Mining Company v. Tarbet
98 U.S. 463

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U.S. Supreme Court

Mining Company v. Tarbet, 98 U.S. 463 (1878)

Mining Company v. Tarbet

98 U.S. 463

ERROR TO THE SUPREME COURT

OF THE TERRITORY OF UTAH

Syllabus

1. Under an act entitled "An Act granting the right of way to ditch and canal companies over the public lands, and for other purposes," approved July 28, 1866, 14 Stat. 251, as well as under that entitled "An Act to promote the development of the mining resources of the United States," approved May 10, 1872, 17 id. 91, the location of a mining claim upon a lode or vein of ore, should be made along the same lengthwise of the course of its apex at or near the surface. If otherwise laid, it will only secure so much of the lode or vein as it actually covers.

2. Each locator is entitled to follow the dip of the lode or vein to an indefinite depth, though it carries him beyond the side lines of the location, but this right is based on the hypothesis that they substantially correspond with the course of the lode or vein at the surface, and it is bounded at each end by the end lines of the location, crossing the lode or vein and extended perpendicularly downwards and indefinitely in their own direction.

3. A location laid crosswise of a lode or vein, so that its greatest length crosses the same instead of following the course thereof, will secure only so much of the vein as it actually crosses at the surface, and its side lines will become its end lines, for the purpose of defining the rights of the owners.

4. A locator working subterraneously into the dip of the vein belonging to another, who is in possession of his location, is a trespasser, and liable to an action for taking ore therefrom.

The facts are stated in the opinion of the Court.

MR. JUSTICE BRADLEY delivered the opinion of the Court.

This was an action in the nature of trespass quare clausum fregit, brought in the District Court of the Territory of Utah for the Third District, by Alexander Tarbet, and continued by his assignee, Helen Tarbet, against the Flagstaff Silver Mining Company of Utah (limited), and other persons. The action having been dismissed as to the other persons, judgment was rendered for $45,000 damages upon the verdict of a jury against the company. The latter carried the case to the supreme court of the Territory, where the judgment was affirmed on the third day of June, 1878. The company thereupon sued out this writ of error.

The controversy relates to the working of a mine in Little

Page 98 U. S. 464

Cottonwood Mining District in the County of Salt Lake. The defendant in error claims to own and to have been in possession of a mining location on a lode called the Titus lode, the location including three claims, and extending six hundred feet westwardly from the discovery, with a width of two hundred feet, and including ten feet on the east side of the discovery belonging to the South Star mine. The plaintiff in error owned and had a patent for another mining location called the Flagstaff mine, one hundred feet in width and two thousand six hundred feet in length, running in a northerly and southerly direction, and crossing the Titus claims near the west end thereof, and nearly at right angles therewith. In working from the Flagstaff mine, the plaintiffs in error worked around subterraneously to a point some three hundred feet to the east of their location and on the north side of the Titus mine and within about one hundred feet of the Titus location. It is for this working that the suit was brought, and the principal question is whether the plaintiff in error had a right thus to work outside of its location on the east and whether in doing so it interfered with the rights of the defendant in error.

It is conceded that both parties are working on the same lode or vein of ore. The Flagstaff discovery, to which the location of the plaintiff in error relates as its starting point, is situated nearly due west from that of the South Star and Titus, and about five hundred and fifty feet therefrom. The lode crops out at the two points of discovery, but is not visible at intermediate points. These croppings, however, show that the direction or course of the apex of the vein at or near the surface is nearly east and west. The location of the Titus, claimed by the defendant in error, nearly corresponds with this surface course of the vein. The location of the Flagstaff, belonging to the plaintiff in error, crosses it nearly at right angles.

The principal difficulty in the case arises from the fact that the surface is not level, but rises up a mountain in going from the Titus discovery to the Flagstaff. The dip of the vein being northeasterly, it happens that, by following a level beneath the surface, the strike of the vein runs in a northwesterly direction, or about north 50

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