Uinta Tunnel Min. & Transp. Co. v. Ajax Gold Min. Co.

• Decision Date: 25 October 1905
• Docket Number: 1,811.
• Citation: 141 F. 563
• Parties: UINTA TUNNEL, MIN. & TRANSP. CO. v. AJAX GOLD MIN. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

141 F. 563

UINTA TUNNEL, MIN. & TRANSP. CO. v. AJAX GOLD MIN. CO.

No. 1,811.

United States Court of Appeals, Eighth Circuit.

October 25, 1905

(Syllabus by the Court.)

Entries and patents of lode mining claims, in proceedings to which a claimant of a tunnel site located across them prior to the entries was not, and was not required to be, a party, will not estop him from establishing by the testimony of witnesses who know and by other customary evidence the fact that no discoveries of mineral in rock in place had been made in the lode claims before the claim for the tunnel site was located across them.

The word 'location,' in its application to mining claims has two distinct meanings: First, all the acts, including discovery, requisite to perfect the right of possession; and second, the placing of the claims, the posting of the notice and the marking of the boundaries, excluding discovery.

One of the fundamental rules for the interpretation of a contract is that the court should place itself as near as may be in the situation of the contracting parties at the time the agreement was made, and should then endeavor to ascertain from the contract, in the light of the surrounding facts and circumstances, what the parties actually intended by their agreement.

This intention must be deduced, not from specific provisions or fragmentary parts of the instrument, but from the entire context, because the intention is not evidenced by any part or provision of it, or by the agreement without any part or provision but by every part so construed as to be consistent with every other part and with the entire contract.

Every provision of the instrument should be given its ordinary meaning and effect, if possible, and no part should perish by construction.

The practical interpretation of the contract by the parties, while they are engaged in its performance and before any controversy concerning it has arisen, is one of the most satisfactory tests of its meaning, and courts may generally adopt that construction with safety.

When the actual intention of the parties is ascertained, it must prevail, regardless of the dry words, inapt expressions, or careless recitations in the instrument.

An agreed statement of facts, which stipulated that the lode claims of the plaintiff were 'located in compliance with law' at dates anterior to the location of the defendant's tunnel site, and that as to the issue made in the pleadings upon the question whether mineral in rock in place was discovered in the plaintiff's claims before the location of the tunnel site the defendant offered testimony tending to negative such discovery, which is on plaintiff's objection ruled out by the court, and such ruling is excepted to by the defendant, used the word 'location' in its more restricted sense, excluding discovery, and did not estop the defendant from litigating the issue relative to the discovery of mineral in rock in place in the plaintiff's claims prior to the location of the defendant's tunnel site.

Charles J. Hughes, Jr. (Scott Ashton, on the brief), for plaintiff in error.

Wm. W. Field and J. C. Helm (J. F. Vaile, on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and PHILIPS and CARLAND, District judges.

SANBORN Circuit Judge.

In the year 1901 two action were pending in the court below against the Uinta Tunnel, Mining & Transportation Company, one by the Creede & Cripple Creek Mining & Milling Company, and the other by the Ajax Gold Mining Company. The former action involved the right to the possession of the space within the bore of the tunnel of the defendant where it passed through two lode mining claims owned by the Creede Company, which was entered for patent on August 5, 1892, and were patented on December 21, 1892. The Creede Company alleged that the discovery and location of these claims were made on January 2, 1892. The defendant located its tunnel site on January 13, 1892, and it denied that any discovery of mineral in rock in place had been made in the lode claims of the plaintiff prior to its location of its tunnel site. The action of the Ajax Company, which is now before us for consideration, involved the right to the possession of the space within the bore of the tunnel where it passes through the Mammoth lode mining claim and the Apex lode mining claim, which were the property of the Ajax Company, were entered for patent respectively on May 9, 1893, and March 31, 1893, and were patented on September 6, 1895, and April 22, 1895. The Ajax Company alleged that a discovery and location of the Mammoth mining claim was made on September 25, 1891, and of the Apex mining claim on December 29, 1891. The defendant denied that any discovery of mineral in rock in place had ever been made in either of these claims before the location of its tunnel site on January 13, 1892.

In each of these cases counsel for the respective plaintiffs insisted that the patents to the lode claims conclusively estopped the defendant from proving by parol testimony, or otherwise, that no discovery of mineral had been made upon them before the location of the tunnel site, and one of the most important questions in the cases was this: When the claim to a tunnel site has been located before the patents, is the question whether discoveries of mineral were made within the lode claims before the location of the claim to the tunnel site open to determination by means of testimony dehors the patents? The court below answered this question in the negative. This court and the Supreme Court answered it in the affirmative. 119 F. 164, 57 C.C.A. 200; 196 U.S. 337, 25 Sup.Ct. 266, 49 L.Ed. 501. The question was presented to the court below in this way: A motion was made in each case to strike out portions of the answer which denied the discoveries in the lode claims before the location of the tunnel claim. The motions in the two cases appear to have been considered together, for the orders of the court which granted them were both made on December 6, 1901. There remained, however, in the Ajax Company's case, after the motion was granted, an averment by the defendant that there had been no discovery in the lode claims of the plaintiff before the location of the tunnel site.

In this state of the cases the action of the Creede Company was tried in January, 1902, and the court rejected evidence offered by the defendant to prove that no discovery had been made in the lode claims before the location of the tunnel site, there was a judgment for the Creede Company, and the defendant sued out a writ of error from this court to reverse it. While that action was pending here and in June, 1902, the case of the Ajax Company was tried in the Circuit Court. That court made the same ruling upon the trial which it made in the Creede Case. A judgment was rendered against the defendant, a writ of error to reverse it was sued out of this court on June 27, 1902, and the parties to this action stipulated in writing that this case should be continued until the Supreme Court decided the case of the Creede Company. That case has been determined and the judgment of the Circuit Court has been reversed, because that court refused to permit the defendant to prove that there were no discoveries in the lode claims before the location of the tunnel site.

A like ruling of the Circuit Court in the Ajax Company's case is assigned as error here, and the facts which have been recited seem to render it fatal to the judgment below. Counsel for the Ajax Company, however, contend that the defendant is estopped from reviewing this ruling, and from litigating the question it determines, by a written stipulation of agreed facts, which was made and introduced in evidence at the trial in the Circuit Court. This stipulation consists of 17 numbered paragraphs. The clause which counsel for the Ajax Company insists creates this estoppel is found at the commencement of the fourth paragraph and is in these words:

'That said Mammoth Pearl * * * and Apex lode mining claims were located in compliance with law, on, to wit, the 22nd day of January, 1891, * * * and the 2d day of October, 1891, respectively.'

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