Under §§ 2320, 2322, and 2324 of the Revised Statutes, the
surface side lines of a mining location on a mineral vein, lode, or
ledge, extended downward vertically, determine the extent of the
claim except when, in its descent, the vein passes outside of such
surface side lines, and then the outside portions of the vein must
lie between vertical planes drawn downward through the end lines of
the surface location and continued in their own direction, and the
parallelism of such end lines is essential to the existence of any
right in the locator to follow the vein outside of vertical planes
drawn through the side lines.
This is an action to recover possession of certain mining ground
in Lake County, Colorado. The plaintiffs in the court below, the
defendants in error here, assert title to the premises under a
patent of the United States for what is known as the "Gilt Edge
Claim," of which they are a part. In the original complaint, they
asserted title by conveyance from the
Page 118 U. S. 197
original locators. A patent to them having been subsequently
granted, they filed an amended complaint setting up its issue and
that it conveys to them a fee simple title.
The complaint avers that the defendant, the Iron Silver Mining
Company, on the 25th of June, 1882, by means of drifts, inclines,
and tunnels, entered without right upon a portion of the Gilt Edge
claim, which it has since wrongfully withheld from the plaintiffs,
to their damage of $50,000, and that it has excavated, carried
away, and converted to its own use since such entry gold, silver,
and lead ores belonging to them of the value of $50,000. They
therefore pray judgment for the premises and damages for their
wrongful detention, and for the ores taken.
The defendant in its answer denies the several allegations of
the complaint and sets up as an affirmative defense that under a
patent of the United States bearing date May 24, 1877, it is the
owner in fee and entitled to the possession of a surface lode
mining claim also situated in Lake County, Colorado, called the
"Stone Claim," containing 9.18 acres of land, more or less, and of
a vein, lode, or ledge therein, extending the length of the claim
from north to south 1,500 feet, throughout its entire depth,
although it enters adjoining lands; that the vein, lode, or ledge
contains iron, lead, and silver in large quantities; that the top,
apex, and outcrop of it are found in the surface claim throughout
its entire extent; that its true strike is north and south, with a
dip to the east at an angle of fifteen degrees below the plane of
the horizon; that the vein, lode, or ledge on its dip, within
vertical planes drawn downward, with its end lines continued in
their own direction -- that is, in the direction of the dip --
passes through and beyond the east vertical side line of the
surface claim and location into and under the Gilt Edge surface
claim, and the defendant admits that underneath the surface of the
Gilt Edge claim it has followed and mined upon the Stone vein,
lode, or ledge, and avers that, by reason of the facts above set
forth, it had the right so to do, and denies that it has otherwise
interfered with the Gilt Edge claim or any part of it.
Page 118 U. S. 198
The plaintiffs in their reply deny the material allegations of
the answer. By stipulation, the case was tried by the court without
the intervention of a jury. On the trial, the plaintiffs produced
in evidence a patent of the United States to them for the Gilt Edge
claim, in the usual form of patent for lode mining claims, and the
defendant admitted that they were invested with the title to the
property which the patent conveyed; that it had entered underneath
the surface of that claim at a point east of the Stone surface
claim, and was engaged in mining and in carrying away lead and
silver ores when the action was commenced.
It was agreed that plat
A (
see page
118 U. S. 199)
correctly represents the shape and relative positions of the Gilt
Edge mining claim and of the Stone mining claim, and that the lines
on the figures of the Stone claim, from No. 5 to 6 and from 1 to
14, are the two end lines of the surface claim, so called by the
locator thereof, and in the plat accompanying the application for
the patent. It was also agreed that plat
B (
see
page
118 U. S. 200)
is a correct copy of the plat of the Gilt Edge claim contained in
the patent thereof, which also shows its relative position to the
Stone claim, the latter being marked Sur. No. 217.
And thereupon the plaintiffs rested. The defendant then
introduced in evidence a patent for the Stone claim bearing date
May 24, 1877, issued to one Alvinus B. Wood, and it was admitted
that, by divers mesne conveyances, the defendant holds title in fee
to the premises described in it. The patent gives a full and minute
description by metes and bounds of the surface claim, containing
9.18 acres of land, more or less, and embracing 1,500 linear feet
of the Stone lode along the course thereof. Its granting clause is
as follows:
"Now know ye that the United States of America, in consideration
of the premises, and in conformity with the said Revised Statutes
of the United States, have given and granted, and by these presents
do give and grant unto the said Alvinus B. Wood, and to his heirs
and assigns, the said mining premises hereinbefore described as lot
No. 217, embracing a portion "
Page 118 U. S. 199
image:a
Page 118 U. S. 200
image:b
"of the unsurveyed public domain, with the exclusive right of
possession and enjoyment of all the land included within the
exterior lines of said survey not herein expressly excepted from
these presents, and of fifteen hundred (1,500) linear feet of the
said Stone vein, lode, ledge, or deposit, for the length
hereinbefore described, throughout its entire depth, although it
may enter the land adjoining, and also of all other veins, lodes,
ledges, or deposits, throughout their entire depth, the tops or
apexes
Page 118 U. S. 201
of which lie inside the exterior lines of said survey at the
surface extended downward vertically, although such veins, lodes,
ledges, or deposits in their downward course may so far depart from
a perpendicular as to extend outside the vertical side lines of
said survey,
provided that the right of possession hereby
granted to such outside parts of said veins, lodes, ledges, or
deposits shall be confined to such portions thereof as lie between
vertical planes drawn downward
through the end lines of said
survey at the surface, so continued in their own direction
that such vertical planes will intersect such exterior parts of
said veins, lodes, ledges, or deposits,
and provided
further that nothing in this conveyance shall authorize the
grantee herein, his heirs or assigns, to enter upon the surface of
a mining claim owned or possessed by another, to have and to hold
said mining premises, together with all the rights, privileges,
immunities, and appurtenances, of whatsoever nature, thereunto
belonging unto the said Alvinus B. Wood, and to his heirs and
assigns forever, subject, nevertheless, to the following conditions
and stipulations:"
"First. That the grant hereby made is restricted to the land
hereinbefore described as lot No. 217, with fifteen hundred (1,500)
linear feet of the Stone vein, lode, ledge, or deposit for the
length aforesaid, throughout its entire depth as aforesaid,
together with all other veins, lodes, ledges, or deposits,
throughout their entire depths as aforesaid, the tops or apexes of
which lie inside the exterior lines of said survey."
"Second. That the premises hereby conveyed, with the exception
of the surface, may be entered by the proprietor of any other vein,
lode, ledge, or deposit the top or apex of which lies outside the
exterior limits of said survey, should the same, in its downward
course, be found to penetrate, intersect, extend into, or underlie
the premises hereby granted, for the purpose of extracting and
removing the ore from such other vein, lode, ledge, or
deposit."
"Third. That the premises hereby conveyed shall be held subject
to any vested and accrued water
Page 118 U. S. 202
rights for mining, agricultural, manufacturing, or other
purposes, and rights to ditches and reservoirs used in connection
with such water rights, as may be recognized and acknowledged by
the local laws, customs, and decisions of courts."
"Fourth. That in the absence of necessary legislation by
Congress, the Legislature of Colorado may provide rules for working
the mining claim or premises hereby granted involving easements,
drainage, and other necessary means to its complete
development."
The defendant then offered to prove:
"(1) That the Stone vein, lode, or ledge mentioned in the patent
is a vein, lode, or ledge of rock in place bearing iron, lead, and
silver in large quantities, and is valuable on account
thereof."
"(2) That the top, apex, and outcrop of the vein, lode, or ledge
exist and are found in the Stone surface claim through its entire
extent from north to south between walls of rock in place, a
limestone footwall, and a porphyry hanging wall."
"(3) That the true strike of the vein, lode, or ledge is north
and south, and has a dip to the east at an angle of 15� below the
plane of the horizon."
"(4) That the vein, lode, or ledge, on its dip within vertical
planes drawn downward through the end line of the vein, lode, or
ledge, so existing and found within the Stone surface mining claim,
and continued in their own direction,
viz., in the
direction of the dip of the vein, lode, or ledge, passes through,
out of, and beyond the east vertical side line of the Stone surface
claim and location into lands adjoining, to-wit, into and under the
said Gilt Edge surface claim."
"(5) That while the defendant admits that underneath the surface
of the Gilt Edge surface claim it has followed and mined in and
upon the Stone vein, lode, or ledge, by reason of the facts and
premises above set forth, it had a right so to do, and that it has
not otherwise in any way interfered with said Gilt Edge claim or
any part thereof. To which plaintiffs objected on the ground that
the proffered proof would not be a defense to the action nor tend
to establish a defense thereto, and that by reason of the surface
form or shape of the Stone claim, its owners had no right, under
the laws of the United States or otherwise, to follow the lode
Page 118 U. S. 203
alleged to exist therein in its downward course beyond the lines
of the claim and into plaintiffs' claim, and that no part of the
Gilt Edge claim, or the mineral or lode within it, was within
vertical planes drawn downward through the end lines of the Stone
claim and continued indefinitely in their own direction. The court
sustained the objection and excluded the evidence offered, to which
ruling the defendant excepted."
The following diagram, showing the shape of the Stone claim, its
exterior lines, its center line, and the line of the apex of the
vein as alleged by the defendant, was also put in evidence:
image:c
Page 118 U. S. 204
Another diagram of the Stone claim was introduced in evidence,
but as it was similar to the one above with the exception of the
lines showing the course of the apex, the direction of the strike,
and the dip of the vein, it is not important to exhibit it in this
statement. No other evidence was offered. The court found the
issues for the plaintiffs, and judgment was entered in their favor,
to review which the case was brought here.
MR. JUSTICE FIELD, after stating the case as above reported,
delivered the opinion of the Court.
The question presented for our decision is one of great interest
to miners on the public lands, and with respect to it much
difference of opinion exists.
This difference has arisen from a consideration, on the one
hand, of what would properly be called the true end lines of a
claim upon a lode of a specified length and width after it has been
opened by explorations and its general course and direction are
seen, and a consideration, on the other hand, of the statute
requiring the location of a claim to be distinctly marked on the
ground so that its boundaries may be readily traced. Such location
often precedes any extended explorations, and is therefore made
without accurate knowledge of the course and direction of the vein.
When a vein has been discovered, the rules of miners and the
legislative regulations of mining states and territories generally
allow some specified time for explorations before the location is
definitely marked. But miners discovering a lode are sometimes in
such haste to locate their claim and mark its extent and boundaries
on the surface that they omit to make sufficient explorations to
guide them aright in measuring the ground and fixing its end lines.
Hence efforts are not infrequently made to change those lines when
the true course and
Page 118 U. S. 205
direction of the vein are ascertained by subsequent
developments.
The framers of the statute of 1872 evidently proceeded upon the
theory that a claim on a lode, following its outcroppings on the
surface for the distance allowed, with a definite extension on each
side of the middle of the vein, would generally take the form of a
parallelogram. It provided that the length of a claim subsequently
located, whether by one or more persons, should not exceed 1,500
feet; that its extension on each side of the middle of the vein at
the surface should not exceed 300 feet, and that its end lines
should be parallel to each other. Rev.Stat. 2320. A section of the
lode within vertical planes drawn downward through the lines marked
on the surface was designed as the grant to the original locator,
but as the vein in its downward course might deviate from a
perpendicular and pass out of the side lines, the right was
conferred to follow it outside of them, but within planes through
the end lines drawn vertically downward and continued in their own
direction. The language of that statute, as carried into the
Revised Statutes, is as follows:
"The locators of all mining locations heretofore made or which
shall hereafter be made on any mineral vein, lode, or ledge,
situated on the public domain, their heirs and assigns, where no
adverse claim exists on the tenth day of May, 1872, so long as they
comply with the laws of the United States, and with state,
territorial, and local regulations not in conflict with the laws of
the United States governing their possessory title, shall have the
exclusive right of possession and enjoyment of all the surface
included within the lines of their locations and of all veins,
lodes, and ledges throughout their entire depth, the top or apex of
which lies inside of such surface lines extended downward
vertically, although such veins, lodes, or ledges may so far depart
from a perpendicular in their course downward as to extend outside
the vertical side lines of such surface locations. But their right
of possession to such outside parts of such veins or ledges shall
be confined to such portions thereof as lie between vertical planes
drawn downward, as above described, through the end
Page 118 U. S. 206
lines of their locations, so continued in their own direction
that such planes will intersect such exterior parts of such veins
or ledges. And nothing in this section shall authorize the locator
or possessor of a vein or lode which extends in its downward course
beyond the vertical lines of his claim to enter upon the surface of
a claim owned or possessed by another."
Rev.Stat. § 2322.
This section appears sufficiently clear on its face. There is no
patent or latent ambiguity in it. The locators have the exclusive
right of possession and enjoyment of "all the surface included
within the lines of their locations," and the location, by another
section, must be distinctly marked on the ground so that its
boundaries can be readily traced. Rev.Stat. § 2324. They have also
the exclusive right of possession and enjoyment
"of all veins, lodes, and ledges throughout their entire depth,
the top or apex of which lies inside of such surface lines extended
downward vertically, although such veins, lodes, or ledges may so
far depart from a perpendicular in their course downward as to
extend outside the vertical side lines of said surface
locations."
The surface side lines, extended downward vertically, determine
the extent of the claim except when in its descent the vein passes
outside of them, and the outside portions are to lie between
vertical planes drawn downward through the end lines. This means
the end lines of the surface location for all locations are
measured on the surface.
The difficulty arising from the section grows out of its
application to claims where the course of the vein is so variant
from a straight line that the end lines of the surface location are
not parallel, or, if so, are not at a right angle to the course of
the vein. This difficulty must often occur where the lines of the
surface location are made to control the direction of the vertical
planes. The remedy must be found, until the statute is changed, in
carefully making the location, and in postponing the marking of its
boundaries until explorations can be made to ascertain as near as
possible the course and direction of the vein. In Colorado, the
statute allows for this purpose sixty days after notice of the
discovery of the lode. Then the location must be distinctly marked
on the ground, and thirty days
Page 118 U. S. 207
thereafter are given for the preparation of the proper
certificate of location to be recorded.
Erhardt v. Boaro,
113 U. S. 527,
113 U. S. 533.
Even then, with all the care possible, the end lines marked on the
surface will often vary greatly from a right angle to the true
course of the vein. But whatever inconvenience of hardship may thus
happen, it is better that the boundary planes should be definitely
determined by the lines of the surface location than that they
should be subject to perpetual readjustment according to
subterranean developments made by mine workings. Such readjustment
at every discovery of a change in the course of the vein would
create great uncertainty in titles to mining claims. The rule,
whatever hardship it may work in particular cases, should be
settled, and thus prevent, as far as practicable, such
uncertainty.
If the first locator will not or cannot make the explorations
necessary to ascertain the true course of the vein, and draws his
end lines ignorantly, he must bear the consequences. He can only
assert a lateral right to so much of his vein as lies between
vertical planes drawn through those lines. Junior locators will not
be prejudiced thereby, though subsequent explorations may show that
he erred in his location.
The provision of the statute that the locator is entitled,
throughout their entire depth, to all the veins, lodes, or ledges
the top or apex of which lies inside of the surface lines of his
location tends strongly to show that the end lines marked on the
ground must control. It often happens that the top or apex of more
than one vein lies within such surface lines, and the veins may
have different courses and dips, yet his right to follow them
outside of the side lines of the location must be bounded by planes
drawn vertically through the same end lines. The planes of the end
lines cannot be drawn at a right angle to the courses of all the
veins if they are not identical. It is also a fact of importance
that the Land Department has, since the act of 1872, followed the
end lines as marked on the surface, and has limited the
extralateral right of patentees by vertical planes drawn down
through such end lines, as in the patent to Wood in this case. Any
decision that the department
Page 118 U. S. 208
erred in that respect, and that the rights of the patentees were
different, would disturb titles derived from such patents, and lead
to great confusion and litigation. If it is expedient to change the
rule, legislative action should be invoked, as it would operate
only in the future, and not judicial decision which would affect
past cases as well.
This view of the controlling effect of the end lines of the
surface location is also sustained by the decision of this Court in
the Flagstaff case.
Mining Co. v. Tarbet, 98 U. S.
463. There, the Court said that "the most practicable
rule is to regard the course of the vein as that which is indicated
by surface outcrop, or surface explorations and workings," and that
"it is on this line that claims will naturally be laid, whatever be
the character of the surface, whether level or inclined," and that
the end lines of the claim, properly so called, "are those which
are crosswise of the general course of the vein on the surface."
The Court suggested that the law might be imperfect in this
respect, and that perhaps the true course of the vein should
correspond with its strike, or the line of a level run through it;
but it added that this "can rarely be ascertained until
considerable work has been done, and after claims and locations
have become fixed."
Under the Act of 1866, 14 Stat. 251, parallelism in the end
lines of a surface location was not required, but where a location
has been made since the act of 1872, such parallelism is essential
to the existence of any right in the locator or patentee to follow
his vein outside of the vertical planes drawn through the side
lines. His lateral right by the statute is confined to such portion
of the vein as lies between such planes drawn through the end
lines, and extended in their own direction -- that is, between
paralleled vertical planes. It can embrace no other portion.
The exterior lines of the Stone claim form a curved figure
somewhat in the shape of a horseshoe, and its end lines are not and
cannot be made parallel. What are marked on the plat as end lines
are not such. The one between numbers 5 and 6 is a side line. The
draughtsman or surveyor seems to have hit upon two parallel lines
of his nine-sided figure, and, apparently
Page 118 U. S. 209
for no other reason than their parallelism, called them end
lines.
We are therefore of opinion that the objection that, by reason
of the surface form of the Stone claim, the defendant could not
follow the lode existing therein in its downward course beyond the
lines of the claim was well taken to the offered proof. Besides, if
the lines marked as end lines on the plat of that claim can be
regarded as such lines of the location, no part of the Gilt Edge
claim falls within vertical planes drawn down through those lines
continued in their own direction. In either view of the location of
the Stone claim, the rejected proof would have established no
defense. The premises in controversy are admitted to be under the
surface lines of the Gilt Edge claim eastward from the defendant's
claim, and the plaintiffs were therefore entitled to recover
them.
Judgment affirmed.
MR. JUSTICE GRAY did not hear the argument, nor take any part in
the decision of this case.
MR. CHIEF JUSTICE WAITE, with whom concurred MR. JUSTICE
BRADLEY, dissenting.
I cannot agree to this judgment. In my opinion, the end lines of
a mining location are to be projected parallel to each other and
crosswise of the general course of the vein within the surface
limits of the location, and whenever the top or apex of the vein is
found within the surface lines extended vertically downwards, the
vein may be followed outside of the vertical side lines. The end
lines are not necessarily those which are marked on the map as
such, but they may be projected at the extreme points where the
apex leaves the location as marked on the surface.
