Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co.

• Decision Date: 13 February 1899
• Docket Number: 449.
• Citation: 93 F. 274
• Parties: MONTANA ORE-PURCHASING CO. et al. v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

93 F. 274

MONTANA ORE-PURCHASING CO. et al. v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO.

No. 449.

United States Court of Appeals, Ninth Circuit.

February 13, 1899

John J McHatton, Joel F. Vaile, and Clayberg & Corbett, for appellants.

Louis Marshall and John F. Forbis, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The appellee was the complainant in a bill in equity brought to restrain the appellants, the Montana Ore-Purchasing Company and Augustus Heinze and Arthur P. Heinze, from taking ores from certain mining properties. It was alleged in the bill that the complainant was the owner of the Pennsylvania lode claim, and that the defendants claimed the right to follow certain veins which had their apices in the claims lying northward of the complainant's claim; that the defendants claimed or owned a portion of the Johnstown lode claim, and a portion of the Rarus lode claim, and a portion of the Little Ida lode claim, all of which claims lie north of, and partly adjoining, the Pennsylvania claim; that the Rarus, the Johnstown, and the Little Ida are mineral lode claims, located under the laws of the United States relative to the appropriation of mineral lands, and that said claims have been patented by the United States under the statutes relative to the patenting of mineral lands; that the defendants claim the right to enter upon the Pennsylvania lode claim, and mine the ores therein by reason of the fact that certain veins owned by them have their tops or apices within a portion of their said claims so patented to them, and that they have the right to follow said veins on their downward course, so as to invade the Pennsylvania claim; that the complainant denies the fact that said veins, even if they had their apices on defendants' ground, are veins such as can be followed on their dip beyond the lines of the defendants' possessions; that the veins are broken and intersected by faults in such a manner that they cannot be traced or followed from the ground of the defendants into the Pennsylvania claim; that the veins upon which the defendants have been extracting ore within the premises of the complainant, if such veins have their apices on defendants' ground, do not, in their course or strike depart from the end lines of the defendants' claim or possessions, but depart from the side lines thereof in such a manner as to prohibit the defendants from following the same beyond the said side lines into the ground of the complainant, and that none of said veins, in their course or strike, depart from the end lines of said claim or possessions of the defendants, but that the ground claimed by the defendants was so located as not to have any end lines whatever, as provided by the statutes of the United States and that in consequence of the failure upon the part of the locators of the grounds claimed by the defendants to mark the same with end lines parallel or to locate the same along the veins, or otherwise than across the veins, the defendants have no extralateral rights in any of the veins on the ground; that the defendants claim to own a portion of the ground patented under both said Johnstown and Rarus patents, and they assert that, by virtue of the Rarus patent, they have acquired 1,318 linear feet of what is designated at the 'Rarus Lode,' but that the fact is that the surface ground patented in the Rarus lode claim does not include to exceed more than about 300 feet of said Rarus lode; that the defendants also claim that, by reason of the fact that said lode passes through the east end line of the Rarus claim as patented, and the west end line of the original location of said Rarus claim, they are entitled to follow said vein, on its course or dip into the earth, without the lines of the Rarus claim, as originally located and as patented; that a large portion of the ground which the defendants claim was originally included within the location of the Rarus claim has been patented under the Johnstown patent, and the defendants claim that only the surface ground of the Johnstown claim was patented to the patentee named therein, and that their extralateral rights on said vein should be determined by the Rarus patent, and not by the Johnstown patent, whereas the complainant alleges that all veins whose apices lie within the Johnstown patent must be governed and regulated in extralateral rights under the Johnstown patent. The bill further alleged that the defendants claim that they have the right to follow the veins within the lines of the original Rarus location by virtue of the Rarus patent, and that they have the right to follow any vein having its apex within the Johnstown or the Rarus patent into the Pennsylvania claim at any point east of the intersection of the south side line of the Johnstown patent with the south side line of the original Rarus location; that it is claimed by the defendants that the apex of the veins from which they have extracted the ores in question is divided; that a portion is claimed by the defendants as upon the Rarus claim, and a portion upon the Johnstown claim, and a portion upon the Pennsylvania claim, and that they have the right to follow the said vein beneath the surface, under and by virtue of either or all said claims, at their election; that there are involved in the matters in controversy numerous questions of the construction of the statutes of the United States relative to locating, purchasing, and patenting mineral lands, and the right of one claimant to follow the veins in the premises of another, under the circumstances and situation of the parties, and the construction of the statutes in relation to patenting mining claims, and the question whether a claim can be patented to one person of the surface, and to another the right to mine beneath the surface, and the right of the land department to segregate the surface from the mine in the ground, granting one to one person and the other to another, and also the question when an apex of a vein is divided upon the surface, part being within the premises granted in one patent and part within another, what, if any, extralateral rights are granted to either party. The defendants F. Augustus Heinze and Arthur P. Heinze answered, denying that they claimed any interest in any of the lode claims mentioned in the bill. The defendant the Montana Ore-Purchasing Company answered separately, denying that the questions arising in the case involve the construction of any of the statutes of the United States, and denying that by virtue of the Rarus patent it acquired 1,318 linear feet of the Rarus lode, or that it claims any title in this action,...