Last Chance Min. Co. v. Bunker Hill & Sullivan Mining & Concentrating Co.

• Decision Date: 31 May 1904
• Docket Number: 985.
• Citation: 131 F. 579
• Parties: LAST CHANCE MIN. CO. et al. v. BUNKER HILL & S. MINING & CONCENTRATING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

131 F. 579

LAST CHANCE MIN. CO. et al. v. BUNKER HILL & S. MINING & CONCENTRATING CO.

No. 985.

United States Court of Appeals, Ninth Circuit.

May 31, 1904

W. B Heyburn, John P. Gray, and F. T. Post, for appellants.

Curtis H. Lindley, Henry Eickhoff, and M. A. Folsom, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

In the court below the appellee was complainant, and the appellants defendants. For convenience of reference, the complainant Bunker Hill & Sullivan Mining & Concentrating Company will be referred to as the 'Bunker Hill Company,' the defendant Last Chance Mining Company as the 'Last Chance Company,' the defendant Shoshone Mining Company as the 'Shoshone Company,' and the defendant Empire State-Idaho Mining & Developing Company as the 'Empire Company.'

The bill of complaint alleges the Bunker Hill Company to be the owner in fee in possession and entitled to the possession of that certain mine and lode mining claim situated in Yreka mining district, Shoshone county, Idaho, known as the 'Bunker Hill Lode Mining Claim,' and specifically described in the bill; that within that claim there is a vein or lode of rock in place carrying silver, lead, and other valuable minerals, the general course or strike of the top or apex of which at the surface within the claim is northerly and southerly, on which course the top or apex of the vein crosses the southerly end line thereof at a point 300 feet westerly from its corner No. 3 and, continuing on its northerly course, the top or apex of the vein passes through the claim and crosses the northerly end line thereof at a point about 700 feet westerly of corner No. 2 of the claim, and that the said vein or lode on its downward course westerly passes out of and extends indefinitely beyond a vertical plane drawn through the westerly boundary thereof; that this vein or lode is the only vein or lode having its top or apex within the limits of the Bunker Hill claim, and is the vein or lode originally discovered on the 10th day of September, 1885, by the grantors of the Bunker Hill Company. Attached to and made a part of the bill is a diagram, which shows that the claim was located across the top or apex of the vein, instead of along it. It is not shown or suggested that this was knowingly or purposely done; on the contrary, it appears in this and other records in this court that at the time the Bunker Hill claim and others within the immediate vicinity, were located, it was supposed by the locators thereof that the vein or lode outcropping thereon ran in an easterly and westerly direction. That fact is referred to by counsel for the present appellants in his brief on behalf of the Empire Company in cause numbered 950, where, in speaking of a dispute between the owners of the Stemwinder and Emma claims in December, 1885, he said: 'The Stemwinder at that time lay in an easterly and westerly direction. It was supposed that the ledges ran easterly and westerly, and that the ledges of the Stemwinder and Emma were separate and parallel ledges. ' What were intended as the side lines of the Bunker Hill claim, therefore, actually became its end lines, under the familiar doctrine hereinafter referred to.

The bill further alleges that the Bunker Hill Company is, and for many years has been, the owner in fee and in the actual and exclusive possession of the Bunker Hill claim, and of the apex of the Bunker Hill lode within the claim, and of such part of the said vein or lode throughout its entire depth as lies westerly from, outside of, and beyond a vertical plane drawn downward through the westerly side line of the claim, and between vertical planes drawn downward through the end lines thereof extended indefinitely in their own direction westwardly; that neither of the defendants to the suit is, or ever has been, in possession of any part of the Bunker Hill claim or of the Bunker Hill lode as thus described, and that each of them claims an estate or interest therein adverse to the Bunker Hill Company, which the latter alleges to be false and groundless, and without any right whatever, and a cloud upon its title; that the value of that part of the Bunker Hill lode situated westerly on its side line, and between vertical planes drawn downward through its end lines, exceeds the sum of $500,000, exclusive of interest and costs. The prayer of the bill is, among other things, that the defendants, and each of them, be required to set forth the nature of their respective claims, and for a decree adjudging the alleged title of the complainant to be good and valid, and that the defendants have no interest in or to the Bunker Hill claim or lode as described in the bill.

The defendants interposed a demurrer to the bill on the ground that it did not make or state such a case as doth or ought to entitle the complainant to any such discovery or relief as it thereby sought or prayed for. The demurrer being overruled, each of the defendants filed a separate and similar answer, and also a cross-bill, differing only in that each alleged ownership in the respective defendants of separate and distinct mining claims. Each of the answers admits that the complainant owns the surface of the Bunker Hill claim, and the vein or lode within its boundaries, but denies that the course of the vein is northerly and southerly, or that it crosses the alleged side line thereof, or that in its downward course it passes westerly beyond a vertical plane drawn through the west side line of the Bunker Hill claim, or that the complainant company is the owner of any part of the lode situated west of its alleged west side line.

The cross-bills alleged ownership, respectively, in the Last Chance Company of the Last Chance mining claim; in the Shoshone Company of the Shoshone and Summit mining claims; and in the Empire Company of 16 other mining claims, specifically named and described-- all of which, with the outcrop of the vein or lode therein, its course and dip, and its conflict with the extralateral right claimed by the Bunker Hill Company, are described in the respective cross-bills. They also allege that the vein or lode described in the Bunker Hill claim does not cross its end lines as now claimed, but crosses its original end lines, and that the Bunker Hill Company's right to follow its vein or lode downward is between the parallel vertical planes drawn through its located end lines; that the course of the vein or lode, instead of being northerly and southerly, is north, about 51 degrees west, and that to follow it westerly, as complainant claims the right to do, would be following it more along its course or strike than upon its true dip. The prayer of the cross-bills was to the effect that the Bunker Hill Company be required to set forth any and every adverse interest, claim, or demand which it had to the claims, veins, or lodes described in the cross-bills, whether the same be claimed by the Bunker Hill Company by virtue of its ownership of the Bunker Hill claim and of the lode apexing therein or by virtue of its ownership of any other claim, vein, or lode, and that such adverse claim, interest, or demand be decreed null and void as against the cross-complainants, and that their respective titles thereto be quieted.

To each of the cross-bills the Bunker Hill Company demurred on the ground that it presented mere matter of defense, and that the mining claims therein described were not included in or embraced by the original bill of complaint. The demurrers to the cross-bills were sustained by the court below.

We think the ruling of the court below upon all of the demurrers was right. Two objections are made to the bill. One is that it contains no allegation concerning the general course of the vein beyond the limits of the Bunker Hill claim; and the other that the bill does not show that the complainant is the legal owner and in the exclusive possession of the ore bodies in controversy. In respect to the first objection, it is not perceived that there is any necessity for an averment in such a bill concerning the general course of the vein beyond the limits of the claim. The statute authorizes citizens of the United States and those who have declared their intention to become such, who find a vein or lode upon the public land, carrying any valuable deposit, to locate and claim the same, not exceeding 1,500 feet along its length, and not exceeding 300 feet on each side of its middle at the surface, making the end lines of the claim parallel. Rev. St. Sec. 2320 (U.S. Comp. St. 1901, p. 1424). The right of location is in no respect made dependent upon the course of the vein beyond the limits so fixed. A location so made, and marked and claimed as further required by statute, or by the local rules and regulations of the particular mining district, when not inconsistent with statutory regulations, confers upon the locator and his assigns and successors the rights defined and specified by section 2322 of the Revised Statutes (U.S. Comp. St. 1901, p. 1425), to wit:

'The exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface-lines extended downward vertically, although such veins, lodes or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations, so continued in their own direction that such planes will

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