Raisbeck v. Anthony

41 N.W. 72, 73 Wis. 572, 1889 Wisc. LEXIS 153

• Court: Wisconsin Supreme Court
• Decided: March 12, 1889
• Status: Published

Opinion

Lyon-, J.

"We think the testimony is sufficient to sustain the finding of fact that John Anthonj'', Sr., and Wallace Dixon discovered the range of mineral in controversy, on the land of Robert Raisbeek, about the year 1872. We are also of the opinion that it is sufficiently alleged in the answer, by necessary implication at least, and proved, that Anthony and Dixon entered upon and prospected the lands in which the range of mineral was found by the consent and license of Bobert Baisbeck, the owner thereof. This appears from the allegations that they made such discovery of the range and paid the rent for the mineral obtained therefrom to such owner, who accepted the same, and from the proofs of those facts and the presumptions fairly deducible from the evidence that they so entered peaceably and with the knowledge of the owner, who made no objection thereto.

This brings the case within the provisions of ch. 260, Laws of 1860, as amended by ch. 117, Laws of 1872, being sec. 1647, R. S., except in so far as the statutory rights of the discoverers may have been restricted by special contract between. Anthony and Dixon and the owner of the land. If thfre was no such restriction, the discovery of the range or the crevice which contained the mineral rendered the license irrevocable by the land-owner, and vested in the discoverers the title to the ores in the range or crevice on the lands of the licensor, subject only to the rent due him. If such title so vested in the discoverers, it necessarily results that neither a sale of the land by the licensor or of the range by the licensees, nor the death of either or all parties, would operate to revoke such license. If the licensor limited the right of the discoverers to work the range or crevice only to a certain point, such limitation is binding, and 'the statute gives the discoverers no right therein beyond the point of limitation.

The statute above mentioned is as follows: “ Sec. 1647. Where there is no contract between the parties, or terms established by the landlord to the contrary, the following rules and regulations shall be applied to mining contracts and leases for the digging of ores or minerals, viz.: (1) No license or lease, verbal or written, made to a miner, shall be revocable by the maker thereof after a valuable discovery or prospect has been struck, unless the miner shall forfeit his right by negligence, such as establishes a forfeiture according to mining usages. (2) The discovery of a crevice or ran^e containing ores or minerals shall entitle the discoverer to the ores or minerals pertaining thereto, subject to the rent due his landlord, before as well as after the ores or minerals are separated from the freehold; but such miner shall not be entitled to recover any ores or minerals, or the value thereof, from the person digging on his range in good faith, and known to be mining thereon, until he shall have given notice of his claim; and he shall be entitled to the ores or minerals dug after such notice. (3) Usages and customs among miners may be proved in explanation of mining contracts to the same extent as usage may be proved in other branches of business.”

The contention of the plaintiff is that Anthony and Dixon were limited by their agreement with Robert Raisbeck to a point 300 3Tards west of the stone fence, beyond which point their license gave them no authority to mine, while that of the defendants is that there was no-limitation upon their right to work the range or crevice entirely across Raisbeck’s land, if the same extended across it.

The circuit judge found that when the license was given it was not in the contemplation of the parties that the range extended west beyond the stone fence; that when the fence was reached there probably arose a question between them as to the right of the licensees to proceed further; and that the work was suspended, and negotiations were had which resulted in an agreement limiting the right of the latter to mine the range to a point 300 yards w7est of the stone fence, and no farther. A careful perusal of the testimony satisfies us that these facts were correctly found. The judge commented somewhat upon the intrinsic weakness of the testimony upon which the above findings rest, and doubtless there is some force in his observations. But it must be remembered that the transactions rested in parol, and the original parties thereto had all deceased before the cause of action arose; hence the testimony was the best that could be obtained. In our view it quite satisfactorily establishes the facts thus found. The judge also expresses some doubt as to whether the limitation was not contingent upon the failure to find mineral in paying quantities beyond the 300-yards point to the westward. Without stating the testimony bearing upon the doubt thus suggested, or going into any discussion of it, it must suffice to say we think the evidence is that the limitation was absolute. There having been an uncertainty as to the extent of the original license, and probably a controversy between the parties in respect thereto, the 300-yards limit settled upon by them when the stone fence was reached removed such uncertainty and terminated the controversy, and the limitation thus agreed upon became, by relation, a part of the original contract or license, and settled conclusively what were the terms thereof.

Were the foregoing facts all there is of the case, there can be no doubt the plaintiff would be entitled to the relief he demands; for, standing alone, they demonstrate that the defendants have no rights in the range west of the 300-yards point, and inasmuch as they persist in working the range beyond that point the plaintiff would be entitled to a perpetual injunction restraining them from so doing. But the circuit judge made two deductions from the testimony, upon which he based the judgment, for the defendants. These are (1) that after the crevice had been worked to the point where it pinched out, and Robert Raisbeck had employed John Dixon to prospect ahead for the purpose of again finding it, and after Dixon had become a part owner of the range, it was the understanding of all the parties interested that the limitation to the point 300 yards west of the stone fence was no longer binding upon the owners of the range, but that they were at liberty to work the crevice across the lands of Robert Raisbeck west of that point; and (2) that the crevice discovered by John Dixon beyond the point where the original crevice pinched out was a new one, and the ore which Dixon and bis associates found therein was a new and valuable discover}7, made under a license from the land-owner which contained no limitation of their right to mine the crevice entirely across his land, should it extend so far. Whether the above deductions were correctly made and, if so, their effect, will now be considered.

1. The limitation in question was created by-contract, •and the discoverers of the range and those claiming under them could be relieved therefrom only by contract. The learned circuit judge scarcely finds that an}7 contract removing the limitation was ever made. He speaks of the purpose of Robert Raisbeck and the understanding of the owners of the range; also of the improbability that such owners would search for the crevice after the bar had been struck, and perform the labor they did in finding the mineral west of the bar, had they supposed they were restricted by the limitation. But he does not say that the parties agreed that the limitation should be removed. We fail to find any sufficient evidence in the record to prove that any such contract Avas made. The owners of the range at the time were John Anthony, Sr., John Dixon, and the plaintiff. John Anthony, Sr., was a party to the contract of limitation, and must have known that it was made. John Dixon knew, also, that there was a limitation. He purchased his interest of Robert Raisbeck, and testified on the trial that before he so purchased Raisbeck told him there was a limit, but not where it was. Knowing the existence of a limitation, they could only avoid it by a contract with Robert Raisbeck rescinding it. They obtained no such contract from him. True, John Dixon testified that Eob-x ert Eaisbeck told him to go where he pleased on the range and work it as he pleased; but this was not sufficient to relieve the parties from the limitation which they knew they were subject to. It must be held that the evidence fails to show that the limitation in question was ever abrogated.

2. It only remains to consider the question, "Was the crevice which John Dixon found west of the point where the original crevice pinched out, a distinct crevice, and the discovery of the ore therein a new discovery; or was it a continuation of the original crevice and vein of mineral therein? It was not a new crevice and a new discovery merely because the original crevice ceased to yield ore and pinched out. This may have occurred, and still the crevice or vein be the same throughout. In Iron Silver Mining Co. v. Cheesman, 116 U. S. 529, this subject was considered, and the following definition of a lode or vein (which we understand to be the equivalent of a range or crevice, as those terms are employed in this case) is given: “In general it may be said that a lode or vein is a body of mineral, or mineral body of rock, with defined boundaries, in the general mass of the mountain.” This is the definition given by Judge Hallett, in Stevens v. Williams, 1 McCrary, 480, 488. Speaking of obstructions to a vein or lode, Mr. Justice Miller, who delivered the opinion of the court in the case first above cited, said: “Now, a vein containing the precious metals is by no means always a straight line of uniform dip, or thickness, or richness of mineral matter throughout its course. Generally the veins are found in what, when the mineral is taken out of them, constitute clefts or fissures in the surrounding rock, with a well-defined wall above and below of different kinds of rock, as porphyry on one side, above or below, and limestone on the other. . So long as these inclosing walls can be distinctly and continuously traced and the mineral matter of the same character found between them, there can be no doubt that it is the same vein. But sometimes the cleft between the inclosing rocks, called in mining parlance the country rock, diminishes so as to be scarcely perceptible. Sometimes for a short distance the fissure disappears entirely and again is found distinctly to exist a little further on. Again it is seen that, though the underlying and superposing country rock is there, the mineral deposit ceases to be found, but, following the fissure, it reappears again very soon. It also happens that both fissure and mineral come to an 'end, and are found no more in that direction, or, if found, so far off or so deflected from the original line as to constitute no part of that vein. Of course, it is sometimes easy to see that it is the same vein all through. It is also easy to see, in some instances, that the vein is run out, — -is ended.” The court there sustain the following instruction given to the jury by the trial judge: “With well-defined boundaries, very slight evidence of ore within such boundaries will prove the existence of a lode. Such boundaries constitute a fissure, and if in such fissure ore is found, although at considerable intervals and in small quantities, it is called a lode.”

In the present case it appears by the testimony of John Dixon and the defendant John Anthony that at a point about 100 feet west of the second shaft beyond the stone fence the crevice pinched out; that is, the walls thereof came nearly together. As the latter witness expressed it, “ they barred up very narrow to a seam.” The owners of the range thereupon sunk another shaft to the westward, in the general direction of the range, hoping to strike the lost crevice. The circuit judge found that this shaft was forty-five feet ahead of the place where the work had stopped. The evidence does not clearly show the location of such shaft, but it was probably not many yards west or southwest of the point where the crevice had pinched out. From this shaft a drift was made in the same general direction, and finally a crevice was struck in which mineral was again found. It does not satisfactorily appear how far this drift was run before the crevice was struck, nor how far the latter point is from the point where the crevice pinched out. The fair inference from all the testimony, however, is that it could not have been more than a few rods. The parties working the range, especially John Dixon, who had the principal direction of the work, supposed that they had found the original crevice, and none of them seem to have thought they had found a new vein of “mineral. Dixon uniformly speaks of the last-alleged discovery as “striking up the diggings again,” and says that he expressed the opinion, when they came to the obstruction, that-the vein was “split up,” and he was determined to explore further for it. The idea of a new discovery seems first to have 'taken shape on the trial in the circuit court. So far as the testimony shows, the crevice, before it reached the barrier, and after the barrier was passed, was of the same general character — no change in the rock, or in general, direction of the crevice, is indicated. Besides, the mineral found on both sides of the barrier was alike.

The above considerations have impelled our minds' to the conclusion that, within the definition of a lode or vein above given, the crevice east of the barrier which cut the same off, and that discovered west of the barrier, which extends, to the 300-yards limit, is one and the same crevice or range, and that the finding of the mineral therein wrest of the barrier is not in any correct sense a new discovery.

It follows from the foregoing views that the plaintiff is entitled to judgment.

By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded with directions to that court to give judgment for the plaintiff granting a perpetual injunction as prayed, and awarding him compensation for the mineral taken by the defendants from the crevice west of the 300-yards point and appropriated to their own use.

A motion for a rehearing was denied March 12,1889.