Work Min. & Mill. Co. v. Doctor Jack Pot Min. Co.

• Decision Date: 02 March 1912
• Docket Number: 3,468.
• Citation: 194 F. 620
• Parties: WORK MIN. & MILL. CO. v. DOCTOR JACK POT MINING CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

194 F. 620

WORK MIN. & MILL. CO. v. DOCTOR JACK POT MINING CO. ^[1]

No. 3,468.

United States Court of Appeals, Eighth Circuit.

March 2, 1912

Henry C. Hall and Charles S. Thomas (Wm. H. Bryant, George L Nye and Wm. P. Malburn, on the brief), for plaintiff in error.

William V. Hodges (Clayton C. Dorsey, on the brief), for defendant in error.

Before HOOK, Circuit Judge, and RINER and REED, District Judges.

RINER District Judge.

This is an action in ejectment to recover the possession of certain mining ground situated in the Cripple Creek mining district Teller county, Colo., and for damages. The Doctor Jack Pot Mining Company was the plaintiff and the Work Mining &amp Milling Company was the defendant in the Circuit Court, and for convenience will be so referred to hereafter.

Three separate causes of action were stated in the complaint, based upon three different veins or ore bodies. The second cause of action was dismissed by the plaintiff at the trial, and the case proceeded to verdict and judgment upon the first and third causes of action. In its first cause of action plaintiff avers that it and its grantors at all times since the 17th of October, 1901, were the owners in fee, and that the plaintiff at the time the complaint was filed was the owner in fee and entitled to the occupation and possession of a certain lode mining claim in the Cripple Creek mining district known as the Lucky Corner lode mining claim, United States survey No. 9,209; that on the 17th of October, 1901 the United States duly issued to the grantors of the plaintiff its patent for the mining claim above referred to, who thereafter by mesne conveyances conveyed and transferred to the plaintiff the surface of the Lucky Corner lode mining claim; that the patent and conveyances above mentioned conveyed to the plaintiff the surface of the Lucky Corner lode mining claim, together with all veins, lodes, and ledges throughout their entire depths, the tops or apices of which lie inside the surface lines thereof extended downward vertically, although such veins, lodes, or ledges may so far depart from the perpendicular in their course downward as to extend outside the vertical side lines of said premises, confined to such portions thereof as lie between vertical planes drawn downward through the end lines of said Lucky Corner lode mining claim so continued in their own direction that such planes will intersect such exterior parts of such veins, lodes, or ledges, and that the end lines are parallel.

It is further averred in the first cause of action that in mining and developing said claim the plaintiff and its grantors opened and discovered a vein, lode, or ledge, commonly called No. 1 vein, which is not the vein, lode, or ledge discovered in the discovery shaft of said claim, and which has its top or apex inside of the surface boundaries of the Lucky Corner lode mining claim, and runs in a northeasterly and southwesterly direction and crosses on its strike at its apex, the westerly side line 4-5 of said claim at a point on said side line about 260 feet N. 18 degrees 55' E. from the southwest corner No. 4 of said claim and the northerly end line 6-1 of said claim at a point about 80 feet N. 71 degrees 05' W. from the northeast corner No. 1 of the claim; that by virtue of the patent and mesne conveyances the plaintiff is the owner of so much of said vein as lies between vertical planes, one drawn downward through said end line extended in its own direction and the other parallel thereto drawn downward at the point on said westerly side line 4-5, about 260 feet north from the southeast corner No. 4 of said claim, where said vein at its apex crosses said side line, throughout the entire depth of said vein, the distance between said vertical planes being about 760 feet; that between said vertical planes so drawn said vein on its dip extends northwesterly to a great depth and beneath and beyond the westerly and northerly side lines of the claim.

It is further averred that while the plaintiff and its grantors were the owners and in possession and entitled to the possession of the said Lucky Corner lode mining claim, and the vein, lode, or ledge above described, the defendant, on or about the 1st day of November, 1901, entered upon the vein and ousted the plaintiff and its grantors therefrom, and from the possession thereof, and that it has ever since continued, and still continues, to hold possession thereof, to the damage of the plaintiff in the sum of $1,000,000. It is further averred in the complaint that the defendant had extracted ores from the vein and lode owned by the plaintiff to the amount and value of $950,000. It is also averred that the grantors of the plaintiff had duly assigned, transferred, and set over to the plaintiff all claims and demands, actions, and causes of action which its grantors had for ores and minerals extracted.

In the third cause of action the plaintiff makes the same allegations as to possession and ownership of the Lucky Corner lode mining claim and to all veins, lodes, and ledges having their tops or apices inside the surface lines of said claim extended downward vertically, as set out in the first cause of action, and then avers that it is the owner of a certain vein called the 'Timber Drift vein,' having its top or apex inside the surface boundaries of the plaintiff's claim throughout its entire depth where it lies between vertical planes parallel to the end lines of the claim extended in their own direction through the points on the side lines where the apex of the Timber Drift vein crosses the side lines, that the part or segment of the vein on its dip extends northerly and westerly to a great depth between the westerly and northerly side lines of plaintiff's claim. It is then averred that the Timber Drift vein like the number one vein described in the first cause of action, is not the vein, lode, or ledge discovered in the discovery shaft of the claim. The same averments as to the possession of number one vein set out in the first cause of action are repeated in this cause of action as to the Timber Drift vein.

The defendant in its answer admits that a patent was issued to the grantors of the plaintiff for the Lucky Corner lode mining claim, as averred in the complaint, denies that the end lines are parallel, but admits the existence of the number one vein, and that a portion of its top or apex is within the patented boundaries of the Lucky Corner claim. It admits that the No. 1 vein extends upon its dip northwesterly to a great depth and beyond the westerly and northerly side lines of the Lucky Corner claim, but denies that the plaintiff is the owner of that part of the vein lying westerly and outside of or beyond the Lucky Corner claim. The same admissions and denials are made with respect to the Timber Drift vein.

It is further averred in the answer that the top or apices of the several veins, lodes, and ledges described and set forth in the complaint and all other veins, lodes, or ledges known to exist within the surface boundaries of the Lucky Corner claim intersect in their strike or longitudinal course at their top or apices the side lines of the said claim and that said side lines are not parallel to each other, and for that reason the plaintiff is not the owner of nor entitled to the possession of any part of either the No. 1 vein or Timber Drift vein found or lying beneath or within the boundary lines of the Little Clara lode mining claim owned by the defendant.

Four affirmative defenses were also set out in the answer, and numbered 4, 5, 6, and 7. A demurrer to the affirmative defenses was sustained as to the fourth and seventh, and overruled as to the fifth and sixth. In the fourth affirmative defense it is averred, in substance, that in the place designated in the patent as the discovery cut of the Lucky Corner claim there never was disclosed any crevice, vein, lode, ledge, or valuable deposit, and that no discovery of any vein, lode, or ledge was ever made within the surface boundaries of the Lucky Corner lode mining claim, prior to the entry or patent thereof, and that the plaintiff did not by virtue of its patent from the government acquire any ownership or the right to follow any vein, lode, or ledge, the top or apex whereof may thereafter have been found within the vertical boundaries of the Lucky Corner claim beyond or across vertical planes drawn downward through the surface boundaries into the premises of the defendant. In the seventh affirmative defense it is averred that long prior to the alleged discovery by the plaintiff of the existence of any of the veins, lodes, or ledges described in the complaint, or of any other vein, lode, or ledge in the Lucky Corner claim, the defendant by its lessees, beneath the vertical boundaries of the Little Clara claim owned by the defendants, uncovered a lode or deposit of valuable gold and silver bearing ore known and called the Basalt Flat vein, being an entirely distinct and different vein from any of the veins, lodes, or ledges described in the complaint, and that by its lessees the defendant, long prior to the discovery of any of the veins in the Lucky Corner claim, extracted, mined, shipped, and sold the ore therefrom.

The court also sustained a motion of the plaintiff to strike out those portions of the answers to the first and third causes of action denying that any vein, lode, or ledge whatever was discovered in the Lucky Corner discovery works. The plaintiff filed its reply, and, the parties having stipulated that the issue of title, ownership, and right of possession of the veins and ores in controversy should alone be determined at this trial, leaving the question of damages to be determined by a future proceeding, the case proceeded to...