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

This was a suit brought by the appellee (hereinafter called the Montana company) against the appellants (hereinafter called the St. Louis company) in the circuit court of the United States for the district of Montana, for an injunction restraining the further prosecution of a tunnel. The facts were agreed upon, and are substantially that the Montana company was the owner and in possession of the Nine Hour lode mining claim under a patent from the United States, on a location made under the mining acts of 1872 and acts amendatory thereof; that the St. Louis company was the owner of the St. Louis lode mining claim, holding the same under a similar title. In the St. Louis claim is a vein other than the discovery vein, having its apex within the surface limits of the St. Louis claim, but on its dip passing out of the side line of the St. Louis claim into the Nine Hour claim. The tunnel was 260 feet underground, running from the St. Louis into the Nine Hour claim and for the purpose of reaching the vein on its descent through the latter. It was run horizontally through country rock, and between the east line of the St. Louis claim and the vein above referred to will not intersect any other vein or lode. The St. Louis company did not propose to extend the tunnel beyond the point at which it would intersect the vein above referred to, and simply proposed to use this cross-cut tunnel in working and mining said vein. The circuit court, upon the facts agreed to, enjoined the further prosecution of the tunnel. That injunction was sustained by the circuit court of appeals for the ninth circuit (51 C. C. A. 530, 113 Fed. 900) from whose decision the St. Louis company has brought the case to this court.

Messrs. E. W. Toole and Thomas C. Bach for appellants.

Mr. W. E. Cullen for appellee.

Statement by Mr. Justice Brewer:

Mr. Justice Brewer delivered the opinion of the court: