Montana Mining Co. v. St. Louis Min. & Mill. Co. of Montana

• Decision Date: 24 October 1910
• Docket Number: 1,809.
• Citation: 183 F. 51
• Parties: MONTANA MINING CO., Limited, v. ST. LOUIS MIN. & MILL. CO. OF MONTANA.
• Court: U.S. Court of Appeals — Ninth Circuit

183 F. 51

MONTANA MINING CO., Limited, v. ST. LOUIS MIN. & MILL. CO. OF MONTANA.

No. 1,809.

United States Court of Appeals, Ninth Circuit.

October 24, 1910

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

E. C. Day, L. O. Evans, C. F. Kelley, and Charles J. Hughes, Jr., for plaintiff in error.

Gunn & Rasch, Clayberg & Horsky, and Walsh & Nolan, for defendant in error.

This controversy has been before the courts in one form or another for a number of years. As the litigation has proceeded, the facts have been stated by the courts and will be found in the reported cases to which reference will be made. A restatement of the principal features of the controversy will, however, be necessary to a clear understanding of the present issues as they are now presented to this court.

The St. Louis quartz lode mining claim was located on the 28th of September, 1878, by Charles Mayger in Lewis and Clark county, Montana Territory. The notice of location declared that the locator 'had discovered a vein or lode within the limits of the claim located. ' The adjoining Nine Hour quartz lode mining claim was located on the 26th day of July, 1880, by William Robinson and James Huggins. The declaratory statement declared that the lode had been discovered and located on the 26th day of July, 1880. The declaratory statement and notice of location of the St. Louis mining claim described a claim on the St. Louis lode 600 feet in width and 1,500 feet in length along the lode or vein. The declaratory statement and notice of location of the Nine Hour claim described a location on the Nine Hour lode 600 feet in width and 1,500 feet in length along the lode or vein. The general direction of these two veins was northwest and southeast. The Nine Hour claim was on the south and east of the St. Louis claim. At the southeast corner of the St. Louis claim there was a conflict in the location or surveys of the two claims. The surface area involved in this conflict was small, but the extralateral rights of the St. Louis company in a vein apexing within the St. Louis claim and dipping under the surface of the area in conflict has been the bone of contention in all this extraordinary litigation.

When Mayger made application for a patent for the St. Louis claim, adverse proceedings were commenced by Robinson and Huggins against Mayger in the District Court of the Third Judicial District of Montana to determine the right of possession to the ground in conflict. Before the case was tried, the parties reached an agreement by way of a compromise, and to carry this compromise into effect Mayger, on March 7, 1884, executed a bond to Robinson and his associates in which Mayger agreed to proceed at once and procure as soon as practicable a patent for the St. Louis claim and then to execute and deliver to Robinson and his associates a good and sufficient deed of conveyance of the compromise ground, which was particularly described in the bond as follows:

'Commencing at a point from which the center of the discovery shaft of the Nine Hour lode bears south 39 degrees 32 minutes east, said course being at right angles to the boundary line of the St. Louis lode, between corners 2 and 3, fifty feet distant; thence north 50 degrees 28 minutes east on a line parallel to the aforesaid boundary line of the St. Louis lode claim, between corners 2 and 3 thereof, 226 feet, to a point on the boundary line of the St. Louis lode between corners 1 and 2; thence south 20 degrees 28 minutes west along said boundary, between corners 1 and 2, 60.5 feet, to corner No. 2 of the St. Louis lode; 400.31 feet to corner No. 3 of the St. Louis lode; thence north 46 degrees 10 minutes west along the line of boundary of St. Louis lode between corners three and four, thirty feet, to a point; thence north 50 degrees 28 minutes east along a line parallel to the boundary line of the St. Louis lode between corners two and three, 230 feet, to the point of beginning, including an area of about 12,844.50 square feet, together with all the mineral therein contained.'

As the eastern and western side lines of this compromise ground, as here described, were parallel lines and 30 feet apart, the ground has been referred to in the proceedings as the '30-foot strip,' or 'compromise ground.'

Mayger proceeded to obtain a patent for the St. Louis claim, including the compromise ground, as did also Robinson and his associates a patent to the Nine Hour claim, omitting the compromise ground. A patent to the St. Louis claim, including the compromise ground, was issued to Charles F. Mayger by the United States on the 22d day of July, 1887; and a patent to the Nine Hour claim, omitting the compromise ground, was issued to Robinson and his associates by the United States on the 4th day of June, 1888. Thereafter the plaintiff in error acquired the interest of Robinson and his associates, and the defendant in error the interest of Mayger. Hereafter the plaintiff in error will be referred to as the 'Montana Company,' and the defendant in error as the 'St. Louis Company.' The Montana Company demanded a conveyance of the compromise ground in accordance with the terms of the bond executed by Mayger, which being refused, suit was brought in the district court of the state (hereinafter referred to as the 'specific performance case'), which rendered a decree in its favor. That decree having been affirmed by the Supreme Court of the state of Montana (20 Mont. 394, 51 P. 824), the St. Louis Company sued out a writ of error to the Supreme Court of the United States, and on October 31, 1898, that court affirmed the judgment of the Supreme Court of Montana (171 U.S. 650, 19 Sup.Ct. 61, 43 L.Ed. 320). In pursuance of the decree, the St. Louis Company on July 1, 1895, executed and delivered to the Montana Company a deed for the tract described in the bond, giving its boundaries 'including an area of about 12,844.5 feet, together with all the mineral therein contained, together with all the dips, spurs and angles, and also all the metals, ores, gold and silver bearing quartz, rock and earth therein, and all the rights, privileges and franchises thereto incident, appended or appurtenant, or therewith usually had and enjoyed; and also all and singular the tenements, hereditaments and appurtenances thereto belonging or in any wise appertaining, and the rents, issues and profits therein, and also all and every right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in or to the said premises and every part and parcel thereof, with the appurtenances.'

After the compromise agreement had been entered into, it was discovered that beneath the surface of the compromise ground there was a large body of ore which, it was claimed by the St. Louis Company, belonged to a vein apexing in the territory of the St. Louis claim. This was not the discovery vein upon which the location of the St. Louis lode was based, but was a secondary vein referred to in the proceedings as the 'Nine Hour' or 'Drum Lummon' vein or lode. This latter vein apexing for a certain distance in the St. Louis claim dipped to the east under the compromise ground and underneath the Nine Hour lode claim to the east of the compromise ground. The Montana Company had been mining ore from beneath the Nine Hour lode claim prior to 1893, but during that year began sinking a shaft upon the compromise ground. On September 16, 1893, the original complaint was filed in this action by the St. Louis Company against the Montana Company, and several individual defendants, claiming to recover $200,000 damages sustained by the trespass of the Montana Company in removing ore from so much of the Drum Lummon vein as had its apex in the St. Louis lode claim. In the original complaint the St. Louis Company alleged itself to be the owner of the entire St. Louis lode claim as patented. In the answer of the Montana Company it denied that the St. Louis Company was the owner of so much of the premises described in the complaint as were embraced in the compromise ground, which ground was described as in the bond for a deed executed by Mayger on March 7, 1884. It was alleged that prior to March 7, 1884, the said ground was a part of the Nine Hour lode mining claim, then the property of the predecessors in interest of the Montana Company, and that at the time of filing the answer the Montana Company was the owner of the ground and in the actual possession thereof and entitled to all the minerals therein contained. Proceedings were thereupon stayed in the present action, it being an action at law in the federal court, and suit was brought by the Montana Company against the St. Louis Company, as heretofore stated, for the specific performance of the agreement contained in the bond for a deed. The action, as has also been stated, resulted in a judgment in favor of the Montana Company for the specific performance of the terms of the bond providing for the execution of a deed for the conveyance of the compromise ground to the Montana Company.

On November 21, 1898, three weeks after the decision of the Supreme Court of the United States in the specific performance case, the St. Louis Company filed an amended and supplemental complaint in the present action, which omitted the individual defendants, and sought recovery from the Montana Company alone for the ore which it was alleged had been removed from the Drum Lummon vein apexing inside the surface location of the St. Louis claim. The damages sought to be recovered were fixed at the sum of $200,000, the amount...