Jefferson Min. Co. v. Anchoria-Leland Min. & Mill. Co.
| Decision Date | 01 February 1904 |
| Citation | 75 P. 1070,32 Colo. 176 |
| Parties | JEFFERSON MIN. CO. v. ANCHORIA-LELAND MIN. & MILL. CO. [*] |
| Court | Colorado Supreme Court |
Appeal from District Court, Teller County; Edward C. Stimson, Judge.
Action by the Anchoria-Leland Mining & Milling Company against the Jefferson Mining Company. From a judgment for plaintiff defendant appeals. Affirmed.
The Anchor and the Mattie L. are both patented lode mining claims, and, as originally located, overlapped on the surface, as shown by the accompanying diagram. The appellee plaintiff below, the Anchoria-Leland Mining & Milling Company, is the owner of the Anchor, and the Jefferson Mining Company, appellant and defendant below, owns the Mattie L claim. The Anchor went first to patent October 5, 1894 without adverse or protest by the owners of the Mattie L and the patent includes the entire surface in conflict. A patent was issued for the Mattie L. November 3, 1896, in which the conflicting surface ground is expressly excepted from the grant. The Mattie L. as actually located is across, instead of along, the course of the discovery vein, as subsequent developments of the claim show, so that what its locators believed to be, and so designated as, its end lines are in law its side lines, and its side lines are its end lines, so far as concerns extralateral rights. The Anchor location was along the course of its discovery vein, so that its located end lines are the legal end lines for all veins that have their apex within its boundaries. The relative positions of the two locations, and the patented area of each, and the segment of the vein in controversy, are shown with sufficient accuracy by the following diagram:
(Image Omitted)
There is no material conflict in the testimony. The case was tried by the court without a jury, upon an agreed statement of facts, which was supplemented by documentary evidence and oral testimony produced by both parties. From the agreed statement, in addition to the facts already recited, it appears that what is called in the record a secondary vein, as distinguished from the discovery vein, and delineated on the diagram as a-b, enters the exterior boundaries of the Mattie L. across the easterly boundary line thereof about 510 feet southerly from corner No. 1 of that location, and thence continues, substantially parallel with the discovery vein (which is near the northern boundary), on a southwesterly course across its patented surface, and thence across the Anchor claim, entering it at the north, and departing from it at the south side line. This vein has a dip to the southeast, and the ore in controversy is situated in that segment of the vein, a-b, under the surface of the Anchor claim, and within vertical planes drawn downwards through its side and end lines.
This vein, a-b, has a portion of its apex within the patented surface of each, and the outcrop appears throughout its entire course across both of the locations. In following this vein on its dip the owners of the Mattie L. (the Jefferson Mining Company) ran a drift under the north side line of the Anchor lode, and within the parallelogram, c, x, e, f, in which are found the ore bodies in controversy, and began to extract and remove ore from such segment of the vein; whereupon this action was brought by the Anchoria Company, as the owner of the Anchor claim, to restrain the Jefferson Company, the owner of the Mattie L., from continuing such work. Further reference is made in the opinion to the evidence introduced by both parties supplementing the agreed statement of facts.
The court made findings of fact in favor of the plaintiff company, establishing the seniority of the Anchor claim, and permanently enjoined defendant from removing any ore lying beneath the surface of the Anchor claim and within vertical planes drawn downwards through its side lines and end lines.
D. P. Howard and Morrison & De Soto, for appellant.
Gunnell, Chinn & Miller and Wolcott, Vaile & Waterman, for appellee.
CAMPBELL, J. (after stating the facts).
The positions taken by the parties may thus be stated: Appellant's contentions are, first, that, in law and in fact, the Mattie L. is senior to the Anchor, and therefore entitled to the ore in controversy because of its priority under the doctrine governing its intraliminal rights; second, that, regardless of the question of seniority, as to the secondary vein, a-b, the Mattie L. has extralateral rights southerly on the dip of that vein between what its locators considered its parallel side lines, but which in law are parallel end lines, and this covers the segment in dispute; third, that the Anchor claim, although it has within its exterior boundaries a portion of the apex of this particular vein, is not entitled to the ore in controversy within the parallelogram, c, x, e, f, but the same belongs to the Jefferson Mining Company, the owner of the apex of the vein, a-b, northeasterly from x. Each of these propositions is controverted by appellee, and we shall discuss them, but not in the order pursued by counsel in their briefs.
It is to be observed again that a-b is not the discovery vein of either location, but the parties seem to agree that, under the facts of this case, their respective rights thereto, whether intraliminal or extralateral, are not different from what they would be were both locations based upon it as such.
1. In one branch of the argument of appellant's learned counsel they say that the question as to which is the senior location is the vital one in the case. This is so because there are surface outcroppings of the same vein within the boundaries of two lode mining claims which conflict on the surface. In such circumstances appellant asserts, and appellee concedes, that the claim first located necessarily carries the right to work the vein, and they both cite and rely upon: Argentine M. Co. v. Terrible M. Co., 122 U.S. 478, 7 S.Ct. 1356, 30 L.Ed. 1140; Tyler M. Co. v. Sweeney, 54 F. 284, 4 C.C.A. 329; Last Chance M. Co. v. Tyler M. Co., 61 F. 557, 9 C.C.A. 613; s. c. 157 U.S. 683, 15 S.Ct. 733, 39 L.Ed. 859; Tyler M. Co. v. Sweeney, 79 F. 277, 279, 24 C.C.A. 578.
In the last case it was said that the ore body in dispute is on the dip of the lode or vein within the extended vertical planes of the end lines of the Tyler claim, and also within the side lines of the Last Chance claim, and on the dip of the vein as it passed through that claim, and it was there said that 'the question as to which claim was first located necessarily determines the rights of the respective parties.' Applying this principle to the present case concretely, it may be said that the ore in controversy here is on the dip of the lode, a-b, between the extended vertical planes of the legal end lines of the Mattie L. claim. It is also within the side lines of the Anchor claim, and on the dip of the vein as it passes through that claim. If the reasoning and conclusion in the Tyler-Sweeney Case, supra, are right--and both parties here agree that they are--then it seems logically to follow that the senior location is entitled to the ore in controversy. It may be that the facts of this case differentiate it from those cited, and that the principle therein established does not apply here. And while it may not be necessary for us to rest our decision solely upon the question as to the seniority of the respective locations, yet, as both parties deem it vital, we first inquire which is the older location?
These claims overlap on the surface. The Anchor applied for, and first received, its patent, and no protest or adverse was made thereto by the owners of the Mattie L. The United States statute governing such applications provides for ample notice, which is equivalent to a summons in a judicial proceeding, and he who fails to heed it has no right to complain that his rights are concluded by it, and if, in such a case, a patent is issued in pursuance of an application regularly made, all persons are concluded. Had the owners of the Mattie L. protested the application for patent of the Anchor, and brought their suit in support of such adverse claim, and the judgment of the court in which the suit was pending had been in favor of the Anchor, this would have been a conclusive determination that the latter is the senior location. Such a judgment of the court would be no more conclusive than the determination by the officers of the land department, in the absence of such protest, that the Anchor was entitled to a patent for all of the territory within its surface boundaries, including the strip covered by both locations. Last Chance M. Co. v. Tyler M. Co., 157 U.S. 683, 15 S.Ct. 733, 39 L.Ed. 859; Bunker Hill, etc., M. & C. Co. v. Empire State, etc., Co., 109 F. 538, 48 C.C.A. 665. It may be true, as appellant contends, that, to protect the apex rights of such subsequent locator, no protest is necessary where the junior location is made on the apex of a vein on the dip of which the senior patented location is based, and there is no surface conflict; but in this case the Anchor senior location has a portion of the apex of the same vein, and there was a conflict in the surface between the two locations, and the rule invoked by both parties is applicable to the present case.
Upon the trial, however, appellant, over the objection of appellee, was permitted to go behind the patents to introduce evidence upon the question of the date of the location of the respective claims, since the patents on their face do not disclose the dates of such location, and to rebut this testimony appellee introduced oral testimony. Appellant therefore, cannot complain if from this showing, as well as from the adjudication of the officers of the land department in granting a patent to the Anchor claim,...
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