Parrot Silver & Copper Co. v. Heinze
| Decision Date | 12 March 1901 |
| Parties | PARROT SILVER & COPPER CO. v. HEINZE et al. |
| Court | Montana Supreme Court |
Appeal from district court, Silverbow county; William Clancy, Judge.
Suit by the Parrot Silver & Copper Company against A. P. Heinze and others to determine the title to ore bodies beneath the surface of plaintiff's mining claim, and for injunction pendente lite to restrain defendants from removing ores therefrom. From an order granting the injunction, defendants appeal. Affirmed.
McHatton & Cotter, for appellants.
Wm Scallon, J. K. Macdonald, and T. J. Walsh, for respondent.
Action in the nature of ejectment to determine the title to certain openings and ore bodies beneath the surface of the Adventure mining claim, situate in Silverbow county. The plaintiff upon filing the complaint, asked for an injunction pendente lite to restrain defendants from removing the ores in question. From an order granting the injunction the defendants have appealed. The principal question presented by the appeal can best be understood by reference to the subjoined diagram, which illustrates the contentions of the parties:
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The plaintiff is the owner of the Adventure claim, with all the rights conferred by a patent thereto from the United States. The defendant F. Augustus Heinze is the owner of thirty-one undivided thirty-sixths of the Nipper claim, also patented lying to the north. When this controversy arose the defendant Arthur P. Heinze was in possession of the Nipper claim as lessee of the interest of F. Augustus Heinze, and was engaged in mining and extracting ore at the point O, beneath the surface and within the vertical planes passing downward through the boundaries of the Adventure claim. These operations were conducted through a "working winze" descending into the earth from the surface within the boundaries of the Nipper claim at A, and following the vein on its dip to the south at an angle of about 75 degrees through the intervening country to the point O, at a depth of 1,300 feet below the surface. The plaintiff admits that the ore bodies at this point have their apex in the Nipper claim, but contends that the evidence shows that this apex, instead of crossing the end lines of the Nipper claim, follows the course indicated by the line B, B, B, passing across the north side line of the Nipper into the Little Mina at X, towards the northwest, and through the south side line into the Oden claim at H, and thence across the east end line of the Oden into the Anaconda, towards the southeast. This being the condition of the vein, it is confidently asserted that the Nipper claim has no extralateral rights, and that, therefore, since none of the intervening claims have any part of the apex, so as to give them extralateral rights, the ore bodies in controversy belong to the plaintiff by virtue of what counsel assert are its common-law rights. Defendants on their part contend that the evidence shows that the apex of the vein, as demonstrated by developments at and beneath the surface within the boundaries of the Nipper claim, follows the general direction of the side lines from near the west end line, through the point of discovery at D, and crosses the south side line into the Anaconda at a point near the southeast corner of the Nipper claim. The position of the vein under this contention is indicated by the letters C, C, C. There is some evidence to show that there is also a branch of this vein passing off in the direction indicated by the letter G.
There is a sharp conflict in the evidence introduced to support these adverse contentions as to the strike of the vein. The district court issued the injunction after a hearing. It is evident, from the situation as illustrated by the diagram, that that court found in favor of plaintiff's contention. Otherwise, its action cannot be justified upon any reasonable theory; for, if the theory of the defendants is correct, it is clear that, in following the vein on its dip, they are merely asserting their extralateral rights granted under their patent, though in doing so they pass entirely through the adjoining claims on the south and enter plaintiff's claim. Upon the evidence submitted the district court might have found in favor of defendants' contention. As it did not, however, and as there is substantial evidence tending directly to support plaintiff's contention, we do not feel justified in holding that the showing made by plaintiff was not reasonable, or that the court abused its discretion in finding as it did. The rule heretofore applied by this court in this class of cases is that the granting of a preliminary injunction is so largely a matter of discretion that it will be sustained, upon appeal, where there has been a reasonable showing made in support of the application in the court below. Anaconda Copper-Min. Co. v. Butte & B. Min. Co., 17 Mont. 519, 43 P. 924; Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 20 Mont. 528, 52 P. 273; Butte & B. Consol. Min. Co. v. Montana Ore-Purchasing Co., 21 Mont. 539, 52 P. 375; Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 22 Mont. 159, 56 P. 120. For present purposes, therefore, we shall assume the finding in favor of plaintiff as to the course of the vein through the Nipper claim to be correct, and proceed to determine the legal question presented upon this theory of the case.
From this point of view it is apparent that the apex of the vein in its course through the Nipper claim, crosses both side lines. The defendants, therefore, have no right to follow the vein on its dip in the direction of the Adventure claim. The supposed side lines of the Nipper claim are in fact end lines, and whatever rights its owners have to follow the vein in the direction of the Adventure are limited by a vertical plane passing downward through the south side line extended in its own direction towards the west. "It may be considered as absolutely and finally settled that, where a vein on its course crosses two opposite side lines, the vein cannot be followed, either on its dip or strike, beyond vertical planes drawn through the side-end lines, and that the angle at which it crosses these side lines makes no difference in the application of the principle." 2 Lindl. Mines, § 588. This is a concise statement of the present condition of the law upon this subject as declared by the supreme court of the United States in Flag-staff Silver-Min. Co. v. Tarbet, 98 U.S. 463, 25 L.Ed. 253, in Iron Silver-Min. Co. v. Elgin Mining & Smelting Co., 118 U.S. 196, 6 S.Ct. 1177, 30 L.Ed. 98, in Argentine Min. Co. v. Terrible Min. Co., 122 U.S. 478, 7 S.Ct. 1356, 30 L.Ed. 1140, in King v. Mining Co., 152 U.S. 222, 14 S.Ct. 510, 38 L.Ed. 419, and in Last Chance Min. Co. v. Tyler Min. Co., 157 U.S. 683, 15 S.Ct. 733, 39 L.Ed. 659; and the question as to what are the extralateral rights of the owner of a claim in which the apex is situated as in the Nipper is not now open to further discussion. It is equally as well settled by the adjudicated cases that the extralateral rights of the owners of the Oden claim, lying to the south between the Nipper and the Adventure, if they have any at all upon the vein in question, are limited towards the west by a vertical plane passing downward through the point H, and parallel with the east end line of that claim. Assuming that the end lines of the Oden are parallel, a condition was presented which was considered by this court in Fitzgerald v. Clark, 17 Mont. 100, 42 P. 273, 30 L. R. A. 803, and the...
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