Wall v. United States Mining Co.

• Decision Date: 04 September 1905
• Docket Number: (541) 1105.
• Parties: WALL et al. v. UNITED STATES MINING CO.
• Court: U.S. District Court — District of Utah

232 F. 613

WALL et al. v. UNITED STATES MINING CO.

No. (541) 1105.

United States Circuit Court, D. Utah.

September 4, 1905

MARSHALL District Judge.

The plaintiff Wall, as lessee, and the plaintiff Fox, as the owner of the fee, of the Red Rover mining claim, instituted this action against the defendant to recover for a trespass on the ore body lying beneath the surface of said mining claim. The defendant justified its entry on the ground that the ore body in dispute is in a vein apexing in the Roman Empire, the Montana, and the Columbia Mining claims, owned by it, and that this vein, on its dip, passes beneath the surface of the plaintiff's claim and between parallel planes drawn through the end lines of the defendant's claims continued in their own direction. The case was tried by the court without a jury. The surface relations of these claims to each other is shown by a map, Exhibit 8, introduced in evidence by the plaintiffs. There is no controversy over the title to the surface. The plaintiffs own the Red Rover mining claim, and the vein in question does not apex in that claim. The defendant owns the Roman Empire, Montana, and Columbia Mining claims. These claims conflict with each other, and with respect to the conflicting areas the title is held under the senior claim. In order of seniority the Roman Empire is first and the Montana second. There is admittedly in the Roman Empire claim a zone or belt of limestone striking approximately east and west and dipping to the north. The apex of this limestone belt crosses the east end line of that claim and proceeds to the west approximately parallel to the side lines. This lime zone is of considerable width, and on its strike can be traced for a great distance. It lies between a hanging and a foot wall of quartzite, and the ore bodies in dispute are in it.

It is not necessary to consider in detail the evidence which proves that this zone of limestone constitutes a vein, because in the case of United States Mining Co. v. Lawson, 134 F. 769, 67 C.C.A. 587, the Circuit Court of Appeals had occasion to consider the same stratum of limestone in the light of evidence which while it related to a portion of the zone at some distance from the claims here in question, was substantially the same as the evidence in this case. That court held that this limestone zone constituted a broad vein or lode, and that the overlying and underlying beds of quartzite were the limits of the lode. Here this vein can be followed on its dip through a network of openings from its apex in the Roman Empire to the ore bodies beneath the surface of the Red Rover, showing a demonstrated continuity of vein.

But the real contention of the plaintiffs is that about 150 feet east of the west end line of the Roman Empire that claim is crossed by the Giant Chief fissure. This fissure is narrow but of considerable length. It strikes approximately north and south and dips to the west. It is claimed by the plaintiffs that this fissure has faulted the formation, and that the country to the west of it has been thrown to the south. So that, while the mineralized lime belt apexes in the Roman Empire to the east of the fissure, yet the westerly continuation of the vein is found entirely to the south of all of the defendant's claims. If this be true, the western limit of the defendant's extralateral rights must be a plane drawn through the western point of the apex, as found in the Roman Empire, and parallel to the end lines of that claim. This would exclude the ore bodies in dispute, and the plaintiffs would then be entitled to recover.

The defendant admits the existence of the fissure and that at certain levels it faults the vein, the portion to the west being thrown to the south, but contends that, as the surface is approached, this throw decreases until at the surface within the Roman Empire it is either nonexistent or so small as to leave the western continuation of the vein within the limits of the defendant's claims. Whatever the fact may be as to the throw, the dip of the fissure to the west causes it to pass to the west of the ore bodies in dispute; so that these bodies lie in the same segment of the vein which undeniably apexes in the Roman Empire, but they extend west of the defendant's extralateral rights on the vein, if the apex ends in the claims of the defendant where the fissure is encountered on the surface.

The issue narrows itself to the question of the existence of the lime zone to the west of the fissure and within the defendant's claims. The problem is not easy of solution. The formation is covered with wash in which some trenches and cuts have been made. The deeper workings consist of the Corner tunnel and the R-18 tunnel. The witnesses of the respective parties do not agree as to the formation exposed. The plaintiffs' experts contend that the Corner tunnel is entirely in quartzite and that the first 135 feet of the R-18 tunnel is also in quartzite. The defendant's experts testify that both are in altered lime. The same confusion exists as to most of the cuts. The former see wash where the latter see the vein lime, and the latter find quartzite boulders in wash where the former allege that the solid quartzite formation has been reached....