South Butte Mining Co. v. Thomas

• Citation: 260 F. 814
• Decision Date: 06 October 1919
• Docket Number: 3256.
• Parties: SOUTH BUTTE MINING CO. v. THOMAS et al. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

260 F. 814

SOUTH BUTTE MINING CO. v. THOMAS et al. ^[1]

No. 3256.

United States Court of Appeals, Ninth Circuit.

October 6, 1919

John A Shelton, of Butte, Mont., for appellant.

Thomas B. Thomas, of Oakland, Cal., pro se.

Peter Breen, J. R. Jackson, N. A. Rotering, and H. K. Jones, all of Butte, Mont., for appellees Bucher and Wuerch.

Mrs Percy William Anstett, pro se.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS Circuit Judge.

The appeal in this case is from the judgment of the court below that certain proceedings taken by the appellees, and hereinafter specified, did not constitute a violation of an injunction theretofore granted by final decree of the same court in the suit of the present appellant against the appellee Thomas, and dismissing the contempt proceedings that had been instituted against him and his grantees, the other appellees herein.

The suit in which the injunction was awarded was brought by the present appellant in the court below against the present appellee Thomas, to quiet its alleged title to certain placer mining claims in the state of Montana which had prior to June 9, 1906, been patented to the predecessors in interest of the mining company, in which suit the then defendant Thomas filed in addition to his answer a crossbill, alleging that within the boundaries of the patented placer claims he entered, on or about December 1, 1909, then being a qualified citizen of the United States, and made a discovery therein of a vein of mineral-bearing quartz or rock in place showing a well-defined wall, and immediately thereafter located the same under the name Resurrection quartz lode mining claim specifically describing it and alleging it to be the identical Resurrection quartz lode mining claim of which complaint was made in the bill, and that within 30 days thereafter he filed for record the certificate of such location, duly verified, as required by law.

The cross-bill further alleged, upon information and belief, that at the time of the respective applications for the placer patents the said Resurrection vein or lode was well known and was of such a character as justified exploitation and the expenditure of money and time in developing the same, all of which was well known to the predecessors in interest of the complainant at the time of their respective applications for the placer patents; that subsequent to December 1, 1909, the cross-complainant performed the required annual work upon the said alleged Resurrection lode claim, and in all respects complied with the law relating thereto. Its prayer was that the bill be dismissed, and that the alleged title of the cross-complainant to the said lode claim be quieted. That suit resulted in a decree for the complainant, and was brought here on appeal, where it was affirmed; the case being reported in 211 F. 105, 128 C.C.A. 33.

As shown by the opinion of this court, the evidence offered by the mining company showed its title to the lands described in the bill by virtue of the placer patents, which were issued at different dates, all of which were prior in time to the location of the lode claim, and the proof on the part of the then appellant Thomas consisted--

'of a certified copy of the certificate of location of the Resurrection lode claim, recorded on January 7, 1910, and an amended statement of the location thereof, recorded January 28, 1910; a certified copy of the location notice of the Morning Star lode claim, of date July 2, 1877; a certified copy of the location notice of the Green copper lode claim, of date January 1, 1891; a certified copy of the location notice of the Pay Streak lode mining claim, of date August 2, 1881; also a map purporting to show the location of these various lode claims, and showing that the Pay Streak lode claim covered a portion of the ground which was subsequently embraced within the Resurrection quartz lode mining claim; that the Green copper lode claim adjoined the end thereof, and that the Morning Star was distant therefrom.'

There was no evidence, other than the copies of the location notices of the three lode mining claims mentioned, to prove that, at the time when the predecessors in interest of the South Butte Mining Company made applications for the placer patents, any veins or lodes of quartz or other rock in place bearing valuable mineral deposits were known to exist. In holding the evidence of the cross-complainant insufficient to overcome the case made by the placer patents, we said:

'First, the application for the appellee's placer patent for the land within which the Resurrection claim is located is prior by 4 years to the Pay Streak location, and 14 years prior to the Green copper location; second, the mere fact that mineral lode locations were made is not proof that the ground on which they were located contained a vein or lode within the meaning of section 2333 of the Revised Statutes (U.S. Comp. St. 1901, p. 1433). A mere location of an alleged vein or lode is not sufficient to prove that a vein or lode was known to exist. Migeon v. Montana Central Ry. Co., 77 F. 249, 23 C.C.A. 156. The lode or vein which is known to exist, so as to be excluded from the patent, must be one which contains mineral of such extent and value as to justify expenditures for the purpose of extracting it. Migeon v. Montana Central Ry. Co., 77 F. 249, 23 C.C.A. 156; Casey v. Thieviege, 19 Mont. 342, 48 P. 394, 61 Am.St.Rep. 511.'

The statute which lies at the foundation of the case is section 2333 of the Revised Statutes (Comp. St. Sec. 4632), which reads as follows:

'Where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings; and where a vein or lode, such as is described in section twenty-three hundred and twenty, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof.'

Long before the present case arose this court had occasion to construe that section, in the case of Migeon et al. v. Montana Cent. Ry. Co., 77 F. 249, 23 C.C.A. 156, where we said of it:

'This section of the statute was primarily intended for the benefit and protection of the locators of placer claims. If a lode is known to exist within the boundaries of a placer claim, the applicant for a patent must state that fact, and then, by paying $5 an acre for that portion of the ground, and $2.50 an acre for the balance, a patent will issue to him, covering both the lode and placer ground; but, if the lode is known to exist, and is not included in the application for a patent, then it will be construed as a conclusive declaration that the owner of the placer claim has no right of possession, by virtue of his patent for the placer ground, to the vein or lode. It matters not whether there is a lode or vein actually within the limits, which subsequent developments may prove, if it is not known to exist at the time of the application, the patent for the placer claims will include such lode or vein. In such cases the Supreme Court has repeatedly declared that it is not enough that there may have been some indications, by outcropping on the surface, of the existence of lodes or veins of rock in place bearing gold or silver or other precious metals to justify their designation as 'known veins or lodes'; that, in order to meet that designation, the lodes or veins must be clearly ascertained, and be of such extent as to render the land more valuable on that account, and justify their exploitation. Mining Co. v. Reynolds, 124 U.S. 374, 383, 8 Sup.Ct. 598, 603 (31 L.Ed. 466); U.S. v. Iron Silver Min. Co., 128 U.S. 674, 683, 9 Sup.Ct. 195, 199 (32 L.Ed. 571); Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co., 143 U.S. 394, 404, 424, 12 Sup.Ct. 543, 553 (36 L.Ed. 201); Sullivan v. Mining Co., 143 U.S. 431, 12 Sup.Ct. 555 (36 L.Ed. 214); Brownfield v. Bier (15 Mont. 403) 39 P. 461, and authorities there cited This construction as to the meaning of section 2333 is, in our opinion, founded in reason, and is in harmony with the construction given by the courts to the other sections of the statute relative to the rights of locators of mining claims upon the public lands of the United States. But, in any event, the rule, as above stated, is now too well settled to be departed from.

'The decisions of the Supreme Court upon controversies arising between mineral claimants on one side and parties holding town-site patents on the other are applicable to this class of cases. The doctrines therein announced are directly in line with the cases we have referred to. In such character of cases the court has repeatedly declared that, under the acts of Congress which govern such cases, in order to except mines or mineral lands from the operation of a

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