Del Monte Mining Co. v. Last Chance Mining Co., 171 U.S. 55 (1898)

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Del Monte Mining and Milling Company v.

Last Chance Mining and Milling Company
No. 147

Argued December 8-9, 1897
Decided May 28, 1898
171 U.S. 55

CERTIFICATE FROM THE CIRCUIT COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

Syllabus

To the first question certified by the circuit court of appeals, viz.:

May any of the lines of a junior lode location be laid within, upon or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extralateral rights not in conflict with any rights of the senior location?

this Court returns an affirmative answer, subject to the qualification that no forcible entry is made.

It passes the second question, viz.:

2. Does the patent of the Last Chance Lode mining claim, which first describes the rectangular claim by metes and bounds and then excepts and excludes them from the premises previously granted to the New York Lode mining claim, convey to the patentee anything more than he would take by a grant specifically describing only the two irregular tracts which constitute the granted surface of the Last Chance claim?

because it needs no other answer than that which is contained in the discussion of the first question in its opinion.

To the third question, viz:

3. Is the easterly side of the New York Lode mining claim an "end line" of the Last Chance Lode mining claim within the meaning of sections 2320 and 2322 of the Revised Statutes of the United States?

it gives a negative answer.

The fourth question, viz.:

If the apex of a vein crosses one end line and one side line of a lode mining claim, as located thereon, can the locator of such vein follow it upon its dip beyond the vertical side line of his location?

it answers in the affirmative.

It holds that the fifth question, viz:

5. On the facts presented by the record herein, has the appellee the right to follow its vein downward beyond its west side line and under the surface of the premises of appellant?

in effect seeks from this Court a decision of the whole case, and therefore is not one which it is called upon to answer.

In discussing the first of these questions, the Court holds:

(1) That it is dealing with statutory rights, and may not go beyond the terms of the statutes.

(2) That, as Congress has prescribed the conditions upon which extralateral rights may be acquired, a party must bring himself within those conditions or else be content with simply the mineral beneath the surface of his own territory.

(3) That the government does not grant the right to search for minerals in lands which are the private property of individuals, or authorize any disturbance of the title or possession of such lands.

(4) That the location of a mining claim means the giving notice of that claim; that it need not follow the lines of government surveys; that it is made to measure rights beneath the surface; and that, although the statute requires it to be distinctly marked on the surface, the doing so does not prevent a subsequent location by another party upon the same, or a part of the same, territory, as in such case the statute provides a way for determining the respective rights of the parties.

(5) That the requisition in the statute that the end lines of the location should be parallel was for the purpose of bounding the underground extralateral rights which the owner of the location might exercise.

(6) That the answer to the first question does not involve a decision as to the full extent of the rights beneath the surface which the junior locator acquires.

In discussing the fourth of these propositions, the Court says:

Our conclusions may be summed up on these propositions: First, the location as made on the surface by the locator determines the extent of rights below the surface. Second, the end lines, as he marks them on the surface, with the single exception hereinafter noticed, place the limits beyond which he may not go in the appropriation of any vein or veins along their course or strike. Third, every vein "the top or apex of which lies inside of such surface lines extended downward vertically" becomes his by virtue of his location, and he may pursue it to any depth beyond his vertical side lines, although in so doing he enters beneath the surface of some other proprietor. Fourth, the only exception to the rule that the end lines of the location as the locator places them establish the limits beyond which he may not go in the appropriation of a vein on its course or strike is where it is developed that in fact the location has been not along, but across, the course of the vein. In such case, the law declares that those which the locator called his side lines are his end lines, and those which he called end lines are in fact side lines, and this upon the proposition that it was the intent of Congress to give to the locator only so many feet of the length of the vein, that length to be bounded by the lines which the locator has established of his location.

This case is before this Court on questions certified by the Court of Appeals for the Eighth Circuit. The facts stated are as follows: the appellant is the owner in fee of the Del Monte lode mining claim, located in the Sunnyside Mining District, Mineral County, Colorado, for which it holds a patent bearing date February 3, 1894, pursuant to an entry made at the local land office on February 27, 1893. The appellee is the owner of the Last Chance lode mining claim, under patent dated July 5, 1894, based on an entry of March 1, 1894. The New York lode mining claim, which is not owned by either of the parties, was patented on April 5, 1894, upon an entry of August 26, 1893. The relative situation of these claims, as well as the course and dip of the vein, which is the subject of controversy, is shown on the following diagram:

Both in location and patent the Del Monte claim is first in time, the New York second, and the Last Chance third. When the owners of the Last Chance claim applied for their patent, proceedings in adverse were instituted against them by the owners of the New York claim, and an action in support of such adverse was brought in the United States Circuit Court for the District of Colorado. This action terminated in favor of the owners of the New York and against the owners of the Last Chance, and awarded the territory in conflict between the two locations to the New York claim. The ground in conflict between the New York and Del Monte, except so much thereof as was also in conflict between the Del Monte and Last Chance locations, is included in the patent to the Del Monte claim. The New York secured a patent to all of its territory except that in conflict with the Del Monte, and the Last Chance in turn secured a patent to all of its territory except that in conflict with the New York, in which last-named patent was included the triangular surface conflict between the Del Monte and Last Chance, which, by agreement, was patented to the latter. The Last Chance claim was located upon a vein, lode, or ledge of silver and lead-bearing ore which crosses its north end line, and continues southerly from that point through the Last Chance location until it reaches the eastern side line of the New York, into which latter territory it enters, continuing thence southerly with a southeasterly course on the New York claim until it crosses its south end line. No part of the apex of the vein is embraced within the small triangular parcel of ground in the southwest corner of the Last Chance location which was patented to the Last Chance as aforesaid, and no part of the apex is within the surface boundaries of the Del Monte mining claim. The portion of the vein in controversy is that lying under the surface of the Del Monte claim and between two vertical planes, one drawn through the north end line of the Last Chance claim extending westerly and the other parallel thereto, and starting at the point where the vein leaves the Last Chance and enters the New York claim, as shown on the foregoing diagram. Upon these facts, the following questions have been certified to us:

1. May any of the lines of a junior lode location be laid within, upon, or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extralateral rights not in conflict with any rights of the senior location?

2. Does the patent of the Last Chance lode mining claim, which first describes the rectangular claim by metes and bounds, and then excepts and excludes therefrom the premises previously granted to the New York lode mining claim, convey to the patentee anything more than he would take by a grant specifically describing only the two irregular tracts which constitute the granted surface of the Last Chance claim?

3. Is the easterly side of the New York lode mining claim an "end line" of the Last Chance lode mining claim within the meaning of sections 2320 and 2322 of the Revised Statutes of the United States?

4. If the apex of a vein crosses one end line and one side line of lode mining claim, as located thereon, can the locator of such vein follow it upon its dip beyond the vertical side line of his location?

5. On the facts presented by the record herein, has the appellee the right to follow its vein downward beyond its west side line, and under the surface of the premises of appellant?