Roxanna Gold Mining & Tunneling Co. v. Cone

100 F. 168, 1899 U.S. App. LEXIS 3470

• Court: U.S. Circuit Court for the District of Colorado
• Decided: December 27, 1899
• Docket: No. 3,968
• Status: Published

Opinions

HALLETT, District Judge

(orally). This is a bill to restrain work upon a mine. The complainant charges that it owns the Mountain Monarch lode mining claim, in the Cripple Creek district, county of Teller, and that respondents are taking ore from within the surface lines at a considerable depth underground. Complainant’s title to the Mountain Monarch claim is not disputed, nor is the charge denied that the respondents are removing ore from the claim. Without stating the pleadings at length, or the matters set forth in the affidavits in respect to the contentions of the parties, it appears that respondents are operating from another claim south of the complainant’s claim, called the “Doctor,” and that they have descended into rhe ground in controversy, following the Doctor vein from the Doctor location upon the dip; the lode which in the pleadings and in the affidavits is called the “Doctor” vein having a dip to the north from that location. The position of the respondents is that there is but one vein having a continuous course through the Doctor location, and that is the vein which they have followed from the Doctor location to and under the Mountain Monarch location. Complainant contends that there are two veins in that locality, one which is (tailed the “Jack Po1.” vein, and another called the “Doctor” vein, the latter being the one under which respondents claim. The Mountain Monarch and the Doctor claims are not contiguous. The two locations are some distance apart, and in the space intervening between the two locations is a claim called the “Elizabeth Cooper.” According to complainant’s theory, one of these veins — the Doctor vein — has an apex in the Doctor location at the point in controversy, and from the west end of that loeátion to a distance eastward 600 feet or more. The other vein, called the “Jack Pot,” has an apex north of the Doctor location, and in the territory of the Elizabeth Cooper location, at the west end line of the Doctor, which enters the Doctor location a considerable distance north of the west end line, and through the north side line of the Doctor, and passes on through ihat claim. Complainant has filed a map made by the surveyors, who support complainant’s application with affidavits which show the location of the apex of each of these veins, the Doctor and the Jack Pot. Looking at this map, the apex of the Doctor vein crosses the west end line of the Doctor location, and passes eastward through that location. The apex of the Jack Pot vein is in the Elizabeth Cooper territory, and a little north of the Doctor location, at the west end line of that location, and enters the Doctor location a short distance east of the west end line of that location, and through the north side line. Accepting this statement of fact in respect to the position and extension of these two veins, it seems that the complainant has not the apex of the Doctor vein or of the Jack Pot vein at any point within its location.

Upon the complainant’s case as presented, and without referring to the defendants’ attitude in respect to the condition of things underground, these two veins coming together on- their dip within the territory of the Mountain Monarch, the ore Fill belong in that territory to the owner of the ajiex of one or the other of these veins. The complainant, not asserting or claiming title through and by means of the apex of one or the other of the veins, fails to show title as to either of them. According to the complainant’s statement of the position of the Jack Pot vein, the Doctor location would have no right to follow that vein into the ground in controversy. That right would be in the owners of the Elizabeth Cooper location; and the Doctor locators, the respondents in this bill, would have a right, owning- the apex within their territory, to follow the vein into the ground in controversy, subject to the prior right of the Elizabeth Cooper locators, assuming that to be the older of the two locations.

In other words, upon the case as stated by the complainant, the ownership of this ore stands between the Elizabeth Cooper people and the Doctor people, and not between the complainant and the Doctor people. The existence of the Doctor vein and its continuity to the place in controversy seems not to be questioned by the complainant. Complainant relies entirely upon the circumstance, which it alleges to be true, that there are two veins in that locality which unite at the tenth level, or between the tenth and twelfth levels, in the Mountain Monarch territory. So understood, the right is not with the complainant in either case. It must be with the owners ■of the Elizabeth Cooper or with the owners of the Doctor claim.

In this view, I think the motion for injunction should be denied. As the circumstance of the location and situation of these veins is perhaps not very fully explained, or not as fully explained as it may be at some other time, this ruling will be subject to the right of the complainant to renew its motion, if any different condition of affairs shall be developed in the territory in controversy.