tunnels and drifts in, along, and upon said vein or lode, from said Drum Lummon claim into said Marble lIeart claim, which are necessary in order to enable plaintiff to work and mine its said mining claims; that defendants, commencing'upon the Hopeful claim, have drifted into said Drum Lummon lode or vein in the Marble Heart claim, and have approached so near to the tunnels, drifts and workings of plaintiff in said claim as to endanger the I;lame, and destroy them, anli the use thereof by plaintiff, and that defendants threaten, by means of their shaft or incline, to enter into the tunnels, drifts, and workings of the plaintiff, and to destroy the same, and to deprive the plaintiff of the use of the same, and are so near to the workings of plaintiff as to be dangerous to plaintiff's workmen and employes, and, if permitted to continue, will greatly damage and injure plaintiff's property; and that defendants threaten to enter into plaintiff's Drum Lummon lode, and to l'xtract the ores, quartz rock, and precious metals therein contained. The defendants in their answer do not deny the title of the Drum Lummon lode claim and Marble Heart lode claim to be in plaintiff. They admit, that plaintiff has driven tunnels and drifts in said claims. They admit that the location of the Hopefulclaim was made subsequent to the other two claims above named, and that plaintiff was in possession of said two claims. Defendants admit that their shaft or incline has reached very near to the tunnels, drifts, and workings of plaintiff, and that by their incline they have passed out of their sidelines, and within the side lines of plaintiff's Marble Heart claim. , There was .some doubt in my mind as to whether the complaint did not present such an issue as should call for the determination of the legal title to the place of the alleged trespass of defendants before the court could grant the reliefasked by plaintiff, namely, a perpetual injunction restraining defendants from committing th,e acts complained of. There seems to be no claim on the part of the defendants but that the complaint states a sufficient cause of action. The complaint, with the admissions in the answer, probably dispenses with any such proceedings as above indicated on the part of the court. The defendants, in what they term a "cross-bill," disclose their defense, and justify their action of entering by means of an incline from thf:l Hopeful claim into the Marble Heart claim. Although the defendants term this part of their pleadings a "cross-com'plaint," the court is justified in treating it as an answer, setting up new matter GO,nstituting a defense. This undoubtedly is what the pleading is. The plaintiff has so treated it by replying to it instead of answering it. In taking this position as to this pleading I am justified by the case of Doyle v.Franklin, 40 Cal. 106. In this answer the defenuants set forth that the said Drum Lummon vein or.lode enters the Hopeful claim, owned hydefendants, at a point near the top or apex of their claim, and passes, through same, and. out at the base of the triangular part of ground which defines their claim; that ,the apex of this vein odoQ.e is in the Hopeful claim from the point of entrance to said base line therepf; that they commencE:d upon the apex of this vein with their said incline, and have followed the same down some 118 feet; that in its dip said
vein passes into the Marble Heart claim. The pJaintift'in its complaint avers that the apex of this lode is wholly within the Drum Lummon and Marble Heart claims. Here an issue is presented, and a material one, and must be determined by evidence, and is not a matter of law. 'I'he plaintiff' presents the point for consideration that the allegations of defendants in their answer show that the Hopeful claim has no parallel end lines. The answer of defendants does show that their claim is in the form, of an isosceles triangle. A triangle has but three sides, and no two of these can be parallel to each other. The question is here presented of the right of the defendants to follow on the dip of their lead into the Marble Heart claim through its side lines. This point was settled in the case of the Iron Silver Min. Co, v. Elgin Min. &- S. Co" 118 208, 6 Sup. Ct. Rep. 1177. In that case the United States supreme court uses this language: ,"Under the act of 1866, [14 8t.251,J parallelism in the end,lines of a surface location was not required: but, where a location has been made since the act of len, such' parallelism is essential to the existence of any right in the locator or patentee 'to follow his of the vertical planes drawn through the aide lines. His lateral right by the statute is confined to such portion of the vein as lies between sllcn planes drawn through the end lines, vertical planes. and extended in their own direction; tbatis, between It can embrace 110 other." This language is dechdve of the defendants' right to follow their vein outside of their side lines. Having no parallel end lines, they cannot do it. The defendants urge that they located the Hopeful claim in such a way as to have parallel end lines. There is nothing in the pleadings to show thiS, and, if there was, I do ,not think they could maintain this position. ,According 'to the statement made by counsel, it appears the defendants did claim apiece of ground which had parallel end lines when they made their location; but it further appears that they set their stakes upon the premises of plaintiff, and claimed some of its ground. When compelled to relinquish what they had claimed, which belonged to plaintiff, they had no north end line, and their claim assumed the form of an isosceles triangle. The defendants coulrllocate only what was to location, no matter what they claimed. It was decided in Belk v. Meagher, 104 U. S. 279-284, that a location upon premises belong- , ing to another person gave no rights whatever. It was only when a 10eation was made upon the public domain that rights were acquired. But does the fact that defendants cannot follow the lode out of the boundaries of their claim on its dip entitle the plaintiff to a judgment against them for so doing? Before the plaintiff would be entitled to a judgment, it must show that it is the owner of the vein upon wbichdefendants entered its ground. The plaintiff received a grant from the United States to all lodes the top or apex of which was within the limits of their mining claim. , It did not receive a grant to any lode which had its apex or top outside 'of its claims. Most, if not all, patents for lode mining claims bave this clauSe, which specifies the conditions and stipulations under which the grant is made, namely:
'MONTANA CO. V. CLARK.
"Second. That the premises herebycoDveyed, with the exception of the sur· face, may be entered by the proprietor of any othel.· vein. lode, ledge, or deposit, the top or apex of which lies outside the exterior limits of said survey, should the saIDe in iU«lownward course be found to penetrate, intersect. extend into, 01' underlie the premises hereby granted. for the purpose of extracting and removing the ore from such other vein, lode, ledge. or deposit." This shows what construction has been placed upon that portion of the congressional mineral act by the land department of the United States. The interpretation placed upon a statute by the officers who have to act thereunder; and their practice thereunder for many years, is entitled to great weight in its interpI:etation. U. S. v. Moore, 95 U. S. 760. The United States is the proprietor of all veins or lodes whose apex or top is not within the limits of any grant it has made, and this clause reserves its rights, and these rights it may grant to any citizen, or to anyone who has declared his intention to become such. In the case of Mining QQ. v. Cheesman, 116 U. S. 533, 6 Sup. Ct. Rep. 481, Justice MILLER, speaking for the United State supreme court, after quoting section 2322 ofthe United States Revised'Statutes, says: "It is Qbvious that the vein. lode, or ledge of which the locator may have · the exclusive right of possession andenjoyruent' is one whose apex is found inside of his surface lines, extended vertically, and this right follows such vein, though in extending downward it may depart frOID a perpen<licular, and extend laterally outside of the vertical lines of such surface location." Had thedefendants so located the Hopeful claim that it would have had parallel end lines, there can be no doubt but they would have been entitled to follow any vein, which may havE1. its apex within its limits, and which passed through both end lines in its strike, on its dip into the Marble Heart claim. If the plaintiff would be entitled to veins or lodes whose apex is outside of the lines of their claims which enter the same on their dip, and which have not been granted by the United States to anyone else, what is the extent of their right to such vein or lode? Suppose it should pass in its dip through the Marble Heart claim into adjoining ground, could plaintiff follow it beyond its lines? It is granted the right to follow beyond its lines only· such veins or lodes as have their apex within the boundaries of its premises. It was urged that the plaintiff might be considered to have a grant of that portion of · the vein found within the lines of its premises until the United States granted it to some one else. If the United States granted it this lode, there is no law for revoking that grant, and granting the lode or vein to another party. Such a construction of the statute would make it inconsistent with any reasonable intention on the part of congress. The plaintiff insists that the rule of the common law that whoe\'er owns the surface is entitled to all beneath the same should apply to a case such as this. But this doctrine is not fully applicable to lode mining daims, and cannot be invoked in this case at all. In this view I am .supported by the opinion of Justice BEATTY in the case of Bullion Min. CO.v. Crm8'tt8 Gold &- Silver Min. Co., 5 Mng. Rep. 254. In this he says: "The doctrine of the common Jaw, that he who has a right to the surface .of allY portion of the earlh has also the right to all beneath and ·aboYe· that
surface; has but l\ limiteda,pplicatitm to the rights of miners and others using lands of t his state. :N has compelled .a great modification 'fhe departure .(rom those old and doctrines of the Jl;loiWwill do.ubtless lead to many complications. To adhere to the c.omlllonlaw this subject is simply impossible." Fro'in these considerations it would appear evident that plaintiff rereceived-no grant of any lode or vein whose apex is within the surface lines of the Hopeful claim. Notwithstanding this, it is urged that, as the defendants may acquire no title to any portion of such lode as lies within the limits of the Marble Heart claim, plaintiff has a better right to the same than defendants, because such part of the vein or lode is within the IliIiesof their claim. In the caseof Reynolds v. Mining Co., 116 U. 8:,687,6 Sup. Ct. Rep. 601, it was claimed that, because a vein of ore had been' found by defendants (plaintiffs in error in supreme court) within'the lines of plaintiff's placer claim, and which defendants had acquired no title to from the government of the United States, plaintiff Wall: entitled to the same, although such vein was known to exist by the grantors of plaintiff at the time of applying for the patent for this placerelaim. The plaintiff' claimed that the defendants were mere intruderiland strangers, and that they were in possession of the premises. But the supreme court said that the vein, if known to exist at time for a patent, was not granted to plaintifI"s grantors, but of exc!ud«;l4. from their patentj and that, although defendants did not connect themselves with any government grant, the plaintiff had no right to eject'thelh.from this lode. In this case th'e court below refused to give, at the prayer ofthe deJimdants, thisinattu.ction: , "If is not c()nveyed to plaintiff 1:Iy the placer patent under which theY claim, then it makes no difference whether defendants have any title or plaintiff on the weakness of defendants' title." . The supreme court held this was error. It would seem that such a view of the law.would IDeet the case now under consideration. " If plaintiff received no COIWeyance of th!1t of the Drum Lummon lode whicp, has its apex;in the Hopeful claim, then it makes no difference have any title or not to the same, the plain.tiff cannQ(reco"er on. tpe weakness of defendants' title.. I have shown that the received po grant for any lode whqse apex is outside of their surfape·Jinesj that.tbat was reserved to be granted to some one who locate a piece of ground embracing this apex, whose end lines should be ,parallel. I do not conceive that there is any conflict between thedoptrhle here .expresAed and set forth in Cheesman v. Shreve,37 Rep. 36. The presumption may be that he who enters within the.lines of another's mining claim on the surface or beneath the same is \yhlilre, as in this case, the. fact is alleged that the upon the Ml\rble Heart claim by following down wRs\Vitho\:lt the limits of on its dip ",""fttip,or lode whose top or plaintiff's premises, a. C8S(l is stated that shows that defendants were not that they were following premises that to
MONTANA CO. V. CLARK.
The questions here raised being presented on a motion for a judgmcmt <m the pleadings fo!' the purposes of the motion, the court must consider every fact set forth in the answer which is well pleaded as true. The result I have reached under the facts as presented by the pleadings is tbat, while the defendants cannot enjoin the plaintiff from working upon the lode or vein in dispute so far as the same lies wholly within the side lines of plaintiff's premises, the plaintiff cannot enjoin defendants from work upon such portions of that vein as has its apex within the lines 0 the Hopeful claim, until itshows in some way that it is the owner of, or entitled to the possession of, the same. If it should' be shown by the evidence that the vein in dispute does not have its apex outside of pill-in.tiff's premises, then there should be no dispute, but plaintiff should recover: :r have considered this case upon the hypothesis that the factfl set forth in the answer are substantially true. I am fully aware that the position taken in this case leaves a portion of a vein or lode in such a eonditionthatit cannot be taken up by location, under the mineral act of the United States; but this portion of the vein cannot be said to belong to no one. It to the government of the United States,and, by appropriate legislation, it can provide for the sale oithe same. Thereis'noquestion presented upon the pleadings as to theappropriation of any portion of this vein or lode by taking actual possession of the same;. I should not dispute but that an actual possession of portions of this vein or lode will give a right to the same as against an intruder, -a stmnger,--that is, one who could not show a prior actual possession or a grant from the United States to the same. The motion for judgment on the pleadings is overruled.
ON THE Ml!1RITS.
J. This case . has been divested of much of the difficulty
presented to the mind of the court from a consideration of the pleadings. It seem that the legal title to a portion of the Drum Lummon lode might be so involved as to require that the same should be settled in an action at law. As the case is· presented by the evidence, no conflict as to title appears. It is admitted that the plaintiff owns the Drum Lummonlode" Claim and the Marble Heart lode claim, and thlltthe defendants own the HopefullQde claim. That the Drum Lummonlode or vein passed out of that claim into the Hopeful claim, and runs across the same in a southerly direction about 66 feet, when it enters the Marble Heart claim. The plaintiff has dug and has an undisputed title to a tunnel called the "Druse Tunnel," which runs along the aforesaid vein or lode, and across the Drum Lummon lode claim, into the Marble Heart'claim. That: ;plaintiff is or was in the actual possession of. this tunnel. That it is necessary to the working and mining of said lode or veilt in th!3 Marble Heart claim. That by means of this tunnel plaintiff is in the actual possession of a portion of the aforesaid vein or lode, which has its top or apex in defendants' claim. It also appears that defendants are extending an incline which they started on the apex of the aforesaid lode or vein in their own ground, and were and still are thrcatening to extend
.the same down along said vein, within the side lines of the Marble Heart clnim,.in such a direction as to cut the aforesaid Cruse tunnel at a point where the same is wholly within that portion of the Drum Lummon lode or vein owned wholly by plaintiff. That in their operations they have already loosened the rock in the roof of said tunnel at the point where said incline, if extended, would enter the same. Although the defendants have 66 feet of the apex of the said lode or vein, owing to the fact that they located theirolaim in snch a manner as to have no parallel end lines thereto, they have no legal right to follow their vein or lode beyond their side lihes; never having received a grant to that portion of said lode beyond· these, although owning the apex. It sufficiently appears from the evidence, if defendants are permitted to extend their incline it will wholly destroy the said. Cruse tunnel for the use to which plaintiff is putting the same. The defendants do not deny that it was their purpose to extend, this incline into and through this tunnel, and into the Drum Lummonvein beyond, in their search for ore; and the evidence shows that when! extended beyond this tunnel, the incline will be wholly within that .pQrtion. of the said vein or lode owned by plaintiff. It is true that the evidence shows that plaintiff might dig another tunnel around this incline rata cost of about $1,000. This would be in part a new tunnel, and wouldbe:Qn a curve. A curved line is not as short asa straight one, and cars run upon a curved track encounter greater .friction than on a straight one. The plaintiff. if compelled to abandon its old line of tunnel. would also be forced to abandon for some distance jts possession of a portion of the said vein or lode which has its apex in defendants' premises. The defendants, in extending their incline beyond the tunnel, would be within the undisputed premises of plaintiff, and would be compelled in their workings to remove vein matter, and perhaps are, from plaintiff's premises, concerning the title to which there is no dispute in this action. The defendants, as to this tunnel and the veiH matter and ore beyond the same, come as strangers,-tresl'assers. They are clothed with no right whatever to destroy plaintifi"s tunnel, or to disturb its possession of any portion of said vein along the line of said tunnel. If the defendants had any legal right to explore the said vein or lode beyond said tunnel, a plea for an accommodation in this matter would come with great foree.But no ground exists for such plea. It would seem that no action for damages would afford adequate relief under such circumstances. The remedy for the wrongs threatened can be awarded only in a court of equity. For these reasons, I think the plaintiff ill entitled to the relief asked. It is therefore ordered that an injunction issue restraining and enjoining the defendants from extending their incline so as to cut the tunnel of plaintiff.
SEYMOUR V. SLIDE &: SPUR GOLD MINES.
,Circuit Court, S. D. New York. March, 188'1'.)
The city (1ouncil of New York beinA' authorized by Laws N. Y. 1882, c. flO, (Consolidation Act,) § 86, subd. 8, "to regulate the use of the streets for" awnings, a motion to restrain the maintenance of an awning pendente UU will not be granted in an action to compel the removal of the awning.
In Equity. Motion for injunction pendente lite. Action by Nathaniel Whitman against W. L. Hubbell, as treasurer of the Adams Express Company, to compel the removal of an awning, on Laws N. the ground that it interfered with the view of plaintiff's Y. 1882, c. 410, (Consolidation Act,) § 86, subd. 8, provides that the city council of New York shall have power "to regulate the use of the streets for signs, sign-posts, awnings," etc. Ira W. Warren, for plaintiff. Seward, Da Costa & Guthrie, for defendant.
BROWN, J. Under the Consolidation Act, § 86, subd. 8, the common council have apparently authority from the legislature to authorize awnings. The alleged want of constitutional power of the legislature to confer this authority is too doubtful a question to be determined upon a preliminary motion of this kind. If within 10 days the awning in question is made to GOnform strictly to the municipal regulations, the motion should, on the above grounds, be denied, without prejudice, however, to the consideration of the whole subject upon the trial of the cause. Ordered accordingly.
SPUR GOLD MINES,
CCircu·tt court, D. Colorado. 'June 17,1890.)
VENDOR AND VENDEE-CONTRACT-WAJVER Oll' VENDOR'S LIEN.
An agreement betwe.en vendor and vendee, that, on the payment of a certain Bum, the title to the property sold will be registered "free from all charges and incumbrances, " is not a waiver by the vendor of his lien for the balance of the pur. chase money. Such agreement relates to.the state of the title at that time, and not to anything growing out of the sale itself.
The facts that a vendor withholds the deed, and afterwllrds retains possession of the property, and has stock of the corporation to whom he sells the property pledged to secure the purchase money, are not of themselves sufficient to constitute a waiver of his vendor's lien. A vendee who accepts title ond makes part payment, according to the terms of an agreement between the vendor and the broker through whom the sale is made, is estopped to afterwards deny the broker's authority to make the agreement. ,
Bill to enforce vendor's lien.