Jim Butler Tonopah Mining Company v. West End Consolidated Mining Company/Opinion of the Court

This is a suit by the owner of two lode mining claims, the Eureka and the Curtis, to enjoin the owner of an adjoining lode claim, the West End, from exercising an asserted extralateral right in respect of a vein extending beneath the surface from the latter claim into the others. All the claims are patented and their ownership is conceded. The Eureka adjoins the West End on the south and the Curtis lies immediately south of the Eureka. The state courts, both trial and appellate, upheld the defendant's asserted right to follow the vein extralaterally (39 Nev. 375, 158 Pac. 876), and the plaintiff seeks a reversal of that decision on the theory that it is in contravention of the mining laws of Congress, in that (a) the end lines of the West End claim are not parallel and straight, and therefore an essential element of the right to follow the vein extralaterally is wanting; (b) this right can be exercised only in one direction, that is, beyond one side line, not both, and as the discovery vein dips to the north the right can be exercised only in that direction; and (c) the facts specially found do not show that the top or apex of the vein is within the vertical limits of the West End claim.

For present purposes the West End claim may be described as having the form of a parallelogram 1,500 feet in length from east to west and 600 feet in width from north to south, but with a small portion of the northeast corner cut off by a diagonal line and a somewhat larger portion of the southwest corner similarly cut off. See diagram, 39 Nev. 375, 158 Pac. 876. Thus what would be the end lines of the parallelogram, if it were complete, are substantially shortened, but the major part of each remains. These shortened lines are not only parallel, but straight. Are they the end lines of the claim in the sense of the statute? Or do its end lines consist of the shortened lines and the diagonal lines? End lines in the sense of the statute are those which are laid across the vein to show how much of it, in point of length, is appropriated and claimed by the miner. All other lines are side lines. True, the end lines must be both parallel and straight. Rev. Stat. §§ 2320, 2322 (Comp. St. 1916, §§ 4615, 4618); Walrath v. Champion Mining Co., 171 U.S. 293, 311, 18 Sup. Ct. 909, 43 L. Ed. 170. But it is not so with the side lines. They may have angles and elbows and be converging or diverging, so long as their general course is along the vein and the statutory restriction on the width of claims is respected. Del Monte Mining Co. v. Last Chance Mining Co., 171 U.S. 55, 84, 18 Sup. Ct. 895, 43 L. Ed. 72. Applying these tests to the bounding lines of the West End claim, we regard it as plain that the diagonal lines at the two corners are part of its side lines, and not of its end lines. In this respect the case is like Walrath v. Champion Mining Co., supra, where in determining what was the northerly end line of the Providence claim (see diagram, 171 U.S. 298, 18 Sup. Ct. 909, 43 L. Ed. 170), the line g, h, was held to be the true end line and the diagonal line f, g, to be no part of it. Thus the objection that the end lines of the West End claim are not parallel and straight is untenable.

What in mining cases is termed the extralateral right is a creation of the mining laws of Congress, and to learn what it is we must look to them rather than o some system of law to which it is a stranger. Besides, as Congress has plenary power over the disposal of the mineral-bearing public lands, it rests with it to say to what extent, if at all, the right to pursue veins on their downward course into the earth shall pass to and be reserved for those to whom it grants possessory or other titles in such lands. What it has said is this (Rev. Stat. § 2322 [Comp. St. 1916, § 4618]):

'The locators of all mining locations * *  * on any mineral      vein, lode, or ledge, situated on the public domain, their      heirs and assigns, *  *  * shall have the exclusive right of      possession and enjoyment of all the surface included within      the lines of their locations, and of all veins, lodes, and      ledges throughout their entire depth, the top or apex of      which lies inside of such surface lines extended downward      vertically, although such veins, lodes, or ledges may so far      depart from a perpendicular in their course downward as to      extend outside the vertical side lines of such surface      locations. But their right of possession to such outside     parts of such veins or ledges shall be confined to such      portions thereof as lie between vertical planes drawn      downward as above described, through the end lines of their      locations, so continued in their own direction that such      planes will intersect such exterior parts of such veins or      ledges.'

It will be seen that the extralateral right so created is subject to three limitations. One conditions it on the presence of the top or apex inside the boundaries of the claim. Another restricts it to the dip or course downward, and so excludes the strike or onward course along the top or apex. And the last confines it to such outside parts as lie between the end lines continued outwardly in their own direction and extended vertically downward. But otherwise it is without limitation or exception and broadly includes 'all veins, lodes and ledges throughout their entire depth'-one as much as another, and all whether they depart through one side line or the other. Given two veins which in their descent pass, one through one side line and the other through the other side line, how could it be held that the right applies to one vein and not to the other, when the statute says 'all veins * *  * throughout their entire depth'? By what rule would a court be guided in making a selection between the two when the statute makes none? And where a single vein in its descent separates into two limbs which depart through the opposite side lines, on what theory could the right be sustained as to one limb and rejected as to the other? The terms of the statute, as we think, do not lend themselves to any such distinctions, but, on the contrary, show that none such is intended.

In Mining Co. v. Tarbet, 98 U.S. 463, 467 (25 L. Ed. 253), this court in pointing out the intent of the statute said that 'the end lines are to cross the lode and extend perpendicularly downwards, and to be continued in their own direction either way horizontally.' And in Del Monte Mining Co. v. Last Chance Mining Co., 171 U.S. 55, 88, 18 Sup. Ct. 895, 908 (43 L. Ed. 72), a case in which the statute was much considered, it was said:

'Every vein whose apex is within the vertical limits of his     surface lines passes to him by virtue of his location. He is     not limited to only those veins which extend from one end      line to another, or from one side line to another, or from      one line of any kind to another, but he is entitled to every      vein whose top or apex lies within his surface lines. Not     only is he entitled to all veins whose apexes are within such      limits, but he is entitled to them throughout their entire      depth, 'although such veins, lodes or ledges may so far      depart from a perpendicular in their course downward as to      extend outside the vertical side lines of such surface locations.' In other words, given a      vein whose apex is within his surface limits he can pursue      that vein as far as he pleases in its downward course outside      the vertical side line .'

And again (171 U.S. 89, 18 Sup. Ct. 908, 43 L. Ed. 72):

'The locator is given a right to pursue any vein, whose apex     is within his surface limits, on its dip outside the vertical      side lines, but may not in such pursuit go beyond the      vertical end lines.'

In Calhoun Gold Mining Co. v. Ajax Gold Mining Co., 182 U.S. 499, at page 508, 21 Sup. Ct. 885, 890 (45 L. Ed. 1200), it was added:

'There are no exceptions to its language. The locators 'of     any mineral veins, lode or ledge' are given not only 'an      exclusive right of possession and enjoyment' of all the      surface included within the lines of their locations, but 'of      all veins, lodes and ledges throughout their entire depth,      the top or apex of which lies inside of such surface lines      extended downward vertically.' A locator therefore is not      confined to the vein upon which he based his location and      upon which the discovery was made.'

And also (182 U.S. 509, 21 Sup. Ct. 890, 45 L. Ed. 1200):

'Blind veins are not excepted, and we cannot except them. They are included in the description 'all veins' and belong     to the surface location.'

We conclude therefore that, when the other elements of the extralateral right are present, it may be exercised beyond either or both side lines depending on the direction which the departing vein or veins take in their downward course.

So much of the special finding as bears on the character of the vein and the presence of its top or apex inside the vertical lines of the West End claim is as follows:

'The said vein does not on its upward course, or at its top     or apex, outcrop or reach the present surface, but is covered      or buried to a considerable depth by lava, locally known as      and called 'midway' andesite, which, after the formation of      the vein, flowed over the then surface of the territory in      which the vein exists; that at and for a distance of 360 feet      westerly from where said vein or lode crosses the easterly end line of said West End claim,      which crossing is at a distance of 135 feet northerly from      the southeast corner of said West End claim, there is a      juncture or union between two limbs or sides of said vein,      and from the summit of said juncture or union the downward      course of one limb or side thereof is in a northerly      direction, and the downward course of the other limb or side      thereof is in a southerly direction; that there is a      continuation upward from the summit of said juncture or union      of said northerly and southerly dipping limbs or sides of      said vein of ore and silver-bearing quartz or rock in place      for a distance from 20 or 30 to more than 100 feet, and to      what was the surface before the same was buried beneath the      said lava flow; that such ore and silver-bearing quartz were      deposited where the same are now found at the same time and      during the same period that the main vein below was created,      and from mineral-bearing solutions having the same source;      that the dip is fairly conformable, and the strike or course      of such upward continuation of ore and silver-bearing quartz      is conformable, to the dip and strike or course of said      northerly-dipping limb or side of said vein from the summit      of said juncture downward, and the court finds that said      upward continuation is a part of said vein or lode; that      thence westerly, and for a distance of 360 feet, the      northerly and southerly dipping limbs, sides, or slopes of      said vein do not unite or form a union or juncture in their      upward course, but for that distance each of said limbs or      sides has a separate and independent top or apex; that thence      westerly, for a distance of 40 feet, the northerly and      southerly dipping limbs, sides, or slopes of said vein are      again found in conjunction, as in the said most easterly 360      feet; that thence westerly, and until said northerly and      southerly dipping limbs, sides, or slopes of said vein      intersect with and cross said northerly side line of said      mining claim, they do not unite or form a union or juncture in their upward course, but for that distance each of      said limbs or  ides has a separate and independent top or      apex; that between said distance of 40 feet, where said      northerly and southerly dipping limbs, sides, or slopes of      said vein, as aforesaid, unite or form a union or juncture in      their course upward, and said points on said northerly side      line of said mining claim where, as aforesaid, said      contra-dipping limbs, sides or slopes of said vein      respectively intersect said side line and cross the same and      so depart from said mining claim, there are two points at      which it appears that said contra-dipping limbs, sides or      slopes of said vein on their upward course approach closely      to a juncture or union, but as to said contra-dipping limbs,      sides, or slopes of said vein at said two points actually      forming a juncture or union on their upward course, the      evidence is meager and unsatisfactory; that the point where      the said northerly dipping limb or side of said vein departs      from the said mining claim through the northerly side line      thereof is 1,120 feet westerly from the northeast corner of      said claim, measured along the northerly side line thereof;      that the point where said southerly dipping limb or side of      said vein departs from said mining claim through the      northerly side line thereof is 1,142 1/2 feet westerly from      the northeast corner of said claim, measured along the      northerly side line thereof; that throughout said distance of      40 feet, where the contra-dipping limbs or sides of said vein      are found in conjunction, as hereinbefore stated, there is a      continuation upward from the summit of the juncture or union      of said two limbs or sides of said vein of ore or vein quartz      to what was the surface before the same was covered by the      lava flow; that the dip or downward course of both the      northerly and southerly dipping sides or limbs of the vein      where the two are found in conjunction, as aforesaid, and      also in the places where each, as aforesaid, has its separate and independent top or apex, is regular and      practically free from undulations; that the said southerly      dipping limb or side of the vein in the easterly portion of      the West End claim, that is to say, the easterly 360 feet      thereof, has been developed from the top or summit of said      juncture of said contra-dipping limbs to and beyond the      southerly side line of said claim, or for a distance,      measured on the slope or downward course of said southerly      dipping limb or side, of 800 feet or thereabouts, the average      dip there being 17 degrees from the horizontal; that the      westerly portion, that is to say, the westerly 300 feet of      said southerly dipping limb or side of said vein found in the      West End claim, has been developed from its top to and beyond      the southerly side line of said claim, or for a distance,      measured on its slope or downward course, of 1,000 feet or      thereabouts, the average dip there being 30 degrees from the      horizontal; that the average dip of said northerly dipping      limb or side of said vein, so far as the same has been      developed in its downward course, is 17 degrees from the      horizontal; that said vein is a fissure vein; that there is a      difference in the strikes or courses of said northerly and      southerly dipping limbs of said vein of about 40 degrees;      that at said places and throughout said distances, where said      contra-dipping limbs of said vein are found to intersect and      form a juncture, as aforesaid, there has been a mingling of      the mineralizations of said two limbs of said vein within the      angle beneath the juncture of the said two limbs; that at      such places and throughout said distances the footwall of      said two limbs of said vein, within the angle beneath their      said juncture, by the process of replacement has been      converted into mineralized quartz for considerable distances      below said juncture, said replacement quartz extending from      limb to limb.'

Giving due effect to the finding, it is manifest that the vein in controversy is not a flat or horizontal vein or one which would be practically horizontal but for a succession of rolls or waves in its el vation. On the contrary, it is shown to be a fissure vein with two dipping limbs whose course downward is substantial, regular and practically free from undulations. For 750 feet out of its total length of 1,150 feet within the West End claim each limb is practically a separate vein with a distinct summit or terminal edge. For the remaining 400 feet the two limbs are united and from the point of union the mineralized quartz or rock continues upward for from 20 or 30 to more than 100 feet, and this seems to answer all the calls of a summit or terminal edge. In these circumstances we hardly would be warranted in saying as matter of law that the vein has no top or apex within the claim in the sense of the statute. See Stewart Mining Co. v. Ontario Mining Co., 237 U.S. 350, 35 Sup. Ct. 610, 59 L. Ed. 989.

It is well to remember, as this court has indicated in other mining cases, that to take from the discoverer a portion of that which he has discovered and give it to one who may have been led to make an adjoining location by a knowledge of the discovery is unreasonable.

The contention is not that the top or apex of this vein has been found elsewhere, but only that what is found in the West End claim is not such in the sense of the statute. 'The law,' as has been truly said, 'assumes that the lode has a top, or apex, and provides for the acquisition of title by location upon this apex.' Probably this assumption could not be indulged where the fact appeared to be otherwise, but it serves to show that the absence of a top or apex ought not to be adjudged in the presence of such a finding as we have here.

Judgment affirmed.