Show PINYOXDGLIMAX + z I i 1 f J Decision of Judge Hunter on the Motion for ajNqnSult I r WI 1 The Motion Overruled Following is the opinion delivered deliv-ered JudgeHunter on Tuesday morning on the motion of the defense de-fense in the PinyonClimax case for a uonsuit Lowe ale 18 t Motion for non l suit Climax S M Co J YanZile and Marshal Royle for motion R N Baskin and P Williams Wil-liams against motion OPINION OF JUDGE HUNTER This is an action of trespass quare clausum fregit In such an action the question is supposing the plaintiffs plain-tiffs have proved a good title by deed whether they were aisseized at the time of the alleged trespass The question of disseizin when it is set up to defeat the possessory interest in-terest of the true owner and where the owner does not elect to treat himself as disseized for the sake of his remedy is one of considerable difficulty depending upon technical law and in regard to which the authorities au-thorities are in conflict There is no doubt that if the plaintiffs were disseized and so continued con-tinued at the time of the alleged trespass the action would not lie but the question is upon the facts whether they were so disseized The complaint alleges that plan tiffs title is derived through a United States patent of date October Octo-ber 181873 which granted to them the exclusive right of possession of all the lands included within the exterior ex-terior boundaries and of 2800 linear feet of the Pinyon and Pinyon Extension Ex-tension vein lode or deposit through its entire depth although it may enter the land adjoining and of all other lodes the top or apex of which lies inside of said boundaries to which no adverse claim existed on the 10th of May 1872 and that said plaintiffs ever since the date of said patent f j have been the owners as before alleged and are and ever since have been in possession posses-sion of the same and are and have been entitled to the full free and exclusive enjoyment of all the rights granted by said patent The answer does not deny these allegations and therefore insofar as the pleadings are concerned it stands admitted that the plaintiffs were in the possession of the premises prem-ises at the time of the alleged trespass It is asserted that the further allegation al-legation of the complaint wherein it alleges that defendantswith force and arms unlawfully and wrongfully wrong-fully entered into and upon the Said premises belonging to plaintiffs and erected a bulkhead within the sidelines side-lines of said premises and with an armed force have ever since held and still hold all the workings beyond said bulkhead together with the proof in the case particularly the testimony of Nichols Knox ami Tiewick show that the defendant were in the adverse possession CM the premises as against the plaintiffs plain-tiffs Force must be given to the nature of the property or estate lu thit case it is a mining property and is well known to the court an 1 ul parties concerned the tiling whir is of value in mining claims is the vein or lode bearing the ores Tin Iris been well recognized by th United States in the varous acts of Congress and in the land office department de-partment By the various acts of Congress having relation to minins claims a locator has the exclusive right of possession and enjoyment of all the surface included within the lines of his location and of all veins lodes or ledges throughout their entire depth the top or apex of which lies inside of his surface > lines extended down Vt rtieallv although al-though such veins lodes or ledges may so far depart from a perpendicular perpendic-ular in their course downward as to extend outside the vertical sidelines side-lines of such surface location And the Supreme Court of the United States in the Tarbot case has given construction 0 to this holding hold-ing that the locator may pursue pur-sue his vein found within his side lines on its dip downwards even though in such downward i course it may reach into and pass into the ground adjacent thereto It is therefore unquestionably the law that the locator and patentee is entitled to the right of possession and of enjoyment of all such veins lodes etc and by virtue of his location and patent becomes to all intents and purposes the owner of I such vein In all patents issued by the genera government this right is recognized and the grant includes by express terms the veins etc with their dips The allegations of the complaint are that the patent issued to the plaintiffs contains these words of grant and as there is no denial in the answer that it does it must be taken for granted for the purposes of this motion that it does The plaintiffs have therefore there-fore by the means aforesaid become the owners cf the surface ground the veins etc thereon found with the right to pursue them on their dip downwards and in virtue of said grant have the exclusive right of possession and edjoyment thereof Have the plaintiffs been disseized of the vein by the defendants to such an extent as would amount to an ouster and so defeat the present action of trespass The proofs showthat atleast ever since the date of the patent the patentees or those claiming under them have been in the actual occu pany and possession without hindrance hind-rance from the defendant of the T > i entire surface ground included within the boundaries of the claim as described In the patent save that part heretofore as is alleged conveyed tothe Wasatch Mining CompanyfhncLlmownin this action + as the Walker and Walker Extension I Exten-sion Mining Claim This possession I and occupancy must include and cover all veins lodes or ledges the tops or apex of which are found within the side lines of the claim In giving construction to the law governing actions of trespass or suits in ejectment attention must be paid to the nature and character of the estate Jt will riot do in my opinion tQ apply to mining property prop-erty and particularly to such kinds of such property where the thing of value is a vein lode or ledge dipping dip-ping into the surface and pursuing a doward course thereunder out of sight in an unknown direction the same strict rules in reference to a down possession as are applied to the ordinary case of ouster though even in that case I think the law is well settled that very strong acts of xclusive possession such as buildings build-ings enclosing or cutivating and that for a long time and openly and I notonouslyare necessary in order to constitnte an actual ouster of the true owner who has no notice of such acts It is true that an ouster may be made in a mining claim but such ouster can only be where the acts constituting it are such as would be open and notorious and of a longtime long-time such as would warrant the court to charge the jury and the jury to find that the owner had been disseized A mere sinking down through an adjacent mining claim and striking on its dip a vein the apex of which is upon an adjoining claim the whole of which claim is in the actual occupancy and possession posses-sion of its owner and the extracting extract-ing of ores therefrom will not in my opinion sustain an ouster The owner or the defendants in this case had the right and without question on the part of the plaintiffs herein to sink their shaft on their own claim and no act of it in that direction di-rection could be construed by the plaintiffs as being inimical to their rights The surface ground of its claim belonged to it and so far as it is concerned any and all acts of ownership could be exercised in regard re-gard thereto The evidence in the case shows that the defendant did sink a shaft through its own surface ground and did strike or came in contact with what is claimed by the plaintiffs herein the vein on its dip whose apex is on the plaintiffs claim I am not able to reconcile my mind in the belief that their act amounts to an ouster The testimony of the three witnesses wit-nesses referred to are nothing which changes my mind It is unnecessary to detail what their testimony is I bear what I have to say mainly upon the ground that the proofs do not show an ouster and that the plaintiffs if they were in possession of the vein on its apex on their own I ground must be held as being in possession of it down the unexplored course A hidden taking of it by another under ground and only for such short space of time as the proofs in this case show cannot Jperate as an ouster There is nothing open or notorious about it and these are necessary ingredients I > make an ouster Reference has been made to the tar l of the organization of the de Mtdant company No proof has vii offered on that point The an vUr of the defendant alleges that vr sm e the 2Gthday of March the IVmUnt company was an incor rmitiou The complaint alleges that n that day the acts of trespass com uimrd of were committed Some roof tend to show that the huild rIt J of the bulkhead was on or prior to that date So far as the acts of trespass are concerned the plaintiffs m not of course recover against defendant for any acts of trespass it did not commit True in establishing estab-lishing by proof the acts of trespass they are not held to the exact date alleged in the complaint Motion for nonsuit is overruled |