Montana Mining Company v. St. Louis Mining & Milling Company of Montana

Statement by Mr. Chief Justice Fuller:

This was an action brought by the St. Louis Mining & Milling Company of Montana against the Montana Mining Company in the circuit court of the United States for the district of Montana, to recover damages for trespass on a vein of rock, having its apex entirely within the described premises of plaintiff, and extracting therefrom and converting large quantities of valuable ore.

The cause was tried on a second amended and supplemental complaint, which was filed June 26, 1899, and is set forth in the record, but the original complaint and the amended complaint are not. The record contains the original summons, dated September 18, 1893, which ran against the Montana company and sundry individuals, whose citizenship was not stated, though it appeared that they were served in Lewis and Clarke county, Montana, but who seem to have disappeared as parties in the progress of the cause, and who are not parties to the complaint contained in the record.

The 1st paragraph of the second amended and supplemental complaint alleged—

'That at the several dates hereinafter mentioned this plaintiff was, and now is, a corporation duly organized and existing under the laws of the then territory (now state) of Montana, under the corporate name of St. Louis Mining & Milling Company of Montana, and as such was and is entitled to own, enjoy, and possess mining property in the said state, with all the rights, privileges, and immunities incident and appurtenant thereto; and that at said dates the said defendant, Montana Mining Company, Limited, was and now is a foreign corporation, incorporated under the laws of Great Britain, and, as such corporation, by virtue of its compliance with the laws of the then territory (now state) of Montana, was and is entitled and authorized to do and transact business in said state.'

The 2d paragraph alleged plaintiff 'to be the owner of, entitled to, and in the actual possession and occupation of that certain quartz lode mining claim known as the St. Louis quartz lode mining claim, and all the quartz, rock, and ore, and precious metals contained in any and all veins, lodes, and ledges of mineral-bearing rock through their entire depth, the tops or apexes of which lie within the surface lines of the said fractional portion of said St. Louis lode mining claim, although such veins, lodes, or ledges may so far depart from a perpendicular in their downward course as to extend outside of the vertical side line of the surface of the said St. Louis quartz lode mining claim,' situated in the county of Lewis and Clarke, Montana, and more particularly described as follows: (Here followed a full description, concluding) 'Save and except that portion thereof known as the 30-foot strip or compromise ground which belongs to and is a part and portion of what is known and designated as the Nine Hour lode mining claim, which said fractional portion of said St. Louis lode mining claim is described as follows, to wit.' Here followed description.

The 3d and 4th paragraphs were as follows:

'3. That the said defendant, Montana Mining Company, Limited, is and was the owner of what is known and designated as the Nine Hour quartz lode mining claim, situate and being east of the said St. Louis lode mining claim, and including the 30-foot strip or compromise ground aforesaid, and that the discovery, location, and recordation of the said St. Louis lode mining claim and the United States patent therefor was made prior to the discovery, location, and recordation and patent to the said Nine Hour lode mining claim.

'4. That the dip of one of the veins having a portion of its top or apex inside of the surface location and patented ground of the said St. Louis mining claim is to the east and dips under and beneath the said Nine Hour lode mining claim, including the said 30-foot strip or the compromise ground, which is a part and portion of the said Nine Hour quartz lode mining claim, which said portion of said vein has its top or apex within the said St. Louis mining claim as follows, to wit: Commencing at a projected parallel end line of said St. Louis quartz lode mining claim at a point on the east side line thereof, between corners, Nos. 1 and 2, extended vertically downward, whereat it passes through the hanging wall of said vein, lode, or ledge, at a point from which corner No. 1, being the northeast corner of said St. Louis quartz lode mining claim, bears north 12 degrees 15 minutes east, distant 520 feet, where said hanging wall is disclosed at the surface by an upraise of said projected parallel end line, 5 feet west of the east side line of said St. Louis quartz lode mining claim; thence, from where the said projected parallel end line passes through said east side line of said claim, and along the east side line of the said claim between corners Nos. 1 and 2, south 21 degrees 15 minutes west, 512.7 feet to a point, being the intersection of the said east side line of said St. Louis quartz lode mining claim, between corners Nos. 1 and 2, with the west line of the said 30-foot strip hereinbefore described; thence south 59 degrees 50 minutes west 108 feet and along the west line of the said 30-foot strip, to a projected parallel end line of said St. Louis quartz lode mining claim, extended vertically downward, which passes through the hanging wall of said vein at the surface and at the crossing of the said hanging wall with the west line of the said 30-foot strip.

'That it is also the owner of, in possession, and entitled to the possession of an additional portion of the said apex of said claim lying to the south of the southern point hereinbefore mentioned, a distance of 25 feet, whereat the foot wall of the said vein passes out of the east side line of the said St. Louis lode mining claim.

'A map or plat showing the point at which the said vein enters said St. Louis lode mining claim as so hereinbefore described, and whereat the same departs therefrom upon the east line of said claim, is hereto attached, marked Exhibit 'A,' and made a part of this complaint, and to which reference is made.'

The Montana Mining Company answered June 30, 1899, in three paragraphs, the first admitting the allegations of paragraphs numbered 1, 2, and 3 of the second amended and supplemental complaint; the 2d paragraph denying each and every other allegation thereof; and the 3d being as follows:

'And this defendant, further answering, says that the plaintiff is estopped from claiming any of the mineral found or which may hereafter be found in said 30-foot strip or compromise ground, for that heretofore, to wit, on or about the 7th day of March, A. D. 1884, one Charles Mayger, who was then and there the predecessor in interest of plaintiff, made, executed, and delivered to William Robinson, James Huggins, and Frank P. Sterling, who were and are the predecessors in interest of this defendant, a bond for a deed, wherein and whereby he covenanted and agreed to convey the said 30-foot strip or compromise ground to the predecessors in interest of this defendant, or their assigns, with all the mineral therein contained, a copy of which said bond is hereto attached, marked Exhibit 'A,' and made a part of this answer. That thereafter and after the said Charles Mayger had obtained a United States patent for the whole of said St. Louis lode mining claim, including said 30-foot strip or compromise ground, the said Mayger, in order to cheat and defraud this defendant, assumed to convey the said compromise ground to the above-named plaintiff. That thereafter this defendant demanded of and from the said plaintiff and from the said Mayger a deed for the said compromise ground in accordance with the terms and provisions of the bond aforesaid, and the said plaintiff and the said Mayger having refused and declining to make, execute, or deliver such a deed, this defendant thereafter, and on or about the 6th day of September, A. D. 1894, commenced an action in the district court of the first judicial district of the state of Montana, within and for the county of Lewis and Clarke, wherein this defendant was plaintiff and the above-named plaintiff, together with the said Charles Mayger, were defendants, to compel the specific performance of the said bond for a deed hereinbefore mentioned and set forth; that thereafter such proceedings were had in said action as that on the 1st day of June, A. D. 1895, judgment was duly made and entered therein in favor of this defendant, the plaintiff therein, and against the plaintiff, defendant in said action, whereby, among other things, it was ordered, adjudged, and decreed that the said bond hereinbefore mentioned by specifically performed, and that the defendant, the above-named plaintiff, make, execute, and deliver to this defendant a good and sufficient conveyance in fee simple absolute, free from all encumbrances, for the premises mentioned and described in the complaint in said action and in the bond hereinbefore mentioned; that in pursuance of said judgment, order, and decree the said plaintiff, on or about the 1st day of July, A. D. 1895, made and executed a deed to this defendant of and for the said premises and of all the mineral therein contained, and thereafter the said deed was duly delivered to this defendant, a copy of which said deed is hereunto annexed, marked Exhibit 'B,' and made a part of this answer. And this defendant avers that in and by the said proceedings and the said deed the said plaintiff is estopped from claiming any part of the said compromise ground or 30-foot strip aforesaid, or any mineral contained therein.'

Replication was filed, the cause tried by the court and a jury, a verdict returned in favor of plaintiff for $23,209, and judgment rendered thereon. To review this judgment the Montana company prosecuted a writ of error from the circuit court of appeals for the ninth circuit, which writ was dated October 7, 1899, and the judgment was affirmed May 14, 1900. 42 C. C. A. 415, 102 Fed. 430. The writ of error in No. 213 was then allowed.

On the trial the St. Louis company was restricted by the circuit court to damages for ore taken north of what was designated as the 108-foot plane of the Nine Hour claim, but the company insisted on the right to recover for ore taken up to what was designated as the Nine Hour 133-foot plane. Accordingly the St. Louis company took out a cross writ of error from the circuit court of appeals, dated January 30, 1900, and that court reversed the judgment, October 8, 1900, and remanded the cause for a new trial as to the recovery sought for the conversion and value of certain ores between the planes designated as the 108-foot and 133-foot planes. 44 C. C. A. 120, 104 Fed. 664. The writ of error in No. 214 was then brought.

Mr. Chief Justice Fuller delivered the opinion of the court: