Stewart Mining Co. v. Ontario Mining Co.

• Citation: 132 P. 787,23 Idaho 724
• Parties: STEWART MINING CO., Appellant, v. ONTARIO MINING CO. et al., Respondents
• Decision Date: 03 May 1913
• Court: United States State Supreme Court of Idaho

132 P. 787

23 Idaho 724

STEWART MINING CO., Appellant, v. ONTARIO MINING CO. et al., Respondents

Supreme Court of Idaho

May 3, 1913

DECISION OF COURT-MINES AND MINERALS-LOCATION ALONG VEIN OR LODE-DISCOVERY VEIN-PRESUMPTIONS DRAWN FROM PATENT-APEX OF CLAIM-EXTRALATERAL RIGHTS-WHEN END LINES BECOME SIDE LINES-DOWNWARD COURSE-EVIDENCE MUST BE CLEAR-DECREE QUIETING TITLE.

1. Under the statute of this state, sec. 4406, Rev. Codes, the decision of the trial court consists of the findings of fact and conclusions of law which must be in writing and filed with the clerk. An oral opinion announced by the court from the bench prior to making of findings of fact and conclusions of law, or a written opinion addressed to counsel which is not in the nature of findings and conclusions, is not the decision of the court, and exceptions taken thereto and assignments of error directed against such an opinion are not assignments against the decision of the court, and will not call for a review thereof on appeal.

2. The statute of the United States, sec. 2322, grants to the locator of a mining claim the exclusive right of possession and enjoyment of "all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations," and the words "top or apex" as there used mean the highest point in the vein. An apex must be the top or terminal edge of the vein on the surface or the nearest point to the surface, and must be the top of the vein proper rather than of a spur, and must be a point from which the vein has a dip as well as a strike.

3. The words "downward course" and "course downward," contained in sec. 2322 of the United States statutes, are used interchangeably, and were evidently intended to signify the course of the vein from the surface toward the center of the earth whether in a perpendicular course or on a dip or declination, and by downward course is meant a course more in the direction of the dip of the vein than of the strike or onward course of the vein. To pursue a vein in the direction of its strike at an angle of less than 45 degrees to the course of such vein would clearly not be following the vein on its "downward course" as authorized by the statute, but would rather be following it on the course of its strike.

4. The general rule that where a mineral vein or lode crosses the side lines of the location, as marked on the surface, such side lines are in law end lines, and that the lines that were laid off and marked as end lines are in law side lines, is subject to the exception that where the discovery vein does in fact cross the end lines of the claim as marked on the surface, and such end lines are the true end lines of the claim and the side lines are the true side lines of such claim, those lines will remain such for all secondary veins having their apices within the surface boundaries of such claim, and the fact that a secondary vein may be discovered crossing the side lines will not give the locator extralateral rights beyond the vertical plane of the end lines of the claim.

5. In the absence of proof as to the course of the discovery vein on a patented mining claim, the existence of the patent to the claim raises the presumption that the location was laid along the course of the vein and that the vein or lode crosses the end lines of the claim as marked on the ground and that the side lines thereof are laid in the direction of the strike or onward course of the vein.

6. Where a mineral vein or lode has been cut off by a great and well-defined fault, and the end edge of the vein along the fault is left in such a position that if the fault were eroded or washed away the edge of the vein would stand out as an overhanging cliff with both a dip and a declination to the onward course of the vein of from 30 to 45 degrees, such edge of the vein is not the top or apex of the vein within the meaning and purview of sec. 2322 of the Revised Statutes of the United States. The fact that such end edge of the vein is at places curled, cupped or turned upward at varying angles from the general course or strike of the vein will not serve to convert such edges or spurs into an apex of the vein.

7. One who claims the right to take ore bodies from beneath the surface boundaries of a mining claim not his own under and by reason of the extralateral rights provision of sec. 2322 of the Revised Statutes of the United States, on the ground that the vein has its apex within the surface boundaries of his own location, should be required to prove clearly and satisfactorily to the court that he has the apex of such vein within the surface boundaries of his own location before being awarded the right to remove the ores from beneath the surface of the neighboring claim.

8. Under the statutes of this state, sec. 4538, an action to quiet title may be brought by any person against another who claims an estate or interest in any real property adverse to him, for the purpose of determining such adverse claim, and it was not error for the trial court to render and enter judgment in this case enjoining the appellant from "asserting any right, title or interest of, in or to the said Ontario mining claim or the ores or minerals therein adverse to the defendant Ontario Mining Co."

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.

Action for injunction and accounting. Cross-complaint to quiet title. Judgment for defendant. Plaintiff appealed. Affirmed.

Judgment of the trial court affirmed, with costs in favor of respondent.

Wm. E Cullen, Featherstone & Fox and M. S. Gunn, for Appellant.

The lower court erred in deciding that because the vein crosses the southerly side line of the Stewart Fraction claim, that line is in fact an end line, in consequence of which the appellant is not entitled to any extralateral right to the vein southerly of the vertical plane of such line.

The presumption obtains that a discovery was made in the Stewart Fraction claim, and that the claim was properly located with reference to the discovery vein. In other words, as there is neither allegation nor proof with reference to the discovery vein in the Stewart Fraction claim, it will be presumed that the side lines and end lines of the claim are as described in the patent. (Work Min. & Milling Co. v. Dr. Jack Pot Mining Co., 194 F. 620; Del Monte M. & M. Co. v Last Chance M. & M. Co., 171 U.S. 55, 18 S.Ct. 895, 43 L.Ed. 72, 19 Morr. Min. Rep. 370; Calhoun Gold Min. Co. v. Ajax Min. Co., 182 U.S. 499, 21 S.Ct. 885, 45 L.Ed. 1200, 21 Morr. Min. Rep. 381.)

The end lines of the claim which determine the extralateral right to the discovery vein are the end lines as to all other veins, the apices of which are within the claim. (Walrath v. Champion Min. Co., 170 U.S. 293, 18 S.Ct. 909, 43 L.Ed. 170, 19 Morr. Min. Rep. 410; Del Monte Case, supra; Lindley on Mines, 2d ed., sec. 591; Consolidated Wyo. G. M. Co. v. Champion Min. Co., 63 F. 540, 18 Morr. Min. Rep. 113.)

The lower court erred in holding that the termination of the vein along the Osborne fault within the Stewart Fraction claim is not the top or apex thereof.

If the course is downward along lines parallel with the vertical planes of the end lines, it is wholly immaterial that the course is more along the strike than on the dip of the vein. (Lindley on Mines, 2d ed., pp. 576, 577; Bunker Hill & Sullivan Mining Co. v. Empire State Mining Co., 134 F. 268; Last Chance Mining Co. v. Bunker Hill & Sullivan Min. Co., 131 F. 579, 66 C. C. A. 299.)

The apex of the vein along the Osborne fault is a subsurface apex. Such an apex will support a location, and the extralateral right attaches to a vein having a subsurface apex the same as to a vein which outcrops at the surface. (Flagstaff Silver Min. Co. v. Tarbet, 98 U.S. 469, 25 L.Ed. 253, 9 Morr. Min. Rep. 607; Calhoun Gold Min. Co. v. Ajax Gold Min. Co., supra.)

The fact that the vein on its downward course from the apex in the northerly portion of the Senator Stewart Fraction claim extends into and through the Stewart and Lazy Jean claims does not affect the extralateral right attaching to the vein beyond and southerly of the Senator Stewart and Lazy Jean claims. (Empire State etc. Co. v. Bunker Hill & S. Min. Co., 114 F. 417, 52 C. C. A. 219, 22 Morr. Min. Rep. 104; Lindley on Mines, 2d ed., 532.)

The law should be applied to the vein as it is situated in the ground and not to a theoretical vein, and it is the course of the apex which controls and not the general course or strike of the vein. (Mining Co. v. Tarbet, supra; Lindley on Mines, 2d ed., p. 1005; Carson City Gold Mining Co. v. North Star Mining Co., 73 F. 597.)

The edge or end of the vein along the Osborne fault is the top or apex within the meaning of these words as used in sec. 2322, U. S. Rev. Stats., and there is a downward course along this apex to the ore bodies in controversy. Every requirement of the statute necessary to the exercise of the extralateral right by appellant is fulfilled. To hold otherwise would do violence to the statute by imposing conditions which are not contained in it. This is not permissible, as held in Calhoun Min. Co. v. Ajax Gold Min. Co., supra.

The appellant discovered and developed this vein. The respondent the Ontario Mining Company, took advantage of the discovery and development of the vein by appellant, and the ore it has been and is extracting from the vein beneath the Ontario the law intended should belong to the appellant as a reward for making a discovery...