Where there is a question whether the jurisdiction of the
circuit court depended entirely on diverse citizenship making the
judgment of the circuit court of appeals final, but a petition for
writ of certiorari is pending, and the writ of error had been
allowed prior to the filing of the record in the first instance,
and the case is of such importance as to demand examination by this
Court, the question of jurisdiction of the circuit court need not
be determined, but the case reviewed on certiorari.
In this case, a bond to convey, and a conveyance, made
thereafter in pursuance thereof, conveying mining lands in Montana,
the title to which was in dispute between the grantor and grantee
(owners of adjoining claims), together with all the mineral therein
and all the dips, spurs, angles, etc., were construed as not simply
locating a boundary between the two claims, leaving all surface
rights to be determined by the ordinary rules recognized in mining
districts of Montana and enforced by statutes of Congress, but as
conveying all mineral below the surface including that in a vein
therein which apexed in the unconveyed land of the grantor.
The common law has been kept steadily in force in Montana, and
under it a deed of real estate conveys all beneath the surface
unless there be words of exception or limitation.
A conveyance of mineral land adjoining land of the grantor which
grants all the mineral beneath the surface will not be construed as
not granting the mineral in a vein apexing in the grantor's
unconveyed land because such vein may extend across the conveyed
land to other land belonging to the grantor.
Quaere whether there would not be a reserved right in
the grantor to pass through the conveyed land to reach the further
portion of such a vein.
A contract and conveyance of lands and subsurface minerals made
in settlement of a dispute will be construed in the light of facts
known at the time to the parties, rather than of possibilities of
future discoveries.
The litigation between these parties has been protracted through
a series of years. A brief history will help to an understanding of
the present questions. Prior to 1884, Charles
Page 204 U. S. 205
Mayger had located the St. Louis lode claim in Lewis and Clarke
County, Montana Territory, and William Robinson and others had
located, adjoining thereto, the Nine Hour lode claim. These claims
conflicted. Mayger made application for a patent. Thereupon adverse
proceedings were commenced by Robinson and his associates against
Mayger in the District Court of the Third Judicial District of
Montana. For the purpose of settling and compromising that action,
on March 7, 1884, a bond was executed by Mayger to the other
parties in which he agreed to proceed as rapidly as possible to
obtain a patent, and then to execute and deliver to Robinson a good
and sufficient deed of conveyance of a tract described as
"comprising a part of two certain quartz lode mining claims, known
as the St. Louis lode claim and the Nine Hour lode claim, and
particularly described as follows, to-wit . . . " Then follows a
description of what is known as the compromise ground -- a tract
including an area of 12,844.5 square feet, "together with all the
mineral therein contained." Mayger proceeded to obtain a patent for
the St. Louis claim, including the compromise ground, as did also
Robinson and his associates, a patent to the Nine Hour claim,
omitting the compromise ground. Thereafter, the plaintiff in error
acquired the interest of Robinson and his associates and the
defendant in error the interest of Mayger. The former company
demanded a conveyance of the compromise ground in accordance with
the terms of the bond executed by Mayger, which being refused, suit
was brought in a district court of the state, which rendered a
decree in its favor. That decree having been affirmed by the
supreme court of the state, the St. Louis company brought the case
to this Court, and on October 31, 1898, the judgment of the Supreme
Court of Montana was affirmed.
171 U. S. 171 U.S.
650. In pursuance of the decree, the St. Louis company deeded the
tract described in the bond, giving its boundaries, the number of
square feet contained therein, and adding,
"together with all the mineral therein contained. Together with
all the dips, spurs, and angles,
Page 204 U. S. 206
and also all the metals, ores, gold and silver-bearing quartz
rock and earth therein, and all the rights, privileges, and
franchises thereto incident, appended, or appurtenant, or therewith
usually had and enjoyed, and also all and singular the tenements,
hereditaments, and appurtenances thereto belonging or in anywise
appertaining, and the rents, issues, and profits therein, and also
all and every right, title, interest, property, possession, claim,
and demand whatsoever, as well in law as in equity, of the said
party of the first part, of, in, or to the said premises and every
part and parcel thereof, with the appurtenances."
Prior explorations, the exact date of which is not shown, but
apparently long after the compromise agreement, had disclosed the
fact that beneath the surface of this compromise ground there was a
large body of ore which, it was claimed, belonged to a vein apexing
in the territory of the St. Louis claim. This was not the discovery
vein, but a secondary vein, frequently called the Drumlummon vein
or lode, whose apex was between the compromise ground and the apex
of the St. Louis discovery vein. Some of this ore was mined and
removed by the Montana company. On September 16, 1893, a year
before the specific performance suit was brought, the St. Louis
company filed its complaint in the Circuit Court of the United
States for the District of Montana, against the Montana company and
several individual defendants, claiming to recover $200,000 for the
damages sustained by the trespass of the defendants in removing the
ore. In its complaint, the St. Louis company alleged that it was a
corporation organized under the laws of Montana, and that the
Montana company was a corporation incorporated under the laws of
the Kingdom of Great Britain, but nothing was said as to the
residence or citizenship of the individual defendants.
On November 21, 1898, three weeks after the decision by this
Court in the specific performance suit, an amended and supplemental
complaint was filed which omitted the individual defendants and
sought a recovery from the Montana
Page 204 U. S. 207
company alone for the ore so wrongfully removed, as alleged. On
June 26, 1899, a second amended and supplemental complaint was
filed, also against the Montana company alone, and asking for the
same relief. To this an answer was filed setting up the bond and
deed heretofore referred to and pleading that thereby the plaintiff
was estopped from claiming any part of the compromise ground or any
mineral contained therein.
Pending this litigation, and on respectively the sixth and
twelfth days of December, 1898, orders were issued by the circuit
court restraining severally each of the parties to this litigation
from taking any more mineral from the disputed ground. On the
second amended and supplemental complaint, a trial was had in which
judgment was rendered in favor of the St. Louis company for
$23,209. To review this judgment, the Montana company prosecuted a
writ of error from the Circuit Court of Appeals of the Ninth
Circuit, which writ was dated October 7, 1899, and the judgment was
affirmed May 14, 1900. 102 F. 430. The St. Louis company took out a
cross-writ of error from the circuit court of appeals dated January
30, 1900, and that court reversed the judgment October 8, 1900, and
remanded the case for a new trial as to the recovery sought for the
conversion and value of certain ores, which had been excluded by
the circuit court from the consideration of the jury. 104 F. 664.
The parties then brought, by separate writs of error, these two
decisions of the court of appeals to this Court, on consideration
whereof this Court held that the judgment in the circuit court was
entirely set aside by the second decision of the court of appeals,
and therefore dismissed both cases on the ground that there was no
final judgment.
186 U. S. 186 U.S.
24.
Whereupon the court of appeals sent down to the circuit court a
mandate setting aside the judgment
in toto, and ordering a
new trial. This new trial was held on May 31, 1905, and resulted in
a judgment in favor of the St. Louis company for
Page 204 U. S. 208
$195,000, which judgment was affirmed by the circuit court of
appeals, to reverse which decision the Montana company sued out
this writ of error.
After this last decision by the court of appeals, the circuit
court, on the application of the St. Louis company, set aside the
order which restrained it from extracting ore from the disputed
territory. Thereupon the Montana company filed its application in
this Court for a reinstatement of that order and that it be
continued in force until the final termination of the
litigation.
The St. Louis company filed a motion to dismiss the writ of
error sued out by the Montana company on the ground that the
jurisdiction of the circuit court depended entirely on diverse
citizenship, and therefore the decision of the court of appeals was
final. The Montana company then made application for a writ of
certiorari, which application was passed for consideration to the
final hearing of the case.
Page 204 U. S. 212
MR. JUSTICE BREWER delivered the opinion of the Court.
The first question is, of course, the one of jurisdiction.
If
Page 204 U. S. 213
the jurisdiction of the circuit court depended alone on diverse
citizenship, then undoubtedly the decision of the court of appeals
was final, and the case could only be brought here on certiorari.
On the other hand, if it did not depend alone on diverse
citizenship, the decision of the court of appeals was not final,
and the case is properly here on writ of error. The original
complaint alleged the citizenship of the two corporations,
plaintiff and defendant, but did not allege the citizenship of the
individual defendants. In order to sustain the jurisdiction of the
circuit court on the ground of diverse citizenship, the citizenship
of all the parties on one side must be diverse from that of those
on the other. So, unless there was a federal question presented by
that complaint, as the citizenship of the individual defendants was
not shown, the circuit court had no jurisdiction of the case. It
may be that this was remedied by the subsequent first and second
amended complaints, in which the individual defendants were left
out, the citizenship of the two corporations, plaintiff and
defendant, alleged, and to which complaints the Montana company,
without raising any question of jurisdiction, appeared and
answered.
Conolly v.
Taylor, 2 Pet. 556;
Anderson v. Watt,
138 U. S. 694. Be
that as it may, in view of the fact that this litigation has been
twice before this Court, has been protracted for many years,
involves so large an amount, and also presents questions of federal
mining law which, though perhaps not necessary for our decision,
have yet been elaborately argued by counsel, we are or opinion
that, if the jurisdiction of the circuit court did, after the
filing of the amended complaints, depend entirely on diverse
citizenship, the case ought to be brought here by writ of
certiorari. As either by writ of error or certiorari the decision
of the court of appeals can be brought before this Court, and as
each has been applied for, and as the importance of the case seems
to demand our examination, it is scarcely necessary to consume time
in attempting to decide positively whether there was a federal
question involved, or the jurisdiction depended solely on diverse
citizenship. The
Page 204 U. S. 214
writ of error was duly allowed prior to the filing of the record
in the first instance, and, to avoid any further question of our
jurisdiction, we allow the certiorari.
Pullman's Palace Car Co.
v. Transportation Co., 171 U. S. 138.
We pass, therefore, to a consideration of the merits, and the
first question presented by counsel -- indeed, as we look at it,
the pivotal question -- is the proper construction of the bond and
deed by which the plaintiff in error claims title to the compromise
ground.
The bond described the ground, adding, "together with all the
mineral therein contained." The deed executed in pursuance of the
judicial decree contains the same description, followed by the
words above quoted and also the further words given in the
statement of facts -- "together with all the dips, spurs, and
angles," etc.
Now the contention of the defendant in error is that the effect
of the compromise followed by the bond and conveyance was simply to
locate the boundary line between the two claims, leaving all
subsurface rights to be determined by the ordinary rules recognized
in the mining districts and enforced by the statutes of
Congress.
The argument in favor of this construction is forcibly put by
Circuit Judge Gilbert, delivering the opinion of the court of
appeals, when the case was first presented to that court. 102 F.
430. Without quoting it in full, it is to the effect that
agreements and conveyances of the whole or parts of mining claims
are to be construed in the light of the mining law, as, generally
speaking, we construe a contract not merely by its terms, but
having regard to the subject matter involved and the surrounding
circumstances, in order to ascertain the intention of the parties.
Particular reference was made to
Richmond Mining Co. v. Eureka
Mining Co., 103 U. S. 846,
in which this Court held that a line specified in a contract
between the owners of contiguous mining claims to be one continued
downward to the center of the earth was not a vertical plane, but
must be construed as
Page 204 U. S. 215
extending the boundary line downward through the dips of the
veins or lodes wherever they might go in their course toward the
center of the earth.
Further, the argument is that the adverse proceedings were
maintained by the owners of the Nine Hour claim on the theory that
the strip of land so contracted to be conveyed was a portion of
that claim; that, if the action had gone to judgment, sustaining
their contention, the result would have been simply to fix the
surface line of division between the two claims, without affecting
the subsurface rights. Reference was also made to the suit for
specific performance brought by the present plaintiff in error, in
which it alleged that the contract had been made for the purpose of
settling and agreeing upon the boundary line between the two
claims, and that the suit was maintained upon the theory that, as
owner of the Nine Hour claim, it owned the compromise ground
afterwards conveyed.
We are not insensible to the force of this argument, and also
appreciate fully what is said by counsel in reference to the
familiarity of the several concurring justices with mining law and
contracts and conveyances made under it.
Yet notwithstanding, we are compelled to dissent from their
construction of these instruments, and to hold that something more
was intended and accomplished than the mere establishment of a
surface boundary line. We premise by saying that nothing can be
invoked in the nature of an estoppel from the averments in the
pleadings in the suit for specific performance. True, the plaintiff
in error alleged that the compromise ground was a part of its
mining claim, and that the bond was executed "to settle and
compromise the said suit and adverse claims, and for the purpose of
settling and agreeing upon the boundary line between" the two
claims; but the bond itself, reciting the fact of a settlement and
compromise, and an agreement by the contestants to withdraw their
objections to the application for a patent, stipulates for a
conveyance, after patent, of the compromise ground,
"comprising
Page 204 U. S. 216
a part of two certain quartz lode mining claims, known as the
St. Louis lode claim and the Nine Hour lode claim,"
they being, respectively, the two claims owned by the parties
hereto. Further, the answer denied that the compromise ground was a
part of the Nine Hour lode claim, and alleged that the then owner
of the St. Louis lode claim executed the bond as a compromise of
the adverse claim and suit, and to enable him to obtain a patent
for the whole of his claim.
The facts in the case, as well as the allegations in these
pleadings, show that the two claims conflicted, that, when
application was made for a patent, adverse proceedings were
instituted, and that, rather than try the title of the respective
locators to the territory in conflict, and by way of compromise,
they agreed that the owner of the St. Louis claim might proceed to
patent, and then convey the compromise ground to the grantors of
the plaintiff in error.
It must also be noticed that the dispute between the two claims
was not simply in respect to the compromise ground -- at least,
testimony offered to prove this was ruled out -- but involved a
larger area, and that the disputing parties settled by the bond,
describing what was to be conveyed.
It is undoubtedly true that, if the bond had simply described
the surface area or fixed a boundary line between the two claims,
the subsurface and extralateral rights might have been determined
by the mining law. It might have been implied that there was no
intention to disturb the rights given by it.
Further, while it may be true that the words "together with all
the dips, spurs, and angles," etc., are generally employed in
conveyances of mining claims in order to emphasize the fact that
not merely the surface, but the extralateral rights which go with a
mining claim, are conveyed, yet it must be noticed that, in
addition to these customary words are these, found in both the bond
and the deed: "[t]ogether with all the mineral therein contained,"
and they cannot be ignored, but must be given a meaning reasonable
and consistent with other parts of the instruments. It is not
satisfactory to say that they
Page 204 U. S. 217
are only equivalent to those that follow, "dips, spurs," etc.,
that the same thing is meant by each expression. While, of course,
repetition is possible, yet it is not to be expected, and when in
addition to the ordinary words found in conveyances of mining
claims is this extra clause, we naturally regard it as making some
further grant.
The scope of this deed would not be open to doubt if only the
common law was to be considered. And in this connection it may be
remarked that the common law has been kept steadily in force in
Montana.
"The common law of England, so far as the same is applicable and
of a general nature, and not in conflict with special enactments of
this territory, shall be the law and the rule of decision, and
shall be considered as of full force until repealed by legislative
authority."
Laws of Montana, 1871, 1872, c. 13, § 1, p. 388, substantially
reenacted in Mont. Anno.Code, § 5152.
See also Territory v. Ye
Wan, 2 Mont. 478, 479;
Territory ex Rel. Blake v. Virginia
Road Co., 2 Mont. 96;
Butte Hardware Co. v. Sullivan,
7 Mont. 307, 312;
Palmer v. McMaster, 8 Mont. 186, 192;
Milburn Mfg. Co. v. Johnson, 9 Mont. 541;
Forrester v.
B. & Min. Co., 21 Mont. 544, 556. By that law, a deed of
real estate conveys all beneath the surface unless there be some
words of exception or limitation. But the mining laws of both state
and territory were in force, and in construing conveyances of
mining claims, the provisions of those laws must be taken into
account, and may add to or subtract from the rights passing by a
common law conveyance of agricultural or timber lands. It is
probably not necessary to specify extralateral rights in order that
a conveyance of a mining claim be operative to transfer them, and
yet it is not strange that the custom grew up of naming them for
the sake of avoiding the possibility of disputes. While the bond
made no mention of extralateral rights, yet in all probability it
would have been held to pass, them and the court may have thought
that the single specification "all the mineral therein contained"
was liable to be construed as narrowing the conveyance so as to
Page 204 U. S. 218
include only the mineral beneath the surface, and therefore
required that there should be incorporated in the deed the words
"together with all the dips, spurs," etc. Yet, in requiring the
introduction of these words, which in terms define extralateral
rights, it also retained the phrase "together with all the mineral
therein contained."
To the suggestion that giving this construction to the bond and
conveyance is in effect the granting of a section of a vein of
mineral, the answer is that there is nothing impractical or
unnatural in such a conveyance. It does not operate to transfer the
vein
in toto, but simply carves out from the vein the
section between the vertical side lines of the ground, and
transfers that to the grantee. The title to the balance of the vein
remains undisturbed.
To the further suggestion that the owner of the apex might be
left with a body of ore on the descending vein beyond the further
side line of the compromise ground which he could not reach, the
answer is that this assumes as a fact that which may not be a fact.
The owner of the apex may be the owner of other ground by which
access can be obtained to the descending vein, and it also is a
question worthy of consideration whether granting a section out
from a descending vein does not imply a right reserved in the
grantor to pass through the territory of the section conveyed in
order to reach the further portion of the vein. Those are questions
which need not now be determined. This secondary vein does not
appear to have been known at the time of the compromise, and while,
of course, there is always a possibility of such a vein's being
discovered, yet parties are more apt to contract and settle upon
the basis of what they know than upon the possibilities of future
discovery.
The action of the parties hereto is suggestive, although not of
itself decisive. This action for the recovery of ore taken out from
beneath the surface of the compromise ground was pending when the
suit for specific performance was brought in 1894. Nothing was done
in this action from that time until
Page 204 U. S. 219
three weeks after a final decision of the specific performance
case by this Court, when an amended complaint was filed, and the
case thereafter proceeded by ordinary stages to trial and judgment.
The original complaint alleged the ownership by the St. Louis
company of its mining claim and of all veins, lodes, or ledges
having their tops or apexes inside of its surface boundary lines,
with the right to follow those veins, lodes, or ledges on the dips
or angles outside the side lines of the mining claim. It also
alleged that the defendants entered wrongfully upon one of the
veins, lodes, or ledges having its top or apex within the surface
location of the St. Louis claim, and which had in its dip or angle
passed outside the side lines of the St. Louis claim and
"entered beneath the mining property claimed or pretended to be
claimed by the said defendants or some of them and that, in utter
disregard of the right or title of plaintiff, the said defendants
ever since have been and now are extracting and taking therefrom
large quantities of coarse rock and ore,"
etc. In other words, it sought to recover from the Montana
company the value of the ore taken by the latter from a vein whose
apex was within the surface boundaries of the former's claim, but
which in its dip had passed outside the side lines into territory
claimed by the Montana company. With that as its claim, the
litigation was dormant for four years. Now, if it were true that
the apex of the vein was within the side lines of the St. Louis
claim and the ore taken by the defendants was taken from below the
surface of the compromise ground, and all that was accomplished by
the compromise and bond was the establishment of a boundary line,
leaving subsurface and extralateral rights undisturbed, there was
no necessity of postponing the litigation until the question of
title to the surface was disposed of. As we have said, we do not
mean that this is decisive, because the St. Louis company may have
thought that all controversies would be ended if it could once
establish that the Montana company took nothing by virtue of the
compromise and bond. Still, the delay in the litigation is in
harmony with the belief that
Page 204 U. S. 220
the words in the bond "together with all the mineral therein
contained" meant all the mineral below the surface.
The disposition of this question compels a reversal of the
judgment. It may also effectually dispose of all disputes between
the parties, and therefore it would be a mere waste of time to
attempt to consider other questions which have been discussed with
ability and elaboration by counsel.
In view of this conclusion, it is also apparent that the order
restraining defendant in error from removing ore from the disputed
territory ought not to have been set aside.
The judgment of the court of appeals is reversed, and the case
remanded to the Circuit Court with instructions to grant a new
trial. Further, the order restraining defendant in error from
mining and removing any of the ore in dispute will be reinstated
and continued in force until the final disposition of the case.
Judgment reversed and restraining order reinstated.
