Original Consol. Mining Co. v. Abbott

• Decision Date: 10 August 1908
• Docket Number: 268.
• Parties: ORIGINAL CONSOL. MINING CO. v. ABBOTT.
• Court: U.S. District Court — District of Montana

167 F. 681

ORIGINAL CONSOL. MINING CO. v. ABBOTT.

No. 268.

United States Circuit Court, D. Montana.

August 10, 1908

The Original Consolidated Mining Company, a corporation of the state of Washington, on January 26, 1905, brought its bill as complainant against Wheelock H. Abbott, a citizen of the state of Montana, as defendant, alleging, in substance, that it is the owner in fee, in the possession, and entitled to the possession of the Steward lode mining claim, located in Silver Bow county, Mont., patent for which the United States had issued, on May 29, 1879, to the predecessors in interest of the complainant; that ever since said date complainant and its predecessors in interest have been in the lawful, quiet peaceable, and undisturbed possession of said Steward lode together with all of the surface rights, and all the rights to the ores, minerals, and mineral-bearing rock, veins ledges, and deposits contained within the exterior limits of said lode, the tops or apexes of which lie within the exterior limits thereof; that the defendant claims an estate or interest in said lode, or in some part or parcel thereof adverse to the complainant; that the said claim of the defendant is without any right, and that the defendant has no estate, right, title, or interest whatever in the said lode, or any part thereof. The complainant prayed that defendant be required to set forth the nature of his claim, and that all adverse claims of the defendant be determined by decree of the court; that it be adjudged that the defendant has no estate or interest whatever in or to any part of said Steward lode, and that the title of the complainant to said lode is good and valid; and that the defendant be forever enjoined and debarred from asserting any claims whatever in or to any part of said lode, adverse to the complainant.

In his answer, the defendant set up that he claims ownership of only a portion of the ground embraced in the Steward claim, of which portion he is, and ever since April 26, 1900, has been, continuously and without interruption, to the knowledge of complainant and its predecessors in interest, in possession; that while said ground was granted to the predecessors in interest of the complainant on May 29, 1879, neither the complainant, nor any grantor to, nor any predecessor in interest of, complainant, has been possessed of any portion of said ground claimed by defendant within 24 years preceding the filing of the bill of complainant; that on May 29, 1880, William A. Clark was the owner as of his own demesne in fee of all of said ground, and that he never at any time between May 29, 1880, and February 3, 1900, conveyed any portion of said ground to any person or corporation; that on June 20, 1881, one Sandberg, without leave, let, lease, permission, or consent of William A. Clark, entered upon said ground and used the same, by placing cabins, corrals, fences, and building stone thereon, and used the whole thereof as a stoneyard; that for the full period of five years next succeeding June 20, 1881, said Sandberg was in the open, honest, adverse, uninterrupted, continuous, hostile, and notorious possession of said ground, under color of title of an instrument in writing made to him on said date granting said ground; that for the full period of 10 years succeeding June 21, 1881, said Sandberg was in the open, honest, adverse, uninterrupted, continuous, hostile, and notorious possession of said ground; that said Sandberg was in the open, notorious, honest, adverse, uninterrupted, continuous, and hostile possession of said ground for the entire period of time commencing on June 20, 1881, up to and until April 26, 1900, claiming to own the same; that Sandberg never sought or obtained the consent or permission of William A. Clark, or any one else, to use, occupy, and enjoy the said ground, nor did said Sandberg ever tender or pay to William A. Clark, or to any other person, any money as rent therefor, nor did he ever admit that any other person than himself had any right, title, or interest in the said ground during any of the said time; that on April 26, 1900, said Sandberg conveyed said ground to one Patrick J. Hennessy; that on the same day said Hennessy, by deed, conveyed an undivided half interest therein to the defendant; that thereafter, on November 23, 1904, said Hennessy, by deed, conveyed the other undivided half interest in said ground to the defendant; and that, therefore, defendant avers he is the owner as of his own demesne in fee simple absolute of all of said ground from the surface to the center of the earth, and of all space and substances embraced within the limits of the planes formed by projecting its surface boundaries to the center of the earth. The defendant thereupon filed its cross-bill for affirmative relief, and prayed for a decree adjudging that the title of the defendant is good and valid, and that complainant be forever enjoined and restrained and debarred from asserting any claim whatever to said ground adverse to the defendant.

The complainant filed its replication to the bill, denying...