Wall v. Utah Copper Co.

• Decision Date: 07 November 1921
• Docket Number: 5698.
• Citation: 277 F. 55
• Parties: WALL et al. v. UTAH COPPER CO.
• Court: U.S. Court of Appeals — Eighth Circuit

277 F. 55

WALL et al. v. UTAH COPPER CO.

No. 5698.

United States Court of Appeals, Eighth Circuit.

November 7, 1921

William W. Ray, of Salt Lake City, Utah (Athol Rawlins, of Salt Lake City, Utah, on the brief), for appellants.

A. C Ellis, Jr., of Salt Lake City, Utah (W. H. Dickson, of Salt Lake City, Utah, on the brief), for appellee.

Before CARLAND, Circuit Judge, and LEWIS and YOUMANS, District Judges.

LEWIS District Judge.

A mining claim was located by John Anderson in the West Mountain Mining District, Salt Lake County, Utah, as the Amanda Lode. It was later further designated as U.S. Lot No 191 when surveyed for patent. That survey was made in 1879 and describes a rectangular parallelogram 1,480 feet long by 200 feet wide, lying easterly and westerly. It was not within the limits of public land surveys. The initial point of the survey, as shown by U.S. Deputy Mineral Surveyor's notes was the center of an incline shaft on the claim, thence by two courses to the southeast corner of the claim, at which point the surveyor, according to a recitation in his notes, erected a mound of stones and set a pine post 4 1/2' x 4' x 4', and by appropriate marks on the post designated and fixed it as Corner No. 1, tying it to a mahogany tree 4 inches in diameter which 'bears S.E. 27 ft. distant,' thence N. 10 degrees 45' E. 200 ft. to the northeast corner, where he erected a mound of stones and set a like post and marked it as Corner No. 2 of the claim. This corner was not directly tied. Thence N. 79 degrees 15' W. 1,480 ft. to the northwest corner of the claim, where he erected a mound of stones and set a like post and market it as Corner No. 3 of the claim, and gave that corner three direct ties, thence S. 10 degrees 45' W. 200 ft. to the southwest corner of the claim, where he erected a mound of stones and set a like post and marked it as Corner No. 4 of the claim. This corner was not directly tied. Thence S. 79 degrees 15' E. 1,480 ft. to Corner No. 1. Points on the side-lines were tied to natural objects and monuments.

Mining operations about the southeast corner have caused a caving in so that the stake and mound of stones designated in the survey as Corner No. 1 were lost, and presumptively the mahogany tree to which it was tied went down also. U.S. Patent issued in 1880, conveying the claim to John Anderson, describing it as Amanda Lode Lot 191, and by metes and bounds. Thereafter title to it passed to Enos A. Wall, who brought this suit and died pending the cause, wherein he charged that defendant was and had been trespassing upon the claim through underground workings and had extracted and carried away ores of great value, for which he asked judgment, that defendant be enjoined from future trespasses and that his title to the claim be quieted in him.

After patent had issued for the Amanda a number of other mining claims were located nearby, and the four with which we are now concerned are the Emma, Sur. No. 3534, Emma No. 1, Sur. No. 3676, Charles Read, Sur. No. 3489, and Mattie, Sur. No. 4317, all of which overlap the Amanda, as shown by this diagram:

(Image Omitted)

The Emma was surveyed for patent in 1897, the Emma No. 1 in 1898 and patents for both of them issued to one Quinn in 1899. The Charles Read was surveyed for patent in 1897, and patent for it issued to the original plaintiff Wall in 1899. The Mattie was surveyed for patent in 1900, Wall being the owner, but patent has not issued. Wall later became the owner of the two Emma claims, and conveyed them and the Charles Read and Mattie to the defendant, or (as to some of them) to its grantors. He had not acquired the Amanda claim prior to parting with title to the other four claims. The field notes of surveys of the Emma, Emma No. 1, and Charles Read place the southerly side-line and the easterly end line of the Amanda, as shown by the dotted line X Y Z on the diagram, within the outer boundaries of that claim as asserted here by appellants; and the field notes of the Mattie survey represent the north side-line as having a course N. 81 degrees 9' W. instead of N. 79 degrees 15' W., thus making it parallel with the southerly side-line as shown by the dotted line. The patents for the three overlapping claims exclude in general terms, as is the uniform practice, the overlapped and previously granted ground within the Amanda thus: 'Expressly excepting and excluding from these presents all that portion of the ground hereinbefore described embraced in said mining claim or Lot 191,' and they also give the area granted by each patent in the three overlapping claims, but do not specify the acreage in conflict between the Amanda and either of those claims. The field notes, however, on which the patents issued in each instance specify the acreage in conflict with the Amanda and each of those claims, and computation discloses in each instance that the area in conflict south and east of the dotted line was not accounted for by the surveyor as part of the Amanda claim but as free ground to be included as parts of said three claims for patent as such. It clearly appears from their patent surveys that the ground thus reported by them to be in conflict was north and west of the dotted line. We do not deem it important to determine the causes that led to the conclusion arrived at by the surveyors in making the patent surveys that the ground south and east of the dotted line was not within and a part of the Amanda claim. Mining engineers who testified did not agree as to the true location of Corner No. 2 of the Amanda. It was established that for many years there had been a mound of stones and a pine post 4' x 4' marked as Corner No. 2 of the Amanda at a point some distance westerly of the point shown on the...