Jones v. Prospect Mountain Tunnel Co.

• Decision Date: 29 December 1892
• Docket Number: 1,362.
• Citation: 31 P. 642,21 Nev. 339
• Parties: JONES et al. v. PROSPECT MOUNTAIN TUNNEL CO.
• Court: Nevada Supreme Court

31 P. 642

21 Nev. 339

JONES et al. v. PROSPECT MOUNTAIN TUNNEL CO.

No. 1,362.

Supreme Court of Nevada

December 29, 1892

Syllabus by Bigelow, J.

1. Where the complaint alleges that the plaintiffs are the owners and in possession of a mine, an answer which denies that they are the owners or in possession of a certain part of the mine, describing it, does not admit plaintiffs' ownership of that part. Nor do the facts that the answer also alleges that the defendant is the owner of that part of the mine, and that a certain ledge therein found apexes outside the plaintiffs' boundary lines, constitute such an admission.

2. A patent from the United States for mining ground does not convey to the patentee the veins or ledges which apex outside the boundary lines of the mine, extended downward vertically and the mine owner is not necessarily the owner of such veins.

3. The presumption, in the first instance, is that the owner of a mine owns all the veins found within his boundary lines, but when there is evidence tending to prove that the vein in controversy apexes outside those lines, this, if sufficient will rebut that presumption; and as the burden of proving ownership is, when denied, always upon the party alleging it he must also meet and overcome this evidence, or he will fail in establishing his title.

4. By "rock in place," as used in the mining statutes, is meant rock that is inclosed and embraced in the general mass of the mountain, as distinguished from the float, soil, and debris of the surface; and it is not material where the rock or mineral was originally formed or deposited, or that the vein matter is loose or broken or disintegrated.

5. Where a defendant pleads title by virtue of adverse possession of a mine, evidence which tends to prove that such possession has been under a claim of ownership, and in hostility to the true owner, is admissible.

Appeal from district court, Eureka county; G. F. TAI BOT, Judge.

Action by J. E. Jones and others against the Prospect Mountain Tunnel Company to recover the price of ore unlawfully removed from complainants' mine, and for an injunction restraining defendant from removing any more. Plaintiffs had judgment for $5,000, and an injunction was granted. Defendant appeals. Reversed.

The other facts fully appear in the following statement by BIGELOW. J.

Action brought to recover $50,000 damages, as the value of 1,000 tons of ore unlawfully extracted from the Colorado mine, and for an injunction restraining defendant from entering upon or further extracting any ore therefrom. The complaint alleged the plaintiffs' ownership and possession, the defendant's trespass, and set up facts looking to equitable relief. The material parts of the answer are as follows: The defendant "denies that at the time mentioned in said complaint, or at any other time, it wrongfully or unlawfully entered into or upon the mining claim described in the plaintiffs' complaint, or that at said time or at any other time it excavated or removed from said mining claim any ore or mineral-bearing rock, or that at said time or at any other time it converted any ore or mineral-bearing rock excavated or removed from said mining claim to its own use, or that the ore plaintiffs allege defendant excavated and removed from said mining claim was of any value whatever, or that plaintiffs have been damaged by the entry into or upon said mining claim by defendant, or by the excavation or removal of any ore therefrom, or by the conversion of any ore excavated or removed therefrom by the defendant, in any sum whatever. And for a further defense defendant admits that plaintiffs are the owners of all that portion of the Colorado mining claim described in their complaint, except that portion hereinafter described. And for a further defense defendant alleges that on the ___ day of ___,1875, it was the owner of, in the possession of, and entitled to the possession of, a certain tunnel situated upon the public mineral lands of the United States, on and under the western slope of Prospect Mountain, in Eureka mining district, Eureka county, and state of Nevada, run for the purpose of developing veins and lodes of rock bearing valuable mineral, and for the discovery of mines, and to 1,500 linear feet of all veins or lodes within 3,000 feet from the face of said tunnel, discovered in said tunnel, on the line thereof, not discovered previously to the commencement of said tunnel, on the ___ day of___, 1875; and said defendant ever since said date has been, and now is, the owner of, in the possession of, and entitled to the possession of, said tunnel, and of all the veins and lodes discovered within 3,000 feet of the face of said tunnel discovered in said tunnel, not discovered previously to the commencement of said tunnel, to the extent of 1,500 feet; that said tunnel, in its course, enters into and under and crosses the said Colorado mining claim; and one of said veins or lodes, discovered in said tunnel on the line thereof, about 1,850 feet from the face thereof, having its top or apex outside of the exterior limits of said Colorado mining claim, on its course downwards, dips under and through said Colorado mining claim, and certain excavations made upon said vein or lode last above described are under and within the surface limits of said Colorado mining claim, extended downward vertically. And defendant denies that plaintiffs are the owners of, or in the possession of, or entitled to the possession of, said tunnel, or any portion thereof, or of said vein, or any portion thereof, or of the excavations thereon, or of any portion thereof." The answer then sets up five years' "quiet, peaceable, actual, and exclusive possession of all of said tunnel, and of said vein or lode, and of the excavations thereon, above described," by the defendant, and follows with denials of the equitable cause of action.

The evidence shows that the Colorado had been worked downward from the surface a distance of about 166 feet. The ledge in controversy was struck in defendant's tunnel 900 feet below the surface, and had been worked upward a distance of 394 feet. The two workings were separated by between 300 and 400 feet of unexplored ground.

At the plaintiffs' request, the court gave the following instructions: "No. 2. It is admitted by the pleadings that the plaintiffs were, when the alleged wrongs were committed, and now are, the owners in fee and in possession of the Colorado mine. It is also admitted that the defendant entered beneath the surface of said Colorado mine, and extracted ore from a lode, and converted the ore to its use, which lode, at the point of entry, is within the boundary lines of said Colorado mine, extended vertically downward. These admissions are conclusive upon the defendant." "No. 4. A vein, lode, ledge, or deposit, within the meaning of the law, is a crack, cavity, or fissure in the earth crust, filled with rock in place, bearing gold, silver, or other valuable mineral. The mineral or rock containing the mineral must be in place; that is to say, in the place where it was originally formed or deposited. Loose, broken rock, or wash, sand or gravel, float or soil, is not sufficient. The rock containing the mineral must be in place between walls or defined boundaries. The rock must also contain valuable mineral." "No. 9. *** You are instructed that, under the admission and averments of defendant, the burden of proof rests upon the Prospect Mountain Tunnel Company to prove to you that the lode or deposit so admitted to be within the limits of the Colorado mine has its top or apex outside of the exterior lines of the Colorado mine, extended vertically downward." Defendant's instruction No. 3, refused, was as follows: "The court instructs the jury that in order to entitle plaintiffs to recover they must show, by a preponderance of evidence, that they were the owners of the lode, vein, or ore body out of which the ore in controversy was taken, at the time it was taken; and, to do this, it was necessary for them to establish by a preponderance of evidence that the top or apex of said lode was within the exterior limits of the Colorado mining claim, extended downward vertically; and if they have failed to do this the jury should find a verdict in favor of the defendant, the Prospect Mountain Tunnel Company." The jury found a verdict in favor of the plaintiffs for $5,000, for which amount judgment was entered in their favor, and an injunction granted, restraining the defendant from entering upon the Colorado. The injunction was subsequently modified so as to exclude the tunnel from its operation.

Thomas Wren, for appellant.

Robt, M. Clark and R. M. Beatty, for respondents.

BIGELOW, J., (after stating the facts.)

One of the leading questions involved in this case is whether the answer admits the plaintiffs' ownership of the Colorado mining claim. In their complaint the plaintiffs allege that they are the owners and in the possession of that certain mine and mining location and premises known as, and called the "Colorado Mine." This the evidence shows to be a parallelogram 1,000 feet in length by 200 feet in width, and we shall construe the complaint as amounting to an allegation that they also own all beneath the surface of such parallelogram, as the same may be extended downward indefinitely. In answer to this the defendant admits the plaintiffs' ownership of the Colorado mining claim, as described in the complaint, "except that portion hereinafter described." It then alleges that the defendant is the owner of a certain tunnel, and "that said tunnel, in its course, enters into and under and crosses the said Colorado mining claim, and one of said veins or lodes, discovered in said tunnel, on the line thereof, about 1,850...