42 F. 618 -

618

FEDERAL REPORTER. Y01.

42.

This being the rule inOhio. we think it should be the rule in thia case. Recurring to the holding in Luca8v. King, 10 N. J. Eq. 280, cited in the ruling made by thisCQurt upon the exceptions to the answer, (40 Fed. Rep. 564,) that "if, when the titles are spread before the court upon the pleadings, the court can see that there is no valid legal objection to complainant's title, there is no reasou why the court should not proceed to ,order the partition," (see, also, Overton's HfJirs v" Woolfolk, 6 Dana, 374.·) o\Ucouclusion is that the defendants' motion must be ove1'1u1ed.

BL1.QE " 01.

"

(No.4,750.)

".HENRYG. AI.Lmi' Co.,

SCRIBNER et' al. ". SAME,

(No. 4,718.) SAMlll ". SAlOl,

(No. 4,719.)

(Circuit Court., B. 1). New Yor7c. .Tuno 26, 1880.)
L tJonllten:-I1m\INGlDIBNT. ,:, ,: A.,COPY righted bOOk,:' P,Ubushedb,7 th.e co,nsont andUcense, of the author u, a ,pan . of a toi'e1gn tbe remaindeJ;' of whicb Is the produotlon ot allens no\ .' protected bi the copYtight .laws ot the lJ'nlted,States does not thereby become pubUc property, and. oatlDot be. UICld without the cODllClnt at tho au'hor in a reprln' of! th lt enoyolopledia. . ot tbo foreign encyolopledla procured copyrlghted·artl,.. ·Olllll·fromcl.tizena ot, the StlIotestor the expren purpose the ,, 'work: from being reprbitild In the United States, does not deot w pro. , tAIOltbe copyright lil the courta of tbe United States. . " interest in a copyright may be aulgned.
OJ' BILL;'

.. 'lhJO-.PUBLIO POLICY; , I ,. That tbe allen publiahen

I.'

, ..

'.

.

. :

" '., A bill praying for. an inj\1Dction,' and' whlohfa not w be ue4 &II eTlc1eaoe, IUMll1 be at the tlDle It lB signed. ' . I. PLSADING. " ',' .' , : , AbW which sets ouUhe t.ertnS'ot the 'agreement between tho author and his cop1alntUfs, tbe publishers. and Iltates that, It such agreement lB not an assignment, , '- an exclusive Ucense, correctly pUblishers' title to the copyright by thus ,' a1l8i'lnr the tacts, and stating the oonoluslons thetefrom III the alternative. , tereet by instrument In

.. B,um-..P.RTIB&-TITLII.' .;, ,..

, ita tidrlngement, it lBinnl1aterlBl whether the equitable owners acquired theh'm.
or bYpal:oL

.

the legal an4 tlClul.1jable own,er\l of copyright join ,in a complaint to enjoin ,
TOBIy.. .: . ....

,

f.

., '. Where the bill positively aVers the infringement ot thocopyrlght, It Is su1Uolent, , ,'thoUgh :it Is riot stated to be within the 1knowledge of afIlant. '
, .

, . 4n appointed In one state cannot matn.tain an action in that capac. ., tty In 'another state· Ul1l11s'B he take out· ancillary letters of administration In the latWi but,such anoiJlM'Y1etters ,maybe ta)ten' out alter the blU fa 1Ued, and averred ' . lU'amendment.. .."COP'ttU'Gitr-DIlIFBRBNT PuBLICATIONS. , I , ;:, contained! ,111 a lItatlstioal atlas. need not. be· soparately copyrighted, . to: i :r:31t:otr::24.COPYJ;'lght entire work. , . ·.": , i All. inchoate, rlght'tio a oopyrlght Iila1be transterfed b1 paiol'prlor to the takin&'
·'.i) .);'1;:

';;'

.. P",RTIBs.,...FoBBIGN ADHINIS'mATOB.,

'!,'

,;

,

.

," :.AlOpyriglitlcopie8,ot

·. . b'lU,:

an

mapB..:

'IlPma' ..·

u.

.' .:'

i. I '

;

",','

"

BLACK V, HENRY G. ALLEN CO.

619'

James A. Whitney, 'for defendants.

SHIPMAN, J. These are demurrers to the respective bills in equity' for injunctions against alleged infringements of copyrights. The important facts which are alleged in No.4, 718 are as follows: Four of the plaintiffs are members of the firm of Adam & Charles Black, of Edinburgh, Scotland; are aliens, and subjects of the queen of Great Britain. The fifth and remaining plaintiff is Francis A. Walker,a: citizen of t19.e state of Massachusetts and of the United States. The said firm, whose members I shall hereafter call the Messrs. Black, for the sake of brevity, are the publishers of the well-known work entitled "The Enclyclopredia Britannica, Ninth Edition," which is made up of articles or books, each of which is, in a large number of instances, an independent' book or treatise. Three of the articles contained in the twenty-third volume of the encyclopmdia, hereinafter referred to, have been copyrighted in the United States. One of these articles, entitled: "United States. ' Part III. Political Geography and Statistics,"-was written by said Walker, who secured a copyright thereof, according to the provisions of the statutes of the United States, for the term of 28 years from February 13, 1888. In the several copies of every edition published the following words were inserted on the title page: "Copyright, 1888, by Francis A. Walk6r." On or about April 1, 1888, said Walker assigned and transferred to the Messrs. Black an interest in said copyright; "that is to say, the said Walker did assign and transfer to your oratol'S, constituting the firm of Adam & Charles Black, the sole and exclusive right and liberty' of printing, reprinting, publishing, copying, and vending, during the' whole term of the said copyright, the said book, entitled: 'United States. Part III. Political Geography and Statistics, '-in connection .with, and' asa part of, their said twenty.third volume of their said' encyclopmdia, designated' Encyclopmdia Britannica, Ninth Edition,' and not otherwise; the said retaining the right to print, publish, copy, and vend the said copyrighted book in every form and manner other than as a part , of said Encyclopmdia Britannica." The bill allegeflthat if said Walker did not, by said agreement, llssign to the Messrs. Black an interest in said copyright, the said agreement was an exclusive and irrevocable license to them to print and sell, during the term of the copyright, the said book or article in connection with, and as a part of, said twenty-thir,d volume. The copyrighted book was printed anei sold in connection with, and as a part of, said volume. The whole of the copyright, except the right to use the subject thereof in the encyclopmdia, has always remained in said Walker. The defendant hRs printed and sold, without the corisent of the plaintiffs, said copyrighted article, in and as a part of its . reprint of said encyclopmdia, except that it has omitted the copyright notice upon the title-page, and threatens to continue to print and sell the same as part of its twenty-third volume. The bill alleges that the acts of the defendant are a great and continuing injury to each of the plain-' prays for an injunction, and an aooount of the profits arisinK to the defendant from the sale of said volume; "

620

FEDEllAI, REPORTER,

vol. 42;

In No. 4,750, the Messrs. Black and John McAlan, a citizen of tho state of New York, and administrator of the estate of the late Alexander Johpston,. who was, when in life, a citizen of the state of New Jersey and of the United States, are plaintiffs. Mr. McAlan was appointed administrator by the surrogate for the county of Mercer, in the state of New Jersey; Prof. Johnston was the author of a book entitled: "United States. Part I. History and Constitution,"-and secured a copyright of the same according to the provisions of the statutes of the United States relating to copyrights. The other facts which have been stated, in regard to the assignment of Walker's copyright, his title, and the acts of the defendant, exist in regard to Prof. Johnston; alldthe two bills are'substantially like each other , mutatis 'mutandis. The difference between the cases is that in No. 4,750 a foreign administrator is the plaintifL Thepase stated in No. 4,719 is as follows: The twoplaintifI:s are cjtizen$,of the state of New York, and partners by the name of Charles Scribulilr's Sons. Two other persons, Hewes and Gannett, both citizens of: the United States l were the authors of a book entitled "Scribner's Statistical Atlas of the United States," and, before depositing a printed title thereof ,with the librarian of coogress, and before publication, assigijedand transferred to the plaintiffs all their right in said book, and the right to. copyrightitj and the plaintiffs became the proprietors of said boo,k.,. .Theplaintiffs printed and published the book, and on December !lecured a copyright thereof in accordance with the provisions 29, oftbe Revised Statutes, and gave notice of such copyright by inserting on thlilpage following the title-page, inihe several copies of every edition, the ,wo!.'ds, "Copyright 1883, by Charles Scribner's Sons." Afterwards the plaintiffs printed and published, and licensed others to print and publish, cElrtain maps and charts which constituted a part of said book, but gave notice of the copyright by causing to be inscribed upon the face of each copy of every map or chart thus printed by themselves or others the words, "Copyright, 1883, by Charles Scribner's Sons." The defendant, since May 1, 1889, and without the plaintiffs' consent, published a,nd sold a volume entitled the "Encyc1opredia Britannica, Ninth Edition. Popular Reprint. Vol. 23,"-in which it printed eight maps which were copied from said copyrighted book. The bill prays for an injunction against selling copies of the book which shall contain in part said infringing maps, and for an accounting of profits. The cause of demurrer in the two Black cases, which goes to the substance of the bills, is that they show no substantial right or equity in or on behalf of the plaintiffs, and that the acts of the defendant are not contrary to law. The point is this: Does the fact that the proprietor of a book copyrighted in this country has permitted an alien publisher of an encyclopredia to publish his book. as apart of such encyclopredia enable without other authority, to publish in this country the another copyrighted article as a part of his reprint of such encyclopredia, the remainder .of which is publici ,juris? It will not, probably, be seriously denied, that a ,citizen of the United States who is the owner of a copyright can assign the 'whole of such copyright to a foreigner. "A non-resident

BLACK

v.

HENRY G. ALLEN CO.

621

foreigner is not within our copyright law, but he may take and hold by assignment a copyright granted to one of our own citizens." Carte v. Evans, 27 Fed. Rep. 861. It is, however, contended that, while a copyright may be assigned as a whole by a written instrument, it cannot he subdivided, but is an entire thing, indivisible, and incapable of apportionment. The statute simply provides that the copyrights are assignable at law by an instrument in writing, and, obviously, the whole or an undivided part thereof may be assigned so that the copyright may become" the undivided property of joint ownE'rs." Drone, Copyr. 334. To what greater extent copyrights may be subdivided at law the statute does not declare, and in_ this case it is not necessary to inquire. Under section 44;)64, a license in writing, by instrument duly witnessed, may be given by the proprietor to any other person to the extent described in such licensej and there is no restriction upon the power of the proprietor to assign or transfer, in equity, an exclusive right to use the copyrighted book in a particular manner or for particular purposes upon such terms as may be agreed upon. In such case the legal title remaii1s in the proprietor; and a beneficial interest, to the extent which is agreed upon, vests in the other party, who has acquired an equitable right in the copyright, and- who will be properly styled an "assignee of an equitable interest." Curt. Copyr. 225. In these two cases, as the Messrs. Black and the proprietors of the legal title are aU made parties, and properly so, whether the Blacks are licensees, or are owners of an equitable interest in the copyrights, (Goodyearv. Railroad Co., 1 Fish. Pat. Cas. 626; Goodyear v. Allyn, 3 Fish.- Pat. Cas. 374,) I do not conceive it necessary to determine at this time by what name the publishers' interest in the copyright may be the more properly called. The question is reduced to this: Does the fact that the copyrighted books were inserted by permission in an encyclopredia, as a part thereof, permit an unauthorized Use of them in a reprint of such work? If a poem or an essay for which a copyright had been secured in this country by the author, a citizen of the United States, should be permitted to be inserted in a volume of poems or essays, a part of which was publici juris, it could not reasonably be claimed that the author had thereby abandoned his copyright, and that his book could be reprinted, by itself, without his consent, in this country. It cannot be contended that the defendant would have a right to reprint Walker's or Johnston's treatises in separate volumes without the consent of the respective proprietors. Can, then, the poem or essay be printed, without the consent of the author, as a part of' an unauthorized reprint of the" entire volume? The defendant takes the affirmative in these cases, because (1) the work as a whole is a foreign work, and the bulk of the volume is pttblici juris; and (2) because the insertion of Walker's and Johnston's articles in the twenty-third volume was for the manifest purpose ofpreventing citizens of the United States from reprinting that volume, which would have been, but for those articles, publiCi juris, and therefore wa.s an attempt which will not receive the favor of a court of equity. Upon the first point there is no vital difference, -in regard to the iv'-

·?J'l'i'Dlj)RAL

vol. 42.

an author's copyright" whether it is printed in a separate volume, or in with authorized material. If the author has a copyright, it is valid against any unpermitted re[lrint of his book; . and the fact that his book is bound up in a volume "fith 50 other books, each of which is open to the public, is immaterial. .The argument of the defendant upon this part of the case is mainly directed in support of the second point, and is this: The Encyclopredia Britannica, as a whole, was the production of aliens, ;who ,could obtain no copyright in this country, ,and is a work of great value to the whole people. Except for the introduction of. a few articles, which were copyrighted in the United States, it could have been reprinted here in cheap form; and the defendant, whe.n he en.tered upon his undertaking, had good reason to suppose that it couldbe t,hus reprinted. The employment of citizens of the United $tates to write articles which were to be used in some ofits and the purchase of an interest in the copyright of such articlea, wereanattl1mpt to deprive the defendant, a,nd other like-minded enjoyed, and persons, of a privilege ;Which they would have t1;J,e purpose ofgiving the foreign owners orthe encyclopredia an .iq the sales of the work in this country. :rhe attempt contained an element of unfairness, because.the book, if written by foreigners, could be reproduced bere, and the complainants have only a color of copyrightinteresh and therefore not receive the sanction of the courts. The statements in the preceping paragraph, with the that the effect of the plaintiffs'interest in the Johnston and Walker articles had an element of unfairness in it,are true, and present by themselves no adequate argument in favor of the defendant. The acts of Johnston and Walker werein accordance with the statutes of the United States. The acts of the Messrs., Biack were for the purpose of making a use of the statutes which plight assist them against pecuniary loss, and give them,amore unobstructed field for their large commercial venture. The disputed point is whether there was an elem,ent of fraud or injustice in the scheme which would prevent a court from regarding it with favor. in soliciting competent citizens of the United There wasnq States to write upon its history, and.l can perceiveno unfairness or injustice towards the defendant company in the plaintiffs' nse of the copyright laws for their pecuniary advantage, and as a weapon with which to repel a competition which is more enterprising than considerate. There was no, tra.p set f9r the defendant, whose officers must have known ' that the ninth edition was.in great pal't a· new work, and that its contrUmt()rs would not be confined to one country. It must be recollected that the now tobeconsjdereddoes not relate to the extent of whether tQe bills show a right to any decree; and it will be /los:tl\bje(ltJor futureconsiderationwhether. the prayerof the bill should begra.nted .to its f1;l1l extent. objections of a more teGllnicalcharacter are made to the bills. to for of the affidavits. Bills. in certain cases which, are ,specified in the chancery text-books, are. required to be oathof the party,; and the New York chancery prac-

BLAcK Vi HENRY G. ALLEN"Co.

thdt injunction should-be thus verified. . In the federal courts, whenever a bill for an injunction is to be used as evidence either upon a motion for preliminary injunction,or iii any other way. it must be verifiedj but there is no imperative rule requiriI1g verifica· tion of a bill, at the time it is signed" which prays for an injunction. Woodworth v. Edwards, 3 Woodb. & M. 120; Hughe8 v. Rauroad Co., 18 Fed. Rep. 106. ..' . '" ']'he riext alleged cause 'of demurrer is that the bills are uncertain a1ill contra(1ictorybecause it does not appear whether the alien plaintiffs claim · as c<H>WI1ersofthe copyright or as licensees. The billstillege the terms 'of the of assignment, and then say that if, by such agreement, an' illter(lst in the copyright was not assigned and transferred to the · Messrs;:Black, the agreement was an exclusive license. . This is i t correct fOrID of equity pleading. The faCts are stated, and the conclusions therefrom are stated in an alternative form. ' , , The next point is that it does not appear that the agreements or assignmEmts between the authors: and the Messrs. Black were in writing. 'The bills declare, in substance, that the complainants are the only persons whohllye a legal or equitable title to the copyrights, and allege the ru;lturtl and extent 'Of the i:iquifuble title, and that it was acquirEid by assignment from the 'proprietors. It iSfurther averred that the conisaid copyright, and are the owners thereof. ·It is not hecesEary, when the legal and equitable owners are joined, to statetlie. formalities or the mode of conveyance by which the equitable vested hi the co-complainants j and,' if th e o",ner of · complainant, it is immaterial· whether· the eq,owners beeame vested by an instrument in writing or by ,parol. . The''E!igrrt.'hcauseof demurrer is to the eft'ect that the billofoomplaint does not show that the ownel'8hip of the cdpyrightisvestedin any of the Messrs. ::alack. I have sofnlly remarked uponthetheory ofthe bill, and' of the law in regard to l'egaland equitable ownership' orcopyright, 'that it is not necessary to'diseuss this point further. : 'i THe seventh cause is that the charge of infringement is Ilot made upon It is made positively, as a fact, 'but the affidavit does 110t assert: that the averment 'is within the knowledge of the affiant. Th!e is 8ufficient,and the necessity of an affidavit has heretofore 'been '." . "fhe nibth,tenth, and eleventh points do not seem to me to require extended reinark, ' The defendlmt has alsodemnrred in No. 4,150upoli a 'ground peculiar to that case. viz., that McAlan, being a foreign administrator,: 'never havirig'taken out ancillary letters of administration in the stataof ':N'ewYork,canIlOtstie in the courts ofthat state: Thebill,a,vers that :he 'WaS 'appi:iinted by the sur'I'ogate for the county of -Mercer, in the state of NewJerseY;'atidcounts upon that appohitnientaa hisonlyauthomjn. If the QIll; Iptd simply averred that hewitsadmiliisurl1tor; the dbjtiction 'couldh'!\'ye'b-een taken only by a. plea hrimswerjbut; 'iVe'titleJiw(tilly shown in the' billjJadvatdilge of&\iah4efect Clul·'.}jeiiak.$

all

624

FEDERAL REPORTER, vol. 42.

by Story, Eq. PI. § 496; 1 Daniell, Ch. Pro 325; ahildress v. Flmory, 8 Wheat. 642; Swatzel V. Arnold, 1 Woolw. 383. The law ,upc>n the subjectis thus declared in the syllabus of Noonan v. Bradley; 9 .WaJl. 394. ,I An administrator appointed in one state cannot. by virtue of such apmaintain an action in another state, in the absence of a statute of the latter state giving effect to that appointment, to enforce an obligation due his intestate. If be desires to. prosecute a suit in another state, he must first obtain a grant of administration therein in accordpnce with it81aws." This is not theQ\s.e of a suit fOf infringement by an administrator to whom a reissue or a110 original patent had been granted. In such case the grant has been made to him, as administrator, by the government, and his title has been passed upon by the commissioner. A bill in equity by an for an infringement in the life-time of the intestate owner of the patent, or for infringement occu,rring after his death, is. for an injury to the estate of the intestate; and, although there are decieions to the contrary, such a bill seems to me to fall within the general fule;and to require the foreign administrator to take out letters in the state in:which he brings suit. It is true that the statute vests the title of .the:iptestate in his administrator; but the point of the objection is that ll.foreign administratoris not recognized as administrator, when he suesin that capacity, unless appointed by the courts of the state within .which slJ;it is brought. But, as said by Mr. Justice MILLER in Swatzel v. Arnold, supra: "The impediment to. the exercise of the full power of an administrator in a jurisdiction foreign to that granting his letters is estechnical and. formal, and should not be strained beyond its necessary application." 'l'he courts early found relief, in cases of equity, from too strict adherence to technicality upon the ground that "in equity a' plaintiff' may file a bill as. administrator before he has taken out letters of administration, and it will be sufficient to have them at the hearing, which is not the case at law." 1 Daniell, Ch. Pro 327. Therefore, in Humphrey$ v. Humphreys, 3 P. 'Vms. 349, where the next and the defendant deof kin had brought a bill murred, the lord chancellor allowed the demurrer,and then permitted: the complainants to take out letters of administration, which, when said, related to the time of the death of the intestate, and t() allege the same by way of amendment or by supplem\'lntal bill. The case of Swatzel v. Arnold, supra, was on this wise: An administrator appointed in Kansas brought a bill in equity ,in a court of Nebraska, for a foreclosure of a mortgage belonging to the estate of the intestate. The court sU.stained a demurrer upon the ground that the foreign adminis,trator had taken no ancillary letters. The case having come into the UnitetJ,Stlltes circuit court, and the complainant having taken out letip c;Nebraska, ?ttr. Justice .MILI,ER permitted llomendment upon .the authority of Humpkt'eys v. Humphreys. . Thesul:>stance of his decision is that "an administrator appointed in one state, like an executor .who· ;bf\$not proved the wHl, may su.e in the courts of another before he hg.v:ing oqtained letters, may aver the by

BLACK

v.

HElmy G. ALLEN CO.

625

amendment," before answer filed, and after demurrer. "He has an interest in the subject-matter, although he has no standing in court, and for that reason may support his suit, in order to defend his right, by authority afterwards acquired." To the same effect are Bradford v. .Felder, 2 McCord, Eq. 168; BlackweU v. Blackwell, 33 Ala. 57; and Gidding8 v. Green, 4 Hughes, 446. Upon this point the demurrer in No.4, 750 is sustained, with leave to the complainants to amend, if ancillary letters of administration shall be taken out in the state of New York, within 30 days after the date of the order upon the demurrer. In No. 4,719 additional and different reasons of demurrer are relied upon. The principal new causes are that the alleged assignment of the inchoate right is not averred by the bill to have been in writing, and that it is clear upon the face of the bill that the reprinted maps were never legally copyrighted by the complainants. The position of the defendant is that an atlas is a bundle of maps; that there is no such thing "as a manuscript of a map, lind therefore the manuscript cannot be transferred to the assignee; and, furthermore, that every assignment of an inchoate right before copyright is obtained must be in writing. The alleged invalidity of, the copyright is upon the ground that the book or atlas was copyrighted" whereas it is said that each map should have been copyrighted. A statistical atlas is a book of maps, tables, and printed text, and is not simply a bundle of maps, and is properly copyrighted as a whole. There was no necessity of copyrighting separately each map in the book. rfhe unauthorized reprinting of eight maps from this volume, it being alleged that all of them were originated and prepared by the authors, is an infringement of the same character as the reprinting of original statistical tables or other printed matter. An inchoate right to a copyright may, prior to the taking of the copyright, be transferred by parol. Lawrence v.Dana, 4 Cliff. 1; CaUaghan v. Myers, 128 U. S. 658, 9 Sup. Ct. Rep. 177. The other additional points referred to the averments of the bill in regard to the plaintiffs' licenses, and to the propriety of attaching to the bill the maps as exhibits. The pleader attached to the bill copies of the infringed and of the infringing maps, as part thereof. His course in regard to these two particulars was proper. The demurrers in Nos. 4,718 and 4,719 are overruled. The demurrer in No.4,750 is sustained, with leave to amend as hereinbefore stated. v.42F.no.12-40

FEDERAL REPORTER"

vol. 42.

MONTANA CO.,

Limited, v.

CLARK

et al.

(Circuit Cou1i, D. Montana. June 6, 1890.

, 1. HINES AND

Wbere defendants' m.iniQg"olaim Is in the form of an isosoeles triangle, can· 'not!tollow their lode or vein on its downward dip, through the side lines of their oliW:u, claim. Parallelism in the end lines of the claim is essential to tlle exerCIse of such right. F?Ilbwing Iron SiwerMin. 00. v. Elgin Min. & S. OOi, 118U. S. 208, 6 Sup. Ct. Rep.,U77. ' Rev. St. U. S. 5 2392, provides that the looators of all mining claims, sltal1 have 1ih6 exclusive right of possession :altd enjoyment of all the snrface included wlth,in. the lines, of their location, and {jfall veins, ,1I)des, and ledges, throughout their entire depth, the or apex of whioh lies inside of such sudace lines extaMed downward vertically, although !such veins shall so far depart from a perpendic,ular in their cou1'lle ',&8 to extend outside tbevertioal side lines. He,14 that, tile apex or top of a certain lode beillg within thesurfl\Ce lines of defe1!dants"olaittJ, plaintiff had no tit,ileto'8ny potti,on 01 such vein u, the prewes granted to It, and therefore,waS;not entitled to an injunction restralDing defendants from working a portion of such ,vein within the side lin,e,s of plaintiff's olaim.' " " " '
, :

MINING.

9.

BAME-INJUNCTION.

,&:SurJi.,

dug and owne<! a tunnel which was neoossaQ' to:the working of a tts claim. By means of this tunnel plaintift was in the actual pos:lse8&lon of a ,portion of the vein or baving Its 'apex In defel).danta' claim. Depro:posed to extend,an Inoline along, theit: lode ,the side.Jlnes of plai'n:tlff'8 clauD. in such a way as to out the 'tunnel. The effeotof such, extension ,wouldbe,todestrdytbe:tunnel for the pU1'ptl8eS of plaitltlff,anci; when extended be. ,Y\l.%ld the tUnnel, the incline wouidpil the lode owned by plaintiff. Held, ,thatdetendants would be enjoined fl'o.m extending their inclillG so as to cut'the tun-

lode or'vein

"',

",

.

"

Biij for-an R$v. St. U. S. § ,2822,providesthat the locators ,of all mining claims lilba,U havethe exclusive right of possession ,and enjoyment of all the surface included withinthelinesoftheirlQcation, and ofall veins, lodes, and ledges throughout their; entire depth, .the top or apex of which lies inside of sucheurface lines extended downward vertically, although such veins, lodes, ,or ledg.esnaayso, far depal't frod! ,It perpendiculal'in their course downward:.s,toextend outside the vertical side lines of such surface location. Sa,nders &0 Shdton,and E. W., Toole. for complainant. McConrieU &0 Clayberg, for defendants.
KNOWLES,.,J.". The plaintiff moves"for:a; judgment on the pleadings. This presents the question as to whether there'llreanymllterial issues presented by them. The plaintiff sets forth that it is the owner in feesimple of the Drum Lummon lode claim and the Marble Heart lode claim, and of all the precious ores therein contained, and was, at the commencemt'nt of this suit, in the possession of said premises, except so much as defendants wrongfully withheld from it; that in said premises is a vein or lode which runs through said Drum Lummon lode claim, and on its dip passes out thereof into the said Marble Heart lode claim; that plaintiff has for a long time past been engaged in working and mining upon said lode claims, and at great cost and expense has driven