1. Under an act entitled "An Act granting the right of way to
ditch and canal companies over the public lands, and for other
purposes," approved July 28, 1866, 14 Stat. 251, as well as under
that entitled "An Act to promote the development of the mining
resources of the United States," approved May 10, 1872, 17
id. 91, the location of a mining claim upon a lode or vein
of ore, should be made along the same lengthwise of the course of
its apex at or near the surface. If otherwise laid, it will only
secure so much of the lode or vein as it actually covers.
2. Each locator is entitled to follow the dip of the lode or
vein to an indefinite depth, though it carries him beyond the side
lines of the location, but this right is based on the hypothesis
that they substantially correspond with the course of the lode or
vein at the surface, and it is bounded at each end by the end lines
of the location, crossing the lode or vein and extended
perpendicularly downwards and indefinitely in their own
direction.
3. A location laid crosswise of a lode or vein, so that its
greatest length crosses the same instead of following the course
thereof, will secure only so much of the vein as it actually
crosses at the surface, and its side lines will become its end
lines, for the purpose of defining the rights of the owners.
4. A locator working subterraneously into the dip of the vein
belonging to another, who is in possession of his location, is a
trespasser, and liable to an action for taking ore therefrom.
The facts are stated in the opinion of the Court.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This was an action in the nature of trespass
quare clausum
fregit, brought in the District Court of the Territory of Utah
for the Third District, by Alexander Tarbet, and continued by his
assignee, Helen Tarbet, against the Flagstaff Silver Mining Company
of Utah (limited), and other persons. The action having been
dismissed as to the other persons, judgment was rendered for
$45,000 damages upon the verdict of a jury against the company. The
latter carried the case to the supreme court of the Territory,
where the judgment was affirmed on the third day of June, 1878. The
company thereupon sued out this writ of error.
The controversy relates to the working of a mine in Little
Page 98 U. S. 464
Cottonwood Mining District in the County of Salt Lake. The
defendant in error claims to own and to have been in possession of
a mining location on a lode called the Titus lode, the location
including three claims, and extending six hundred feet westwardly
from the discovery, with a width of two hundred feet, and including
ten feet on the east side of the discovery belonging to the South
Star mine. The plaintiff in error owned and had a patent for
another mining location called the Flagstaff mine, one hundred feet
in width and two thousand six hundred feet in length, running in a
northerly and southerly direction, and crossing the Titus claims
near the west end thereof, and nearly at right angles therewith. In
working from the Flagstaff mine, the plaintiffs in error worked
around subterraneously to a point some three hundred feet to the
east of their location and on the north side of the Titus mine and
within about one hundred feet of the Titus location. It is for this
working that the suit was brought, and the principal question is
whether the plaintiff in error had a right thus to work outside of
its location on the east and whether in doing so it interfered with
the rights of the defendant in error.
It is conceded that both parties are working on the same lode or
vein of ore. The Flagstaff discovery, to which the location of the
plaintiff in error relates as its starting point, is situated
nearly due west from that of the South Star and Titus, and about
five hundred and fifty feet therefrom. The lode crops out at the
two points of discovery, but is not visible at intermediate points.
These croppings, however, show that the direction or course of the
apex of the vein at or near the surface is nearly east and west.
The location of the Titus, claimed by the defendant in error,
nearly corresponds with this surface course of the vein. The
location of the Flagstaff, belonging to the plaintiff in error,
crosses it nearly at right angles.
The principal difficulty in the case arises from the fact that
the surface is not level, but rises up a mountain in going from the
Titus discovery to the Flagstaff. The dip of the vein being
northeasterly, it happens that, by following a level beneath the
surface, the strike of the vein runs in a northwesterly direction,
or about north 50� west. In other words, if by a process of
abrasion the mountain could be ground down to a plain, the
Page 98 U. S. 465
strike of the vein would be northwest instead of west, as it now
is on the surface, or at least as the evidence tended to show that
it is. In that case, the location of the defendant in error would
leave the vein to its right, and the location of the plaintiff in
error would not reach it until several hundred feet to the north of
the Flagstaff discovery.
Evidence having been given
pro and
con in
reference to the condition and situation of the vein, both at and
below the surface and to the workings thereon by both parties, the
judge charged the jury as follows:
"If you find that Alexander Tarbet, during the time mentioned in
the complaint, to-wit, from Jan. 1, 1873, to Dec. 14, 1875, being a
period of 2 years, 11 months, and 14 days, was in possession of the
whole or an undivided interest of Nos. 1, 2, and 3 of the Titus
mining claim and ten feet off No. 1 of the South Star mining claim,
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 intersect 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 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
Page 98 U. S. 466
as lies within the patented surface of the Flagstaff mining
claim."
The court refused to give the following instructions propounded
by the plaintiff in error, to-wit:
"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 the 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."
Secondly,
"In the very nature of the thing, a lode or vein in its unworked
and undeveloped stage cannot be known and surveyed so as to plat it
and make a diagram of it; the law does not require impossibilities,
and must receive a reasonable construction. The diagram required to
be filed by the applicant for a patent under the act of 1866 was a
diagram of the surface area claimed, and this diagram might be
extended laterally and otherwise, as convenience in working this
claim might suggest to the applicant."
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.
The plaintiff in error has made the following assignment of
error, which indicates the position which it contends for:
"The plaintiff in error assigns for error the charge of the
court and the refusal to give its requests -- that is, that the
judge instructed the jury that the defendant below had shown no
title or color of title to any part of the vein except so much of
its length on its course as lies within the surface ground
patented, and that he refused to direct the jury that by the act of
Congress it was the vein or lode of mineral that was located and
claimed, and that the patent granted the lode irrespective of the
surface area, which was merely for the convenience of
Page 98 U. S. 467
working the lode; that the diagram required to be filed by an
applicant for a patent was of the surface claimed, and might be
extended laterally or otherwise, as convenience in working the
claim might suggest; that the surface ground patented does not
measure the grantee's right to the vein or lode in its course, or
control the direction which he shall take; and lastly that the
Flagstaff company have the right to the lode for the length thereof
claimed in the location notice, though it runs in a different
direction from that in which it was supposed to run at the time of
the location."
Both parties agree in the general rule that the owner of a
mining right in a lode or vein cannot follow the course of the vein
beyond the end lines of his location extended perpendicularly
downwards, but that he may follow the dip to an indefinite distance
outside of his side lines. This is undoubtedly the general rule of
miners' law, and the true construction of the act of Congress. The
language of the Act of 1866, 14 Stat. 251, in relation to "a vein
or lode" is
"that no location hereafter made shall exceed two hundred feet
in length
along the vein for each locator, with an
additional claim for discovery to the discoverer of the lode, with
the right to follow such vein
to any depth, with
all
its dips, variations, and angles, together with a reasonable
quantity of surface for the convenient working of the same as fixed
by the local rules,"
&c. The Act of 1872, 17
id. 91, is more explicit in
its terms, but the intent is undoubtedly the same as it respects
end lines and side lines and the right to follow the dip outside of
the latter. 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 side lines is
based on the hypothesis that the direction of 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
Page 98 U. S. 468
to follow the strike of the vein outside of his side 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 side 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 that 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 seems to have been in accordance
with it.
The plaintiff in error contended, and requested the court to
charge, in effect, that having received a patent for two thousand
six hundred feet in length and one hundred feet in breadth,
commencing at the Flagstaff discovery, on the lode at the surface,
it was entitled to two thousand six hundred feet of that lode along
its length, although it diverged from the location of the claim,
and went off in another direction. We cannot think that this is the
intent of the law. It would lead to inextricable confusion. Other
localities correctly laid upon the lode, and coming up to that of
the plaintiff in error on
Page 98 U. S. 469
either side, would by such a rule be subverted and swept away.
Slight deviations of the outcropping lode from the location of the
claim would probably not affect the right of the locator to
appropriate the continuous vein, but if it should make a material
departure from his location and run off in a different direction
and not return to it, it certainly could not be said that the
location was on that lode or vein farther than it continued
substantially to correspond with it. Of what use would a location
be for any purpose of defining the rights of parties if it could be
thus made to cover a lode or vein which runs entirely away from it.
Though it should happen that the locator, by sinking shafts to a
considerable depth, might strike the same vein on its subterranean
descent, he ought not to interfere with those who, having properly
located along the vein, are pursuing their right to follow the dip
in a regular way. So far as he can work upon it and not interfere
with their right, he might probably do so, but no farther. And this
consequence would follow irrespective of the priority of the
locations. It would depend on the question as to what part of the
vein the respective locations properly cover and appropriate.
We do not mean to say that a vein must necessarily crop out upon
the surface in order that locations may be properly laid upon it.
If it lies entirely beneath the surface and the course of its apex
can be ascertained by sinking shafts at different points, such
shafts may be adopted as indicating the position and course of the
vein, and locations may be properly made on the surface above it so
as to secure a right to the vein beneath. But where the vein does
crop out along the surface or is so slightly covered by foreign
matter that the course of its apex can be ascertained by ordinary
surface exploration, we think that the act of Congress requires
that this course should be substantially followed in laying claims
and locations upon it. Perhaps the law is not so perfect in this
regard as it might be; perhaps the true course of a vein should
correspond with its strike, or the line of a level run through it;
but this can rarely be ascertained until considerable work has been
done, and after claims and locations have become fixed. The most
practicable rule is to regard the course of the vein as that which
is indicated by surface outcrop or surface explorations
Page 98 U. S. 470
and workings. It is on this line that claims will naturally be
laid, whatever be the character of the surface, whether level or
inclined.
If these views are correct, the Titus claims, belonging to the
defendant in error, were located along the vein or lode in question
in a proper manner, and the Flagstaff claims, belonging to the
plaintiff in error, were located across it, and can only give the
latter a right to so much of the vein or lode as is included
between their side lines. The court below took substantially this
view of the subject, and ruled accordingly.
As this is really the whole controversy in the case, it is
unnecessary to examine more minutely the different points of the
charge or the instructions asked for by the plaintiff in error. The
question was presented in different forms, but all to the same
general purport.
Judgment affirmed.