Keely v. Ophir Hill Consol. Mining Co.

• Decision Date: 23 April 1909
• Docket Number: 2,858.
• Citation: 169 F. 601
• Parties: KEELY et al. v. OPHIR HILL CONSOL. MINING CO. et al. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

169 F. 601

KEELY et al. v. OPHIR HILL CONSOL. MINING CO. et al. ^[1]

No. 2,858.

United States Court of Appeals, Eighth Circuit.

April 23, 1909

William H. Dickson (William C. Hall, A. C. Ellis, A. C. Ellis, Jr. and R. G. Schulder, on the brief), for appellants.

Edward B. Critchlow and John P. Gray (Henry P. Henderson, on the brief), for appellees.

Before SANBORN and ADAMS, Circuit Judges, and RINER, District Judge.

ADAMS Circuit Judge.

This was a suit in equity authorized by the provisions of section 3511 of the Revised Statutes of Utah of 1898 to quiet title to a mining claim owned by complainants situated in the Utah mining district and known as the 'Henrietta Lode No 87.' This suit was instituted in the Circuit Court of the District of Utah simultaneously with an action at law brought in the same court, to recover for ore actually mined by defendants from the same claim. The action at law, according to the pleadings and stipulations of the parties, went to trial on the issue whether the ore mined was taken by defendants from veins which had their apex within certain claims belonging to the defendants located in near proximity to the Henrietta. The trial of the law action resulted on October 7, 1907, in a judgment on the merits in favor of the defendants, and necessarily determined that the veins from which the ore had been taken had their apex in defendants' claims, and therefore belonged to the defendants and not to the plaintiffs. On October 10th following, the present cause was submitted to the court on the testimony taken in the action at law, and a decree was rendered dismissing the bill. The law case was brought here by writ of error, where the judgment has recently been affirmed. 169 F. 598. The present appeal was taken from the decree in the equity suit.

We are first confronted with a motion to dismiss the appeal on the ground that the controversy between the parties was fully and finally determined in the action at law, and that the present record presents only a moot case in which no effective relief can be granted. The defendants (appellees) contend that no question was tried or could have been tried in this suit other than what was tried in the action at law, namely, which of the parties was the owner of the particular veins which had been discovered underneath the Henrietta claim and from which the ore had been mined?

The complainants (appellants) contend that in this suit to quiet title it is competent to determine and settle for all time which party was the owner not only of the veins actually discovered and mined underneath the surface of the Henrietta, but also of all undiscovered and unknown minerals which might perchance lie vertically thereunder. If the defendants are right, there does not seem to be any doubt but what the judgment in the action at law concluded the question involved in this suit, because no other vein whatsoever had been discovered or worked underneath the Henrietta except the ones from which defendants had taken the ore which was the subject-matter of that action.

The bald question is therfore presented whether a locator of a claim in a mining district, where there may be extralateral rights existing in favor of others who own contiguous or neighboring claims, may compel all others who may have such extralateral rights to assert and make proof of them within the short time permitted by the rules and practice in equity or be thereafter forever barred from claiming or asserting them. It seems to us that the statement of this contention carries its own refutation. The nature of mining property is such that even if the apex of a vein, ledge, or lode should appear on the surface of a neighboring claim, and much more if one should exist but its existence be unknown, underneath the surface and within the vertical lines of the boundary of the claim extending downwardly, the owner of the claim, and therefore of that vein, might not be able to make proof of the dip and extension of his vein within any short time. It is a notorious fact that there is no way to prove the existence of a vein at any particular place except by actually following and developing a known vein to that place or digging into the bowels of the earth and locating it there. The value and property of a mining claim consist mainly of the developed and undeveloped minerals within it, and not merely of the surface of the claim. In fact the surface is ordinarily of no value except to facilitate the extraction of the minerals under or appertaining to it.

The statute of Utah upon which this suit was based reads as follows:

'Action to determine adverse claim. An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.'

It cannot escape notice that a present existing claim of some adverse right is an essential condition to the exercise of jurisdiction under this statute. Presumptively the owner of the surface of a mining claim owns all minerals beneath it. This presumption ceases when it is made to appear that some vein found underneath the surface has its apex in a claim belonging to another; but the ownership of this apex vein and its dip and descent to and underneath another claim so as to overcome the presumptive ownership of it in the owner of the surface is a matter of proof, the burden of which rests upon him who asserts it. Inasmuch as the enlarged remedy provided by the statute has been held applicable to mining claims (Lawson v. United States Min. Co., 207 U.S. 1, 28 Sup.Ct. 15, 52 L.Ed. 65), the contention is that the owner of such a claim may institute his suit, establish his ownership of the surface, and thereby cast the difficult and usually impossible burden upon the owners of adjoining claims, whom he may name as defendants, to make immediate proof of their rights, whether they know the facts conferring such rights or not, and practically to assert adverse claims to a thing before they know it exists.

It is only when a claim of an adverse estate or interest is made that the owner can avail himself of this remedy. If the owner's title to the surface of the mine as a whole is denied on the ground of alleged failure to take some steps essential to its acquisition, the owner might well resort to the statutory remedy and require all claimants to make good their adverse claims to such title or be forever barred from doing so. Here would be found a real and existing adverse claim, one which well falls within the remedial provisions of the statute; but whether a vein exists underneath the surface, or whether it so dips and reaches its apex within the body of a claim owned by another, is always purely conjectural until the facts are ascertained by discovery and development. One can know about and make a claim to the title of a mine, but it is not perceived how he can know about and make a claim to an undiscovered vein which oftentimes lies deep within the bowels of the earth.

The defendants, in the absence of a discovered and known vein emanating from their claims and extending under the Henrietta, cannot, in our opinion, be said to be asserting an adverse claim to the Henrietta mine within the true meaning of the Utah statute. There is no evidence that they were making any claim except to the veins which had been discovered and which formed the subject of the action at law. Obviously they could not make a claim until...