Wolfley v. Lebanon Min. Co.

• Citation: 4 Colo. 112
• Parties: WOLFLEY et al. v. LEBANON MINING CO., OF NEW YORK.
• Decision Date: 01 April 1878
• Court: Supreme Court of Colorado

4 Colo. 112

WOLFLEY et al. v. LEBANON MINING CO., OF NEW YORK.

Supreme Court of Colorado

April, 1878

Appeal from District Court of Clear Creek County.

AT the trial in the court below the appellee relied on title derived by discovery, pre-emption and several mesne conveyances from the alleged pre-emptors, to Harris, the discoverer, and from him to Brown. Brown obtained a patent from the government and conveyed his interest to the appellee. The patent contains the following language: 'it being the express intent and meaning of these presents to convey to the said J. Warren Brown, his heirs and assigns only the eight hundred (800) linear feet of the Ben Harding lode, with surface ground hereinbefore described, commencing at the center of discovery shaft on said lode and extending thence westerly eight hundred (800) linear feet, along the course of the vein, the same being known as claims Nos. 1 'etc., * * * 'with the right to follow said Ben Harding lode or vein, to the distance of eight hundred (800) linear feet, with its dips, angles and variations, to any depth, although it may enter the land adjoining.'

Mr. L C. ROCKWELL and Mr. JAMES B. BELFORD, for appellants.

Messrs. H. M. & W. TELLER, for appellee.

THATCHER C. J.

This was an action of ejectment brought by appellees against appellants to recover the possession of eight hundred feet of the Ben Harding lode. The declaration contained three counts, in the first of which the appellee claimed title in fee, and in the second and third it claimed title by pre-emption, occupation, possession and purchase under and by virtue of the local laws, customs and usages of miners in Griffith mining district, the laws of Colorado and those of the United States. In support of the second and third counts, much evidence was introduced, which, however, the court charged the jury to disregard in the following instruction:

'After the issuing of the patent, all previously acquired rights by the patentee under the local laws, usages and customs of the particular district in which the claim is located, are merged in the patent, and the plaintiff having put in evidence a patent from the United States, you must not consider the right or title acquired prior to the issuing of the patent, such rights being merged in the patent.'

Whether this instruction correctly lays down the law we need not now decide. It could not prejudice the defendant.

It is enough to say that by this instruction the jury was necessarily confined to the issue made upon the first count. By their verdict they found that the plaintiff was the owner in fee of the property described in the declaration. This verdict was responsive only to the first count.

The evidence tended to show that the Ben Harding lode in its onward course or strike departed from the vertical side lines of the location as described in the patent and represented by the plat incorporated therein, and entered the Bell tunnel lode location, which was patented under the act of Congress of May 10, A. D. 1872. That the plaintiff had the right to so follow the patented lode was affirmed in the instructions of the court. Upon this theory the case was tried. To determine its correctness reference must be had to the act of Congress of July 26, 1866, under which the Ben Harding lode was patented.

At common law a grant of land carries with it all that lies beneath the surface down to the center of the earth. At this pleasure the owner of the soil may apply to his own purposes whatever is included in the segment of the earth carved out by his descending exterior boundary lines. Says Sir WILLIAM BLACKSTONE (Book 2, page 18): 'Cujus est solum, ejus est usque ad coelum is the maxium of the law; upwards therefore no man may erect any building or the like to overhang another's land; and downward whatever is in a direct line, between the surface of any land and the center of the earth, belongs to the owner of the surface, as is every day's experience in the mining countries.' By the rules of the common law, except so far as such rules have been modified by statute, must the extent of the plaintiff's patented grant be determined. That there may however be a grant of mineral separate from the grant of the circumjacent land, and vice versa, where the grantor manifestly intends that each shall form a distinct possession and different inheritance, admits of no doubt. The question recurs: What did Congress, by its declared will in the act of 1866, authorize the United States to grant? In the light of a just interpretation of this act, must the Ben Harding patent be construed. If the patent is broader than the law, it is to that extent ineffectual. Based upon the statute, its validity, and the extent to which it operates as a conveyance, must be determined by reference to the statute.

Section two provides that it shall be lawful for the claimant of a vein or lode 'to file in the local land office a diagram of the same so extended laterally or otherwise as to conform to the local laws, customs and rules of miners, and to enter such tract and receive a patent there for, granting such mine together with the right to follow such vein or lode, with its dips, angles and variations to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition.'

This section clearly permits the patentee to follow the lode in its descending course to any depth, although in its downward trend it is carried by its dips, angles and variations into the adjoining land. Here is a departure from the common-law doctrine. The qualifying words, however, 'to any depth,' limit the direction in which the mine may be pursued beyond the side lines. The claimant is required to file in the land office a diagram of his vein or lode. This is his own act. The law contemplates that before he prepares his diagram he shall so far expose and develop the lode as to be able to trace its course. The position that if the plat made by the surveyor does not cover the lode, the patentee should be permitted to so shift the lines of his patent as to include the lode which he before, through inadvertence or ignorance, failed to properly locate, is, it is conceived without force. The error is not the mistake of a government officer, but the mistake of the claimant, and others ought not to be permitted to suffer by it. It is not the province of the...