Watervale Mining Co. v. Leach

KIBBEY, J. This action grew out of the assertion and exercise by the appellees (defendants below) of a disputed right to extract and appropriate silver ore from a lode lying within the boundary limits of the mining claim known as the ‘‘Black Eagle,” owned by the appellant. The facts disclosed — 55 — by the record, so far as they are pertinent to the question presented to this court, are, that on the first day of January, 1882, the Black Eagle mining location was made; that since that time the claimants of that mine have performed all the statutory requirements essential to constitute it a valid mining claim. The Black Eagle claim lies in a northeasterly and southeasterly direction, and is approximately a parallelogram -feet in length and-feet in width. Appellant is the owner of the claim by several mesne conveyances from the original locators. Three years after the location of the Black Eagle Mine the Little Comet Mine was located, and the statutory requirements to constitute that a valid mining claim have been complied with. The appellees are the owners of the Little Comet Mine. The Little Comet claim intersects, and partially overlies the Black Eagle claim, so that a part of the Black Eagle and of the Little Comet lie within common boundaries. A distinct, well-defined lode of silver ore has been found and traced, by means of a tunnel driven on the lode, following its axis, for a distance of twelve hundred or fifteen hundred feet from a point within the boundaries of either claim to a point two hundred and eighty-five feet within the boundaries of the Black Eagle claim, and within the side-lines of the Little Comet. The entrance to the tunnel. is at the three-hundred-foot level, on the Big Comet Mine, owned and operated by the appellees, and of which the Little Comet is practically a northern extension. The apex of the lode, so far as it has been disclosed by development, is within the side-lines of the Big Comet, as well as of its extension,—the Little Comet,—and about two hundred and eighty-five feet of its extent, as developed, is also within the surface boundaries of the Black Eagle. The diagram on the following page will denote the relative positions of the several claims, and of the workings thereon. The appellees have driven their tunnel into the ground within the Black Eagle claim, as denoted on the diagram, appropriated the ore found therein, and claim the ownership thereof, and threaten to continue to extract and appropriate the ore therefrom. The appellant claims the ownership of the ore, and the right to mine it, under the provisions of section 2322 of the Revised Statutes of the United States. Appellees claim the ownership of the ore, — 56 — except that at 'the space of actual intersection of the lodes, under the provisions of section 2336 of the Revised Statutes of. the United States, asserting that the lode on the Little Comet crosses or intersects a lode on the Black Eagle. In fact, no intersecting lode has been encountered ; but the court finds that there is a lode on the Black Eagle which, inferentially, the lode upon which the appellees have driven their tun-will, if further exploited, be found'to intersect. The question presented to us for our consideration has not been the subject of former adjudication in this territory and elsewhere, we believe, except in the state of Colorado. Because of the novelty of the question here, and the fact that we arrive at a conclusion at variance with that of the Colorado court, we feel justified in stating more at length the reason for our conclusion than we should otherwise do. Our mining laws have grown from, and been suggested by, the practice of the miners themselves. As from time to time conditions changed, the miners framed rules applicable thereto. These rules had no reference in the first instance to the acquisition of the title, either to the mineral or to the land in which it was found. The title was, admittedly, at least in the western states, in the United States. But that title was ignored by the early miners, and the invasion of the rights of the United States by the miner a in entering upon its lands and extracting therefrom and appropriating the valuable minerals, was not resented by that government. The rules of — 57 — the miners referred almost exclusively to the ascertainment and enforcement of their individual claims as among themselves. At first, and until 1872, the substantial thing claimed by the miner was the lode-bearing mineral. He cared nothing for the soil or land itself, except as it was a necessary adjunct to the process of mining. His only claim to the surface was, that he might have a place whereon to erect his mill, his hoisting-works, and, if he desired, to live, and to deposit the débris resulting from the process of mining. His only claim to the ground below the surface, outside the limits of his lode, was to its use for reaching and extracting the ore from his lode by tunneling, drifting, etc., or to obtain the water necessary for carrying on his mining operations. His right to extract mineral was confined to the limits of the lode that he had discovered and located. The right was dependent upon discovery, and the observance of, and compliance with, certain rules prescribed by the miners themselves or by local statute, designed chiefly to give publicity and certainty to the fact and extent of his claim, and to afford evidence of his good faith in the location. These rules almost from the beginning limited the extent of the lode which might be claimed. It was provided that the miner should not have more than a designated number of feet of the lode he might discover and locate, to be measured along the course of the lode itself. With the lode he acquired the right to all its dips, angles, spurs, and variations; but he acquired no right to any cross or intersecting lode, or to any parallel lode. His claim was to the lode which he had discovered and located, staked, monumented, and exploited in the manner prescribed by the miners’ rules and the local statutes, and to all its dips, angles, spurs, and variations which were a substantial part of it. So long as he was able to establish that any particular ore body was a part of the lode that he had legally located, and was within the longitudinal limits of his claim, he established his right to that ore. To isolate his lode from all others was to define his claim. It is well known that lodes are not uniform in their course, their dip, or in any of their dimensions, nor in the character of the ore that they carry; that in their course, and upon their dip, they may divide, and may or may not reunite; that there may be a principal, or, as miners sometimes denominate it, a “mother,” lode; diverging from it are — 58 — spurs, offshoots, or branch lodes; that the lodes,are subject to faults or displacement of their fractured ends, breaking the continuity of the lode; that the lode may be crossed on its strike or course, or upon its dip, by other and distinct lodes of similar or different character; that a lode may in parts of its course be overlain by an adjacent lode; that a lode may at any part of its strike, or upon its dip, “pinch out” or vanish. These incidental characteristics of ore lodes cannot be determined except by complete exploration of the lode itself. Indeed, not all of them can be ascertained until after the complete removal of all the lode material, leaving only the matrix. The miner cannot know what is in advance of his drill in any direction. He cannot often, with any probability of fulfillment, predict. The first act of Congress recognizing the rights of -miners was in 1866, which, among other things, provided for patenting to persons who claimed a lode of quartz, or other rock in place, bearing gold, silver, etc. Here Congress recognized the customs and rules of the minrrs, whereby the claim was to the lode, as distinguished from the land itself. It was inevitable from this condition of idlings that disputes should arise among rival claimants to mineral-bearing lodes. The question of priority of discovery a nd notice and of the extent of the claim were of easy solution. The question of the identity of the lode presented almost, insurmountable obstacles. True, lawsuits were instituted and decided. Courts found that ore found in one place was from the same lode as that discovered, maybe, one thousand feet away. Mining experts and geologists projected into the realm of fact their theories and their guesses. This was the best that could be done. Certainty was impossible. An approach to it was improbable. Mining rights were most precarious. The miner’s right to that part of thq lode at his discovery shaft was subject to defeasance by establishing that he ivas upon but a spur of his neighbor’s lode and not on his lode. These conditions were provocative of disputes and of consequent litigation. They afforded a premium to the unscrupulous to institute lawsuits, for in them the chances of success for the unjust and the just were about equal. It was but a lottery. In 1872 Congress enacted a new mining law. We may surely assume that Congress well knew of the evils arising — 59 — from the application of the old rule relative to the acquisition of mining rights. By section 2319 of the Revised Statutes of the United States, it is provided “that all valuable mineral deposits in lands belonging to the United States . . . are hereby declared to be free and open to exploration and purchase; and the lands in which they are found, to occupation and purchase.” For the first time we here find the land in which mineral is found to be a substantial, integral part of the claim. Section 2322 gives not the lode alone, but all lodes, veins, and ledges, throughout their entire depth, the top or apex of which lies inside of the surface lines of the claim extended downward vertically; and as lodes may dip, so that, when followed, they may be found to extend beyond the boundaries of the claim, Congress further provides that they may nevertheless be followed, but that the locator shall be entitled only to such part thereof as lies between vertical planes drawn downward through the end-lines of the claim. In other words, Congress has said to the miners: “Comply with the requirements that we impose, and the government of the United States will grant absolutely to you a piece of the earth, bounded at the surface by straight lines distinctly marked, and by planes extending through those lines to the center of the earth; and you shall have all lodes of mineral-bearing rock whose apex is within those boundaries.” This is simple, plain, and the miner’s rights are thereunder easy of ascertainment. Tie does not have to trouble with dips, spurs, and angles. If he or another makes dozens of distinct discoveries of one lode, or of a dozen different lodes, which have their apex within his boundaries, he is not concerned about their identity. No one can question his right to them. They are all within his slice of the earth, and by the express terms of the statute they are his. In two instances contemplated by the statute he may pursue a lode beyond the limits of his claim, or the ground within the boundaries of his claim may be invaded by an adjacent proprietor: First, when the lode, having its apex within the boundaries of his claim, shall dip beyond them (but even in that event he is limited by the planes passing through the end-lines of his claim); and second, when a locator shall have located a lode prior to the tenth day of May, 1872, under the mining laws then in force, and shall, as against a subsequent and overlapping claim, have — 60 — saved Ms right to his lode in the manner prescribed in the act of 1872. In the latter case the prior locator may follow his lode upon its strike or dip into other ground than his own. It will immediately suggest itself to a legislator that where a miner may follow á lode outside of his boundaries he might encounter adverse rights in an adjoining claim. His lode might intersect a lode of an adjoining claim or it might, unite with it. With this in mind, Congress enacted section 2336, whereby provision is made for the determination of what would otherwise be conflicting claims. It provides that at the space of the intersection of such lodes the oldest locator shall have the ore, and that the junior locator shall have a right of way through that space, to pursue and work his lode; that if there be a union of two lodes the senior locator shall take the ore at the space :>f intersection or union and all of the lode below the point of union. These two sections, so construed, completely define and make easy of ascertainment the rights of the miner. They are easily applicable to any conditions that may arise, and eliminate from consideration all perplexing questions n xat attend an attempt to identify, define, and isolate lodes. But we are asked to put a different construction upon section 2336,—a construction that admittedly renders that section repugnant to section 2322. We are asked to go still further, and hold that section 2336, to the extent of such repugnancy, repeals by implication the provisions of section 2322. Counsel for the appellees have argued the question with grea t earnestness and ingenuity. Preliminary, however, to the discussion of that question, we wish to dispose of another. It was argued during the presentation of this case by the appellees that a mining claim, to be valid, must be located along the course of a lode; that the statute contemplates that it shall be so done. The statute, as we understand it, only intends to prescribe the limit of exent along the course of the lode that the locator may claim, not that he shall locate so that the greatest dimension of his claim shall coincide with the course of the lode. It is provided that1 the extreme extent along the lode shall not exceed fifteen hundred feet. It may be less. And if the miner in making his location should mistake the direction of the lode upon which he locates, and accordingly make the extreme dimensions of his -claim in a direction other than — 61 — that of the lode, that fact does not invalidate his claim, bnt only operates to diminish the extent of the lode that he might have included within the boundaries of his claim. Of course, Congress expected that the miner would avail himself of the privilege accorded him and locate along the course of the lode, but it does not require him to do so. The only result of not so locating is, that the locator gets less in extent of the lode than he otherwise would have located, and that if the side-lines instead of the end-lines cross the course of the lode, in order to define the locator’s rights to pursue the lode on its dip the side-lines will be treated as end-lines. Mining Co. v. Tarbet, 98 U. S. 463. Section 2322 of the Revised Statutes of the United States is as follows: ‘ ‘ See. 2322. 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 10th day of May, 1872, so long as they comply with the laws of the United States, and with the state, territorial, 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 all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended down 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 location. 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 part 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 pf a claim owned or possessed by another.” And section 2336 is as follows: “See. 2336. Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of — 62 — intersection, but tbe subsequent location shall have the right of way through the space of intersection for the purposes of convenient working of the mine; and, where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection. ’ ’ The appellees claim that they discovered a lode of ore subsequent in point of time to the location of the appellant’s mine,—the Black Eagle,—the discovery being at a point on the lode south and outside of the surface limits of the Black Eagle claim;.that they have traced that lode by tunneling within its walls a considerable distance into the ground of the Black Eagle; that that which is inferentially the same lode has been discovered at a point north of the Black Eagle claim; that these points of discovery are on the general strike of the lode, which is traced from a point from the Miner’s Dream claim northwardly through the length of the Big Comet, and on the same general course into the Little Comet and the Black Eagle, to the point of dispute. There seems to be no reasonable doubt of the identity of the lode on its course from the Miner’s Dream to the face of the tunnel in the ground of the Black Eagle. The appellees in their answer allege that up to that time this lode had not encountered or crossed any other lode or vein, but they urge that inasmuch as the court below finds that the Black Eagle is a valid mining claim, it must have found, as a condition precedent to the validity of the claim, the fact that there was upon that claim a lode, vein, or ledge containing quartz or other rock bearing mineral. There is in the record evidence that discoveries of ore were made in several places on the Black Eagle claim, and that if a line were drawn connecting these several points of discovery, that line, if extended in the same general course, would cross the supposed course of what for convenience of expression we may call the Little C omet lode. The fact of an actual crossing or intersection of two lodes is not testified to, admitted, or proved. Appellees contend that the inference of the' facts testified to is aided by the presumption that the Black Eagle claim was located longitudinally along the course of a lode, and that therefrom it must be inferred that there is an actual intersection somewhere within the limits of both the Black Eagle and the Little Comet of the Little Comet — 63 — lode and some lode in the Black Eagle; and upon the existence of the fact of such a crossing the appellees claim that section 2336 gives them the right to all the ore in the Little Comet lode within the boundaries of that claim, whether within the boundaries of the Black Eagle or not, except the ore within the “space of intersection.” We cannot doubt that the expression, the “ore within the space of intersection,” means that body of ore bounded by the foot- and hanging-walls of one lode extended in a general course of that lode and the foot- and the hanging-walls of the intersecting lode extended upon its general course. It is only to this body of ore, limited as we have noted, that section 2336 relates. In one instance the body of ore is given to the prior locator, and in the other a right of way is given through that hody of ore to the junior locator. It cannot relate to ore outside of the space of intersection. It does not do so in terms, and we do not feel justified to extend it by construction. By section 2322 we think it clear that a locator cannot go outside of any of his lines on the strike or course of any lode, except under rights acquired by him prior to the enactment of 1872, and saved to him under the provisions of that act. That doctrine is clearly enunciated in the Flagstaff case, before cited. The right of the miner to go beyond the limits of his claim on the strike of a lode can only be given by the construction of section 2336 claimed by the appellees; and that is, that that section was designed to give a new right where lodes in fact cross, and not to define and settle prior existing rights at the space of intersection. In other words, that if a lode on a junior location intersects on its strike within the boundaries of a senior location a lode on such senior location, then the junior locator may.take all the ore in the first-mentioned lode within the boundaries of both the senior and junior location, except at the space of intersection, notwithstanding that 'section 2322 limits the locator to his own boundaries, except when pursuing a lode on its dip, and that to this extent section 2336 repeals section 2322. There need be here no discussion of appellees’ proposition that, as between conflicting sections of the same statute, the last in the order of arrangement shall prevail. In this connection we may only add that Mr. Sutherland, in his work on Statutory Construction, cited by the appellees, in the same section wherein he announces — 64 — this canon of statutory construction, says : “This rule is applicable where no reasonable construction will harmonize the parts. It is presumed that each part of a statute is intended to coact with every other part; that no part is intended to antagonize the general purpose of the enactment.” Sutherland on Statutory Construction, sec. 160. Do sections 2322 and 2336 conflict? Can they be harmonized by reasonable construction? We have indicated our construction of the two sections. They are thereby in complete harmony, and coaet for the accomplishment of what seems to us to be the very purpose of the statute,—i. e. the establishment of a rule for the easy definition of miners’ rights, and the elimination therefrom of the uncertainties of the old rule; the substitute for the lode claim, which must always be uncertain and provocative of disputes in its practicable application, of the easily and well-defined segment of the earth, with its mineral contents. Appellees assert that when a junior location crosses a prior location, and the lodes therein are cross-lodes, the junior locator is entitled to all che ore found in his lode within the side-lines of the senior location, except at the space of the intersection of the two lodes. In such case the prior locator has the right of way for the purpose of excavating and taking away the mineral in the cross-vein. These propositions contain two elements that are not contemplated, at least in terms, by the statute. The statute does not in any place contemplate a crossing of locations. It does not say so. To so construe it is to say that “cross-lodes” or “veins”, mean cross-locations; and if we are to adopt that meaning,— a plain distortion of the statute,—we must be consistent, and read section 2336 with the words “cross-locations” wherever the words “cross-lodes” appear. The words used mean one or the other, or both, but certainly not the first only, or the second only, to the exclusion of the other, to suit convenience. We do not wish to be understood i;o accede to the proposition that “lode, vein, or ledge” means other than “lode, vein, and ledge.” It is the grossest brutality of statutory construction to attempt to construe those words to mean “locations” or “claims.” But it seems to us that appellees are no better off even with that substitution. Reading that section as if the word was “location” instead of “vein or lode,” even then appellees, not having the prior location, would have no right to — 65 — any ore within the space of intersection of the claims. In that event the space of intersection is the space bounded by the side-lines of the Black Eagle on the north and south, and by the side-lines of the Little Comet on the east and west; and by section 2336 the ore therein belongs to the oldest locator,—i. e. the appellant, or owner of the Black Eagle. At most, the appellees could have a right of way only through this space of intersection whereby to reach and extract their ore north of, and beyond, the Black Eagle’s north side-line. The first ease in which there is a construction of section 2336 to which our attention has been called is the case of Hall v. Mining Co., Morr. Min. Rights, at page 282. The opinion was delivered by Hallett, United States district, judge for the district of Colorado. The great reputation of Judge Hallett for erudition, especially in questions involving mining rights, gives rise to much diffidence upon our part in attempting to criticise his decision in that case. The decision in that ease was upon a motion to dissolve an injunction. It seems that the Colorado Central lode and .the Equator lode, in the Griffith Mining District, in Colorado, were both patented lodes. The patent for the Central lode is senior to that of the Equator, but its location is junior to that of the Equator, the location of the Equator lode having been' made in 1866. The patents to each were in 1875. Each location was fifty feet in width, and one was fourteen hundred and the other fifteen hundred feet in length. Their general course was east and west, the course of one departing about twelve degrees from that of the other. The east end of the Central overlapped the west end of the Equator in such a way as to leave a small part of each projecting beyond the north side-lines of the other. It further appears “that,” in the language of Judge Hallett, “these locations were made as and for different lodes, crossing each other with an acute angle of about twelve degrees, and each extending beyond the lines of the other for a distance of more that two hundred feet.” The dispute in the case arose over the ownership of ore in a body of ore found in or under the east end of the Central, and thence extending westward to and across the intersection with the Equator location. Premising that any priorities acquired by private discoveries or locations are merged in the patents, and that priority of right thereafter depends on priority of patent, Judge Hallett pro — 66 — ceeds to the consideration of section 2322 and 2336. He says: “The general language of section 2322 seems to comprehend all lodes having their tops and apexes in the territory described by the patent, whether the same lie transversely or collaterally to the principal lode on which the location was made. Considered by itself, such would be the meaning and effect of that section. But there is another section relating to cross-lodes which is of different import.” He then quotes section 2336, and proceeds: “It will be observed that by this section the first locator and patentee of a lode gets only such part of cross and intersecting veins as lie within the space of intersection, to the exclusion of the remainder of such lode and veins lying within his own territory.” And this is all that Judge Hallett says upon the subject, except to say that therefore section 2336 repeals pro tanto section 2322, and deduces the conclusion that the subsequent patentee is entitled to all the intersecting lode, except at the space of intersection. If this is the construction of section 2336, then a locator of a mining claim does not become the owner of all the lodes, veins, and ledges in his segment of earth, whether there be a prior locator and patentee or not, for at the time of patent the first patentee is the only patentee. This seems a strange situation to us. It is a relegation of the whole system of acquirement of mining' rights to the methods prevailing prior to 1872. The minces’ rights are again made to depend on the existence of facte the establishment of which cannot be made until after the time of the enjoyment of the right is irrevocably gone. How «san the miner know that the lode upon which he locates is not a cross-lode,—that is, a cross-lode in the sense Judge Hallett uses that term? It seems to us that Judge Hallett overlooked the fact that section 2336 referred to no rights whatever in cross-lodes, except at the point of intersection. It does not in terms, and we certainly think cannot by implication, relate to rights in any lode except at the space of intersection. Congress only contemplates that if A has a valid right to the ore in a given lode, and B the ore in another, and if those lodes happen at some point to intersect, then, by section 2336, their rights within the space of intersection are to be defined. The right of A to the ore in his lode, and of B in his, were not, and are not, in any wise dependent upon the fact of crossing. The learned judge seems — 67 — in one instance to designate by the term “cross-lode” a lode whose general course is along the shortest dimension of the claim, while in the other instance a lode which in fact crosses another lode. Every lode may in fact be both. If by “crossr lode” is meant a lode crossing a claim, what of a lode that is as nearly transverse as longitudinal? What of a lode that is partly transverse and partly longitudinal? If by “cross-lode” is meant a lode crossing another lode, where must the intersection be,—within or without the claim of one or the other, or of both of the claims of the contestants? How can it be known that in the latter sense a lode is a cross-lode until the fact of crossing is substantiated. May a man go upon a claim, work out the ore, and then find that his lode was a “cross-lode,” and he thereby be made a trespasser ab initio, even as against a subsequent locator? The logical result of such a construction but confounds the confusion sought to be avoided. .....-'■■■■ ■ We are next referred to the case of Branagan v. Dulaney, 8 Colo. 409, 8 Pac. 669. That case simply follows Hall v. Mimng Co., supra, decided by Judge Hallett, and is subject to the same criticism. The next ease in chronological order is Lee v. Stahl, 9 Colo. 208, 11 Pac. 77. The court there simply follows the Equator case and Branagan v. Dulaney, without comment; and so with the other Colorado cases cited. We are cited to some decisions by the department of the interior. Without discussing them, we can only say that so far as they attempt to construe section 2336 as giving rights in any lode outside of the space of intersection with another lode, each of the intersecting lodes being owned by different persons, we cannot agree with them. It was argued at the trial of this case that as a matter of fact lodes, veins, and ledges do not intersect, except upon their strike; that an instance of a crossing upon the dip of two veins was unknown, and that therefore section 2336 must refer to the crossing of lodes on their strike; that Congress would not legislate to define rights dependent upon a condition that can never happen. If it be true that an instance of two lodes intersecting upon their dip is unknown, that fact is only evidence, and we think very slight evidence, that they may not do so. It is a complete answer to that that lodes can cross on their dip. But we think it unimportant whether they — 68 — can or not. Congress had in mind at the time of the enactment of the law of 1872 that, as mining rights then stood, A’s lode might legally cross B’s lode on the strike, and whether on the dip or not makes no difference; and section 2336 was designed to define the rights of A and B in the space of intersection. Under the construction of sections 2322 and 2336 we are within the plain, unambiguous terms of the statute, giving to every part of it its full meaning and effect. It results in a beautifully simple means, of defining mining rights. The construction urged by appellees, and supported by the Equator and subsequent Colorado decisions, violates the language of the statute, injects into it things not there, results in conflict in the statute among its parts, and makes infinitely more complex the old system of lode claims. The case is reversed. Gooding, C. J., Sloan, J., and Wells, J., concur.