Pardee v. Murray

Wade, O. J. This controversy, as shown by the pleadings and testimony, arose over the identity of certain quartz lodes, the plaintiff claiming the possession of the Salmon and Cliff Extension lode claims, situate near PhilIipsburg, Deer Lodgd county, he being the lessee of Holland and Estell, who purchased the claims in 1873, and after the commencement of this action received a government patent therefor; and the defendants basing their right upon their location and possession of the Shark Town and Scratch-All claims. The answer of defendants denies the possession of plaintiff, but the testimony conclusively shows, and without question or dispute, so far as the same appears in the transcript, that the plaintiff, at the time of the grievances complained of, was, and that for a long time prior thereto his lessors had been, in possession of the surface ground of the Salmon and Cliff lode claims. The answer also denies that the defendants ever entered upon the Salmon and Cliff claims, or that they ever mined within the limits thereof, and avers that ever since the 9th day of February, 1875, they have been in possession of and working the Shark Town and Scratch-All claims, and therefore alleges that plaintiff’s action is barred by the statute of limitations of February 9, 1865, ■and January 11, 1872. The replication of plaintiff admits the location of the Shark Town and Scratch-All claims, but alleges that the defendants, since the 9th day of February, 1875, have been working on the Salmon and Cliff Extension. The location of the Shark Town and Scratch-All claims was [277] not in question. There was no controversy concerning them and could have been none. Their location was admitted in the pleadings, and any testimony concerning such location was properly excluded from the evidence. This seems to be the state of facts in the case. The defendants entered upon their own grounds, and outside the surface boundaries of the plaintiff’s claim, and sunk a perpendicular shaft and struck a vein of quartz beneath the surface; and the question at issue was whether this vein belonged to, and formed a part of, the Salmon and Cliff Extension lode, and upon this issue the jury found for the plaintiff, and that it did. Upon this issue, testimony as to when defendants commenced upon their claims, or under what claim of title, or how much money they had expended thereon, or when they first commenced work, was wholly immaterial after the admission in the pleadings of the location of their claims. Nor would it have been competent to have proved the declarations of Holland and Estell, lessors of plaintiff, as to the extent or limits of the Salmon and Cliff veiu, providing the extent and limits of the same, at the time they made any declarations, because of want of development, were entirely unknown. Such declarations at such a time could have been nothing more than mere speculation, and wholly incompetent for the purpose for whicli they were offered. Neither would the opinion of the respondent in 1876 as to the location of the Scratch-All claim, or the opinion of any witness as to the dip or direction of the ore in any other veins, make any difference. The possession of the respondent was sufficient to maintain this action. He had possession of the surface ground, and such possession gave him possession of all veins, lodes and' ledges throughout their entire depth, the tops or apexes of which lie inside of the surface lines extended downward vertically, although such veins, lodes or ledges may so far depart from a perpendicular in their [278] course downward as to extend outside the vertical side lines of the surface location. TJ. S. R. S. sec. 2320. Possession of the surface of a mining claim location is possession of all veins, lodes and ledges, the tops or apexes of which are inside the surface lines, although such veins, lodes and ledges, as they go downward, may extend outside such surface lines; and possession of the surface ground protects such veins, lodes and ledges from the. operation of the statute of limitation. Therefore, before the defendants could set up any adverse claim to the Salmon and Cliff Extension vein, they ought to have shown that they were in possession of the same at the surface! No adverse possession could become operative by going outside of its boundaries and sinking a shaft upon what they claimed as another location, and striking the Salmon and Cliff Extension vein on its dip, and outside of its surface lines, no matter how long contmued, if unknown to the respondent and his lessors. In such a case the statute would begin to run only from the time it became known to the Salmon and Cliff owners, their predecessors or assignees, that the defendants had entered into the possession of the vein under ground and outside of its surface boundaries. Such owners would have no right to enter upon the defendants’ ground or into their shaft or works, and, therefore, no means of knowing the extent of the defendants’ possession, or what titles they might be claiming by virtue thereof. Adverse possession, in order to ripen into a title, must be open, notorious, and under a claim of right. The defendants set up no claim to the Salmon and Cliff Extension. They deny that they ever worked upon the same. They claim title by virtue of the Sharktown and the Scratch-All locations, and allege that all their work was done upon such locations. They therefore can claim nothing by virtue of adverse possession of the Salmon and Cliff Extension. They declare that they held no such possession and claim no interest in that vein. Under these [279] averments in their answers they can claim nothing by adverse possession. Their pleading must not be contradictory or inconsistent. Their testimony must not contradict their averments. After having denied in their answers that they ever had possession of the Salmon and Cliff Extension lode, it was no error for the court to refuse to admit testimony in their behalf that they had taken forcible possession thereof. If, under the state of circumstances disclosed in this case, the defendants might have availed themselves of the statute of limitation, they have not so pleaded the same as to become entitled to the benefits thereof. They claim under the statutes of February, 1865, and January, 1872, which were repealed by the act of February 16, 1877. The defendants also claim by virtue of a cross-vein. All competent testimony on this issue seems to have been fairly submitted to the jury. In such a case, priority of title governs, and the prior location is entitled to all the ore or mineral contained within the space of intersection, but the subsequent location has the right of way through the space of intersection for the purpose of the convenient working of the mine. U. S. ft. S. sec. 2336. If a vein with a prior location crossed another, such vein would not disturb the possession of the subsequent location, except as to the extent of the cross-vein, and would entitle the prior location to the ore and mineral contained in the space of intersection. If with a subsequent location, the locator would be entitled only to a right of way to the extent of his cross-vein, for the purpose of working his mine, and to no other right; and if he should take the ore contained in the space of intersection he would be a trespasser, against whom the prior locator in possession of the surface ground might maintain an action of trespass. The judgment is affirmed, with costs. Judgment affirmed.