« PreviousContinue »
we think it safer to adopt a system of classification as we have sought to do in this work, and then rigidly pursue such classification in all decisions under the statute. It is true that the statute should be liberally construed as a remedial statute, in order to protect the miner in the enjoyment of his rights. But this can better be done by having fixed and safe rules, than by exploring new fields and marking out new precedents every time a doubtful point is encountered in the decision of a case. We think, therefore, that wherever a lode crosses two lines running substantially parallel with each other, no matter at what angle, or at what points in the line, those lines are, by force of the statute, end lines, and, extending in their own direction, cut off his rights; that when a lode crosses an end line and a side line, a new end line should be projected into the dip parallel with the first one, at the point of departure, and that if these conditions are elevated to the position where we have sought to place them, all gloom and difficulty will vanish, and the pathway be made more easy for the interpretation of this statute. But here are some
$ 845. Further comments of the court which sustain us throughout in the position sought to be taken.-“If the locator makes his location crosswise instead of lengthwise of the lode, then the end lines of the location become side lines, and he can only take so much of the lode lengthwise as lies within the surface lines of his location. But if the lode runs like the contact vein does through the Ural surface ground, there is no substantial reason that would justify a court in declaring that the locator would not be entitled to any extra-lateral rights. No such construction bas ever been given to the statute.” 3
1 Cons. Wyoming M. Co. v. Cham. See also Del Monte M. Co. v. New pion M. Co., infra.
York & Last Chance M. Co., 66 Fed. ? Watervale M. Co. v. Leach Rep. 212; affirmed, Del Monte M. (Ariz.), 33 Pac. Rep. 418.
Co. v. Last Chance M. Co., 171 U.S. 3 Cons. Wyoming G. M. Co. v. 55; Flagstaff M. Co. v. Tarbet, 98 Champion M. Co., 63 Fed. Rep. 540. U. S. 463.
$ 846. No force in suggestion to postpone marking.There is but little, if any, force in the suggestion often made that the locator should postpone the marking of his boundaries until sufficient explorations are made to ascertain the true course and direction of the vein. The case just considered furnishes a fair example of the difficulties so often encountered by the miner in his efforts to determine the direction of the vein he has discovered. The Wyoming vein bad been discovered forty years and worked more or less during that time, and yet, with all the working, it was impossible for the witnesses to testify with any degree of certainty the true course and direction of the vein. He (the locator) is required to exercise his best judgment from the developments he has been able to make, and he is, of course, confined to his surface location, whether bis judgment was right or wrong. Said the court: “The statute should be so construed as to give to the locator what he actually locates, no more and no less. It should be liberally construed in his favor, so as to give him the full benefit of the statute in its true spirit and intent, in order to carry out the wise and beneficent policy of the government in opening up the mineral lands for exploration and development. When a prospector discovers a vein of ore of sufficient value to justify the expenditure of time, labor and money to open it up and develop the same, he is honestly and legally entitled to the fruits of his labor. He is admonished by the law that he will be limited in the length of his lode upon its strike to such portion as is within the surface lines of his location, but he is at the same time assured that he will not be limited or deprived of his extra-lateral rights as to the depth of such lode, upon its dip, the apex of which is within the surface lines of his location.”? The court is now clearly within
1 Iron Silver M. Co. v. Elgin M. S. C., 62 Fed. Rep. 945. See also Co., 118 U. S. 196; King v. Amy & Walrath v. Champion M. Co., 63 Silversmith M. Co., 152 U. S. 222. Fed. Rep. 552; S. c. on appeal,
2 Cons. Wyoming G. M. Co. v. affirmed, 171 U. S. 293. Champion M. Co., 63 Fed. Rep. 540;
the lines of the law and is enunciating the exact principles we have contended for throughout. Proceeding beyond the case in hand the court makes this
$ 847. New but progressive announcement of the law.While, as we have elsewhere said, there are some cases, and doubtless will be others, as we shall see further on in this work,' where this principle should be applied, as, for example, where a vein begins and ends wholly within a claim without crossing either line, or where it crosses the same line twice, where this principle ought to be applied, it does not seem to us that it was a proper remark for the case in hand. However, it is good law as a general abstract proposition, and we therefore quote it: “ One general principle should pervade and control the various conditions found to exist in different locations, and its guiding star should be to preserve in all cases the essential right given by the statute to follow the lode upon its dip, as well as upon the strike, to so much thereof as its apex is found within the surface lines of the location. If the lode runs more nearly parallel with the end lines than with the side lines as marked on the ground as such, then the end lines of the location must be considered by the courts as the side lines meant by the statute. If the lode runs more nearly parallel with the side lines than the end lines, then the end lines, as marked on the ground, are considered by the court as the end lines of the location. In both cases the extralateral rights are preserved and maintained as defined in the statute." 3
$ 848. Further comments to matters in last section Dangerously near the old law.- The principle contended for in the last preceding section by Judge Hawley, if held within due bounds, would doubtless be of value in some such
1 Post, this chapter, SS 858–59. v. St. Louis M. & M. Co. of Mon.
2 Catron v. Old, 23 Colo. 433, 48 tana, 104 Fed. Rep. 664. Pac. Rep. 687; Montana M. Co. Ltd. 3 Cons. Wyoming G. M. Co. v.
Champion M. Co., 63 Fed. Rep. 540. cases as those we suggested as a preface to the quotation made. But the danger would always be that of practically ignoring the boundaries as marked on the ground, thereby relegating the lode itself to substantially the same condition as fixed by the law of 1866. This would open the door to hair splitting, in some cases, in the effort to ascertain by proof which lines were to be considered as end lines and which should be considered as side lines. We think classification the only safe plan, and that wherever the vein crosses a line and does not return to that line, with very rare and scattering exceptions, it should be treated as an end line.
In the Champion case, from which we have quoted so copiously in the preceding sections, Judge Hawley further expresses the doubt whether it were not better to return to the Spanish and Roman law, under and by which all lines were drawn vertically, and vertical boundaries prevailed. We are free to say that much litigation has resulted from our present system, but is it therefore to be condemned ? To our minds the innate justice of the apex doctrine, in the abstract, in giving to the discoverer the entire vein to its utmost depths within his boundary lines, is enough in itself to offset many objections that might otherwise be seriously made to the law on account of the litigation it entails. Moreover, a return to the old system is not the true remedy, because this one is fruitful of litigation, unless it can be said that courts must interpret afresh, and on each occasion that the question is presented, the meaning of congress as declared in the mining statute, without reference to any system such as we bave attempted to point out. But we think the courts, if they will systematize the decisions and the law as we have attempted to outline and define them in this work, may thus safely turn from the maze of difficulty, otherwise presented, to clear and beaten paths.
$ 849, Irregularly-shaped locations consolidated in one patent.- Locations consolidated in a patent, commonly called group patents, sometimes present questions similar to those discussed in the preceding sections where the vein crosses the end line and the side line, and it would seem that they are controlled by the same principle. And that whether it be a peculiarly-shaped location, or more than one location consolidated, the rule must be that wbere a vein crosses one line substantially across the dip, and another not parallel with it, the extra-lateral rights should be confined within a parallel made at the point of departure with the line so crossing the strike and conforming to the dip. The principle upon which this rule is applied is the governing one that all courts agree should control in this class of cases; that is, the miner is to have as much of the vein throughout its entire depth as he owns of the apex. As was said by the supreme court of Montana: “If the miner has the apex in his location he is to have the vein, and he is to bave as much length of the vein on the strike, no matter how deep he may go on the dip, as he has length of apex within his surface lines." 3
$ 850. Same question - The Carson City case. The only case presenting this precise question is a case arising in the northern district of California, where it was tried by Judge James H. Beatty, district judge of Idaho. This was a case where several locations had been patented as one claim. The apex of the vein crossed the end line of one location, according to the contention of the defendant, but as to this there was some dispute, and some question whether it did not extend from the cross-fissure some seven hundred feet east of the westerly end line, westerly some fifteen hun
1 Carson City G. & S. M. Co. v. v. Eureka Hill M. Co., 5 Utah, 3, 11 North Star M. Co. (C. C. A.), 83 Fed. Pac. Rep. 515; Clark v. Fitzgerald, Rep. 658, affirming same case, 73 171 U. S. 92; Del Monte M. Co. y. Fed. Rep. 597.
Last Chance M. & M. Co., 171 U. S. 2 See same case
55. 3 Fitzgerald v. Clark, 17 Mont. 4 Carson City G. & S. M. Co. v. 100, 42 Pac. Rep. 273, 276. See also North Star M. Co., 73 Fed. Rep. 597. Bullion-Beck & Champion M. Co.