Walrath v. Champion Mining Company

The relative situation of the two properties, and the portion of the ledge in controversy, is shown by the following, Fig. No. 1 (the disputed section being contained between the lines thereon marked 'Line claimed by Providence,' and 'Line claimed by Champion'

The figures marked 'New Years' and 'New Years Extension' represent the surface of the mining properties owned by defendant, while that marked 'Providence Mine' represents the surface of the patented ground of the plaintiff.

The action was brought May 24, 1892, to recover $300,000 damages for ore extracted from the ledge and carried away by the defendant, and for an injunction against further trespasses thereon.

Upon motion of appellee, the action was removed to the United States circuit court, as involving a federal question, where the complainant recast his pleadings so as to separate the action into a bill in equity, upon which the action is now proceeding, and an action at law for the damages alleged.

The suit in equity was tried in the circuit court, and decided mainly in favor of the appellee. 63 Fed. 552.

From this decree the appellant appealed to the court of appeals for the Ninth circuit, where it was modified, and as modified affirmed. 19 C. C. A. 323, 72 Fed. 978.

The appellant now brings the case to this court upon writ of error from the court of appeals.

The appellant's title is deraigned as follows: In 1857, under the miners' rules and customs then in force, 31 locators located 3,100 feet of the Providence or Granite lode. By mesne conveyances the title to this location became vested in the Providence Gold & Silver Mining Company; and on April 28, 1871, that company obtained a patent to 3,100 feet of the lode, and for surface ground, as described in the patent.

The title thus granted to the Providence Gold & Silver Mining Company was, before the commencement of this suit, vested in the appellant.

The ledge, as granted by the patent, extends 30 feet north of the north surface line of the location, and some 680 feet south of the south surface line.

The patent conveyed only the Providence ledge and the surface ground. All other ledges contained within the surface lines were expressly reserved.

It is also contended by appellant that by the act of congress of May 10, 1872, exclusive possession of all the surface included within the lines of the location was granted to the owners of the Providence, together with all otherl odes or ledges having their tops or apexes within such surface lines. This grant, of course, included the Contact vein, subsequently discovered within said boundaries, and now constituting the bone of contention in this action.

The Contact vein is shown in the figure, and crosses the surface line f-g of the Providence location.

On September 29, 1877, the appellee and defendant, the Champion Mining Company, made a location upon the Contact vein, called the 'New Years Extension Mine.' This location overlapped, both as to surface ground and lode, upon the Providence location; that is, the lode line and surface lines of the said New Years Extension extended to the south of the boundary line, f-g, of the Providence location.

The New Years Extension mine is shown in the following, Fig. No. 2, together with the conflict caused by the overlap (the conflicting surface portion being shaded, and showing the Contact vein passing through it).

In the year 1884 the complainant and his co-owners objected to the overlap, and demanded of the Champion Mining Company that it abandon all claims to the surface and lode to the south of the Providence boundary line, above described. Thereupon, in the month of November, 1884, John Vincent, the superintendent of the defendant, the Champion Mining Company, under the authority and by the direction of the said company, relocated the New Years Extension mine by a notice of relocation, in which the fact of the overlap under the original location was particularly recited; and the lines were readjusted so as to avoid the overlap, and to conform to said line f-g of the Providence mine, as shown on Fig. 1.

In the notice of relocation the lode line was particularly described as follows: 'The lode line of this claim, as originally located, and which I hereby relocate, is described as follows: Commencing at a point on the northerly bank of Deer creek, which point is 60 feet S., 11 degrees 45 minutes east, of the mouth of the New Years tunnel, and running thence along the line of the lode towards the N. E. corner of the Providence mill, about S., 46 degrees 15 minutes east, 200 feet, more or less, to a point and stake on the northerly line of the Providence mine, patented, designated as 'Mineral Lot No. 40,' for the south end of said lode line.'

It also contained the following statement:

'And whereas, part of this claim, as originally described, and as hereby relocated, conflicts with the rights granted by letters patent of said Providence mine, said lot No. 40: Now, therefore, so much of this claim, both of lode and surface ground, as originally conflicted or now conflicts with any portion of the surface or lode claims or rights granted by said patent, is and are hereby abandoned, which portion of this claim so abandoned is described as follows: All that portion of the above-described New Years Extension claim for surface and lode which lies south of the northern boundary line of said Providence mine, which runs north, 43 degrees 10 minutes east, across the southeastern corner of this claim.'

The New Years Extension, as relocated, is coterminous with the Providence mine on the northerly boundary line, designated as the line f-g, running S., 43 deg. W. Fig. 1.

That line is the only boundary between the two properties, and the only boundary of the Providence location which is crossed by the Contact ledge.

The first workings of the appellee involved no conflict with appellant. The shaft ran parallel with the Providence line, and none of the levels crossed that line until about three months before this suit was begun, when the 1,000-foot level was driven across it into the ground in dispute. Subsequently the eighth and ninth levels were driven across.

The work done by the Providence was carried on through a shaft sunk on the Providence or Granite ledge, from which shaft a crosscut was run back to the Contract vein on the 600-foot level, and another on the 1,250-foot level; and much of the gru nd now in controversy was thereby prospected and opened up by complainant and his co-owners. See Fig. 1.

The claims of the respective parties will be readily understood by reference to Fig. 1, which shows the relative position of all the mining properties belonging to both, with the lines claimed by them.

The portion of the Contact vein in dispute is that upon the dip of the ledge lying between the line marked 'Line claimed by Providence' and the line marked 'Line claimed by Champion.'

The apex of the Contact vein is represented by the dotte line x-x1, and shows the vein as far as exposed in both the Champion and Providence ground. South of x, the course of the vein in the Providence ground is unknown.

The line f-g is the same line as that designated A-B by some of the witnesses.

Upon the trial the circuit court held that there could be but one end line for each end of the Providence location, and that the lines g-h and a-p constituted such end lines; that such lines constituted the end lines of not only the originally discovered Providence lode, but also of every other vein that might be discovered within the surface lines of the location. But, notwithstanding this holding, in entering the decree the line f-g was also established as an end line of the Contact vein, but for its length only, and then that from g the line g-h, and that line extended indefinitely eastwardly, constituted another end line for the same end of the lode, and constituted the line through which the plane determinative of all extralateral rights in the vein must be drawn.

From this decree the appellant here was allowed an appeal to the circuit court of appeals.

The latter court established the line g-h-h1 as the sole end line of the Contact vein, and reversed the decree of the circuit court in so far as it fixed the line f-g as an end line.

As a result of this decree the complainant was not only shut out of all extralateral rights in the Contact vein north of the line g-h-h1, but also of that portion of the vein lying vertically beneath the surface lines of the Providence which extend north of that line, and which are marked upon the figures as constituting the parallelogram h-i-k-h1, which was awarded to the Champion. See Fig. 1, showing the end line fixed by the circuit court and that line as subsequently fixed by the court of appeals, with the latter line extended in its own direction both easterly and westerly.

From the judgment of the circuit court of appeals the appellant has appealed to this court.

There are nine assignments of error. The first eight attack so much of the decree as establishes the line g-h as an end line, for the purpose of determining the extralateral right, or fails to establish the line f-g, and that line produced indefinitely in the direction of g1, as such end line. The last two assail so much of the decree as awards to appellee the right to pursue the vein on its downward course underneath the parallelogram h-i-k-h1.

R. R. Bigelow, for appellant.

C. H. Lindley, for appellee.

mr. Justice McKENNA, after stating the facts in the foregoing language, delivered the opinion of the court.