The patent for a lode claim takes the subsurface as well as the
surface, and there is no other right to disturb the subsurface than
that given by § 2322, Rev.Stat., to the owner of a vein apexing
without its surface but descending on its dip into the subsurface
to pursue and develop that vein.
This was a suit brought by the appellee (hereinafter called the
Montana company) against the appellants (hereinafter called the St.
Louis company) in the Circuit Court of the United States for the
District of Montana, for an injunction restraining the further
prosecution of a tunnel. The facts were
Page 194 U. S. 236
agreed upon, and are substantially that the Montana company was
the owner and in possession of the Nine Hour lode mining claim
under a patent from the United States, on a location made under the
mining acts of 1872 and acts amendatory thereof; that the St. Louis
company was the owner of the St. Louis lode mining claim, holding
the same under a similar title. In the St. Louis claim is a vein
other than the discovery vein, having its apex within the surface
limits of the St. Louis claim, but on its dip passing out of the
side line of the St. Louis claim into the Nine Hour claim. The
tunnel was two hundred and sixty feet underground, running from the
St. Louis into the Nine Hour claim and for the purpose of reaching
the vein on its descent through the latter. It was run horizontally
through country rock, and between the east line of the St. Louis
claim and the vein above referred to will not intersect any other
vein or lode. The St. Louis company did not propose to extend the
tunnel beyond the point at which it would intersect the vein above
referred to, and simply proposed to use this cross-cut tunnel in
working and mining said vein. The circuit court, upon the facts
agreed to, enjoined the further prosecution of the tunnel. That
injunction was sustained by the Circuit Court of Appeals for the
Ninth Circuit, 113 F. 900, from whose decision the St. Louis
company has brought the case to this Court.
MR. JUSTICE BREWER delivered the opinion of the Court.
The situation and the question can be easily presented to the
mind by considering the significant lines as lines of a
right-angled triangle, the vein descending on its dip being the
hypothenuse, the tunnel the base line, and the boundary between the
two claims the side line of the triangle. The St. Louis
Page 194 U. S. 237
company, being the owner of the vein, may pursue and appropriate
that vein on its course downward, although it extends outside the
vertical side lines of its claim and beneath the surface of the
Nine Hour lode claim. Such is the plain language of § 2322,
Rev.Stat., which grants to locators
"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."
In other words, it has a right to the hypothenuse of the
triangle. May it also occupy and use the base line? Is it, in
pursuing and appropriating this vein, confined to work in or upon
the vein, or is it at liberty to enter upon and appropriate other
portions of the Nine Hour ground in order that it may more
conveniently reach and work the vein which it owns? Its contention
is that the mining patent conveys title to only the surface of the
ground and the veins which go with the claim, and that the balance
of the underground territory is open to anyone seeking to explore
for mineral, or at least may be taken possession of by one other
than the owner of the claim for the purpose of conveniently working
a vein which belongs to him. The question may be stated in another
form: does the patent for a lode claim take the subsurface as well
as the surface, and is there any other right to disturb the
subsurface than that given to the owner of a vein apexing without
its surface, but descending on its dip into the subsurface, to
pursue and develop that vein?
We are of opinion that the patent conveys the subsurface as well
as the surface, and that, so far as this case discloses, the only
limitation on the exclusive title thus conveyed is the right given
to pursue a vein which on its dip enters the subsurface. By § 2319,
Rev.Stat., "all valuable mineral deposits in
Page 194 U. S. 238
lands belonging to the United States" are "open to exploration
and purchase, and the lands in which they are found to occupation
and purchase." By § 2325,
"a patent for any land claimed and located for valuable deposits
may be obtained in the following manner: any person . . . having
claimed and located a piece of land for such purposes . . . shall
thereupon be entitled to a patent for the land."
In a subsequent part of the same section, it is provided that
the applicant shall pay five dollars per acre. Appellants rely upon
the clause heretofore quoted from section 2322 as a limitation upon
the full extent of the grant indicated by these provisions. But
this limitation operates only indirectly and by virtue of the grant
to another locator to pursue a vein apexing within his surface
boundaries on its dip downward through some side line into the
ground embraced within the patent. It withdraws from the grant made
by the patent only such veins as others own and have a right to
pursue. As said by Lindley (1 Lindley on Mines, 2d ed. § 71):
"In other words, under the old law, he located the lode. Under
the new, he must locate a piece of land containing the top, or
apex, of the lode. While the vein is still the principal thing, in
that it is for the sake of the vein that the location is made, the
location must be of a piece of land including the top, or apex of
the vein."
And in vol. 2 (sec. 780):
"
Prima facie, such a patent confers the right to
everything found within vertical planes drawn through the surface
boundaries, but these boundaries may be invaded by an outside lode
locator holding the apex of a vein under a regular valid location,
in the pursuit of his vein on its downward course underneath the
patented surface."
See also Calhoun Gold Mining Company v. Ajax Gold Mining
Company, 182 U. S. 499,
182 U. S. 508.
The decisions of the courts in the mining regions are referred to
in the opinion of the court of appeals in this case, from which we
quote:
"This view is in accord with the trend of all the decisions
to
Page 194 U. S. 239
which our attention has been directed. In
Parrot Silver
& Copper Co. v. Heinze, 25 Mont. 139, the Supreme Court of
Montana held in substance that the owner of a mining claim is
prima facie the owner of a vein or lode found at a depth
of 1,300 feet within the vertical planes of the lines of his own
claim, and that that presumption would prevail until it was shown
that the vein had its outcrop in the surface of some other located
claim in such a way as to give to the owners of the latter the
right to pursue it on its downward course. The court said:"
"Upon a valid location of a definite portion of land is founded
the right of possession. The patent grants the fee, not to the
surface and ledge only, but to the land containing the apex of the
ledge. The right to follow the ledge upon its dip between the
vertical planes of the parallel end lines extending in their own
direction when it departs beyond the vertical planes of the side
lines is an expansion of the rights which would be conferred by a
common law grant."
"Of similar import is
State v. District Court, 25 Mont.
504. In
Doe v. Waterloo Mining Company, 54 F. 935, Judge
Ross said:"
"Except as modified by the statute, no reason is perceived why
one who acquires the ownership or possession of such lands should
not hold them with and subject to the incidents of ownership and
possession at common law."
In
Consolidated Wyoming Gold Mining Company v. Champion
Mining Company, 63 F. 540, Judge Hawley said:
"Hands off of any and everything within my surface lines
extending vertically downward, until you prove that you are working
upon and following, a vein which has its apex within your surface
claim."
The judgment of the court of appeals is
Affirmed.