Jim Butler Tonopah Mining Co. v. West End Consol. Mining Co.

• Decision Date: 03 July 1916
• Docket Number: 2195.
• Citation: 158 P. 876,39 Nev. 375
• Parties: JIM BUTLER TONOPAH MINING CO. v. WEST END CONSOL. MINING CO.
• Court: Nevada Supreme Court

158 P. 876

39 Nev. 375

JIM BUTLER TONOPAH MINING CO. v. WEST END CONSOL. MINING CO.

No. 2195.

Supreme Court of Nevada

July 3, 1916

Appeal from District Court, Nye County; Mark R. Averill, Judge.

Action by the Jim Butler Tonopah Mining Company against the West End Consolidated Mining Company. Judgment for defendant, and plaintiff appeals. Affirmed.

"That there is a vein or lode of rock in place, which, at its top or apex, and on its course or strike, crosses the easterly end line of said West End mining claim 130 to 140 feet northerly from the southeasterly corner of said mining claim and thence, at its top or apex, and on its course or strike continues westerly in said mining claim between the side lines thereof to a point on the northerly side line of said claim 1,142 1/2 feet westerly from the northeast corner of said claim, at which point the said vein, at its top or apex and on its course or strike, departs from said mining claim crossing said northerly side line. That said vein dips southerly, and in its downward course so far departs from the perpendicular as to pass beyond the southerly side line of said West End mining claim, extended downward vertically, and thence into and beneath the surface of the said Eureka lode mining claim and the said Curtis lode mining claim of the plaintiff company.

The said vein does not on its upward course, or at its top or apex, outcrop or reach the present surface, but is covered or buried to a considerable depth by lava, locally known as and called 'Midway' andesite, which, after the formation of the vein, flowed over the then surface of the territory in which the vein exists; that at and for a distance of 360 feet westerly from where said vein or lode crosses the easterly end line of said West End claim, which crossing is at a distance of 135 feet northerly from the southeast corner of said West End claim, there is a juncture, or union, between two limbs or sides of said vein, and from the summit of said juncture, or union, the downward course of one limb or side thereof is in a northerly direction, and the downward course of the other limb or side thereof is in a southerly direction; that there is a continuation upward from the summit of said juncture, or union, of said northerly and southerly dipping limbs or sides of said vein of ore and silver bearing quartz or rock in place for a distance from 20 or 30 to more than 100 feet, and to what was the surface before the same was buried beneath the said lava flow; that such ore and silver bearing quartz were deposited where the same are now found at the same time and during the same period that the main vein below was created, and from mineral bearing solutions having the same source; that the dip is fairly conformable, and strike, or course, of such upward continuation of ore and silver bearing quartz is conformable to the dip and strike, or course, of said northerly dipping limb or side of said vein from the summit of said juncture downward, and the court finds that said upward continuation is a part of said vein or lode; that thence westerly, and for a distance of 360 feet, the northerly and southerly dipping limbs, sides, or slopes of said in their upward course, but for that distance each of said limbs or sides has a separate and vein do not unite or form a union, or juncture independent top or apex; that thence westerly, for a distance of 40 feet, the northerly and southerly dipping limbs, sides, or slopes of said vein are again found in conjunction, as in the said most easterly 360 feet; that thence westerly, and until said northerly and southerly dipping limbs, sides, or slopes of said vein intersect with and cross said northerly side line of said mining claim, they do not unite or form a union or juncture in their upward course, but for that distance each of said limbs or sides has a separate and independent top or apex; that between said distance of 40 feet, where said northerly and southerly dipping limbs, sides, or slopes of said vein, as aforesaid, unite or form a union or juncture in their course upward, and said points on said northerly side line of said mining claim, where, as aforesaid, said contra dipping limbs, sides, or slopes of said vein respectively intersect said side line and cross the same, and so depart from said mining claim, there are two points at which it appears that said contra dipping limbs, sides, or slopes of said vein on their upward course approach closely to a juncture or union, but as to said contra dipping limbs, sides, or slopes of said vein at said two points, actually forming a juncture or union on their upward course, the evidence is meager and unsatisfactory; that the point where the said northerly dipping limb or side of said vein departs from the said mining claim through the northerly side line thereof is 1,120 feet westerly from the northeast corner of said claim, measured along the northerly side line thereof; that the point where said southerly dipping limb or side of said vein departs from said mining claim through the northerly side line thereof is 1,142 1/2 feet westerly from the northeast corner of said claim, measured along the northerly side line thereof; that throughout said distance of 40 feet, where the contra dipping limbs or sides of said vein are found in conjunction, as hereinbefore stated, there is a continuation upward from the summit of the juncture of union of said two limbs or sides of said vein of ore or vein quartz to what was the surface before the same was covered by the lava flow; that the dip or downward course of both the northerly and southerly dipping sides or limbs of the vein where the two are found in conjunction, as aforesaid, and also in the places where each, as aforesaid, has its separate and independent top or apex, is regular, and practically free from undulations; that the said southerly dipping limb or side of the vein in the easterly portion of the West End claim, that is to say, the easterly 360 feet thereof, has been developed from the top or summit of said juncture of said contra dipping limbs to and beyond the southerly side line of said claim, or for a distance, measured on the slope or downward course of said southerly dipping limb or side, of 800 feet or thereabouts, the average dip there being 17 degrees from the horizontal; that the westerly portion, that is to say, the westerly 300 feet of said southerly dipping limb or side of said vein found in the West End claim, has been developed from its top to and beyond the southerly side line of said claim, or for a distance, measured on its slope or downward course, of 1,000 feet or thereabouts, the average dip there being 30 degrees from the horizontal; that the average dip of said northerly dipping limb or side of said vein, so far as the same has been developed in its downward course, is 17 degrees from the horizontal; that said vein is a fissure vein; that there is a difference in the strikes or courses of said northerly and southerly dipping limbs of said vein of about 40 degrees; that at said places and throughout said distances, where said contra dipping limbs of said vein are found to intersect and form a juncture, as aforesaid, there has been a mingling of the mineralizations of said two limbs of said vein within the angle beneath the juncture of the said two limbs; that at such places and throughout said distances the footwall of said two limbs of said vein, within the angle beneath their said juncture, by the process of replacement has been converted into mineralized quartz for considerable distances below said juncture, said replacement quartz extending from limb to limb."

Appellant bases its appeal from the decision of the trial court on the following grounds:

"A. Erroneous Findings of Fact.

(1) That the finding of the trial court that the two sides of northerly and southerly dipping slopes of the single vein involved are not united at the crest of the anticlinal roll, but are separated for considerable distances within the West End claim, thus forming separate terminal edges along the upper edges of each of these stopes, is unsupported by the evidence.

(2) That the finding of the trial court, giving the occurrences of quartz in the 'A' series of raises the dignity of a vein, is not justified by the evidence, and, further, that no matter what may be its character, it admittedly dips to the north and has no bearing on a claimed extralateral right extending to the south.

B. Errors of Law.

(1) The trial court found that the discovery in the West End claim was on the northerly dipping portion or slope of the vein, and in spite of this finding awarded an extralateral right to appellee on the southerly dipping limb or slope of the vein. Appellant contends that this is an erroneous construction of the federal statute granting the right to follow a vein extralaterally, and that extralateral rights in two opposite directions, attaching to the same mining claim and the same vein, are not contemplated by this statute.

(2) The trial court found that the northerly and southerly dipping limbs or sides of the vein were united and joined at the crest of the roll for a considerable distance within the West End claim. Appellant contends that the court should have denied the appellee the right to follow the vein extralaterally where such a condition exists, and that no extralateral right whatsoever attaches to an anticlinal occurrence in a vein, since the latter does not constitute an apex within the meaning of the federal mining statute.

(3) The westerly end line of the West End claim is a broken line. Appellant contends that no extralateral right whatsoever may be exercised under such circumstances, since such right attaches only to mining claims possessing straight end lines."

The...