Mont. Ore Purchasing Co. v. Bos. & M. Consol. Copper & Silver Min. Co.

• Decision Date: 22 December 1902
• Court: Montana Supreme Court
• Parties: MONTANA ORE PURCHASING CO. v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO.

27 Mont. 288

MONTANA ORE PURCHASING CO.

v.BOSTON & M. CONSOL. COPPER & SILVER MIN. CO.

Supreme Court of Montana.

Dec. 22, 1902.

Appeal from district court, Silver Bow county; Wm. Clancy, Judge.

Action by the Montana Ore Purchasing Company against the Boston & Montana Consolidated Copper & Silver Mining Company. From a judgment in favor of plaintiff, defendant appeals. Modified.

Pigott, J., dissenting in part.

Forbis & Evans, Wm. Scallon, and A. J. Shores, for appellant.

McHatton & Cotter, Cullen, Day & Cullen, and Toole & Bach, for respondent.

BRANTLY, C. J.

This action was brought to recover damages for trespass upon a portion of the Johnstown (patented) lode mining claim, situate in Silver Bow county. In a second cause of action the plaintiff asks that its title be quieted to the premises in controversy, and that defendant be restrained from trespassing pendente lite, and, upon final decree, that it be perpetually enjoined from trespassing or asserting any right or title to plaintiff's property. Before the cause was set for trial, the plaintiff was, by leave of court, allowed to dismiss the first cause of action without prejudice. The cause then proceeded as one in equity to determine an adverse claim made by defendant under section 1310 of the Code of Civil Procedure.

The complaint alleges, in substance, that the plaintiff is, and for a long time has been, the owner and in possession of the portion of the Johnstown described, and of all of the veins, lodes, and ledges having their tops or apices therein; that the top or apex of a certain vein, bearing gold, silver, and copper, lying within the surface boundaries of the Johnstown lode, extends through the whole length of the claim, and is substantially parallel with the side lines thereof; that it is intersected by the end lines of the claim, which are parallel; that said apex lies within the lines of the part described, and passes through the east and west end lines thereof; that said vein, in its course downward into the earth, so far departs from the perpendicular as to extend beyond the south side line of the Johnstown claim, and of the premises owned by the defendant within the Johnstown, and into and beneath that certain other claim known as the “Pennsylvania,” the greater portion of which is claimed by the defendant; that this claim lies partly adjacent to and south of the plaintiff's premises; that plaintiff is the owner and in possession of said vein or ledge, not only to the extent of those parts of it which lie within the vertical planes extending downward through the surface boundaries of the conveyed portion, but also of all portions lying outside of these planes, and between two planes drawn downward, the one through the east end line of the Johnstown claim, and the other through the west end line of the part described, so extended in their own direction, respectively, as to intersect the exterior portion of said vein beneath the surface of the Pennsylvania claim, and north of a plane extending from the north side line of the said claim at the surface into the earth toward the south at an angle of 40° below the horizon; that all the ores, minerals, and metals lying within said planes are owned by the plaintiff throughout the entire depth of the vein; that the defendant claims an estate or interest adverse to the plaintiff in those parts of the vein lying outside of the plaintiff's surface lines and beneath the Pennsylvania claim; that this claim of the defendant casts a cloud upon plaintiff's title to such exterior parts of said vein, and interferes with the plaintiff's use and enjoyment of its property; that said assertion of interest by the defendant is without right or title; that the plaintiff's title cannot be quieted or adequately protected by one or more actions at law, because numerous suits between the parties, involving the title of the plaintiff to different portions of the vein underlying defendant's surface, will be necessary; that the defendant has entered upon certain portions of the vein beneath the surface of the Pennsylvania claim, has extracted valuable ores therefrom, and is engaged in prosecuting mining developments for the purpose of removing other valuable ores; that said entry is without right and against the wish of plaintiff; that the defendant threatens to continue to enter upon the vein of plaintiff, and to extract, remove, and convert to its own use valuable ores belonging to plaintiff; that plaintiff does not know and cannot ascertain the value of the ores so taken away; and that, if the defendant be not enjoined, the plaintiff will be compelled to resort to a multiplicity of suits to protect its rights, while in the meantime its estate is being wasted and destroyed. The prayer demands that the defendant be required to set forth the nature of its claims, that it be adjudged that defendant has no right or title to any part of the vein or ore bodies in controversy, that the plaintiff's title be quieted, and that defendant be forever enjoined from removing any ores therefrom or asserting any right or title thereto.

The defendant, in its answer, makes the following denials: That the plaintiff is the owner of the veins, lodes, or ledges having their tops or apices within the premises described, or is entitled to the possession of them throughout their entire depth; that the top or apex of any veins or lodes lies within the Johnstown lode claim, or that the said tops or apices extend through the length of the claim parallel to the side lines, and pass through the end lines thereof; that the top or apex of any of the veins or ledges described lies within the portion of the Johnstown owned by plaintiff, or passes on its strike through the end lines thereof; that, while the vein claimed by defendant so far departs from the perpendicular on its dip as to extend under the Pennsylvania, it passes through the end lines of the claim or the part thereof owned by the plaintiff; that the plaintiff is the owner of the parts of the vein lying outside of the lines of the Johnstown claim, and within the planes described by plaintiff; that the plaintiff is the owner of any vein within the Pennsylvania claim, whether beneath the plane extending into the earth at an angle of 40°>>>> below the horizon from the north side line of said claim, or not; that the plaintiff is the owner of any ore bodies beneath said plane; that any claim of the defendant thereto casts a cloud upon plaintiff's title, or restricts the plaintiff's enjoyment thereof; that the claim of the defendant is without right or title; that the right or title of plaintiff cannot be protected by one or two actions at law, or that numerous actions ought to follow between the plaintiff and the defendant touching different portions of the vein or lode of the plaintiff underlying the Pennsylvania claim; that it has, by underground workings or otherwise, entered upon the lode claimed by plaintiff within the Pennsylvania claim, or at all, and extracted valuable ores therefrom, or that it is now engaged in so doing; that the extraction of any ores from said lode by the defendant is against the wishes of the plaintiff, or that the defendant is continuing or threatens to continue to extract ores therefrom and to convert them to its own use, against the wishes of the plaintiff; that, unless the defendant is restrained and enjoined from entering upon said vein and removing ores therefrom, it will continue to do so, to the great or any injury of plaintiff; that the plaintiff cannot ascertain the value of the ores which the defendant is extracting or will extract; and that the plaintiff will be compelled to bring a multiplicity of suits against defendant in order to protect its property. After asserting that any claim of the plaintiff to the veins and ore bodies in controversy is without right, and that the plane drawn at an angle of 40° below the horizon from the north side line of the Pennsylvania claim would include numerous veins lying south of the vein claimed by plaintiff, because said vein has a much steeper dip than the plane, the answer proceeds to allege affirmatively that a suit brought by defendant against the plaintiff in the circuit court of the United States to determine the rights of the parties to all ores found beneath the surface of the Pennsylvania claim is still pending and undetermined, that the plaintiff herein has appeared in the action, that said action puts in question the title to all ores or ore bodies described in the complaint herein, and that said United States court has acquired jurisdiction of all matters involved in this controversy. It is further alleged that the plaintiff, by claiming the title to all ores beneath a plane descending into the earth at an angle of 40°>>>>, is claiming to a boundary plane different from the dip of the vein, and that by reason thereof there are included in plaintiff's claim numerous veins which cannot possibly have their tops or apices in plaintiff's ground. In an amendment to this answer the defendant admits that the plaintiff was at the beginning of the action in possession of workings within the Pennsylvania ground below the 400-foot level and above the 900-foot level, and avers that it was also in possession of the small triangle of ground in the northeast corner of the claim, but denies that it had possession of any other part or portion of the claim. It further avers that to the south of and above these workings there were other veins and ore bodies, all of which were in the possession of the defendant. To this amendment plaintiff made reply, reiterating its claim of possession, not only of all the ore bodies exposedin its workings, but throughout the entire depth of the vein on its dip.

At the conclusion of the evidence, the plaintiff, by leave of court, made amendments to the complaint by so changing the language therein as to include all veins having their tops or apices within the conveyed...