Del Monte Mining Milling Company v. Last Chance Mining Milling Company

This case is before this court on questions certified by the court of appeals for the Eighth circuit. The facts stated are as follows: The appellant is the owner in fee of the Del Monte lode mining claim, located in the Sunnyside mining district, Mineral county, Colo., for which it holds a patent bearing date February 3, 1894, pursuant to an entry made at the local land office on February 27, 1893. The appellee is the owner of the Last Chance lode mining claim, under patent dated July 5, 1894, based on an entry of March 1, 1894. The New York lode mining claim, which is not owned by either of the parties, was patented on April 5, 1894, upon an entry of August 26, 1893. The relative situation of these claims, as well as the course and dip of the vein, which is the subject of controversy, is shown on the following diagram:

Both in location and patent the Del Monte claim is first in time, the New York second, and the Last Chance third. When the owners of the Last Chance claim applied for their patent, proceedings in adverse were instituted against them by the owners of the New York claim, and an action in support of such adverse was brought in the United States circuit court for the district of Colorado. This action terminated

[Syllabus from pages 55-57 intentionally omitted] in favor of the owners of the New York and against the owners of the Last Chance, and awarded the territory in conflict between the two locations to the New York claim. The ground in conflict between the New York and Del Monte, except so much thereof as was also in conflict between the

Del Monte and Last Chance locations, is included in the patent to the Del Monte claim. The New York secured a patent to all of its territory except that in conflict with the Del Monte, and the Last Chance in turn secured a patent to all of its territory except that in conflict with the New York, in which last-named patent was included the triangular surface conflict between the Del Monte and Last Chance, which, by agreement, was patented to the latter. The Last Chance claim was located upon a vein, lode, or ledge of silver and lead bearing ore, which crosses its north end line, and continues southerly from that point through the Last Chance location until it reaches the eastern side line of the New York, into which latter territory it enters, continuing thence southerly with a southeasterly course on the New York claim until it crosses its south end line. No part of the apex of the vein is embraced within the small triangular parcel of ground in the southwest corner of the Last Chance location which was patented to the Last Chance as aforesaid, and no part of the apex is within the surface boundaries of the Del Monte mining claim. The portion of the vein in controversy is that lying under the surface of the Del Monte claim, and between two vertical planes; one drawn through the north end line of the Last Chance claim extending westerly, and the other parallel thereto, and starting at the point where the vein leaves the Last Chance and enters the New York claim, as shown on the foregoing diagram. Upon these facts the following questions have been certified to us:

'(1) May any of the lines of a junior lode location be laid within, upon, or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extralateral rights not in conflict with any rights of the senior location?

'(2) Does the patent of the Last Chance lode mining claim, which first describes the rectangular claim by metes and bounds, and then excepts and excludes therefrom the premises previously granted to the New York lode mining claim, convey to the patentee anything more than he would take by a grant specifically describing only the two irregular tracts which constitute the granted surface of the Last Chance claim?

'(3) Is the easterly side of the New York lode mining claim an 'end line' of the Last Chance lode mining claim, within the meaning of sections 2320 and 2322 o the Revised Statutes of the United States? '(4) If the apex of a vein crosses one end line and one side line of lode mining claim, as located thereon, can the locator of such vein follow it upon its dip beyond the vertical side line of his location?

'(5) On the facts presented by the record herein, has the appellee the right to follow its vein downward beyond its west side line, and under the surface of the premises of appellant?'

C. S. Thomas, for appellant.

Joel F. Vaile, for appellee.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.