Glacier Mountain Silver Mining Company v. Willis/Opinion of the Court

The opinion of the court below is not found in the record, and we are not advised, by brief or otherwise, as to the grounds upon which the court sustained the demurrer. We must therefore determine the issues presented in the case by reference to the bill of complaint, and to the causes assigned for demure r.

1. That the property sought to be recovered in this action is not described by its legal subdivisions, nor by its metes and bounds. We do not think this ground is tenable. The complaint, after setting forth the location by plaintiff's grantors of the tunnel and tunnel site in Snake River mining district Summit county, Colo., at the base of the Glacier mountain, states that they (said grantors) caused to be made out, and reclrded in the recorder's office of the county aforesaid, a location certificate of said tunnel claim, which said certificate described the location and boundaries of said tunnel claim; that the said tunnel claim was by its locators named the 'Silver Gate Tunnel Claim,' and is described more fully as follows: 'Commencing at the base of said Glacier mountain east of Bear creek, and running south-east and parallel with Coley tunnel, through said mountain, five thousand feet from the mouth or starting-point of said tunnel, at a stake marked, and in or at the mouth of said Silver Gate tunnel, and two hundred and fifty feet north-east, and two hundred and fifty feet south-west from said stake or tunnel, to its termination.' We think this description is sufficiently plain and distinct to enable the sheriff, in case of a recovery, to execute a writ of possession, or to enable a surveyor to ascertain the exact limits of the location. The strict rule of pleading which formerly required exact accuracy in the description of premises sought to be recovered, has, in modern practice, been relaxed, and a general description of the property held to be good. The provisions of state statutes, as to the description of the premises by metes and bounds have been held to be only directory; and a description by name, where the property is well known, is often sufficient.

As to the second cause of demurrer, we think that, though the lodes alleged to be embraced within the said tunnel-site location are not each separately described, the statement in the complaint, that all the lodes in the tunnel claim have been worked and mined by the plaintiff and its grantors, comprehends every part of the property for the recovery of which the action is brought.

With reference to the third ground of the demurrer, it is only necessary to say that the complaint alleges that a valid and legal location of said tunnel was made by persons under whom the plaintiff claims, and that the plaintiff held possession of the same for more than five consecutive years prior to the ouster by the defendants, and paid all the taxes during that period legally or otherwise assessed upon said property. This, under the laws of Colorado, would give the plaintiff a right to the premises in dispute superior to any other claim, except that of the government.

The fourth ground of demurrer is: 'That the claim of the said plaintiff to a strip of ground 5,000 feet in length, by 500 feet in width, as a tunnel site, is unwarranted and unprecedented, and was not, at the date of said pretended location, nor at any time subsequent thereto, authorized by any local, state, or congressional law.' Under section 2323, Rev. St. U.S., the right is given to locate a tunnel 3,000 feet from the face of said tunnel, and the right is also given to the lodes discovered in said tunnel, 'to the same extent as if discovered from the surface,' which is 300 feet on each side of the tunnel. Under the local laws of Colorado the right is given to '250 feet each way from said tunnel, on each lode so discovered.' 1801, § 5, Gen. Laws Colo. p. 627. The objection presented by the demurrer is that the tunnel is 5,000 feet in length, whereas the statute only recognizes a right of 3,000 feet from the mouth thereof, and that this renders the whole claim void. We do not assent to this proposition. The location would be good to the extent of 3,000 feet at least. Mining Co. v. Rose, 114 U.S. 576, 580, 5 Sup. Ct. Rep. 1055. This would be true had the location been made under the mining laws now in force. It will be observed, however, tha this location was made prior to the passage of any general mineral law. It was made in 1865, and the first general statute passed by congress on the subject is that of July 26, 1866. It is alleged by the plaintiff in error that this location was made in accordance with the local rules and customs of miners in force at the time of the location, and that, therefore, such location was recognized and protected by the general mineral laws of July 26, 1866, (14 St. 251,) and that of May 10, 1872, (17 St. 91.) This allegation, however, is denied by the defendants; but, as these local rules and customs differ in the several mining districts as to the extent and character of the mine, the question cannot properly be determined on demurrer. The land department of the government, and this court also, have always acted upon the rule that all mineral locations were to be governed by the local rules and customs in force at the time of the location, when such location was made prior to the passage of any mineral law by congress. Jennison v. Kirk, 98 U.S. 453, 457; Broder v. Water Co., 101 U.S. 274, 276; Jackson v. Roby, 109 U.S. 440, 441, 3 Sup. Ct. Rep. 301; Chambers v. Harrington, 111 U.S. 350, 352, 4 Sup. Ct. Rep. 428. We are therefore of the opinion that the cause of action is plainly and fully set forth in the complaint, and that the judgment of the court below cannot be sustained on any ground presented by the record. The judgment of the circuit court is therefore reversed, and the cause remanded to that court for such further proceedings as are consistent with this opinion. So ordered.