On the 28th of April, 1871, on a previous location made in 1857,
the Providence Gold and Silver Mining Company obtained a patent in
which it was recited that it was "the intent and meaning of these
presents to convey" to the company "the vein or lode in its entire
width for the distance of 3,100 feet along the course thereof."
Under that act, a patent could be issued for only one vein, but the
Act of May 10, 1872, c. 152, gave to all locations theretofore made
as well as to all thereafter made all veins, lodes and ledges, the
top or apex of which lies inside of the surface lines. September
29, 1877, the Champion Mining Company made a location upon the
Contact Vein, which overlapped the Providence location both as to
surface ground and lode. In 1884, a dispute took place which
brought about relocation of the lode line of the Champion Company,
but eventually the conflicting claims resulted in this suit.
Held,
(1) That the extent of the rights passing under the act of 1866
was decided by this Court in
Mining Co. v. Tarbet,
98 U. S. 463,
viz.,
that "the right to follow the dip of the vein is bounded by the
end lines of the claim."
(2) That that right stops at the end line of the lode location,
terminated by vertical lines drawn downward.
(3) That the original location and lode determined those end
lines.
The following propositions, announced in
Del Monte Mining
Co. v. Last Chance Mining Co., ante, 171 U. S. 55, are
affirmed with the addition that the end lines of the original veins
shall be the end lines of all the veins found within the surface
boundaries:
"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 placed 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
Page 171 U. S. 294
called end lines are in fact side lines, and this upon the
proposition than 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."
There is no merit in the contention that, by agreement, by
acquiescence, and
by estoppel, the line
f-g on the plan has become the
end line of the two claims. It is the end lines alone which define
the extralateral rights, and they must be straight lines, not
broken or curved lines, and to such the right on the vein below is
strictly confined.
The relative situation of the two properties, and the portion of
the ledge in controversy, is shown by the following
171
U.S. 293fig1|>Fig. No. 1, the disputed section being
contained between the lines thereon marked "Line claimed by
Providence" and "Line claimed by Champion"
|
171
U.S. 293fig1|
image:a
The figures marked "New Years" and "New Years Extension"
represent the surface of the mining properties owned by defendant,
while that marked "Providence Mine" represents the surface of the
patented ground of the plaintiff.
The action was brought May 24, 1892, to recover $300,000 damages
for ore extracted from the ledge and carried away by the defendant,
and for an injunction against further trespasses thereon.
Upon motion of appellee, the action was removed to the United
States circuit court as involving a federal question, where the
complainant recast his pleadings so as to separate the action into
a bill in equity, upon which the action is now proceeding, and an
action at law for the damages alleged.
The suit in equity was tried in the circuit court, and decided
mainly in favor of the appellee.
From this decree the appellant appealed to the Court of
Page 171 U. S. 296
Appeals for the Ninth Circuit, where it was modified, and as
modified affirmed.
The appellant now brings the case to this Court upon writ of
error from the court of appeals.
The appellant's title is deraigned as follows: in 1857, under
the miners' rules and customs then in force, thirty-one locators
located thirty-one hundred feet of the Providence or Granite lode.
By mesne conveyances, the title to this location became vested in
the Providence Gold & Silver Mining Company, and on April 28,
1871, that company obtained a patent to thirty-one hundred feet of
the lode, and for surface ground, as described in the patent.
The title thus granted to the Providence Gold & Silver
Mining Company was, before the commencement of this suit, vested in
the appellant.
The ledge, as granted by the patent, extends thirty feet north
of the north surface line of the location, and some six hundred and
eighty feet south of the south surface line.
The patent conveyed only the Providence ledge and the surface
ground. All other ledges contained within the surface lines were
expressly reserved.
It is also contended by appellant that, by the Act of Congress
of May 10, 1872, exclusive possession of all the surface included
within the lines of the location was granted to the owners of the
Providence, together with all other lodes or ledges having their
tops or apexes within such surface lines. This grant, of course,
included the Contact vein, subsequently discovered within said
boundaries and now constituting the bone of contention in this
action.
The Contact vein is shown in the figure, and crosses the surface
line
f-g of the Providence location.
On September 29, 1877, the appellee and defendant, the Champion
Mining Company, made a location upon the Contact vein, called the
"New Years Extension Mine." This location overlapped, both as to
surface ground and lode, upon the Providence location -- that is,
the lode line and surface lines of the said New Years Extension
extended to the south of the boundary line,
f-g, of the
Providence location.
Page 171 U. S. 297
The New Years Extension mine is shown in the following
171
U.S. 293fig2|>Fig. No. 2, together with the conflict caused
by the overlap (the conflicting surface portion being shaded, and
showing the Contact vein passing through it).
|
171
U.S. 293fig2|
image:b
In the year 1884, the complainant and his co-owners objected to
the overlap, and demanded of the Champion Mining Company that it
abandon all claims to the surface and lode to the south of the
Providence boundary line above described. Thereupon, in the month
of November, 1884, John Vincent, the superintendent of the
defendant, the Champion Mining Company, under the authority and by
the direction of the said company, relocated the New Years
Extension mine by a notice of relocation, in which the fact of the
overlap under the original location was particularly recited, and
the lines were readjusted so as to avoid the overlap, and to
conform to said line
f-g of the Providence mine, as shown
on
171
U.S. 293fig1|>Fig. 1.
In the notice of relocation, the lode line was particularly
described as follows:
"The lode line of this claim, as originally located, and which I
hereby relocate, is described as follows: commencing at a point on
the northerly bank of Deer Creek, which point is 60 feet south, 11
degrees 45 minutes east, of the mouth of the New Years tunnel, and
running thence along the line of the lode towards the N.E. corner
of the Providence mill, about S., 46 degrees 15 minutes east, 200
feet, more or less, to a point and stake on the northerly line of
the Providence mine, patented, designated as 'Mineral Lot No. 40,'
for the south end of said lode line."
It also contained the following statement:
"And whereas part of this claim, as originally described and as
hereby relocated, conflicts with the rights granted by letters
patent of said Providence mine, said lot No. 40, now therefore so
much of this claim, both of lode and surface ground, as originally
conflicted or now conflicts with any portion of the surface or lode
claims or rights granted by said patent, is and are hereby
abandoned, which portion of this claim so abandoned is described as
follows: all that portion of the above-described New Years
Extension claim for surface and lode which lies south of the
northern boundary line of said
Page 171 U. S. 298
Providence mine, which runs north 43 degrees 10 minutes east,
across the southeastern corner of this claim."
The New Years Extension, as relocated, is coterminous with the
Providence mine on the northerly boundary line, designated as the
line
f-g, running south, 43 degrees west. (
171
U.S. 293fig1|>Fig. 1.)
That line is the only boundary between the two properties, and
the only boundary of the Providence location which is crossed by
the Contact ledge.
The first workings of the appellee involved no conflict with
appellant. The shaft ran parallel with the Providence line, and
none of the levels crossed that line until about three months
before this suit was begun, when the 1,000-foot level was driven
across it into the ground in dispute. Subsequently the eighth and
ninth levels were driven across.
The work done by the Providence was carried on through a shaft
sunk on the Providence or Granite ledge, from which shaft a
crosscut was run back to the Contract vein on the 600-foot level,
and another on the 1,250-foot level, and much of the ground now in
controversy was thereby prospected and opened up by complainant and
his co-owners.
See 171
U.S. 293fig1|>Fig. 1.
The claims of the respective parties will be readily understood
by reference to
171
U.S. 293fig1|>Fig. 1, which shows the relative position of
all the mining properties belonging to both, with the lines claimed
by them.
The portion of the Contact vein in dispute is that, upon the dip
of the ledge lying between the line marked "Line claimed by
Providence" and the line marked "Line claimed by Champion."
The apex of the Contact vein is represented by the dotted line
x-x^1, and shows the vein as far as exposed in both the
Champion and Providence ground. South of
x, the course of
the vein in the Providence ground is unknown.
The line
f-g is the same line as that designated A-B by
some of the witnesses.
Upon the trial, the circuit court held that there could be but
one end line for each end of the Providence location, and that the
lines
g-h and
a-p constituted such end lines;
that
Page 171 U. S. 300
such lines constituted the end lines of not only the originally
discovered Providence lode, but also of every other vein that might
be discovered within the surface lines of the location. But,
notwithstanding this holding, in entering the decree, the line
f-g was also established as an end line of the Contact
vein, but for its length only, and then that from
g, the
line
g-h, and that line extended indefinitely eastwardly,
constituted another end line for the same end of the lode, and
constituted the line through which the plane determinative of all
extralateral rights in the vein must be drawn.
From this decree the appellant here was allowed an appeal to the
circuit court of appeals.
The latter court established the line
g-h-h^1 as the
sole end line of the Contact vein, and reversed the decree of the
circuit court insofar as it fixed the line
f-g as an end
line.
As a result of this decree, the complainant was not only shut
out of all extralateral rights in the Contact vein north of the
line
g-h-h^1, but also of that portion of the vein lying
vertically beneath the surface lines of the Providence which extend
north of that line, and which are marked upon the figures as
constituting the parallelogram
h-i-k-h^1, which was
awarded to the Champion.
See 171
U.S. 293fig1|>Fig. 1, showing the end line fixed by the
circuit court and that line as subsequently fixed by the court of
appeals, with the latter line extended in its own direction both
easterly and westerly.
From the judgment of the circuit court of appeals, the appellant
has appealed to this Court.
There are nine assignments of error. The first eight attack so
much of the decree as establishes the line
g-h as an end
line, for the purpose of determining the extralateral right, or
fails to establish the line
f-g, and that line produced
indefinitely in the direction of
g^1, as such end line.
The last two assail so much of the decree as awards to appellee the
right to pursue the vein on its downward course underneath the
parallelogram
h-i-k-h^1.
Page 171 U. S. 301
MR. JUSTICE McKENNA, after stating the facts in the foregoing
language, delivered the opinion of the Court.
There are two questions presented by the assignment of
errors:
(1) What are the extralateral rights of the appellant on the
Contact vein?
(2) Is appellant entitled to that portion of the Contact vein
within the Providence boundaries which lies north of the north end
line fixed by the court, and which is described upon Fig. 1 as the
parallelogram bounded by the lines marked
h-i-k-h?
(1) The appellant contends that the patent of the Providence
ledge was conclusive evidence of his title to thirty-one hundred
feet in length of that vein. If true, this carried the northern end
of the ledge thirty feet beyond the line fixed by either the
circuit court or the circuit court of appeals. It was truly said at
bar: "If it is not the end line of the Providence location, then
certainly there is no reason for holding it to be the end line of
the Contact vein."
The language of the patent is:
"It being the intent and meaning of these presents to convey
unto the Providence Gold and Silver Mining Company, and to their
successors and assigns, the said vein or lode in its entire width
for the distance of thirty-one hundred (3,100) feet along the
course thereof."
The patent was issued under the act of 1866, and it is
necessary, therefore, to some extent, to consider that act. By it,
the appellant urges, the principal thing patented was the lode, and
that the northern limit of that, and hence of his rights on that,
was thirty feet north of the line fixed by the circuit court of
appeals, and hence it is further contended that, as the northern
and southern surface lines (
g-h and
a-p) did not
determine or limit his right to the lode under the act of 1866 --
in other words, did not become end lines -- they do not become end
lines upon the Contact ledge (
x'-x") acquired under the
act of 1872, but that the surface line which crosses
Page 171 U. S. 302
the strike of that ledge must be held to be the end line, and
the line which fixes the rights of the parties. This line is
f-g, 171
U.S. 293fig1|>Fig. 1, and, if appellant is correct,
determines the controversy in his favor.
The extent of the right passing under the act of 1866 has been
decided by this Court.
In
Mining Co. v. Tarbet, 98 U. S.
463, known as the "
Flagstaff Case," the
superficial area of the Flagstaff mine was one hundred feet wide by
twenty-six hundred feet long. It lay across the lode, not with it,
and the company contended, notwithstanding that, it had a right to
the lode for the length of the location. In other words, the
contention was that it was the lode which was granted, and that the
surface ground was a mere incident for the convenient working of
the lode. The contention was presented and denied by the
instructions which were given and refused by the lower court. That
court instructed the jury that if they found Tarbet
"was in possession of the claim, describing it, holding the same
in accordance with the mining laws and the customs of the miners of
the mining district, and that the apex and course of the vein in
dispute is within such surface, then, as against one subsequently
entering, he is deemed to be possessed of the land within his
boundaries to any depth, and also of the vein in the surface to any
depth on its dip, though the vein in its dip downward passes the
side line of the surface boundary and extends beneath other and
adjoining lands, and a trespass upon such part of the vein on its
dip, though beyond the side surface line, is unlawful to the same
extent as a trespass on the vein inside of the surface boundary.
This possession of the vein outside of the surface line, on its
dip, is limited in two ways -- by the length of the course of the
vein within the surface and by an extension of the end lines of the
surface claim vertically, and in their own direction, so as to
interest the vein on its dip, and the right of a possessor to
recover for trespass on the vein is subject to only these
restrictions."
Again:
"The defendant (plaintiff in error) has not shown any title or
color of title to any part of the vein except so much of its length
on the course as lies within the Flagstaff
Page 171 U. S. 303
surface, and the dip of the vein for that length, and it has
shown no title or color of title to any of the surface of the South
Star and Titus mining claim, except to so much of No. 3 as lies
within the patented surface of the Flagstaff mining claim."
And the following instructions propounded by the owner of the
Flagstaff:
"By the act of Congress of July 26, 1866, under which all these
locations are claimed to have been made, it was the vein or lode of
mineral that was located and claimed. The lode was the principal
thing, and the surface area was a mere incident for the convenient
working of the lode. The patent granted the lode, as such,
irrespective of the surface area, which an applicant was not bound
to claim. It was his convenience for working the lode that
controlled his location of his surface area, and the patentee,
under that act, takes a fee simple title to the lode to the full
extent located and claimed under said act."
Commenting on the instructions, Mr. Justice Bradley, speaking
for the Court, said:
"These instructions and refusals to instruct indicate the
general position taken by the court below -- namely that a mining
claim secures only so much of a lode or vein as it covers along the
course of the apex of the vein on or near the surface, no matter
how far the location may extend in another direction."
And after stating that the act of 1872 was more explicit than
that of 1866, but the intent of both undoubtedly the same as it
respects lines and side lines and the right to follow the dip
outside of the latter, he proceeded as follows:
"We think that the intent of both statutes is that mining
locations on lodes or veins shall be made thereon lengthwise, in
the general direction of such veins or lodes on the surface of the
earth where they are discoverable, and that the end lines are to
cross the lode, and extend perpendicularly downwards, and to be
continued in their own direction either way horizontally, and that
the right to follow the dip outside of the said lines is based on
the hypothesis that the direction of
Page 171 U. S. 304
these lines corresponds substantially with the course of the
lode or vein at its apex on or near the surface. It was not the
intent of the law to allow a person to make his location crosswise
of a vein, so that the side lines shall cross it, and thereby give
him the right to follow the strike of the vein outside of his said
lines. That would subvert the whole system sought to be established
by the law. If he does locate his claim in that way, his rights
must be subordinated to the rights of those who have properly
located on the lode. Their right to follow the dip outside of their
said lines cannot be interfered with by him. His right to the lode
only extends to so much of the lode as his claim covers. If he has
located crosswise of the lode, and his claim is only one hundred
feet wide, that one hundred feet is all he has a right to. This we
consider to be the law as to locations on lodes or veins."
"The location of the plaintiff in error is thus laid across the
Titus lode (that is to say, across the course of its apex at or
near the surface), and the side lines of the location are really
the end lines of the claim, considering the direction or course of
the lode at the surface."
"As the law stands, we think the right to follow the dip of the
vein is bounded by the end lines of the claim, properly so called,
which lines are those which are crosswise of the general course of
the vein on the surface. The Spanish mining law confined the owner
of a mine to perpendicular lines on every side, but gave him
greater or less width according to the dip of the vein.
See Rockwell, pp. 56-58, and pp. 274-275. But our laws
have attempted to establish a rule by which each claim shall be so
many feet of the vein, lengthwise of its course, to any depth below
the surface, although laterally its inclination shall carry it ever
so far from a perpendicular. This rule the court below strove to
carry out, and all its rulings seem to have been in accordance with
it."
This law was followed and applied in
Argentine Mining Co. v.
Terrible Mining Co., 122 U. S. 478, and
in
Iron-Silver Mining Co. v. Elgin Mining Co.,
118 U. S. 196;
King v. Amy & Silversmith Min. Co., 152 U.
S. 222. The locations passed upon in these cases were
made under the act of 1872,
Page 171 U. S. 305
but we have seen that the intent of that act and the act of
1866, "as it respects end lines and side lines," was the same.
But appellant urges that "those cases are not in point here." We
think that they are. The patent in the
Flagstaff case
appears to have been the same as here, and besides, whatever the
patent here, it must be confined to the rights given by the statute
which authorized it.
In the
Flagstaff case, the lode was claimed, and hence
the right to follow it beyond the surface boundaries of the
location was claimed. Here, the lode is claimed, and the right to
follow it outside of the surface boundaries -- that is, beyond the
line
f-g to the point
x^1. In that case, the
right contended for was denied on the principle applicable to end
and side lines. In this case, the right contended for must be
denied by the application of the same principle.
But, appellant asks, admitting for the argument's sake that it
(the line
g-h) does constitute an end line of the location
within the meaning of the law of May 10, 1872, does it constitute
the end line of the Contact vein? And in answering the question, he
says:
"The end line of a lode is the boundary line which crosses it,
regardless of whether it was originally intended as an end line or
side line. Four times has this principle been sustained by this
Court."
He then cites the cases we have cited, and claims that they
"are, of course, conclusive of this controversy if they are in
point."
Under the law of 1866, a patent could be issued for only one
vein. 14 Stat. 251. The act of 1872 gave to all locations
theretofore made, as well as to those thereafter made, all veins,
lodes, and ledges, the top or apex of which lie inside of the
surface lines. Section 3 of the act, which is also section 2322 of
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, eighteen hundred and
seventy-two, so long as they comply with the laws of the United
States and with state territorial
Page 171 U. S. 306
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 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."
Act May 10, 1872, c. 152, § 3, sec. 2323, Rev.Stat.
Appellant's right upon the Contact vein is given by this
statute. What limits this right extralaterally? The statute says
vertical planes drawn downward through the end lines of the
location. What end lines? Those of, and as determined by, the
original location and lode, the circuit court of appeals decided.
Those determined by the direction of the newly discovered lodes,
regardless of whether they were originally intended as end lines or
side lines, the appellant, as we have seen, contends. The court of
appeals was right. Against the contention of appellant the letter
and spirit of the statute oppose, and against it the decisions of
this Court also oppose.
The language of the statute is that the "outside parts" of the
veins or ledges "shall be confined to such portions thereof as lie
between vertical planes drawn downwards . . . through the end lines
of their locations. . . ." And Mr. Justice Field, speaking for the
Court, said in
Iron Silver Mining Co. v. Elgin Mining Co.,
118 U. S. 196,
118 U. S.
198:
"The provision of the statute that the locator is entitled,
Page 171 U. S. 307
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."
The Court, however, did not mean that the end lines, called such
by the locator, were the true end lies, but those which "are
crosswise of the general course of the vein
on the
surface."
This Court, in
Del Monte Mining & Milling Co. v. Last
Chance Mining Co., decided at the present term,
ante
at
171 U. S. 55,
reviewed the cases we have cited, and, speaking for the Court, MR.
JUSTICE BREWER said:
"Our conclusion may be summed up in 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 placed 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
Page 171 U. S. 308
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. Our laws have attempted to establish a rule by
which each claim shall be so many feet of the vein, lengthwise of
its course, to any depth below the surface, although laterally its
inclination shall carry it ever so far from a perpendicular."
Mining Co. v. Tarbet, 98 U. S. 463,
98 U. S.
468.
These propositions we affirm with the addition that the end
lines of the original veins shall be the end lines of all the veins
found within the surface boundaries.
The appellant contends that, by agreement, by acquiescence, and
by estoppel, the line
f-g has become the end line between
the two claims.
This contention is attempted to be supported by (a) a relocation
of the New Years Extension claim, by which, it is asserted, it
recognized and designated the line
f-g as the northerly
end line of the Providence claim; (b) the testimony of the
superintendent as to what took place between him and the directors
before sinking the Champion shaft, and afterwards between him and a
co-tenant of complainant (appellant).
(a) The relocation does not in terms recognize the line
f-g as the northern end line of the Providence. Its
recitals are:
"And whereas part of this claim, as originally described and as
hereby relocated, conflicts with the rights granted by the letters
patent of said Providence mine, said lot No. 40, now therefore so
much of this claim, both for lode and surface ground, as originally
designated, conflicting, or now conflicts, with any portion of the
surface or lode, claims or rights, granted by said patent is and
are hereby abandoned."
"Which portion of this claim so abandoned is described as
follows: all that portion of the above-described New Years
Extension claim for surface and lode which lies south of the
northern boundary line of said Providence mine, which runs north 43
degrees, 10 minutes east, across the southeastern corner of this
claim."
It will be observed by reference to
171
U.S. 293fig1|>Fig. 1 that the northern
Page 171 U. S. 309
boundary of the Providence is not one line, but two lines, and
it is the one which runs north, 43�10' east, across the southern
corner, which is designated in the relocation of the New Years
claim.
In the notice of relocation, however, the northerly line of the
Providence is called the south end line of the relocated ground.
The description is as follows:
"The lode line of this claim, as originally located, and which I
hereby relocate, is described as follows: commencing at a point on
the northerly bank of Deer Creek, which point is 80 feet S., 11
deg. 45 minutes east, of the mouth of the New Years tunnel, and
running thence along the line of the lode towards the N.E. corner
of the Providence mill about S., 46 deg. 15 minutes east, 200 feet,
more or less, to a point and stake on the northerly line of the
Providence mine, patented, designated as 'Mineral Lot No. 40,' for
the south end of said lode line, and that the Contact vein crosses
in its onward course the southerly end line of said New Years
Extension claim, and enters the lands and premises of plaintiff
described in said bill of complaint."
It is hence contended that if the line
f-g is the
southerly end line of the New Years Extension, it must necessarily
be the northern end line of the Providence mine. This does not
follow, nor is there any concession of it. Coincidence of lines
between claims does not make them side lines or end lines. Whether
they shall be so regarded depends upon the legal considerations,
which we have already sufficiently entered into, and need not
repeat. We do not say that there may not be an agreement setting
end lines. One example of such an agreement was exhibited in
Richmond Mining Co. v. Eureka Mining Co., 103 U.
S. 839.
(b) The testimony relied on was admitted against the objection
of defendants (appellees). It was as follows:
"Q. Then you may go on, Mr. Vincent, and state how you started
that work, and how you planned it, and what communications you had,
if any, with the board of directors of the Champion Mining
Company."
"
* * * *"
Page 171 U. S. 310
"A. Well, I was sent up by the board of directors to do whatever
work I thought was for the best of the company. I started that
shaft down, and had it down about 40 feet, and I reported to the
board of directors, in session, about what work I had done, and
they calculated to go to work and put up hoisting works, and run
that shaft down further."
"Q. What, if any, communication did you make, or was there any
communication from the board to you concerning the direction of the
shaft, and why any given direction was adopted for the shaft?"
"A. There was none, but then I reported to the board that such
was the case; that the shaft was laid out so it would never
interfere with this line."
The witness further testified that he sank the shaft 540 feet,
and was discharged on the 1st of August, 1889, and he was further
questioned as follows:
"Q. State whether at the time you were sinking that shaft you
were called upon by Mr. Walrath, the complainant in this action, or
his brother, Mr. Richard Walrath, to make any inquiry of you
concerning the construction of that shaft, and what the intention
was -- whether to cross the Providence line or not, as marked on
the map?"
"
* * * *"
"A. Well, Mr. Walrath, he happened to come along, and he made a
remark to me that he wished for us, of course, to keep his line,
and not to cross it, as he didn't want any more trouble, as he did
have with some other mining properties adjoining; that he didn't
want any more holes in his ground, and so I answered him that I
would respect his line as long as I am here."
"The Court: That you would respect his line as long as you were
there?"
"A. As long as I was superintendent of the mine."
"Q. Where did this conversation take place?"
"A. Right on the premises."
"Q. You were then acting as superintendent, were you?"
"A. Yes, sir."
"Q. What line was referred to at that time as the Providence
line? Can you point it out on the map? "
Page 171 U. S. 311
"A. Yes, sir; it is the line marked A-B on the map, Exhibit
4."
This testimony does not establish an equitable estoppel, nor is
the corporation bound by the declarations of the superintendent.
They were without the scope of his agency or authority.
(2) The right to that portion of the Contact ledge within the
boundaries of the parallelogram
h-i-k-h^1 presents an
interesting question. It does not appear to have been submitted to
either of the lower courts, but the right by the decree of the
circuit court is given to appellee, by adjudging to it that portion
of the vein on its dip which lies northeasterly of the line
g-h and its continuation.
The question is a new one in this Court, but we think it is
determined by the principles hereinbefore laid down. It may be true
that, under the act of 1866, the patenting of the Providence mine
in its irregular shape was in all respects legal and proper, and
that the act did not require the location to be made in the form of
a parallelogram, or in any particular form, and that there was no
requirement that the end lines should be parallel. It is also true
that under act, only one vein could be included in a location, no
matter how much surface ground was included in the patent, but
that, under the act of 1872, possession and enjoyment of all the
surface included within the lines of their location, and of all
veins, lodes, and ledges throughout the entire depth, the top or
apex of which lies inside of such surface lines extended downward
vertically, were given.
But rights on the strike and on the dip of the original vein,
and rights on the strike and on the dip of the other veins, we have
decided, are determined by the end lines of the location. In other
words, it is the end lines alone, not they and some other lines,
which define the extralateral right, and they must be straight
lines, not broken or curved ones. The appellant, under his
contention, would get the right such lines would give him and
something more besides, outside of them. To specialize, he would
get all within a plane drawn through the line
g-h, and all
within the planes drawn through the sides of the parallelogram
h-i-k-h^1, 171
U.S. 293fig1|>Fig. 1.
Page 171 U. S. 312
It may be that the end lines need not be parallel under the act
of 1866, may converge or diverge, and may even do so as to new
veins -- of which, however, we express no opinion. But they must be
straight. No other lines define planes which can be continuous in
their own direction within the meaning of the statute. It may be
that there was liberty of surface form under that act, but the law
strictly confined the right on the vein below the surface. There is
liberty of surface form under the act of 1872. It was exercised in
Iron Silver Mining Co. v. Elgin Mining Co., supra, in the
form of a horseshoe; in
Montana Co., Limited v. Clark, 42
F. 626, in the form of an isosceles triangle.
The decree is affirmed.
