified that she saw the stake at the place indicated by Pilgrim. W. W. Estes testified that he saw the stake there between September and November in 1928 or 1929. Grant admited (a) to Fred Deeming that the stake was at such place; (b) to Farrell that the stake was at or near such place; and (c) in his written statement furnished plaintiff that he was mining on the Irishman. This, with other evidence not necessary to be detailed here, convinces us, as it did the trial court, that the southwest corner of the Irishman is at the place indicated by Earl Pilgrim and claimed by the plaintiff.

A glance at the reproduced map will show that practically all of the ore extracted from the Wasp lode by defendants was taken from an area directly under the surface of the Irishman. There is no evidence that attempts to point out the extent of the comparatively small amount that was taken from under the surface of the Wasp claim.

Since a "discovery," or the finding of a vein of mineral-bearing ore, is a necessary element of a valid mining location, a word regarding the subject of "discovery" will be appropriate. The first mining work done on either of the claims was by Earl R. Pilgrim and Grant on the Irishman. They sank a...