Where special findings are irreconcilable with a general
verdict, the former control the latter.
If the findings are fairly susceptible of two constructions, the
one upholding and the other overthrowing the general verdict, the
former will be accepted as the true construction.
The top or apex of a vein must be within the boundaries of the
claim, in order to enable the locator to perfect his location and
obtain title, but
Page 144 U. S. 20
this apex is not necessarily a point, but often a line of great
length, and if a portion of it is found within the limits of a
claim, that is sufficient discovery to entitle the locator to
obtain title.
Prior to March, 1882, plaintiffs in error, defendants below,
filed their application in the United States land office at Helena,
Montana, for a patent to the Smelter lode claim. Defendants in
error plaintiffs below, "adversed," claiming as owners of a
conflicting location, called the "Comanche Lodge Claim," and
thereafter commenced this action in the District Court of the
Second Judicial District of the Territory of Montana to determine
the right of possession to the disputed territory, an area, as
alleged, of 7.79 acres. There were two trials in the district
court, in each of which the verdict and judgment were in favor of
the plaintiffs. The first judgment was reversed by the supreme
court of the territory, and a new trial ordered. 5 Mont. 600. The
second judgment was affirmed by that court, 7 Mont. 449, which
judgment of affirmance was brought by writ of error.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The first judgment was reversed by the supreme court of the
territory on the ground that there had been no discovery of a vein
or lode within the Comanche territory at the time of the location
of that claim. Immediately north of the Comanche was the Shannon
claim, which at the time of the commencement of this suit had been
surveyed and patented, and it appears from the opinion of the
supreme court that at the first trial the testimony showed that the
discovery shaft of the Comanche was wholly within the limits and
boundaries of the Shannon claim. The contest at the second trial
was as to the position of that discovery shaft, and of the apex
of
Page 144 U. S. 21
the vein disclosed by it. Unquestionably, if not on the boundary
line between the Comanche and Shannon claims, the shaft was very
close to it. The testimony of the defendants tended to show that it
was wholly on the Shannon claim; that of the plaintiffs, that it
was partly on both claims, extending some 19 inches in width into
the Comanche claim, and that the apex of the vein was within the
limits of these 19 inches.
The jury returned a general verdict for the plaintiffs, and also
made certain findings of fact at the instance of the respective
parties. It is doubtless true that where special findings are
irreconcilable with a general verdict, the former control the
latter, and upon this rule plaintiffs in error rely for a reversal.
It is also true that if the findings are fairly susceptible of two
constructions, one upholding and the other overthrowing the general
verdict, the former will be accepted as the true construction,
because it will not be presumed that the jury had different
intentions in the findings and in the verdict.
St. Louis &
San Francisco Railway Co. v. Ritz, 33 Kan. 404. So that if the
meaning of these findings be doubtful, we should adopt that which
conforms to and upholds the verdict.
It is unquestioned law that the top or apex of a vein must be
within the boundaries of the claim in order to enable the locator
to perfect his location, and obtain title. Turning to the findings,
these three are all that are pertinent to this question -- two in
response to interrogatories submitted by the plaintiffs and the
other to one submitted by the defendants:
"1st. Did the locators of the Comanche lode claim, prior to the
location of said claim, discover in the shaft claimed by them as
discovery shaft a vein or crevice of quartz or ore, with at least
one well defined wall on a lode or vein of rock in place bearing
gold, silver, or other valuable mineral deposits?"
"Answer. Yes."
"2d. If your answer to the foregoing interrogatory be 'Yes,'
then answer: was any part of such vein or lode discovered by the
locators of said Comanche claim at the point of discovery, south of
the south boundary line of the Shannon lode claim as patented, and
within the limits of the said Comanche lode claim as located? "
Page 144 U. S. 22
"Answer. Yes."
"3d. If the jury find that the locators of the Comanche lode
claim discovered a vein in the hole or shaft claimed as they
Comanche discovery, then the jury will answer: was the top or apex
within the limits of the Shannon claim as patented?"
"Answer. No."
We fail to see any conflict between these findings and the
general verdict. They show that within the discovery shaft a vein
was disclosed, and that the top or apex of such vein was not within
the limits of the Shannon claim. It follows, of course, that it
must have been within the Comanche claim, and that was sufficient
to sustain the location. It is said that the second finding, which
is to the effect that a part of such vein or lode was south of the
boundary line and within the limits of the Comanche claim, carries
with it the implication that part was north of that boundary and
within the Shannon claim; that, as the testimony shows that the
general direction of the dip was southward, and only a part of the
vein or lode was within the Comanche claim, the apex of this vein
was necessarily within the Shannon claim. But it is distinctly
found that the top or apex was not within the limits of the Shannon
claim, and because the jury responded "Yes" to a question as to
whether a part of this vein was within the Comanche claim, it does
not follow that they would have responded "No" if the question had
been whether all of the vein was within the Comanche territory.
Doubtless the form of this question was adopted by counsel for
plaintiffs in view of the conflict as to the boundary line; but it
is not fair to infer from the mere form that the jury meant to
find, or would have found if the distinct inquiry had been
presented to them, that any portion of the vein was within the
Shannon territory. It would be a strained inference from the facts
as found that any portion of the vein, from its apex downward, so
far at least as disclosed in the discovery shaft, was north of the
boundary line and within the limits of the Shannon claim. There is
therefore no conflict between the findings and the verdict, and
there was ample testimony to sustain both.
Page 144 U. S. 23
Counsel for plaintiffs in error insists that under the
instructions, the jury might have found for the plaintiffs if any
portion of the apex was within the Comanche territory, and in
support thereof refers to this instruction:
"(8) (Given.) The apex of a vein or lode is the highest point
thereof, and may be at the surface of the ground or at any point
below the surface. When the vein or lode does not crop out, but is
what is called a 'blind' vein or lode, the apex thereof would
necessarily be below the surface of the ground, and in this case
you are instructed that if the locators of the Comanche lode vein
at the time of the location thereof, or if, from the work done by
others prior thereto, they could see at any point within the limits
of said location, a lode or vein the top or apex of which was
within the said lines of their location, then in such case they
made a discovery of a lode or vein such as the law requires to be
made to entitle them to locate the ground, and it is wholly
immaterial as to the amount or quantity of such vein or lode which
may have been found within the limits of their said location; any
amount of it would suffice, however small, either as to the amount
of the vein or its apex within the limits of the said
location."
While the giving of this instruction was at the trial excepted
to, error has not been here assigned thereon, and with one
construction, at least, of its language, it is undoubtedly correct.
The apex of a vein is not necessarily a point, but often a line of
great length. Any portion of the apex on the course or strike of
the vein found within the limits of a claim is sufficient discovery
to entitle the locator to obtain title, for while the owner of a
vein may follow it in its descent into another's territory beyond
his own side lines, he cannot beyond his end lines, and the vein
beyond those end lines is subject to further discovery and
appropriation. That such was the understanding by the jury of the
instruction and such the fact in this case is evident from the
findings. Indeed, it would seem from some of the testimony that the
course or strike of this vein was not exactly along the boundary
line between the Comanche and the Shannon, but varying somewhat
therefrom; hence the apex, in its full width, and with some
portions of its
Page 144 U. S. 24
length, might be found in each claim, and, so discovered,
justify the discoverer in obtaining title to each.
We see no error in the proceedings, and the judgment will be
Affirmed.