Justice Mining Co. v. Barclay

• Decision Date: 09 August 1897
• Docket Number: 632.
• Citation: 82 F. 554
• Parties: JUSTICE MIN. CO. v. BARCLAY et al.
• Court: U.S. District Court — District of Nevada

82 F. 554

JUSTICE MIN. CO. v. BARCLAY et al.

No. 632.

United States Circuit Court, D. Nevada.

August 9, 1897

W. E F. Deal, for complainant.

Alfred Chartz, for respondents.

HAWLEY District Judge.

This is a suit in equity, brought by complainant, to enjoin the respondents from mining, extracting, or removing any quartz rock, earth, or ore from certain mining ground claimed by complainant, situate in the Gold Hill mining district, Storey county, Nev. The complainant is the owner of the Justice patented ground and lode, and of the Woodville patented ground and lode, the surface boundaries of which are delineated upon the following diagram.

The title of complainant to both of these claims as patented is admitted by the respondents, but they deny that either of said lodes includes any part of the mining ground, lode claim, or premises lying between the easterly side line of the Justice patented claim and the westerly side line of the Woodville patented claim. On April 27, 1895, complainant leased to George Hobart, Charles H. Steele, and respondents Thomas Bell and C. Benham, for the period of one year, the mining ground 'commencing at the trestle leading from the Justice Company's tunnel to the Washoe Mill, and running thence in a southerly direction, following the course of Gold canon, to the south boundary line of the Justice claim, and extending from the line of the Devil's Gate toll road easterly to the east line of said Justice Mining Company's claim,' upon an agreed royalty or percentage of the value of ore extracted. Steele and Hobart testified that, after the lease was executed, the superintendent of the Justice informed them that they could work as far east as the Justice claimed, or as far east as they pleased. Respondents Bell and Benham testified that the lease was only intended for the main Justice lode within the Justice patented lines. The respondents, on January 1, 1896, located certain mining ground, described in the answer as follows (Image Omitted) 'Beginning at post No. 1 on the east side line of the mining claim and premises first described in plaintiff's bill of complaint, being what was formerly known as the Justice Independent claim, U.S. survey No. 48, but now known as the Justice claim, for which post No. 7 of the Justice Independent claim bears south, 47 degrees east, 307.1 feet distant; thence, for the first course, north, 41 degrees west, 636.9 feet, to post No. 2, identical with post No. 6 of the U.S. survey No. 48; thence, second course, north 49 degrees east, 382.7 feet, to post marked No. 3; thence, third course, along the west line of said Woodville claim, south, 10 degrees east, 743 feet, to the place of beginning,-- which said last described mining claim and premises is known as and called the Hills Gold and Silver Quartz Mine.'

This ground is situate within the triangle shown on the diagram between the Justice and Woodville side lines.

The real contention of the part of the complainant is that the lode located by the respondents has its apex within the patented lines of the Justice claim, and extends downward vertically, entering into the adjoining land located by the respondents. The same contention is made with reference to the Woodville, the theory being that there is but one lode, known as and called the 'Comstock Lode.' The contention of the respondents is that the Hills Gold and Silver Quartz Mine is upon a separate and independent lode, well defined, between foot and hanging walls, having its apex outside of the surface limits of either the Justice or Woodville patented ground, and solely within the ground located by respondents. This is the principal and most important question in controversy, and upon which there is a decided conflict in the testimony.

It would serve no useful purpose to give the substance of the testimony as to the theory of the witnesses, with the facts upon which their conclusions are based. In all controversies concerning the identity of ore bodies found on different levels at various depths beneath the surface, there is always room for a wide divergence of opinion among men of equal credit and experience as miners. The absolute truth is often difficult to ascertain, except in cases where connections are made between the different bodies of ore found on the different levels; and even then there is often room for controversies unless absolute continuity of vein matter is found, until expensive explorations are made, for the continuity of ore may be broken by the injection of country rock into the vein, or what is known among miners as a 'horse' is found, which is not always easily distinguished from the actual walls of country rock. One witness, upon a careful inspection, may be of the opinion that it is the hanging or foot wall of the lode; while another, from his examination, gives it as his opinion that it is simply a horse, and that further exploration will develop the fact that the different bodies of ore are upon the same vein. A wide latitude is always permissible for the purpose of ascertaining the reasoning upon which the conclusions of witnesses are based, as well as their general knowledge of the ground, their experience and observation, and their qualifications as practical miners or experts, derived from years of experience in the particular district where the ore bodies in question are found. Mining Co. v. Corcoran, 15 Nev. 153; Book v. Mining Co., 58 F. 106, 111, 120, 126; Consolidated Wyoming Gold Min. Co. v. Champion Min. Co., 63 F. 540, 544. Courts, however, are always inclined to give heed to the actual facts which have been ascertained from the workings at different points on the ground in dispute, and especially at the places where it is claimed on one side and denied by the other that the ore bodies unite. Upon this branch of the case a brief abstract of the testimony is filed herewith, giving a fair outline, in the language of the witnesses, as to their conclusions in relation to the development actually made in the Steele shaft and in the Hills or Barclay shaft, and the various levels, tunnels, drifts, and inclines connected therewith, and the character of rock, earth, and ore found in the ground covered by the Hills location is connected with, and forms a part of, the main Justice lode, which has its apex within the patented ground of the Justice, or is separated therefrom, and belongs to an independent vein or lode, having its apex within the limits of the Hills location, to which reference will hereafter be made.

In support of complainant's right to recover herein, it is alleged in the bill that complainant is the owner of, in possession of, and entitled to the possession of, the mining ground, claim, real estate, and premises lying between the easterly side line of the Justice patented ground and the westerly side line of the Woodville patented ground, together with all the veins of gold and silver bearing quartz rock, the apexes of which are within the surface boundaries of said claim, with the right to follow such veins or lodes to any depth; that while the respondents Charles Benham and Thomas Bell were in possession of and working on the lode within the Justice ground, as tenants of complainant, the other respondents herein, on January 1, 1896, conspired with them, and made a pretended location of a portion of said ground between the Justice and Woodville patented locations in the name of W. P. Hills, but for the use and benefit of the other respondents; that, when said location was made by W. P. Hills, the respondents Benham and Bell were in actual possession of said ground and vein as tenants of complainant, and were working the same for the purpose of complying with the laws of congress with reference to holding, possessing, and working mining claims; and that complainant had every year up to January 1, 1896, done and performed more than $100 worth of work for the purpose of holding and possessing said claim, in accordance and compliance with the provisions of the act of congress in regard thereto. The title of complainant to the particular piece of ground in controversy, independent of any rights it may have by virtue of its ownership in the Justice and Woodville patented ground, is derived from the mining location made by A. Cummings on the 19th of March, 1875, which included in its description all the ground embraced in the location of the Hills Gold and Silver Quartz Mine. This mining ground was on April 12, 1875, conveyed by deed to the Woodville Con. S. M. Company. In July, 1880, the complainant acquired title to all the mining property of the Woodville Con. S. M. Company, including, among others, the Cummings claim. At this time S. T.Curtis was the superintendent of the complainant, and upon the trial hereof testified that he went upon the ground, and took possession of all the property, including the Cummings claim; that he received a tracing from the company's office in San Francisco of all the claims; that he took the tracing, went upon the ground, and found a great many of the old monuments and stakes. It is claimed by complainant that from that time up to January 1, 1896, when the Hills location was made, it continued to remain in the possession of the ground located by Cummings, and that its possession was open and notorious.

It is shown that respondents, at the time of, or soon after, the Hills location was made, were notified of complainant's claim to the ground, and that they would be held responsible for any damage which they might commit. No work was ever done by the complainant within the surface lines of the Cummings location. But it claims to have expended during the year 1895 over $3,000 for the purpose of holding the Cummings and six other claims, to which it has title. This claim is...