Iron Silver Mining Company v. Elgin Mining Smelting Company

This is an action to recover possession of certain mining ground in Lake county, Colorado. The plaintiffs in the court below, the defendants in error here, assert title to the premises under a patent of the United States for what is known as the 'Gilt Edge Claim,' of which they are a part. In the original complaint they asserted title by conveyance from the original locations. A patent to them having been subsequently granted, they filed an amended complaint setting up its issue, and that it conveys to them a fee-simple title.

The complaint avers that the defendant, the Iron Silver Mining Company, on the twenty-fifth of June, 1882, by means of drifts, inclines, and tunnels, entered without right upon a portion of the Gilt Edge claim, which it has since wrongfully withheld from the plaintiffs, to their damage of $50,000; and that it has excavated, carried away, and converted to its own use, since such entry, gold, silver, and lead ores belonging to them, of the value of $50,000. They, therefore, pray judgment for the premises, and damages for their wrongful detention, and for the ores taken.

The defendant in its answer denies the several allegations of the complaint, and sets up as an affirmative defense that, under a patent of the United States, bearing date May 24, 1877, it is the owner in fee, and entitled to the possession, of a surface lode mining claim, also situated in Lake county, Colorado, called the 'Stone Claim,' containing 9.18 acres of land, more or less, and of a vein, lode, or ledge therein, extending the length of the claim from north to south 1,500 feet, throughout its entire depth, although it enters adjoining lands; that the vein, lode, or ledge contains iron, lead, and silver in large quantities; that the top, apex, and outcrop of it are found in the surface claim throughout its entire extent; that its true strike is north and south, with a dip to the east at an angle of 15 degrees below the plane of the horizon; that the vein, lode, or ledge on its dip, within vertical planes drawn downward, with its end lines continued in their own direction,-that is, in the direction of the dip,-passes through and beyond the east vertical side line of the surface claim and location into and under the Gilt Edge surface claim; and the defendant admits that underneath the surface of the Gilt Edge claim it has followed and mined upon the Stone vein, lode, or ledge; and avers that, by reason of the facts above set forth, it had the right so to do; and denies that it has otherwise interfered with the Gilt Edge claim, or any part of it.

The plaintiffs in their reply deny the material allegations of the answer. By stipulation the case was tried by the court without the intervention of a jury. On the trial the plaintiffs produced in evidence a patent of the United States to them for the Gilt Edge claim, in the usual form of patent for lode mining claims, and the defendant admitted that they were invested with the title to the property which the patent conveyed; that it had entered underneath the surface of that claim at a point east of the Stone surface claim; and was engaged in mining and in carrying away lead and silver ores when the action was commenced.

It was agreed that plat 'A' (given below) correctly represents the shape and relative positions of the Gilt Edge mining claim, and of the Stone mining claim, and that the lines on the figures of the Stone claim, from No. 5 to 6 and from 1 to 14, are the two end lines of the surface claim, so called by the locator thereof, and in the plat accompanying the application for the patent. It was also agreed that plat 'B' (given below) is a correct copy of the plat of the Gilt Edge claim contained in the patent thereof, which also shows its relative position to the Stone claim, the latter being marked 'Sur. No. 217.'

And thereupon the plaintiffs rested. The defendant then introduced in evidence a patent for the Stone claim, bearing date May 24, 1877, issued to one Alvinus B. Wood; and it was admitted that, by divers mesne conveyances, the defendant holds title in fee to the premises described in it. The patent gives a full and minute description by metes and bounds of the surface claim, containing 9.18 acres of land, more or less, and embracing 1,500 linear feet of the Stone lode along the course thereof. Its granting clause is as follows: 'Now, know ye that the United States of America, in consideration of the premises, and in conformity with the said Revised Statutes of the United States, have given and granted, and by these presents do given and grant, &unto the said Alvinus B. Wood, and to his heirs and assigns, the said mining premises hereinbefore described as lot No. 217, embracing a portion [NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)] [NOTE:  MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]

of the unsurveyed public domain, with the exclusive right of possession and enjoyment of all the land included within the exterior lines of said survey not herein expressly excepted from these presents, and of fifteen hundred (1,500) linear feet of the said Stone vein, lode, ledge, or deposit, for the length hereinbefore described, throughout its entire depth, although it may enter the land adjoining; and also of all other veins, lodes, ledges, or deposits, throughout their entire depth, the tops or apexes of which lie inside the exterior lines of said survey at the surface extended downward vertically, although such veins, lodes, ledges, or deposits, in their down ward course, may so far depart from a perpendicular as to extend outside the vertical side lines of said survey: provided, that the right of possession hereby granted to such outside parts of said veins, lodes, ledges, or deposits shall be confined to such portions thereof as lie between vertical planes drawn downward through the end lines of said survey at the surface, so continued in their own direction that such vertical planes will intersect such exterior parts of said veins, lodes, ledges, or deposits; and provided, further, that nothing in this conveyance shall authorize the grantee herein, his heirs or assigns, to enter upon the surface of a mining claim owned or possessed by another: To have and to hold said mining premises, together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto the said Alvinus B. Wood, and to his heirs and assigns, forever, subject, nevertheless, to the following conditions and stipulations: First, that the grant hereby made is restricted to the land hereinbefore described as lot No. 217, with fifteen hundred (1,500) linear feet of the Stone vein, lode, ledge, or deposit for the length aforesaid, throughout its entire depth as aforesaid, together with all other veins, lodes, ledges, or deposits, throughout their entire depths as aforesaid, the tops or apexes of which lie inside the exterior lines of said survey; second, that the premises hereby conveyed, with the exception of the surface, may be entered by the proprietor of any other vein, lode, ledge, or deposit, the top or apex of which lies outside the exterior limits of said survey, should the same, in its downward course, be found to penetrate, intersect, extend into, or underlie the premises hereby granted, for the purpose of extracting and removing the ore from such other vein, lode, ledge, or deposit; third, that the premises hereby conveyed shall be held subject to any vested and accrued waterrights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water-rights, as may be recognized and acknowledged by the local laws, customs, and decisions of courts; fourth, that, in the absence of necessary legislation by congress, the legislature of Colorado may provide rules for working the mining claim or premises hereby granted, in volving easements, drainage, and other necessary means to its complete development.'

The defendant then offered to prove (1) that the Stone vein, lode, or ledge mentioned in the patent is a vein, lode, or ledge of rock in place, bearing iron, lead, and silver in large quantities, and is valuable on account thereof; (2) that the top, apex, and outcrop of the vein, lode, or ledge exist and are found in the Stone surface claim through its entire extent from north to south between walls of rock in place, a lime-stone foot-wall, and a porphyry hanging wall; (3) that the true strike of the vein, lode, or ledge is north and south, and has a dip to the east at an angle of 15 deg. below the plane of the horizon; (4) that the vein, lode, or ledge, on its dip within vertical planes drawn downward through the end line of the vein, lode, or ledge, so existing and found within the Stone surface mining claim, and continued in their own direction, viz., in the direction of the dip of the vein, lode, or ledge, passes through, out of, and beyond the east vertical side line of the Stone surface claim and location into lands adjoining, to-wit, into and under the said Gilt Edge surface claim; (5) that while the defendant admits that underneath the surface of the Gilt Edge surface claim it has followed and mined in and upon the Stone vein, lode, or ledge, by reason of the facts and premises above set forth, it had a right so to do, and that it has not otherwise in any way interfered with said Gilt Edge claim, or any part thereof. To which plaintiffs objected on the ground that the proffered proof would not be a defense to the action, nor tend to establish a defense thereto, and that by reason of the surface form or shape of the Stone claim its owners had no right, under the laws of the United States, or otherwise, to follw the lode alleged to exist therein in its downward course beyond the lines of the claim, and into plaintiffs' claim; and that no part of the Gilt Edge claim, or the mineral or lode within it, was within vertical planes drawn downward through the end lines of the Stone claim, and continued indefinitely in their own direction. The court sustained the objection, and excluded the evidence offered, to which ruling the defendant excepted.

The following diagram, showing the shape of the Stone claim, its exterior lines, its center line, and the line of the apex of the vein, as alleged by the defendant, was also put in evidence:

[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]

Another diagram of the Stone claim was introduced in evidence, but as it was similar to the one above, with the exception of the lines showing the course of the apex, the direction of the strike, and the dip of the vein, it is not important to exhibit it in this statement. No other evidence was offered. The court found the issues for the plaintiffs, and judgment was entered in their favor, to review which the case was brought here.

WAITE, C. J., and BRADLEY, J., dissenting.

G. G. Syme and Walter H. Smith, for plaintiff in error.

T. M. Patterson.

C. S. Thomas, and Amos Steck, for defendants in error.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows: