King v. Amy Silversmith Consolidated Min Co

• Decision Date: 05 March 1894
• Docket Number: No. 169,169
• Citation: 152 U.S. 222,38 L.Ed. 419,14 S.Ct. 510
• Parties: KING v. AMY & SILVERSMITH CONSOLIDATED MIN. CO
• Court: U.S. Supreme Court

152 U.S. 222

14 S.Ct. 510

38 L.Ed. 419

KING

v AMY & SILVERSMITH CONSOLIDATED MIN. CO.

No. 169.

March 5, 1894.

Walter H. Smith and C. H. Holcomb, for plaintiff.

W. W. Dixon, for defendant.

Mr. Justice FIELD delivered the opinion of the court.

The plaintiff and the defendant are owners, as tenants in common, of certain mining property in Silver Bow county, state of Montana, known as the 'Non-Consolidated Lode Mining Claim.' The plaintiff owns three-fourths of the claim, and the defendant one-fourth. The defendant is, besides, the sole owner of the mining claim situated in the same county and state, known as the 'Amy Lode Mining Claim.' Both claims are located and patented under the mining laws of the United States contained in sections 2320 and 2322 of the Revised Statutes. The Amy claim was first located, and has the earlier patent.

The relative positions of these two claims are seen on the diagram in the record, which shows the course of the vein in the Amy claim upon which its location was made, and the boundaries of the two claims, with the length and direction of each. The description of the two claims can be understood only by reference to the diagram, as each line is given. A copy of the diagram is here produced, as without it the description will be unintelligible to the reader.

The Amy claim has a surface length of 1,470 feet, and its side lines are parallel. The end lines are each 491 feet, and they are also parallel. The surface location forms a parallelogram of 1,470 feet running easterly and westerly, by 491 feet running northerly and southerly.

The Non-Consolidated claim lies adjoining the northwest corner of the Amy claim. Its surface shape is that of a triangle, the longest side of which joins the northerly side of the Amy claim, and, commencing 17 feet from the northwest corner of the latter, extends easterly 411 feet in length. Its northerly side line, commencing (on the northerly line of the Amy) at the point where the first line terminates, runs in a northwesterly direction 372 feet to the

point where it meets the westerly line of the lode, and extends southwesterly from this point 181 feet to the place of beginning.

The vein of the Amy claim, on its course or strike, passes through its northerly side line, as marked on the diagram, into the Non-Consolidated ground. Its apex crosses that line 184 feet easterly from the west end line of that claim, and does not again enter the Amy claim. The apex of the vein enters the south side of the Amy claim at a point within 600 feet westerly from the southeast corner of the Amy, and the dip of the vein is to the north.

We have, in this description of the claims in controversy, followed in a large degree that given in the brief of the defendant's counsel, for the subject does not admit of greater clearness of statement.

The plaintiff has brought this action for a partition of the Non-Consolidated claim with the defendant, according to the respective rights of the parties, if that be possible, but, if the property cannot be thus partitioned advantageously, then for a sale of the premises, and a division of the proceeds among the owners, in conformity with such rights.

As stated above, the vein of the Amy, of which the apex lies within the surface lines of the claim, in its course passes through the northerly side line, and enters the Non-Consolidated claim; and it is alleged that the vein has been there worked by the owners of that claim, and valuable ore taken therefrom. The plaintiff, therefore, prays, in addition to a partition or sale of the Non-Consolidated claim, for an accounting for his share, as tenant in common of an undivided three-fourths of that claim, of the ores taken from the underground workings of the vein of the Amy after it had passed into that claim, if any there were.

The defendant admits his cotenancy in the Non-Consolidated claim with the plaintiff, but denies the taking of any ore from the vein of the Amy after it had passed into its ground.

The first question for determination is whether the Amy retained any right to the vein, the apex of which was within its surface lines, after it had passed through its northerly side line, or rather through the vertical plane running down that line. If the Amy retained its right to that vein after it had entered the ground of the Non-Consolidated claim, it belonged to the defendant as sole owner of the Amy; and, as such owner, he could not be called on to account to the plaintiff for any portion of the ores taken from it. If, on the other hand, the Amy did not retain its right to that portion of the vein after it had passed into the Non-Consolidated claim, it became a part of that claim; and the proceeds of the ore there taken from it would, with other proceeds of the Non-Consolidated claim, be the subject of an accounting between the plaintiff and the defendant, the owners, as tenants in common of that claim. The answer to the question must be found in the construction given to section 2322 of the Revised Statutes, which took effect December 1, 1873. That section is as follows:

'The locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge situated on the public comain, their heirs and...