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(29 Utah, 490)

GRAND CENTRAL MIN. CO. v. MAMMOTH MIN. CO.

(Supreme Court of Utah. Oct. 11, 1905.) 1. MINES AND MINERALS-RIGHTS OF LOCATORS -PRESUMPTIONS.

The locator of a lode claim is presumed to own all the ore within planes drawn vertically downward to the deep through he boundary lines of such claim, as well as the surface and everything appurtenant to the claim, which presumption continues until some other locator establishes that such deposits belong to another lode having its apex in his ground, so that he is entitled to extralateral rights reserved by Rev. St. U. S. § 2322 (U. S. Comp. St. 1901, p. 1425]. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, §§ 75-77.] 2. SAME-MINING CLAIM-FINDINGS-APEXEXTRALATERAL RIGHTS.

Where a person owns a mining claim having an apex of a vein within its limits extending through the claim lengthwise, he has, by virtue of the extralateral rights reserved under the statute, a right to follow the vein, between verticle planes drawn downward through the end lines of the location, from the apex, on the dip, to the deep, although such vein may so far depart from a perpendicular, in its course downward, as to extend outside of the vertical side lines of the surface of the location into ground belonging to the adjoining owner.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, §§ 75-77.] 3. SAME VEIN APEX AND STRIKE ORE BODIES-BURDEN OF PROOF.

Where defendant, who was the owner of a lode claim, claimed ore underlying plaintiff's adjoining claim by virtue of extralateral rights, defendant was bound to show, not only that the apex and strike of the vein were within the boundaries of defendant's claim, but that between planes drawn vertically downward through the end line of plaintiff's claim and a certain parallel line the vein from its apex on its dip was continuous, that the continuity extended to and through plaintiff's ground, and that the ore bodies claimed formed a part of such vein.

4. SAME PATENT-MINING CLAIM-PRESUMPTIONS.

A patent to a mining claim raises the conclusive presumption that there is an apex of a vein within the patented ground, but there is no presumption that such vein embraces ore without the side lines of the claim, or that the vein presumed is the one in dispute.

5. APPEAL-MINING SUIT-QUESTION OF APEX —EVIDENCE-CONFLICTING OPINIONS OF WITNESSES-PHYSICAL FACTS-FINDINGS-CONCLUSIVENESS.

Where, in the trial of a mining suit involving the question of apex and location of a vein,

there is a substantial conflict in the evidence with reference to the properties in dispute, as to what physical facts exist, as well as in the opinions of witnesses drawn from the facts, the findings relating to the questions of apex, dip, and continuity of the vein, and ownership of the disputed bodies, will not be disturbed by the appellate court, unless they are so manifestly erroneous as to demonstrate some oversight or mistake which affects the substantial rights of the appellant.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3935-3937, 3983-3989.]

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does neither constitute such material a vein nor an apex of a vein, where no hanging wall nor foot wall appears, where the mineralization of such crushed material is not appreciably greater than that existing generally throughout the sedimentary area, and where the same kind of crushed and brecciated material exists elsewhere and generally within that area.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 22.]

7. APPEAL-EQUITY SUITS-INSTRUCTIONS.

The verdict of a jury in an equity suit on controverted questions of fact submitted to it being merely advisory, error cannot be predicated on instructions given or refused.

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8. MINES AND MINERALS VEIN OR LODEDEFINITION.

Veins or lodes are lines or aggregaticus of metal imbedded in quartz or other rock in place, consisting of a strip of mineral-bearing rock within defined boundaries in the general mass of the mountain, which must be continuous and without interruption, bounded by country rock mineralized to no greater extent than the general condition of the vicinity.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 22.]

9. SAME-VEIN-CONTENTS-MINERAL VALUE. Rock or matter of any kind, in order to constitute a vein or lode within the meaning of the statute, must be metalliferous and contain such mineral value as will distinguish it from the country rock, especially where no well-defined walls appear.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 22.]

10. SAME ESSENTIAL ELEMENTS-EVIDENCE.

Under the acts of Congress the essential elements of a vein are mineral or mineral-bearing rock and boundaries, and, in case of controversy, where one of these elements is well established, very slight evidence may be accepted as to the existence of the other.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 22.] 11. SAME EXTRALATERAL RIGHTS.

In order to entitle the owner of a mining claim to extralateral rights, it is not sufficient that the vein he seeks to follow outside the boundaries of his claim consists of rock sufficiently mineralized so that a miner can follow it with a reasonable expectation of finding ore; but it is necessary that there should be a ledge or body of mineral or mineral-bearing rock of such value as will distinguish it from the country rock or from the general mass of the mountain.

12. SAME-MINING CLAIM-LOCATION-DISCOVERY RESERVED RIGHTS-FEDERAL STAT

UTES.

What may constitute a sufficient discovery to warrant a location of a mining claim may be wholly inadequate to justify the locator in claiming or exercising rights reserved by the

statute.

13. SAME

DISCOVERY-INVASION-POSSESSION -ADJOINING OWNER-PRESUMPTION.

What constitutes a discovery that will validate a location is a very different thing from what constitutes an apex to which attaches the statutory right to invade the possession of and appropriate the property which is presumed to belong to the adjoining owner. 14. SAME

PROSPECTOR-LOCATIONS-POLICY OF LAW-CONFLICTING LODE CLAIMANTS— RULES OF CONSTRUCTION.

It is the object and policy of the law to encourage the prospector and miner in their efforts to discover mineral, and therefore, as between conflicting lode claimants, the law is liberally construed in favor of the senior location; but where one claims what, prima facie, belongs to another, because of the apex in the

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What values the filling or material of a fissure should contain to constitute it a vein, within the meaning of the act of Congress, must necessarily depend upon the characteristics of the district or country in which the vein or lode, in any particular instance claimed to exist, is located, and upon the character, as to boundaries, of the vein itself. Values, therefore, of the filling of the vein must be considered with special reference to the district where the vein or lode is found.

16. SAME-VEIN-DEFINITION.

The definition of a vein must be considered with reference to the formations and characteristics of the particular district in which the vein is located.

17. SAME VEIN BOUNDARIES FILLING VALUES-DIFFERENTIATION-COUNTRY ROCK. Where the boundaries of what is claimed to be a vein are not well, or not at all, defined, either at the surface or at depth, the value of the material must be so in excess of the country rock as to differentiate it from such rock; else the material cannot be held to constitute a vein.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 22.] 18. SAME-MINERALIZATION.

In the absence of defined walls and of mineralization appreciably greater than that contained in the general mass of the mountain, broken, stained, and fissured material, or crushed and brecciated matter, characteristic of the district, cannot be held to constitute a vein or lode, under the statute.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 22.] 19. SAME-FRACTURING-LIMITS-VEIN--VUG

-COUNTRY ROCK.

In such case, the limits of fracturing do not constitute the limits of the vein, and, even if there be found an occasional vug or fragment of ore, yet, where it is disconnected from any ore body and so intermingled with the surrounding country rock that it cannot be regarded as continuous, it does not mark the line of the vein or lode, within the meaning of the law.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 22.] 20. SAME VEIN SEDIMENTARY BEDS

REPLACEMENT--MINERALIZATION-ORE BODIES -DEPOSITION OF ORE-LIMITS.

Where a vein, located in sedimentary beds of rock, is formed by replacement, and the mineralization ceases within a short distance of the ore body or ore channel, the limits of the deposition of ore are the limits of the vein; and this is so whether the vein be considered laterally or with reference to the apex. 21. SAME COURSE-STRIKE-DIP-ORE BODIES.

The course of the vein longitudinally, as it passes through the country, is its strike; and where the dip of the vein is vertical, or practically vertical, the line of its ore bodies may mark the line of its strike.

22. SAME LOCATION-GEOLOGICAL FEATURES.

In determining the location and strike of a vein, the geological features of the adjacent country, so far as in evidence, will be considered by the court.

23. SAME-MINING SUIT-FINDINGS OF FACT

EVIDENCE.

In a suit to determine extralateral rights appurtenant to a mining claim, evidence held to sustain a finding that the vein in question at its apex and on its northwesterly course or strike crossed the western side line of defendant's lot and wholly diverted therefrom at a

point 690 feet north of its south end line, and north of that point did not continue, either at its apex or on its strike, to or beyond a certain 1,100-foot line within the limits of defendant's boundaries, and that there was no vein or lode, having an apex or any part thereof within the limits of defendant's claim north of the southerly end line of plaintiff's claim extended easterly in its own directions and south of such 1,100-foot line, which on its dip extended to and included any of the ore bodies existing underneath the surface of plaintiff's claim south of such 1,100foot line, and that defendant was therefore not entitled to extralateral rights with reference to any ore underlying plaintiff's ground. 24. APPEAL TRIAL-WRITTEN OPINION-RECORD-FINDINGS.

The written opinion of a trial judge, stating the reasons for his action or judgment, is not properly a part of the record, and affords no evidence that the recitals therein contained are true or are supported by the proof, nor can such opinion qualify or limit the finding or decision.

25. SAME ASSIGNMENTS OF ERROR-OPINION OF COURT.

The act of a trial judge in delivering an opinion, stating the reasons for his action or judgment, is not an act on which error can be predicated. 26. PLEADING Judge.

AMENDMENT

THEORY OF

Where, in a suit to determine extralateral rights as appurtenant to a mining claim, defendant through the entire litigation and during two protracted trials continuously based its claim to extralateral rights on the theory that the apex of the vein sought to be followed was within the limits of a certain claim owned by it, and no claim was made that the apex was in certain other adjoining claims until the theory was advanced by the trial judge in an opinion accompanying findings denying defendant's claim, which theory was not sustained by any evidence introduced. defendant was not entitled to amend to conform to the theory of the judge; there being no pretense that any additional evidence could be introduced to sustain the same. 27. PLEADING AMENDMENT ADDITIONAL

PLEADING-VARIANCE.

When a party litigant offers to file an amendment or an additional pleading at the close of the trial without an offer of further proof, the offer to file may be properly rejected, in the absence of variance between the pleadings and proof.

Appeal from District Court, Fifth District; T. Marioneaux, Judge.

Action by the Grand Central Mining Company against the Mammoth Mining Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The plaintiff commenced this action on the 9th day of September, 1899, by filing a complaint in trespass. in the first count of which it alleged that the defendant had unlawfully mined, extracted, and removed from beneath the surface of the Silveropolis mining claim ores in quantity exceeding 6,000 tons, of the value of $300,000, and demanded judgment for that sum; and in the second count, after having made similar allegations as to the extraction and value of ores, it asked that the defendant be restrained from further mining operations underneath the surface of that claim, pending the trial of the cause. On October 16,

1899, the defendant filed an answer and counterclaim, alleging affirmatively, inter alia, that the ore bodies in controversy were in vein which had its apex in the first northern extension of the Mammoth lode, designated as "U. S. Lot No. 38." To this answer and counterclaim an amendment was filed October 22, 1900, and on November 12, 1900, the defendant filed a second amended answer and counterclaim, alleging in each a vein in lot 38, which at its apex and on its strike crossed the southerly end line of that lot, and thence at its apex and on its course extended within the side lines of the lot to a point 1,100 feet northerly from said southerly end line; that the vein, on its dip from the apex, extended to, beneath, and beyond the Silveropolis and Consort mining claims, designated, respectively, "U. S. Lot No. 135" and "U. S. Lot No. 272," both owned by the plaintiff; and that the vein included all the ores lying beneath the surface of the Silveropolis and Consort mining claims south of a plane drawn parallel to the southerly end line of lot 38 and through a point 1,100 feet northerly therefrom. By this amended counterclaim the defendant sought to have its alleged title quieted as to all ore bodies lying within the Silveropolis and Consort mining claims south of the 1,100-foot plane. Answering this counterclaim, the plaintiff alleged it was the owner of all the ore bodies in controversy by virtue of its ownership of the Silveropolis and Consort mining claims. Thereafter the court determined that the issues thus joined should be tried and decided prior to the trial of the plaintiff's action in trespass. Upon the trial of the case presented by such counterclaim and answer thereto, which commenced November 19, and ended December 31, 1900, the court found and decreed that the vein mentioned in the counterclaim at its apex and on its strike did not continue within lot 38 to the 1,100-foot line, but that the apex passed over the westerly side line of that lot and departed therefrom, at a point 700 feet north of the south end line of the lot, without again returning thereto, and dismissed the defendant's counterclaim. Afterwards, another judge presiding, as successor to the one before whom the case had been tried, the court on April 4, 1901, upon motion therefor, granted a new trial.

On November 20, 1901, the defendant filed its third amended answer and counterclaim, in each of which it, among other things, alleged that the vein and lode at its apex and on its strike crossed the southerly end line of lot 38, and thence continued northerly in that lot to the 1,100-foot line; that the apex of the vein was very broad, its width extending east of the east side line of lot 38, and overlapping portions of the Young Mammoth, Jenkins, Schey, and Bess mining claims, owned by the defendant; that

its apex likewise extended west of the west side line of lot 38, and overlapped portions of the Jenkins, Golden King, and Bradley mining claims, also owned by the defendant; that at no point south of the 1,100-foot line did the apex wholly depart from lot 38, the lode upon its course conforming to the side lines of the lot; that lot 38 was the senior location, and long preceded all the other mining claims mentioned in the counterclaim; and that the vein on its dip to the west departed from the side lines of lot 38, passed under and beyond the surface limits of the Jenkins, Golden King, and Bradley mining claims, and extended, at a depth of 700 feet under the southerly end line of the Silveropolis mining claim, further on its dip to and beyond the limits of the Silveropolis and Consort mining claims, and embraced all the ore bodies lying underneath those claims south of the 1,100-foot plane. The prayer was that the defendant's title to those ore bodies be quieted against the adverse claim of the plaintiff. To this counterclaim, the plaintiff filed an answer, alleging that it was the owner of the Silveropolis and Consort mining claims, and of all veins and ores therein or thereunder and within planes extended down vertically through the boundary lines of those claims. On the issues thus formed the case was again tried. The trial was commenced on November 21, 1901, when a jury was ordered impaneled advisory to the court to pass on certain issues, among them, in substance, the following: How far northerly toward the 1,100-foot line does the apex of the vein on its course extend in lot 38? If the apex of the vein on its course wholly departs from the limits of lot 38 before reaching the 1,100-foot line, then at what point on its course does It so depart? Does there exist, within the limits of lot 38, and between the southerly end line of the Silveropolis mining claim extended eastward in its own direction across lot 38 and south of the 1,100-foot line, any part of the apex of any vein, lode, or ledge, or any part of any vein, lode, or ledge, which vein, lode, or ledge on its dip extends to and includes the ore bodies known to exist beneath the surface of the Silveropolis and Consort mining claims south of the 1,100-foot plane? Do those ore bodies belong to or are they a part of any vein, lode, or ledge that has its apex, or any part of its apex, in lot 38?

Such were the issues upon which the cause was tried. The question of damages, under the suit in trespass for ores extracted from the ground in controversy, was not made an issue in the case presented, and no evidence was introduced upon that subject. The contention of the defendant throughout the trial was that the ore bodies in dispute lie in a vein which has its apex in lot 38, and which, on its strike and at its apex,

crosses the southerly end line of that lot, and continues within its limits to a point at least 1,100 feet north from such end line; while on the part of the plaintiff it was insisted that the vein, which at its apex and on its course crosses the southerly end line of lot 38, wholly departs from the lot at a point 695 feet north from the southwest corner thereof, where it crosses the westerly side line. In the introduction of evidence the parties assumed a wide range, both as to surface showings and indications and as to underground workings. The surface of the mining claims and the various tunnels and levels of the mines are represented by both sides with numerous maps and with a very interesting glass model by the defendant. They are of great utility in acquiring a proper understanding of this controversy, and are, in the most important parts, presented herein in the shape of diagrams. The mining ground in question is situate in the Tintic mining district, Juab county, Utah.

Diagram No. 1.

Diagram No. 1, given below, is in part a copy of Defendant's Exhibits A and K and Plaintiff's Exhibit 12, surface maps.

On this diagram are shown, so far as material here, the surface boundaries of the properties owned by the parties. The first northern extension of the Mammoth claim (U. S. lot No. 38), the Jenkins (U. S. lot No. 93), the Golden King (U. S. lot No. 92), the Bradley (U. S. lot No. 158), the Young Mammoth (U. S. lot No. 94), and the Schey mining claims are owned by the defendant; and the Silveropolis (U. S. lot 135), the Consort (U. S. lot No. 272), and the King William mining claims are owned by the plaintiff. The ground in dispute is that part of the Silveropolis and Consort mining claims lying south of the 1,100-foot line. The stipple shading on lot 38, which overlaps the claim, shows the width of the apex and course of the vein as claimed by the defendant. The lines W-U, U-T, and T-S represent the course or strike of the vein as claimed by the plaintiff, and indicate the line of stoping in the mines along the vein, claimed by the defendant to be on its dip, by the plaintiff on its strike. The point U is 695 feet from the southwest corner of lot 38, and is where the plaintiff claims the vein changes from a course N. 15° E. to a course N. 51° 30′ W., true, and departs wholly from the limits of lot 38, continuing in that course to the point T, when it again changes, and thence continues N. about 10° to 15° W. in the direction of the point S. The line K-K indicates a section through the Peterson winze in the Grand Central mine, H-H a section through southern end of Silveropolis claim, E-E a plane about 150 feet north of the south end line of that claim, and F-F a longitudinal projection. Numerous open cuts, made

by the defendant for the purposes of this case and claimed by it to expose the apex of the vein, are indicated on lot 38. Tunnels, Mammoth and Grand Central shafts, and other points of more or less importance are also located on the diagram. The 1,100 and 1,700 foot lines and the southerly end line of the Silveropolis mining claim extended likewise appear thereon. Some of the principal stopes are indicated thereon, including the Cunningham of the Mammoth, where the plaintiff insists the vein wholly departs from lot 38, and the Butterfly of the Grand Central. The dykes also appear.

In determining the rights of the parties to the ore bodies in dispute, lot 38 is of principal importance. That lot or claim was patented May 16, 1873, and all the other claims herein referred to are junior to it as to location and patent. Lot 38 is 200 feet wide and 3,000 feet long, and from its southerly end line its side lines run N. 18° 55′ E., which direction indicates the general course of the apex of the vein, as claimed by the defendant.

Diagram No. 2.

Diagram No. 2 is produced from Defendant's Exhibits B, C, D, F, G, H, and I, and Plaintiff's Exhibits Nos. 1, 2, 3, 6, 7, 8, and 16, maps representing portions of the mines of the parties.

On this diagram each one of the principal stopes, shown by the evidence and material to this decision, is represented and marked with a figure corresponding with the number of the level on which the stope is located. They show where, in the various tunnels and parts of both mines, merchantable ore was found. Those of most importance, in the consideration of the questions before the court, are the Gillespie, Apex, Gulf, Flanders, Burleigh, Naylor, Cunningham, Caved, Klondyke, Betsy, and Butterfly stopes. There are also designated on the diagram tunnels and drifts where no ore was found and no stoping done, being driven into barren ground in search for ore. The Mammoth and Grand Central shafts, the Tranter drift, the drift to the north end line Golden King claim 800 level, the drift connections between the Mammoth and Grand Central mines, east and west cross-cuts, Turner raise, Dago raise, O'Brien winze, Bush winze, the Condon and Golden King tunnels, and other objects, to which reference is made herein, are designated on the diagram, to show, as near as may be, their location and character, and to enable one to judge the more readily of the indications they furnish, as bearing upon the reasonableness or unreasonableness of the theories of either of the parties respecting the strike of the vein or lode, the location of the apex, its width, the dip of the vein westerly, and its continuity and persistency on its dip downward to the ore bodies in controversy.

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