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years from the date of discovery, the limitation period provided by § 2332. Held, that the latter allegations were part of plaintiffs' case, and involved a construction and application of § 2332, and hence the judgment of the Circuit Court of Appeals was reviewable in this court by appeal. Pp. 20-23.

In determining extralateral rights between adjoining patented mining claims, a failure of the earlier location notice to comply with the state law is immaterial if the junior locator, at the time of locating, knew that the earlier locator was in possession of and working his claim. The purpose of a location notice is but to give warning of the prior appropriation. P. 26.

The unequivocal possession of a mining claim gives constructive notice of the possessor's rights thereunder. Id.

As between two patented mining claims, priority of right to the vein. of the one where it dips beneath, and unites with the vein of, the other is not determined by the dates of entries and patents but by priority of discovery and location. P. 27.

In the absence from the record of an adverse suit, there is no presumption that anything was considered and determined by the Land Department, in patenting a mining claim, except the question of the right to the surface. Id.

An application to patent a lode mining claim invites only such contests as affect the surface; and where no surface conflict involves the apex, a prior locator of an adjacent unpatented claim is not obliged to adverse in order to protect his right to follow his vein extralaterally on the dip. P. 28.

Findings of fact made by the District Court concerning the apexes,

courses and dips of mineral veins in dispute, and affirmed by the Circuit Court of Appeals, must be accepted by this court unless clearly wrong. P. 30.

A release and quitclaim of an undivided interest in a designated mining claim, though with expressed intent to convey all the grantor's right, title and interest in the property, together with all earth, rock, ores, etc., found therein, held, to pass only rights and interests appertaining to that claim under its location and patent and not to affect the extralateral rights appertaining to an adjoining claim owned by the grantor. P. 30. Montana Mining Co. v. St. Louis Mining Co., 204 U. S. 204, distinguished.

In a suit to establish extralateral rights and for an accounting for ores, where the plaintiffs were awarded relief as to their principal vein, the court also found that a branch or strand of it apexed in plaintiffs' claim and dipped beyond the side line into defendant's

Argument for Appellant.

249 U. S.

territory, uniting there with the main vein again, but the place where the apex crossed the line could not be fixed. Held proper, while decreeing plaintiffs the owners of the strand vein and entitled to its possession throughout its depth as far as its apex extended within their claim, to reserve the question of such extent and the measurement of plaintiffs' rights thereunder for determination in future supplemental proceedings in the light of further mining development. P. 32.

248 Fed. Rep. 609, affirmed.

THE case is stated in the opinion.

Mr. William Wallace, Jr., with whom Mr. T. L. Chadbourne and Mr. K. R. Babbitt were on the briefs, for appellant:

As between those asserting prior rights to vein areas and ore bodies situated such as are those here in controversy, the question of priority of location is one of naked fact-just as it would have been before the patent entry. Creede & Cripple Creek Mining Co. v. Uinta Tunnel Mining Co., 196 U. S. 337; Last Chance Mining Co. v. Tyler Mining Co., 61 Fed. Rep. 557; Hickey v. Anaconda Mining Co., 33 Montana, 46. But a patent may not be used to create a false priority wherewith to destroy preëxisting rights of others. He who first completes a valid location gains the first segregation and first mining right. Creede Case, supra; St. Louis Smelting Co. v. Kemp, 104 U. S. 649. A locator may not relate to his discovery, as against intervening rights to the same surface or rights appurtenant to adjoining free surface, location of which was first completed, unless he completed his own location within the time provided by law. Creede Case, supra; Cedar Canyon Mining Co. v. Yarwood, 27 Washington, 271.

As to the time when the marking of the Elm Orlu was completed, there can be no aider by presumption. There is no absolute finding of the trial court back of 1876. There is no affirmative evidence upon which this court could find an earlier date. A dominant presumption al


Argument for Appellant.

ways obtains in favor of the owner of the surface against others seeking to take vein areas or ores therein beneath it. Del Monte Mining Co. v. Last Chance Mining Co., 171 U. S. 55, 66; Montana Mining Co. v. St. Louis Mining Co., 194 U. S. 235, 239; Mammoth Mining Co. v. Grand Central Mining Co., 213 U. S. 72. Plaintiffs must prove a valid location anterior to the Black Rock patent and location, for they have admitted the latter to be valid.

The presumption could not apply in favor of the plaintiffs on their Elm Orlu claim because: (1) The finding with respect to discovery and marking replaced both presumption and evidence; (2) the Elm Orlu having affirmatively alleged the facts in that regard attempted to prove them; (3) a presumption cannot flow from a record not authorized by law; (4) when the only step proven-the record-appears on its face to have been taken contrary to law, it cannot form any basis for a presumption that either of the other two steps were taken in accordance with law; (5) the Elm Orlu as an extralateral claimant can have no aider by presumption to take ores from beneath the Black Rock or Jersey Blue surface. [Counsel here cited and analyzed Hickey v. Anaconda Mining Co., supra; Washoe Copper Co. v. Junila, 43 Montana, 178; Creede Case, 196 U. S. 337; Calhoun Gold Mining Co. v. Ajax Gold Mining Co., 182 U. S. 499; Baker v. Butte City Water Co., 196 U. S. 119; Lawson v. United States Mining Co., 207 U. S. 1; Hussman v. Durham, 165 U. S. 144, 148; Clason v. Matko, 223 U. S. 646; El Paso Brick Co. v. McKnight, 233 U. S. 250.]

The actual notices of location were void and the Black Rock gained priority upon the constructively valid location born of its earlier patent. Hickey v. Anaconda Mining Co., supra; Baker v. Butte City Water Co., supra; Van Buren v. McKinley, 8 Idaho, 93; 2 Lindley on Mines, §§ 384, 385; Cloninger v. Finlaison, 230 Fed. Rep. 98; Clason v. Matko, supra.

Argument for Appellant.

249 U. S.

Plaintiffs' "holding and working" allegation was wholly unproven, and if proven would have been immaterial: (1) Because not made the basis of the application for patent, such working may not now be relied on to create for the benefit of the patent an earlier priority, or for any purpose; (2) the segregation, if the statute provided therefor, would only be complete at the end of the period of holding.

Plaintiffs may not go back to any other pre-patent claim than the one they used as a basis for their application for patent. 3 Lindley on Mines, § 783, p. 1920; Jacobs v. Lorenz, 98 California, 332.

The evidence and findings do not warrant the claim that the Black Rock locators had actual knowledge of the facts concerning the Elm Orlu.


The Black Rock locators enjoyed the same right as any other citizen to locate any ground not theretofore segregated by a prior valid location. There could not be constructive segregation and private ownership of extralateral rights in the Elm Orlu on November 6, 1875, as to some citizen third persons, and no such rights as to others. you could dispense with recording in Montana, equally could you dispense with marking of boundaries, so that a mere oral claim publicly asserted in connection with a discovery would be the equivalent of a complete valid location. Thus a quarter or possibly a half a century later, the question of priority of extralateral rights under patents, involving millions in ore values, might turn on mere oral assertions of claim and oral notice thereof. The act of Congress does not contemplate any such possibility.

If knowledge by a third party of some step in an incomplete or invalid location by another were sufficient to protect the latter, forever, without compliance with the law, the United States statute (Rev. Stats., § 2324) would be set at naught. That statute positively requires mark


Argument for Appellant.

ing of the boundaries. It likewise specifies some matters that recorded notices must contain. Notice or knowledge cannot be said to dispense with these requirements, even as against third persons. Yosemite Mining Co. v. Emerson, 208 U. S. 25, is not at all in point. There the relocation was of the identical surface, so that there never could be two valid locations.

When the Black Rock owners included in their application for patent surface in conflict with the Elm Orlu, they set in motion a statutory proceeding under § 2336, Rev. Stats., that must necessarily result in a determination of right as between those two claims. Had the Elm Orlu people adversed, they must have claimed this conflict as a part of the Elm Orlu, and the resultant suit would necessarily have depended on and determined priority of location, at least in the absence of special dealings between the parties.

It is submitted that there can be but one single and uniform priority in one location as against another. If this be so, did not the surrender of the Elm Orlu with respect to the fraction necessarily operate to establish priority for all time for the Black Rock as a single entire claim against the Elm Orlu? Bunker Hill Mining Co. v. Empire State-Idaho Mining Co., 109 Fed. Rep. 538; Empire State-Idaho Mining Co. v. Bunker Hill Mining Co., 114 Fed. Rep. 417; Round Mt. M. Co. v. Round Mt. S. M. Co., 36 Nevada, 543.

Mr. W. H. Dickson, with whom Mr. J. Bruce Kremer, Mr. A. C. Ellis, Jr., and Mr. William Scallon were on the briefs, for appellant:

The location certificate of the Elm Orlu claim was defective, not being verified as required by Montana Laws, 1873, ex. sess., p. 83. Under the Montana decisions this defect made the location invalid. Butte Northern Copper Co. v. Radmilovich. 39 Montana, 157; Ferris v. McNally,

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