Anaconda Copper Min. Co. v. Pilot Butte Min. Co.

156 P. 409, 52 Mont. 165, 1915 Mont. LEXIS 154

Opinions

MR. JUSTICE HOLLOWAY

delivered the opinion of the eourt.

This appeal presents for review an order of the district court granting an injunction pendente lite. The plaintiff is the owner of the Badger State and Emily claims, and the defendant owns the Pilot claim to the north. The situation of these claims and the question propounded for solution are best illustrated by the subjoined diagrams, which are sufficiently accurate for all purposes of this appeal.

As between the Badger State and tbe Emily, the former is the senior location. Each of these claims was originally located so that it is entitled, prima facie, to extralateral rights. There is some controversy as to whether there is in fact one broad vein or at least two distinct veins; but the trial court found generally for the plaintiff, and for the purposes of this appeal we shall assume, without deciding, that plaintiff’s theory of distinct veins is correct.

The south vein, hereafter referred to as the Badger State vein £or convenience only, passes through the Emily west end-line and through the south side-line into the Badger State at the point B. The north vein, which will be designated the Emily vein, likewise passes through the Emily west end-line and through the south side-line into the Badger State at A (Fig. 1). These veins dip to the north and about 900 feet below the surface unite on the dip, and from that point the one vein so far departs from a perpendicular on its-des cent into the earth that, in the neighborhood of the 1,800-foot Badger State level, it passes beyond the Emily north side-line and into territory beneath the Pilot surface. The trial court enjoined the defendant from mining upon this vein beneath the Pilot between a plane drawn through the Emily west end-line and a plane drawn through the Badger State east end-line projected north indefinitely. By eliminating all other questions which we deem inconsequential, we have for determination the single inquiry: Was the order justified?

The plaintiff does not attempt to defend the order in terms, but insists that if the planes as drawn were employed merely as a convenient means of describing the territory to be protected, and if the defendant is not injured thereby, the order should be affirmed, even though there cannot be any justification, from a technical point of view, for projecting the planes as was done in the order, and of the correctness of this there cannot be any question.

The first contention of plaintiff is that the Badger State is [1, 2] entitled to extralateral rights on the Badger State vein under the Pilot surface between a plane through the Badger State east end-line projected north indefinitely, and a plane parallel thereto drawn through point B, and for the purposes of this appeal defendant concedes this contention.

Plaintiff insists, further, that the Emily is entitled to extra-lateral rights on the Emily vein beneath the Pilot surface between a plane drawn through the Emily west end-line D, E, projected north indefinitely, and a plane parallel thereto drawn through A, C (Fig. 1). The defendant’s theory is that the right of the Emily to follow the vein under the Pilot surface is limited between a plane drawn through the Emily west end-line D, E, and a plane parallel thereto drawn through B, F (Fig. 2). Figure 1 illustrates the plaintiff’s view, figure 2 the theory of defendant, and figure 3 is a cross-section showing the union of the two veins, and the dip of the consolidated vein. If the Emily rights be established in harmony with plaintiff’s contention, then the defendant is not injured by the order as made. If, on the other hand, defendant’s theory is correct, the order is too broad, for a triangle formed by lines drawn through B, C, F (Fig. 2) is not included within the extralateral rights of either of plaintiff’s claims .and should be exempted' from the operation of the injunction, leaving the Pilot free- to prosecute its mining operations within so much of the triangle as lies within its surface boundaries, upon the theory that the ores therein belong to it by virtue of its common-law rights.

It is claimed for the contention of the plaintiff that it is warranted by the express language of section 3 of the Act of May 10, 1872 (Chap. 152, 17 Stat. 91, U. S. Rev. Stats., sec. 2322), and by the construction given that statute by federal courts in cases presenting like' questions. The effect of the statute invoked is that discovery upon a vein which cuts at least one of the parallel end-lines of a claim and has its apex within the surface lines of the claim extended downward vertically, gives to the locator exclusive possession of the surface and of all veins, lodes and ledges therein throughout their entire depth, although such veins, lodes or ledges so far depart from a perpendicular in their coúrse downward as to extend outside the vertical side-lines of such location.

It is immaterial to this discussion whether the Badger State vein, as we have denominated the south vein, is the discovery or a secondary vein in the Badger State claim, or whether the Emily discovery was upon the Emily vein, as we denominate the north vein. Upon the assumption that the Emily claim has within its surface boundaries 600 feet or more of the apex of the Emily vein, the language of the statute above is invoked to justify the Emily in claiming extralateral rights along that vein for an equal number of feet beneath the Pilot surface- below the 1,800-foot level, notwithstanding the union of the Badger State and Emily veins above the point where the Emily north side-line is crossed by the consolidated vein. If the provision of section 2322 above was the only applicable statute, the correctness of the plaintiff’s position would afford reasonable ground for debate; but the history of our mining laws and the construction which we deem it necessary to give to the entire Act of May 10, 1872, remove the question presented upon this appeal from the realm of doubt.

The common law would give to each of these claims all ore bodies beneath its surface. The right which a locator has to’ follow his vein oh its dip beneath the surface of another claim is purely of statutory origin. The statute is but the outgrowth of mining rules and regulations in force in California, Nevada and other western territory, before the Congress enacted the first statute in 1866; and these rules and regulations were largely the result of the application to existing conditions of the Spanish ordinances' in force in Mexico, with possibly some ideas borrowed from the customs of the High Peak of Derby-shire and the laws of Prussia. They were enforced ex necessitate and received recognition from the courts and the Congress. As applied to quartz mining, they uniformly awarded to the locator a claim of a certain number of feet along the vein, with the right to follow the vein on its dip into the earth ad libitum. In recognition of the binding force of these regulations and as supplementary thereto, the Congress enacted the first Mining Code in 1866 (14 Stats, at Large, p. 251). Section 2 of that Act furnished a procedure for obtaining patent, and declared that when issued the patent should convey to the claim owner “such mine together with the right to follow such vein or lode with its dips, angles and variations to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition.” Section 4'repeats this language in substance. Nothing whatever is to be found in the Act or in the local rules and regulations, so far as. our investigation goes, as to the relative rights of each of two locators whose veins united on the dip beneath the earth’s surface. When such a condition arose, it was necessary to make an equitable division of the vein at and below the point of union, or the right of one claimant had to yield to the paramount right of the other. The theory of a division of the vein never found favor with the miners or with the courts, but the maxim, “First in time is strongest in right, ’ ’ was applied in the absence of express statutory enactment to the contrary. When the Act of 1872 above was passed, the subject was placed beyond the pale of eontro-' versy, by crystallizing the maxim into statutory law. Section 2336, United States Revised Statutes, provides: “And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection.” If the early miner was led to believe that the right to follow his discovery vein on the dip between the planes of his end-lines was absolute, he was soon disabused of his illusion. If his vein dipped beneath his side-line into prior patented agricultural land, he discovered that his right was cut off and that the common law interposed to stay his mining operations. (Amador Medean Gold Min. Co. v. South Spring Gold Min. Co. (C. C.), 18 Sawy. 523, 36 Fed. 668.) If in pursuing his vein on the dip he came into contact with the asserted right of a prior locator on the same vein, the maxim “First in time is strongest in right” took from him that which he assumed to be his own and gave it to the older location.” (Tyler Min. Co. v. Sweeney, 79 Fed. 277, 24 C. C. A. 578; Tyler Min. Co. v. Last Chance Min. Co. (C. C.), 71 Fed. 848.) So, likewise, if on the dip his vein united with the vein of a prior locator, he was made to realize most forcibly that from the point of union his rights ceased. Whatever may be said of the wisdom of the maxim above or of the policy of section 2336, the regulation in the one instance, and the statute in the other, embody the law as it is now and as it has been since the first quartz claim was located in this western country, and impose upon the courts the duty to apply the rule, regardless of consequences.

In the present instance, the Badger State and Emily veins unite above the point where Pilot territory is encountered, and many feet above the ore bodies in dispute. If section 2336 has any meaning at all, it is that from the point of union and down, the Badger State claim takes the entire vein. The Emily vein is terminated at the point of union as effectively as though the mineralization of the ground at that point ceased. Below the point of union there is not any Emily vein whatever. To give to the statute any other meaning is to interpolate something not found in the express terms or implied from anything suggested in either section 2336 or in the context.

The doctrine of extralateral rights had its origin in the theory that it is the vein which is actually located, and that the surface is a mere incident, necessary for the convenient development of the mine. The right as expressed in the early mining rules and regulations and in the Act of 1866 was the right to follow the vein on its dip to any depth; and we assert confidently that though the language employed in section 2322 above is somewhat different, it was intended to convey the same idea. If in this conclusion we are correct, the Emily has no extra-lateral rights east of point B, because it has no vein below the point of union which it can follow to the ore in dispute. From 1 to 2 (Fig. 3) the entire vein belongs to the Badger State and is a part and parcel of that claim. The Emily “has no greater right between those points than an entire stranger, and to reach the ore bodie°s in dispute at 2 (Fig. 3), it must trespass upon either the Badger State or the Pilot claim. To say that it has a right which can be exercised only by committing a wrong is a contradiction of terms.

It is conceded by plaintiff, as it must be, that the right which it has by virtue of its ownership of the Emily claim is not enhanced by its common ownership with the Badger State claim, and that the Emily’s rights are to be determined as though the Badger State claim was owned by a hostile stranger.

In support of our position that at and below the point of union, the Badger State owns the entire vein, we need appeal only to' the plain language of section 2336 above. (Champion Min. Co. v. Consolidated Wyo. G. Min. Co., 75 Cal. 78, 16 Pac. 513; Little Josephine Min. Co. v. Fullerton, 58 Fed. 521, 7 C. C. A. 340; 27 Cyc. 587.)

By some of the courts and text-writers it is said that to entitle [3] a claimant to extralateral rights there must be continuity of vein from the apex to the ore in dispute; by others that there must be identity of vein. It is of little moment here which of these statements is correct; but that there must be continuity of right in the locator who seeks to follow a vein from the apex within his claim to the ore beneath the surface of another claim is in effect the holding of this court, and its correctness in our judgment cannot be gainsaid.

In State ex rel. Anaconda C. Min. Co. v. District Court, 25 Mont. 504, 65 Pac. 1020, there was presented the contention of O’Connor that by virtue of his ownership of a portion of the apex of a vein which cut the parallel end-lines of his Copper Trust claim, he should be entitled to the ore within a triangle under the surface of the Rob Roy, notwithstanding the rights of the St. Lawrence and Smoke Stack claims intervened and severed the vein between the Copper Trust apex and the ore in dispute. This court denied the claim and stated the rule of continuity of right in a single sentence: “ 0 ’Connor has no part of the apex of the vein so situated with reference to the ore bodies within the triangle that he may pursue the vein from the surface.” O’Connor had the same right—if it could be called a right—to follow the vein from its apex in the Copper Trust through the Smoke Stack and St. Lawrence claims to the ore in controversy, as the Emily has to follow from the apex of its vein down the consolidated vein to the ore bodies beneath the Pilot surface, for the consolidated vein belongs to the Badger State and is as much a part of that claim as the vein beneath the St. Lawrence in the Copper Trust Case was a part of the [4] St. Lawrence claim. The only means by which O’Connor could reach the ore he claimed beneath the surface of the Rob Roy was by trespassing upon the intervening claims, and the only access which the Emily has to the ore in controversy here is by trespassing upon the Badger State or Pilot, or both of them. In the language of this court above, it has no part of the apex of the Emily vein so situated with reference to the ore bodies in dispute that it may pursue the vein from the surface. The Badger State owns all the vein east of point B and below the union of the two veins, and presents an impassable barrier to the extralateral rights claimed by the Emily.

These views do not accord with the decisions of certain courts to which our attention is directed. In Roxanna G. Min. & T. Co. v. Cone (C. C.), 100 Fed. 168, Judge Hallett, without citing any authority to support his view, orally expressed the opinion that as between a junior locator whose vein unites on the dip with the vein of a senior locator, and the complainant whose claim contains no part of the apex of either vein, the junior locator has extralateral rights on the consolidated vein beneath the surface of complainant’s claim, in ground not reached by the extralateral rights of the senior locator. It does not appear from the report whether any consideration was given by court or counsel to the common-law rights of the complainant, and we must content ourselves with a respectful dissent from Judge Hallett’s conclusion.

Upon parity of reasoning, plaintiff’s theory finds further support in certain decisions by the circuit court of appeals for the ninth circuit, in cases arising in the Coeur d’Alene district of Idaho. In Bunker Hill & Sullivan M. & C. Co. v. Empire State-Idaho M. & D. Co., 109 Fed. 538, 48 C. C. A. 665, in what is known as the first Stemwinder Case, the court defined the extralateral rights to which the Stemwinder claim would have been entitled but for its failure to adverse the application of the Last Chance claim for patent. By that dictum, it was intimated that the Stemwinder claim might assert extralateral rights upon the dip of the vein between the planes of its parallel end-lines, subject only to the superior rights of the Emma and Last Chance claims, even though it had the apex for only a portion of the distance between its end-lines. The court conceived this to be the logical deduction to be drawn from the decision in Del Monte M. & M. Co. v. Last Chance M. & M. Co., 171 U. S. 55, 43 L. Ed. 72, 18 Sup. Ct. Rep. 895.

In Bunker Hill & Sullivan M. & C. Co. v. Empire State-Idaho M. & D. Co. (C. C.), 134 Fed. 268—the second Stemwinder Case arising out of conflicting interests asserted by the Stem-winder claim on the one hand, and the Viola and San Carlos claims on the other—Judge Beatty, in granting an injunction pendente lite, in effect awarded extralateral rights to the Stem-winder between planes drawn through its parallel end-lines projecting westwardly indefinitely, notwithstanding its limited amount of apex and the fact that the vein between the apex and the ore bodies in dispute belonged to the Emma and Last Chance claims. Judge Beatty apparently felt bound by the dictum in the first Stemwinder Case, but expressed his opinion that the conclusion was not warranted by anything found in the Del Monte decision.

In Empire State-Idaho M. & D. Co. v. Bunker Hill & Sullivan M. & C. Co., 114 Fed. 417, 52 C. C. A. 219, there was involved the question of the extralateral rights of the Viola and San Carlos, adjoining claims having a common side-line which split the broad vein upon which each claim was located. The Viola was prior to the San Carlos and both were prior to the King location. The court held that as between the Viola and San Carlos, the former took the entire vein on its dip between the planes of its parallel end-lines extended indefinitely in their own direction, but that as between the San Carlos and the King, the former had extralateral rights on the vein between planes drawn through its parallel end-lines projected in their own direction, subject only to the superior rights of the Viola claim.

In Wall v. United States Min. Co., 232 Fed. 613, Judge Marshall, sitting in the circuit court for the district of Utah, expressed himself satisfied with the conclusion reached in the Viola Case.

In Empire State-Idaho M. & D. Co. v. Bunker Hill & Sullivan M. & C. Co., 121 Fed. 973, 58 C. C. A. 311, the court approved Judge Beatty’s order granting an injunction in the case referred to above. In the course of the opinion, reference was made to the decision in the Viola Case, and the court said: “The Viola extralateral right did not wholly intervene at any point to cut off the ore body to which the San Carlos had the extralateral right; in other words, there was in that claim upon the outcrop of the ledge in the surface location a point from which the owners of the San Carlos could, without interruption and continuously, proceed on the ledge on its downward course to the full extent of the extralateral right awarded by the court. ’ ’ The court then disposed of the case in hand upon what it deemed an analogy found in the federal statute, and held that, though the vein upon which the Stemwinder claim asserted extralateral rights was completely severed between the apex and the ore in dispute by the prior rights of the Emma and Last Chance claims, still the Stemwinder had extralateral rights on the vein beyond the plane where the Emma and Last Chance rights ceased, and in support of this view observed: “If the vein upon which the Stemwinder is located were in fact a separate vein from that on which the Last Chance is .located, but passed through the latter in the same direction in which extra-lateral rights are claimed in the present suit, there could be no doubt of the right of the owner of the Stemwinder to pursue the vein beyond the point of intersection, and to maintain a right of way through the vein of the Last Chance at the point of intersection. We see no reason why that right, which is so recognized by the statute, and which would probably be recognized in the absence of a statute, shall be denied when the point of intersection of extralateral rights is not upon separate veins, but upon the same vein. ’ ’ When the case was reached upon its merits, these views were reasserted. (131 Fed. 591, 66 C. C. A. 99 ) An appeal to the supreme court of the United States was dismissed (200 U. S. 613, 50 L. Ed. 620, 26 Sup. Ct. Rep. 754), and a petition for certiorari was denied (200 U. S. 617, 50 L. Ed. 622, 26 Sup. Ct. Rep. 754).

"We agree with Judge Beatty that there is not anything to be found in the Del Monte decision to justify the dictum, found in the first Stemwinder Case, which is contrary to the holding of this court in Fitzgerald v. Clark, 17 Mont. 100, 52 Am. St. Rep. 665, 30 L. R. A. 803, 42 Pac. 273, to the effect that a locator can have but the same number of feet along the vein beneath the surface as he has at the apex. To the same effect is Tyler Min. Co. v. Last Chance Min. Co., above. While we do not assent to the reasoning advanced in the Viola decision, the conclusion that, ■ as between the San Carlos and the King, the former owned the particular ore body in dispute, may be warranted by the fact, as suggested by the court above, that the San Carlos owned a part of the apex of the vein, which was not severed from the ore in dispute by the superior right of the Viola. We are unable to agree with either the conclusion or the reasoning of the circuit court of appeals in the second Stem-winder Case. The Stemwinder could reach the ore in dispute only by trespassing upon the Last Chance claim, and we decline to sanction the doctrine that a right may be exercised by the commission of a wrong. The ground of the learned court’s opinion is altogether untenable. There is not any semblance of a parallel between the right which a locator has to a right of way through the point of intersection of crossed veins, and the wrong which the Stemwinder claim was forced to commit to reach the ore involved in that controversy. In the absence of statute, the junior locator could not reach the ore beyond the point where his vein crossed the vein of the senior locator, without committing a trespass; but by virtue of the express language of section 2336, and not otherwise, his act which would .be wrongful is given the sanction of law. That section provides: “Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection ; but the subsequent location shall have the right of way through the space of intersection for the purposes of the convenient working of the mine.” In other words, the government has carved out of the estate of the senior locator an easement or right of way through the point of intersection of crossed veins, in favor of the junior locator; but the government did not make any such reservation through the Last Chance claim, and with all due respect to the circuit court of appeals, we assert that it had no authority to make the reservation for the government. The decision can find support only in what appears to us to be purely judicial legislation.

It cannot be said that the refusal of the United States supreme court to entertain the appeal or its dismissal of the petition for certiorari is tantamount to an affirmance of the judgment rendered; for in Lawson v. United States Min. Co., 207 U. S. 1, 52 L. Ed. 65, 28 Sup. Ct. Rep. 15, the court held directly contrary to the decision in the first Stemwinder Case upon the question of the extent of the estoppel created by the failure of the Stemwinder to adverse the application of the Last Chance for patent, though it had previously refused the Stemwinder’s petition for certiorari to have that question reviewed.

So far as they are involved in this appeal, the rights of the Emily attach where those of the Badger State cease, and by virtue of its ownership of the apex from its west end-line to point B, it is entitled to extralateral rights beneath the surface of the Pilot between a plane projected through its west end-line to the north indefinitely, and a plane parallel thereto drawn through the points B, F (Fig. 2). (Fitzgerald v. Clark, above, affirmed in 171 U. S. 92, 43 L. Ed. 87, 18 Sup. Ct. Rep. 941.)

The triangle formed at B, C, F (Fig. 2) is not included within the rights of either of plaintiff’s claims, and the ore within so much of that triangle as lies beneath the surface boundaries of the Pilot belongs to that claim by virtue of its common-law rights. (Parrot S. & C. Co. v. Heinze, 25 Mont. 139, 87 Am. St. Rep. 386, 53 L. R. A. 491, 64 Pac. 326.)

The cause is remanded to- the district court with direction to modify the injunction order to conform to the views herein expressed.

Remanded, with directions.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.