King v. Amy & Silversmith Consolidated Mining Co.

De Witt, J. The case at bar involves the construction of section 2322, Revised Statutes of the United States, or, rather, the application of the facts of the case to that statute. “Sec. 2322. The locators of all mining locations . . . . shall have the exclusive right of possession and enjoyment 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. 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 parts of such veins or ledges.” As said by Mr. Justice Field (Iron Silver Min. Co. v. Elgin Min. Co. 118 U. S. 206): “ This section appears sufficiently clear on its face. There is no patent or latent ambiguity in it. The difficulty arising from the section grows out of its application to claims where the course of the vein is so variant from a straight line that the end lines of the surface location are not parallel, or, if so, are not at a right angle to the course of the vein.” — 564 — "We may add to these words that further difficulties arise when we are obliged to apply the statute to facts not wholly within its contemplation. If a mining location be made regularly— made so that the strike of the vein crosses the location from end line to end line, and at right angles to said end lines — there is nothing in the statute to construe or interpret. (Flagstaff S. Min. Co. v. Tarbet, 98 U. S. 469; Iron Silver Min. Co. v. Elgin Min. Co. 118 U. S. 205; Argentine Min. Co. v. Terrible Min. Co. 122 U. S. 485.) “There is no patent or latent ambiguity.” But when veins or their strike cross the side lines, or a side line and end line, at all conceivable angles, difficulties confrout the courts that can best be fully met by legislative aid. Until such aid is invoked; the courts must follow the statute and previous construction as closely as the varying facts permit. (Iron Silver Min. Co. v. Elgin Min. Co. 118 U. S. 208.) The history of mining has proven that the law of May 10, 1872, and amendments thereto, do not afford clear, adequate, and simple solution for some of the practical conditions that arise in the development of the mining industry. The case at bar is a notable instance. It is a first impression in this court, and all other appellate courts. Three solutions of this interesting problem are urged upon our consideration. Neither one is absolutely free from possible criticism, in view of prior construction of the statute, applied to cases where the facts departed from the regularity, seeming to be contemplated by the law. The facts in this case we cannot ascertain have ever been before any court. We do not approach the consideration of the case with the assurance that we might possess were we able to follow a path that had heretofore been even partially opened. The situation is such that we do not feel prepared to pronounce an ex cathedra utterance. "We are obliged to plow a furrow in virgin soil. It will be our endeavor to apply a view to the facts which shall seem to us most consonant with the true intent of the statute, and most in accord with the adjudicated cases in the United States Supreme Court; wherein the rights claimed under irregular locations have received the consideration of that court. Without attempting scientific discussion, we believe we can give a féw practical definitions, to indicate'the sense from the — 565 — miner’s point of view, in which we shall use certain terms in this opinion. Experience has shown that the precious mineral deposits, except what are commonly called “placers,” as a rule lie in veins. Mr. Justice Miller (Iron Silver Min. Co. v. Cheesman, 116 U. S. 533), says: “What constitutes a lode or vein of mineral matter has been no easy thing to define. In this court no clear definition has been given. On the circuit it has been often attempted. Mr. Justice Field, in the Eureka Case, 4 Sawy. 311, says: ‘A fissure in the earth’s crust, an opening in its rocks and strata made by some force of nature, in which the mineral is deposited, would seem to be essential to the definition of a lode in the judgment of geologists; but to the practical miner the fissure and its walls are only of importance as indicating the boundaries within which he may look for, and reasonably expect to find, the ore he seeks. A continuous body of mineralized rock, lying within any other well-defined boundaries on the earth’s surface, and under it, would equally constitute, in his eyes, a lode. We are of opinion, therefore, that the term, as used in the acts of Congress, is applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock;’” the “neighboring rock” being called in the miner’s language the “country,” or the “country rock.” A vein, to the miner, is a body of ore, quartz, or mineral-bearing substance, lying .within the crust of the earth, bounded on each side by the country rock, greatly varying in width, and extending in length, across and through the country for greater and less distances. The direction of the vein so across and through the country is called the “strike.” The direction of the vein, as it goes downward into the earth, is called the “dip.” The dip, in different veins, and in the same vein sometimes, varies from a perpendicular to the earth’s surface to an angle, perhaps, only a few degrees below the horizon. The dip is spoken of from three different points of view: — 1. As to its inclination from a perpendicular or a horizontal, as so many degrees from the perpendicular or from the horizontal. A vein is thus described as having a dip of 20 degrees^ 30 degrees, etc. — 566 — 2. As to the direction it takes from the strike or apex, by the points of the compass. If the strike were due east and west, and the vein in its course downward departed from the ^perpendicular at an angle, so that a perpendicular shaft sunk at the apex would leave the vein to the north of such shaft, the dip, in this point of view, would be said to be due north, or, the conditions reversed, due south. In this respect the dip — that is, the direction of the dip — is said to be, and is, at right angles to the strike. 3. The dip is again spoken of as the portions of the vein successively encountered in going down and away from the apex. The miner follows the dip when he works downward, leaving the apex further from and above him at each advance. He follows the strike when he works lengthways of the vein on a level; that is, when he is advancing along the vein, neither rising towards the surface of the ground nor descending, but going on a level with the plane of the earth’s surface. A failure to distinguish these three views of the dip in using the word sometimes leads to confusion. As we shall use the term “dip” frequently hereinafter, for the sake of definition, let us call the dip from the first point of view the inclination dip, the second the conqiass dip, and the third the practical •dip; for this is the practical idea of the miner when he speaks of following his dip. Under these definitions, a vein absolutely perpendicular to the plane of the earth’s surface, an occurrence rarely if ever encountered, has no inclination dip or compass dip. It has only the practical dip. But in actual mining veins possess a dip from all three points of view. Keeping these definitions in view, we believe that some expressions of courts and arguments of counsel become more clear. This word “ dip ” is not used in the act of Congress cited above. The expression there is “course downward.” “Dip” is the miner’s word which has attained the significations above defined. The highest point of such vein or body as we have described is the apex. The apex may or may not reach the surface of the ground. L The United States mineral law gives to the miner the -whole J^pvery vein the apex of which lies within his surface exterior — 567 — boundaries, or which lies within perpendicular planes drawn downward indefinitely on the lines of those boundaries. The miner may follow the “dip,” using the word in either of its significations, wherever it goes, provided he has the apex as a basis of operation, and that he does not cross the vertical planes of the end lines. The intent of the statute is to give the miner a section or block of the vein of a length on the strike which is equal to the length of the apex lying within the exterior vertical bounding plaiies of the location, and of a depth as far as he desires or is able to work downward, and that at the most remote depth attained he shall have the same number of feet on the strike as he had at the apex. (Iron Silver Min. Co. v. Elgin Min. Co. 118 U. S. 205.) It seems that such grant by the statute to the miner, in view of the geological facts and history of veins, and particularly their almost universal tendency to depart from a perpendicular in their course downward, was deemed to secure to him a more satisfactory title than he would obtain if he were compelled to locate a parallelogram on the surface of the earth, as under the Spanish mining law, and take all, and only that portion of the solid contents of the earth included in a parallelopipedon formed by dropping vertical planes downward on the line of each side of such parallelogram; and the intent of the statutory grant of section 2322 is that the miner may follow his vein on the dip, but not on the strike, if it departs from the parallelopipedon indicated. Therefore, if the miner locates his claim regularly — that is, as . the statute contemplates that he will — he has all that the statute intends to give him. (See cases cited supra.) If he “ will not or cannot make the explorations necessary to ascertain the true course of the vein, and draws his end lines ignorantly, he must bear the consequences” (Iron Silver Min. Co. v. Elgin Min. Co. 118 U. S. 207); that is, he takes less of the apex and strike than he would obtain by a regular location, and consequently less of the dip. But, in order for the miner to make his location in exact conformity with the intent of the law, he must know, when he fixes his exterior boundaries, what the true strike of the vein is. If he knows this, he will locate so that the strike shall pass through the middle of each end line, leaving 300 feet of surface ground on each side of the vein. But the true strike is — 568 — often ascertainable only after immense sums of money are expended in development. He has twenty days, under our statute, to determine this important matter, which may take years to fully demonstrate. If in this helpless condition the prospector commits an error of geological judgment, and upon such error he expends the toil of years, and that toil has wrought its reward, we are of the opinion that the statute should be so construed as will come the nearest to giving to him that whole section or block of the vein which we have above indicated that it is the intent that he shall have, as is consistent with the amount of apex which he has happened to secure by his surface lines, and their planes extended downward. In the light of these views, we will proceed to examine the three theories of the end line plane, presented for our consideration. 1. The court’s theory. In this view the line that fixes the bounding plane is at right angles to the strike of the vein at the point where it leaves the Amy north side line. (On Fig. 1, the line is indicated by the letters e, /.) The plane drops perpendicular from that line. Counsel for appellant calls this a judicially established plane— a plane created by the court, and not by one of the location lines. Respondent's counsel, who holds this theory, vigorously protests against this term, and asserts that the plane is not judicially established, but is that intended by the statute. This, however, is only a terminological contention. Our own infirmity of language is such that we cannot better designate this line and plane than as does appellant. It is in no sense an original line or plane of the surface boundaries as located, nor a projection of, or parallel to, any of them. It is not a line fixed by location, nor ever fixed, except by the decree of the court- below. The United States Supreme Court cases, cited by all the counsel, are Flagstaff Silver Min. Co. v. Tarbet, 98 U. S. 463 (The Flagstaff Case); Iron Silver Min. Co. v. Elgin Min. Co. 118 U. S. 196 (The Horse Shoe Case); Argentine Min. Co. v. Terrible Min. Co. 122 U. S. 478. If there be one legal principle that is announced with more clearness and frequency than all others throughout all these cases, it is that “ the boundary planes shall be definitely determined by the lines .of the surface location, and that they shall — 569 — not be subject to perpetual re-adjustment, according to subterranean developments made by mine workings.” (The Elgin Case, 118 U. S. 207. See, also, 205, 206.) The bounding planes must be drawn by reference to the original surface location lines, and may not be established arbitrarily at the judgment of the parties, or the courts at a later day. The original location fixes the planes. We are forced to conclude that the court’s theory is not in — 570 — accord witb this principle. The plane established is purely a judicial one. It has neither parallelism nor coincidence with, or projection from, or reference to, the planes of any of the original surface lines. It is not “determined by the lines of the surface location.” It was never marked on the ground by the location, nor is it referable thereto. The whole theory of the advocate of this position is based upon the fact that he takes but one view of the dip — that which we have called the “compass dip.” The dip, in this respect, is, as counsel insists, at right angles to the strike. Then, from this single point of view, he argues that, when the miner follows the dip, he may go downward from the apex only at right angles to the strike, and limited further by the planes of the original location end lines. We take his own language from his brief, as follows: — “ The judge before whom the trial was had held that lines drawn at right angles through the vein or lode, where it crossed the side lines, and these lines extended in the direction of the dip of the vein until it intersects a vertical plane drawn downward through the end lines of the location, and continued in the same direction to the place of intersection, constituted the true dip of the vein, and the part which the locator was entitled to follow in its downward course.” This is a fair and succinct statement of the position of the court below and counsel here. We cannot but remember that this case not only determines the rights of the parties hereto, but that the decision will form an important precedent for future adjudication in the courts of this State. If we adopt the courts theory, we must abide by its legitimate consequences. The planes in this case would be drawn on the lines e,f, and g, h. (Fig. 1.) We must then follow the plane g, h, until it meets the plane of the east original end line, the line I, J, on the figure, extended in its own direction northerly, which latter plane, in its northward course, after-wards meets the plane e, f. Thus, three end line planes operate as boundaries, and the portion of the vein that the miner takes runs to a point. This result cannot be the intent of the statute. This is not the section or block of the vein in its entire depth, which the law intends to grant. — 571 — Again (in Fig. 2), on page 423, let the parallelogram, A, B, C, D, represent a location. The strike of the vein crosses the location, entering the east end line near the southeast corner, and passing out of the west end line near the northwest corner, as the line g, h, on the figure. The inclination of the dip is northerly. Counsel’s westerly boundary plane on his theory would run northeasterly, at right angles to the strike at the point of departure from the west end line (the line p, t, on the figure). The section of the vein taken again runs to the point of a wedge. The miner is deprived of the portion of the vein on the dip lying north of the north side line, and between the plane of his artificially established end line (the line o, t) and the plaue of the original west end line D, A, projected in its own direction. This portion of the vein it has never before been doubted, that we are aware, would belong to the owner of the apex of the vein g, h, lying between the protected planes of the located end lines. Again, the vein may enter an end line, and pass out of the side line, as the line m, n, in Fig. 2; or take a deflection, as the lines i, r,j, or h, s, l. These are possible, and quite probable, and we believe actual, occurrences in fact. The application of counsel’s theory leads to results from which we must retreat. In fact, in innumerable practical examples, where a claim is not located with absolute statutory regularity, the miner is entirely cut off from following his dip, and cut off at a greater or less depth, depending upon the inclination of the dip, and the angle at which the strike passes out of a surface line. In the case before us the court drew the boundary plane at right angles to the strike, as it seemed to be demonstrated, at the point of departure from the north side line. The departure at the south side line is not definitely determined. If, in its course over the Amy location, the vein takes a deflection, as seems probable from the findings of the court, the court’s bounding planes will not be parallel, and the portion of the vein secured will run to a point or into a fan-shaped section. If the court would draw the planes by reference to the general average strike of the vein throughout its whole extent, this could not be accomplished until extensive developments had been made on the vein over, perhaps, many locations thereon. We are of the opinion that the view of the District Court is — 572 — not sustained by the statute or the adjudicated cases, and that its adoption threatens the security of mining titles. We are therefore obliged to disavow its doctrine. This conclusion, however, does not determine the case. We are compelled to announce a construction of the law and the facts upon which judgment may be ordered entered below. This involves a discussion of the appellant’s and respondent’s theories. We will first examine the former. 2. The appellant’s theory. The controlling principle of section 2322, and the decisions thereunder, is that the miner has title to all veins, the apex of which lies within the vertical planes of his surface lines, although such veins, in their inclination on their course downward, cross the vertical plane of a side line, provided that such exterior parts lie within the projected planes of the end lines. We are unable to escape the conclusion that the application of the appellant’s theory in the case before us violates this principle. Referring to the plat (Fig. 1), it will be seen that if the Amy people go down upon their dip (using the word in any of its significations, and especially as to the compass dip) from any point on the apex, they will, at greater or less depth, depending upon the distance from the point where the apex crosses the north side line, encounter the vertical plane of that line; and if that plane is to cut them off upon the dip, and be the end line, the provisions of the statute and the universally accepted construction of the mining law are plainly subverted. Counsel holds that if the strike cross a side line, that such side line becomes an end line for all purposes. A better illustration of the revolutionary character of the theory could scarely be presented than the one at bar. But, if it be correct, we must not shrink from its necessary results. Side lines are frequently not parallel. If the strike crosses two side lines not parallel, and these are made end lines, the section of vein taken constantly narrows if the inclination be towards the small end of the location, or widens if the inclination be in the other direction. In fact all the supposititious cases applied to the court’s theory develop equal disasters under the one now considered. Referring again to Fig. 2, the vein indicated by the line m, n, or v, w, will have bounding planes not parallel, but at an angle to each — 573 — other, and often a right angle. If the compass dip were northeasterly, the section acquired quickly runs to a point. If it was southwesterly, it would develop into a fan of infinite proportions, unless we applied the two other lines of the claim as end lines, and had four in operation. The vein i, r, j, would have end lines coincident; that is, there would be but one end line. The single plane of the north side line would cut off a northerly dip in a short distance downward; or, if the dip were southerly, would counsel call into requisition the original end lines, after the vein passed the south side line plane, and have three end lines taking effect? And here we stop to observe that, in the discussion of each of the theories, we are considering the effects of the doctrines upon the portions of the vein on the dip lying outside of the vertical planes of the side lines. Those portions inside the vertical planes of the surface lines of the location are controlled by the general provisions of section 2322. The appellant’s view was urged in a learned argument by counsel; but we feel that we must conclude that in the case at bar it seems to be contrary to the theory and intent of the mining law. We are constrained to disavow the doctrine. 3. The respondent’s theory. We have arrived at our approval of this doctrine, partially upon what the logicians call the principle of exclusion. We believe, however, that the position is independently sustainable by its own reason, and upon previous construction. Its advocate also protests against calling his line or plane a judicially established one, and contends that it is established by the original surface lines; that is, by reference thereto, under the control thereof, and in accordance therewith. In the Elgin Case, 118 U. S. 206-208, we find the following, in the opinion of Mr. Justice Field: “ The surface side lines extended downward vertically determine the extent of the claim, except when in its descent the vein passes outside of them, and the outside portions are to lie between vertical planes drawn downward through the end lines. This means the end lines of the surface location, for all locations are measured on the surface.It is better that the boundary planes should be definitely determined by the lines of the surface location than that they should be subject to per — 574 — petual re-adjustment, according to subterranean developments made by mine workings.The provision of the statute, that the locator is entitled throughout their entire depth to all the veins, lodes, or ledges, the top or apex of which lies inside the surface lines of his location, tends strongly to show that the end lines marked on the ground must control.This view of the controlling effect of the end lines of the surface location is also sustained by the decision of this court in the Flagstaff Case.” From those utterances, and from the tenor of this case, as well as the Flagstaff and Argentine Cases, we believe that we may conclude that the bounding planes, sought to be applied in the respondent’s theory to the facts of the case at bar, may properly be said to be “determined by the lines of the surface location.” In the Flagstaff Case and the Argentine Case the strike of the vein was at right angles to the side line of the location, or, as the court in the former case says, practically so, and, for the purposes of the decision, treated as such. Therefore, in those cases, the vital matter before the court was not a question of the dip, but rather one of the strike, and the spirit of those oases seems to us to be that, when the strike passes out of the location through any surface line, that surface line, and its vertical plane, cut off the strike, and the miner may not follow the strike beyond such plane. We are aware that there is language used in the Argentine Case that looks towards the adoption of the appellant’s theory herein, in the sense that the side line, under the circumstances of the case at bar, must be an end line to limit, by its vertical plane, the dip, as well as to slop the pursuit of the strike. But there is a vital difference between the facts of the Argentine Case and those now before us, and the language therein must be viewed in connection with the facts in the case before the learned justice. Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 399, says: “It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The ques — 575 — tion actually before tbe court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” Mr. Justice Field is the judicial father of the mining law of the United States. By his legal learning, and his practical knowledge of mining, he has illumined the path of the history of mining adjudications. His words in the Argentine Case, and those of Mr. Justice Bradley in the Flagstaff Case, were not spoken of facts such as those now before this court; and we cannot consent that those distinguished jurists would admit that their language sanctions the doctrine that appellant applies to the Amy-Non-Consolidated situation. Turning to the Horse Shoe Case, the other of the three leading cases cited, the facts were also entirely variant from those now before us. These three United States cases have compelled that court to endeavor to cast into the Procrustean bed of the statute indi-, viduals that strained the mould iuto which they were forced. But we believe that we may legitimately conclude from those cases that, in the facts now before us, the principle is that the north side line of the Amy terminates the strike of the vein, and that the dip must be controlled by the planes of the original end lines. The Amy people may follow their dip north of their north side line, but only as it lies between the planes of their end lines, as below considered. The object of parallelism in the end lines is that the locator may have his full section of the lode in its entire depth. But the determination of the strike of the Amy at a point on the side line deprives them of the dip northwest of that point, because the dip, in' that portion, lies under the apex of the Non-Consolidated. The law intends that the plane of the end line shall operate as a boundary to the dip, and so operate at the point where the strike is ended. If the strike reached the original end line, as in a regular location, the bounding plane would there operate upon the dip. If the strike, by reason of its going out of a side line, falls short of reaching the original end line plane, that plane must take effect where the strike in fact ends; that is, at a point on the side line — 576 — (point e, Fig. 1); and, if it takes effect there, its parallelism must not be destroyed. We therefore have the bounding plane operating at the point where the apex leaves the north side line, and operating parallel to the east end line, and retaining its parallelism as originally marked on the ground. It is not a new line or plane, or one judicially constructed. It is determined by the location lines on the surface. There is never any re-adjustment according to subsequent developments. The parallelism of the end line planes is fixed by location, and never varies. The point of departure of the strike from the surface lines fixes the point where the end line plane is to perform its functions, whether that departure be at an end liue, as contemplated by the statute, or whether accident has fixed it at a point on a side line. Complications are soluble upon this theory. The intent of the statute seems to be secured. We will notice some objections made to this doctrine, but which we believe are not sustainable. It is urged that the principle will not apply to a vein, the strike of which crosses the location at exact right angles to the side lines. But here there would be no dip in question. The side line would bound the strike, as in the Flagstaff Case. Again, it is suggested the Non-Consolidated surface location happens to be almost exactly parallel in its lines to the Amy. If the Non-Consolidated had been located with its end lines at right angles to the strike of the vein in the Non-Consolidated ground, that is, parallel to the court’s line (Fig. 1), then it is objected that, if the Non-Consolidated go down on the dip, within the planes of such end lines, and the Amy go down ■within the planes as we define them, a collision would occur under-ground. If so, such conflict would be adjustable by priority of title. Again, it is urged that the Amy has an apex on the surface of a length, as it runs from south to north side line, but that under this theory, at a depth, the strike is shorter, and only of a length equal to the shortest distance between the bounding planes. This objection is based upon an error in the geometrical view, as may readily be shown by descriptive demonstration. A level run on the vein at one hundred, five hundred, one thou — 577 — sand, or any number of feet in depth, would be parallel to the strike at the highest point, and of equal length. Of the three theories which have been presented to ns for application to this case, we approve and adopt the last considered. In accordance with this view, let the judgment entered in the District Court be modified in this particular: that the plane bounding the portions of the dip of the Amy vein, lying north of and outside of the Amy north side line, shall be drawn from the point where the apex crosses that north side line, and in a direction north, 3 degrees west. The case is remanded, with directions to the District Court to enter judgment accordingly. Blake, C. J., and Harwood, J., concur.