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Show 1 11 ONE LIE I Al JIM I Text of the Recent I Decisis I Finding in the Case of the U United States vs. Law-H Law-H son and Wail. ' "When Locations Are Made on Snmo Apex Priority Gives Extr.i- t lateral Jtiglit3. ' For the benefit of tlioac Interested. The' Tribune reproduce in its cssonllnl parts, the decision of the United States Circuit Court of Appeals in a cane which haa teen prominently In the eyes of the mln-lnrr mln-lnrr West of into. The ensa is ihnt in which the United States Mining company as .appellant, prayed for a reversal of the decision awarded by the lower courts, to Lconl-das Lconl-das JI. Lnwson and hl associates. The dc-clslon of the upper court la that the limestone belt commonly knows as the "Jordan belt." at Bingham, Is to be re-parded re-parded as a ,,,lnglc" lode. Iiwson. with 1:1s associates, including Col. Enos A. "Wall, held to the opposite, as will bo rten. This decision In favor of the United States company, it Is estimated, will add at least li.COQ.OCO to Its already preat estate. It Is understood that an appeal is to be taken to the United States Supreme court bv the present appellees, but the United States Mining- people express themselves as having- no fear of the re-! re-! suit. The text cf the decision Is as follows: Thl ! b suit to o.ult the title to four nij-nlns nij-nlns datum In th West Mountain mining district. I'tnh. and to bodlen of oro beneath t!tolr nurracfw. The allegation of U10 bill nr briefly these: Complainant owni the .Tor-lan .Tor-lan Kxtenlon. Gristly. Northern Went and Valrvjw clalrrm.va.nd also the IkhIIob of oro vertically Ixrticoth their iurfneos. find In In IMjuscuskin of thctie claims nml rngprol In working- them, with two other clnlms hereinafter here-inafter roontloned. n ono property for mining mi-ning purposes. Defenrtftnta claim to own the underlying ore bodlon, partu of vein or loira which have th(Ir apleoa within the surfaco houndaries of adjacent clalma blonif-lng- lo nnd In the iwawnalnn of defendant. Voder tholr claim of ownership defendants throutrh undcrifround worJctnjs have wrong-full: wrong-full: rntcrcd the underlying ore lxdlA In com-Dlnl'nanl'a com-Dlnl'nanl'a Jordan Extension. Orlrxly and Northern Light claims, have extracted there-f there-f vjm quantities of vnluable ore. and aro throatcnlns to continue to extract oro there-J there-J from and to extend their underground work-InKa work-InKa and mlnlntf operations to the remaining 9 underlying ore bodies. Including those le- ; nwuh th jnirrace nf the Falrvlew claim. If any ora body beneath the surface of tho Jor dan Kxtcnslon, Grizzly. Northern LlKht or Falrvlow la imrt of a vein or lodge dIpi)lnK or extcndlne Into mich claim from n claim of tho defendants It Is iort of ft vein or lode which han Its apex In the Old Jordan and Mountain Gem inlulnjc clalmn. which ara owned by and in tho possession of 'ho eom-Iilatnant. eom-Iilatnant. and such oro body Is within the cx-trulateral cx-trulateral rights incident to tho last-named ciclms. Defendants' claim of ownership of Hueh underlying oro lxulles Is false and unfounded un-founded In factJind constitutes a cloud upon comidaliiant's titled The prnyer of the bill Is that the Ullo nf complainant to the four claims and to tho underlying ore bod lew be quieted, nnd that defendants bo perpetually enjoined from any asserting any claim thereto nr.-l from extracting any ore therefrom. A demurrer to the bill on the ground that It d I pc loses that complainant has an ndequato remedy at law was overruled. R Answer of Defendants. The answer of defendants speclllcally denies the allocution Of tho bill, excepting those re-latlnK re-latlnK to d lvrs clllxcnthlp, and contains af-Urinative af-Urinative allegations mibstAntlally as follow: H Defendants arc the owners and In tho poMes- B rinn of the 'Kcmpton and Ashland mining clktras. which nre adjacent to tho Jordan HI J-rxtensIon. Grizzly, Northern Llsht nnd Fair- ffi vlow claims of complainant. Tho only oro H ltodios In complnlnnnt'H wild clnlraH aro parts tf nt veins or lodes which have their apices I within the Ashland and ivempton claims or de-fondants, nnd which, on their dip lnealh the Hurfaco, extend toward and throucli complainant' com-plainant' claims. Defendanta entered tliero ore bodies nnd extracted nnd removod oro Therefrom, as they were and arc lawfully entitled en-titled to do. In pursuance of their rlzht under the mlnlns lawa of the United Slates to follow fol-low oxlralaterally such velna or lodes on their Review of Testimony. As presented In tho larco volume of tcstl-i tcstl-i mony which was taken, tho controversy may I Iks summarized In this manner. Tho Old Jor- i dan. Mountain Gum. Kcmpton. Ashland, Jor- jj dan Extension, Northern Light. Grizzly and (I Fnlrvlcw are contiguous wining clalma In jj tho West Mountaln mining district. Utah, the j Kempton nnd Ashland partially separating tho I surfaces of the Jordan Kxtcnslon, Grizzly, 5 Northern Light and Falrvlew from tho sur- I""Bi! feces of the Old Jordan nnd Mountain' Gem. 3 The apex of a stratum of limestone, tho strlko of which l In a nouthwcsterly and nortli- l easterly direction. Is lon-rltudlnally bisected j or divided by tho Old Jordan, Mountain Gem. I Kcmpton and Ashland.. Tho southerly side 1 linos of tho Kumpton ,und tho southerly end j line of tho Ashland aro In part coincident with P the jiorthcrly sldo lines of the Old Jordan 5 and Mountain Gem, and the greater part of f the width of the npex of the limestone Is C routl; xi f thojvo dividing lines nnd within the J surface boundaries of tho Old Jordan and I Mountain Ocin. The limestone Js from JW t to 200 feet In width. Is cnnllned" between well- I denned walls of quartzlte, dlpti northwcstcrly I nt an angle of airaul 30 degroes, pnssen be- I yond Uie northerly sldo lines of tho Old Jordnn 1 nnd Mountain Gem nnd extends, on Its dip bo ll neath the surface, through the Konipton, Aeh- I land. Jordnn Bxtenslon, Grizzly, Northern A Light nnd Falrvlew. Tho ore twxllen in dls- S puto aro within the ntratuni of llmcstono nnd u vertically beneath tho surfaces of the four 1 claims last named. The complainant owns y the Old Jordan, Mountnln Com, Jordan lx- I tension, Grizzly, Northern Light and Fnlr-a Fnlr-a view, nnd the defendant own thq Kempton I of the Kurfnces of their rexpectlvo claims and uro engaged In working them extensively ' for mining purposes. The evldcnco was chiefly directed to the question whether or not tho stratum of limestone constitutes a single broad Vein or lode of uilncml-bcurlng rock. Complainant Com-plainant ln!g!ed, and Its nvidenco tuuded to chow, thnt HiIh biratum Is such n single vein . or lode, while tho defendants Instated, r.nd their evidence tended lo show, thnt tho stratum embraces zevernl distinct and Independent veins or lodes; that one such vein or lodo. called a bedded vein, has Ha apex within tho surface 1 line of -tho KempTon, extends on Its strike In the direction of the Kumpton end lines. paso- on Its dip beneath tho surface beyond the northerly sldo line of that claim and through tho Jordan Extchalon, Ashland, Northern North-ern Light, Grizzly arid Falrvlow; that another an-other dlntlnct and Independent vein or lode, raUfd tho Axhland eros lisHUru and of which tho bedded vein Is clnlincd to bo a lateral continuation or nppondage. hns lt apex In tho Ashland, pasvis on Its' dip beneath the Kurfnce bpyond tho northwesterly wide line of that claim nnd through the Northern Light, Grizzly and Fnlrvl.w, and thnt tho oro bodies la controversy are parts of tho two veins or t ' lodes, tho npicc.i of which nro within tho Kcmpton and Ashland. In iho nwsortlon of tho extrnlaternl rluhLi Intended to bo fwt forth nnd sustained by their answer nnd evidence, evi-dence, thn dofondnnts have oxtnndod their underground workings nnd mining operations Into tho oro bodies In dlspnto, nnd have ra-. moved pome of thorn, but othern nro oh yet In place, nnd undisturbed, Including thoso underlying un-derlying tho nurfaco of tho Falrvlow. Tho court dismissed tho bill, bill Hied no findings of fact or opinion disclosing tinder what view of tho facts or of tho law tho do-creo do-creo of dlsmlnenl wno rendered. Limestone One Vein A enrnful examination and conrddcrallon of tho evldenco clearly convlneos us that the stratum of llmestono constitutes a slnglo broad vein or lodo of mlnoml-benrlng rock extending extend-ing from the qunrtxlto on ono sldo to tho quarlzltu on the other. Tho llmestono bus been profoundly broken, tillered nnd mineralised, miner-alised, nnd hns thereby obtained nn Individuality Individ-uality which, apart from other differences, clearly distinguishes It front tho nilchborlng rock. Thoro Is a local nbwanco of oro In places, a continuous occurrence of 'It In others, and a seeming local 'occurrence of It In still others, but tho oro bodies am not sepnratcd. ono from another, by nny defined boundaries. As In Kureka Consolidated Mining company vs. Itlchinond Mining company (S Fed. Cad. No. 4il8, pp. SIP, 26) they nre parts of ono greater deposit, which permeates. In a -greater or lea degree, with occasional Intervening !pnco!i of barren rock, the whole masa of limestone. As shown by extensive exploration explora-tion nnd notual mining, the mineralisation has boon so general thnt Hn only tic lined limits nro tho quartzlte walls which bound tho llme-plono. llme-plono. ami within It ono may reasonably expect ex-pect to encounter oro by driving or cross-cutting In nny direction. The Cross Fissure. In addition to tho mnny small fissures which exist only In tho llmeslono and extend in every direction, other ore-hcnrlng fiwuroe of approximately ap-proximately a northerly nnd southerly direction direc-tion are found In tho quartzlte, and It Is the contention of tho defendants that theso extend through tho limestone; that Its mlner-nllzntlon mlner-nllzntlon Is duo to them and occurred at the pume II mo and In tho same manner ns did tho dcno.tlllon of ore In them, nnd Ihul the oro bodies In the limestone are lateral continuations con-tinuations or appendages of thpso cross fissure fis-sure veins. Of this it la sufllclont In ray that, whatever inny have been the mineralizing process, pro-cess, tho alteration nnd mlnorallxatlon of the llmeslono wcro so general and extorylvo ns to convert It Into a single broad vein or lode within which tho crosg flamira veins are without defined boundaries and so far love their Identity that they cannot be distinguished distin-guished from tho larger ore ltodlea therein. The nro In the quartzlto Is Inconsiderable In amount and Is confined to these llssuro veins, but ll Is not hi In tho limestone. In the evidence for tho defendants It is conceded that there are no walls separating tho cross flasurea from tho bodies of oro In the limestone, lime-stone, hut it Is attempted to be shown that the ore In the fissures, and especially In the Ashlnml fissure. It distinguishable because Its lamlnntlon conforms to tho strike nnd dip of the fissure, while the lamlnntlon of tho ore on either side conforms to tho strlko nnd dip of the limestone. We think tho evidence evi-dence for the defendants, ns well ns that for the complainant, shows that the dlfforonco In the lamination Is not always discernible nnd is an uncertain and unreliable test of the extent and boundaries of tho cross fissures. To Illustrate: Mr. Wall, ono of the defendants, defend-ants, says tho plating of the ore In tho limestone lime-stone Is similar In nppearnnco to thnt of the ere In the fissure where tho ore IrwJIob nre. largo nnd wide, but a at considerable distance, from the fissure the structural linos becomo distinct and parallel to the betiding of the limestone. Mr. Legg. a witness for the defendants, de-fendants, says there Is no sharp line of division di-vision and tho fissure structure nnd the Influence In-fluence of tho fissure extend for considerable distances from tho original fissure. Mr. Nelll. another of tho defendant' witnesses, says tho flssuro is entirely destroyed In places within with-in the ore ttodles in the limestone. Mr. Moorehousc, also a witness for tho defendants, says the Ashland fist; uro has a width In the quartzlte of not exceeding three feet and. when measured by the dlfTorcnCn In tho lamination of the ore. has a width In the limestone of 180 feet. Tho defendants lay much stress upon the tosllmnny of Mr. Ilolden. a witness for the complainant, who says: "Tho Ashland vein can he followed for qulto a distance Into the nig Jordan (limestone) lode and can be traced. It Is Ilko all of these fissures; ll Is somewhat difficult to follow through, but the way do trace them, wo get a lino from the quartzlte on either sldo or from one qunrtz-lie qunrtz-lie wall and follow that line out, but wo can't always find tho llmlla of the llssuro which we tako to bo one of tho cross fissures." fis-sures." This Is far short nf a statement that tho boundaries of the Ashland, or pt any other fissure, aro well defined within the ore bodies In the limestone. Particularly Is this true when tho entire testimony of thn witness Is considered, because lte also says much of tho limestone haa been mechanically and chemically altered until the entlro original stratification or lied structuro lias disappeared. Our conclusion con-clusion upon this controverted question of fact Is that tho ore bodies within the claimed spaces of Intersection of tho crotM fissures. Including In-cluding the ' Ashland, and the ctratum of llmestono nre not susceptible of Identification and separation, and mlist be held lo be parts of the single broad vein or lode, and not parts of distinct and Independent cross fissure veins. Senior Claim Takes Dip. Where two or more mining claims longitudinally longitu-dinally bisect or dlvldo the apex of a vein the wntor claim lakoa the entire width of tho vein on Its dip. If it Is In other respects so located as to give a right to pursue tho vein downwards outside of tho side lines. Tlily Is so becnuso It has been tho custom among miners slnco beforo tho enactment of the mining laws to regard and treat the vein as a unit and Indivisible, In point of width, ns respects tho right to pursue It extralatorally beneath the surface; because usually tho width of tho vein Is so Irregular tend Km strlko nnd dip depart so far from right lines that It Is altogether lmpractlcnble. If not Impossible, to continue tho longitudinal bisection ut tho apex through the vein on Its dip or downward course; and because It conforms to tho principle prin-ciple pervading the mining laws that priority of discovery nnd of location gives the better right, as Is Illustrated In tho provision giving to tne senior cinim an oro containeu in mo Fpncu of Intersection whero two or moro velnn Intnrsvct or crosa ench other, and In the further fur-ther provision giving to tho senior clnlm tho entlro vein at and below the joInt of union where two or more volns with distinct aplcea and embraced In separate claims unite In their course downward. (Hev. St., Sec. 233'!.) Wo recognize tho forco of an opinion delivered de-livered by a leurned Judge In this circuit wherein It was held that tho right to purnue a vein downward outside of tho side Unco Is dependent upon the Inclusion within tho claim of tho entire width of the apex, and that where two collateral locatlcnn bisect tho apox neither takes any part of tho vein not vertically ver-tically beneath Ha surfaco (Hall vs. Kquator Mining and Smelting company. Transactions Am. Inst. Mln. Eng.. Vol. 12. p. 118); hut tho rule which wo have stated seems to us to bo suNtnlncd by tho better reason ns well as tho weight of authority. Priority of Patent. Of tho claims which Include portions of tho longitudinally bisected apox those of the complainant com-plainant are In fact older In Iho order of location, lo-cation, nnd take the entire width of tho vein on lis dip or county downward, unless the superiority duo to their seniority is uvoldctl by some othor nnd controlling fact. Tho dc-fcndnnlu dc-fcndnnlu enrnORtly Insist thut their clalma are older In tho order of patenting and. ns patented, pat-ented, Include surfaco ureas ns to which the two sets of claims, as located, wcro In conflict con-flict by roa)n of. the overlapping of their ourfaco boundaries; that tho patenting of these nreas an pnrta of the defendants' claims waa a conclusive determination that such claims were prior In location, and that therefore tho complainant la ostopped from now claiming-the claiming-the fact to bo otherwise. Tho defendants hnvo tho older patents, nnd wo will asmimo tliat originally thero worn surfneo conflicts, n.i Is Insisted, and that tho areas In conflict con-flict were patented na parts of the claims of tho defendant-!. If tho nreEent suit related to the sucrlor right to theso surfaco arena or lo any underground or uxtmlateral rights necessarily following or Incident to such surfneo sur-fneo ownership, the clnlm of estoppel would be well taken, but ns the controversy Is over a different subject matter and It Is not shown (hat tho question of priority of location wn3 In fact prusontod and determined In tho course of tho patent proceedings tho estoppel ennnot bo sustained. Somo preliminary observations respecting conflicting mining claims may not bo Inappropriate. Seniority Is determined by iho order In which they nro located, whether they hnvo been patented or remain unpatented. unpat-ented. Whllo tho nrea In conflict hi uxunlly awarded to tho senior claim, It Is not alvnyn or necessarily ko, hecnuse acta or circumstances, circum-stances, entirely consistent with tho true order of location, may have Intervened which rt-tjulro rt-tjulro that this area he awarded to a Junior claim. An application for a patent to ono of the conflicting claims presents tho question: ques-tion: which in tho auporlor clnlm within tho overlapping fsurface boundaries? And tho Inclusion In-clusion of the nro; 1 In conflict within a patent to ono of the clalma Ih neceasarlly 11 determination determi-nation thnt, at the time of the patent proceedings, pro-ceedings, ouch orcu Is a part of thnt claim. 4, Applying thoso principles lo tho facts of the present case, ll lu aecn that tho Issunnco of patents lo tho defendants' claims. Including therein the nrons within tho overlapping boundaries, boun-daries, opernted as a declaration or determination determi-nation Hint within these surface limits tho defendants' claims wero superior, hut not nec-ersnrlly nec-ersnrlly thnt thoy wero prior In location. Whether this determination proceeded from a failure of the then owners of tho complainant's complain-ant's claims to lllo nn adverse clnlm, or from nn actual Inquiry nnd decision respecting respect-ing the right of possession (How St.. Hecn. 1325. 23N) Is not shown. 10 ll ennnot be said, and It Is not Insisted, that In tho courso of tho patent proceedings there wns nny actual Issue, trial or declRlon respecting tho order In which the conflicting claims woro located, or thnt tho pntentlng of tho nrena within tho overlapping boundaries wns actually rested upon priority of location. Treating tho patent pat-ent proceedings ns Involving or ns equivalent equiva-lent to a controversy between these parties or their predecessors In Interest nnd title, tho subject matter of that controversy wan the surface conflict between their respective claims, whllo the present controversy Is over oxlrn-lutcral oxlrn-lutcral underground rlghl. not necwsarlly following the surface conflict, which Is essentially es-sentially n different subject matter and could not hnve Jicon made tho sulqcct of nn Issue, trl.nl or decision In the course of tho ialcnt l.toceedlnpi. Estoppel by Judgmont. The caso Is thus cloarly within the rulo In respect of estoppel by Judgment thnt where tho subsequent action Involves a different subject sub-ject matter tho Judgment In the prior ncllnn la not concluilvo aa to evory mattor which could have been offered nnd rcfcolvod to fi's-taln fi's-taln or defeat tho clolm made therein, but only an to matters actually litigated nnd determined. de-termined. Tho subject was exhaustively c -n-sldored lu Cromwell vs. County of Sac. V. 8. 351. Which was nn nctlon upon county bonds and Intorest coupons attached rhorcto. In n prior action uion other coupons nltnched to the same bonds It had been determined that tho bonds were void !n the handtt of iir-tles iir-tles who did not acquire them beforo maturity ma-turity for value, and Inasmuch ns tho plaintiff plain-tiff had not boen shown to have po acquired the bonds Judgment was rendered n gal nil htm In tho second action It was hold that tho prior Judgment did not estop the plaintiff from proving thnt In fact ho acquired tho Itonds beforo maturity for value. In tho course of the opinion It wall said by Mr. Justice Jus-tice Field: "In considering Iho operation of this Judgment Judg-ment It should be borne In mind, aa statud' by counsel, that thoro Ih a dlfforoneo hetwecn tho effect of a Judgment na a bar or estoppel against tho prosecution of a second action iqton tho )mmo claim or demand, nnd Ha effect as on oatoppel In another action between the sam6 parlies upon a different clnlm or cause of nctlon. In the former case tho Judgment. If rendered upon tho merits, constitutes an abaolulo bar lo a subsequent action. It Is a finality as to tho claim or demand In controversy, con-troversy, concluding parties and thoso In privity with them, not only aa to every mnt-tor mnt-tor which was offered nnd received to sustain sus-tain or defeat the claim or demand, but ns to any other admissible matter which might hnvo been offered for that purpoee. Wlicro Estoppel Ends. "Hut whero the second nctlon between tho snmo "parties Is upon a different claim or demand de-mand the Judgment In the prior action operates oper-ates ax an estoppel only aa to those matters mat-ters In Issuo or points controverted, upon tho determination of which the finding or verdict ver-dict vas rendered. In nil cases, therefore, where It Is sought to apply the oatoppel of a Judgment rendered upon one causo of action to matters arising In a suit upon a different differ-ent cnuso of notion, tho Inquiry must always be ns to the point or quostlon actually litigated liti-gated and determined in the original action, not what might hav been thus litigated and determined. Only upon such matters Is tho Judgment conclusive In another nctlon." In the Last Chance Mining company vs. Tyler Mining company cane (1&7 U. S. OSJ, GST) thoro was a controversy over oxtralatcral underground rights between two mining claims which were In conflict ns located. Priority of location became tho plvotnl question, nnd It was Insisted that a determination In the course of prior patent proceedings that one of the claims was superior within tho area In conflict con-flict estopped the owner of the other claim from (UMortlng that It waa prior In location. Mr. Justice Brewer In shaking for tho court said: 'The particular matter In controversy In the ndverse suit waa the triangular piece of sround. which Is not the matter of dispute In this nctlon. The Judgment In that cnae Is therefore not conclusive In this as to mat- tors which might have been decjded, but only aa to matters which wero In fact decided." Why Estoppel "Wns Sustained. In that case the estoppel wns sustained, hut It was because tho superiority of right asserted and upheld In the course of the patent proceedings had been expressly rested upon tho single fact of priority of location. Tho facts were these: Tho owner of one claim applied for a patent nnd the owner of the other filed nn advorso claim nnd commenced an action to determine the right of possession to tho area In conflict. (Hev. St.. Sees. 2325, 2325.) The Judgment IrC that nctlon was for tho plaintiff and the reason why It was held to operato as nn estoppel In tho subsequent action Involving a different subject matter la shown In tho following extract from tho opinion, opin-ion, which has reference to the former action: ac-tion: 'The single ground stated In tho complaint upon which superiority of right is claimed Is priority of location. A Judgment for tho plaintiffs upon such a complaint is ncces-parlly ncces-parlly an adjudication In favor of that priority of location. Thero Ih no other fact uon which It can rest. It Is doubtlcsa true, na suggested, that other questions may be litigated liti-gated In nn adverse, suit, but they can be lltlgntcd only when they nre presented to the attention of tho court by some npproprlnto pleading. The only pleading Uon which the case passed to trlnl nnd Judgment was tho complaint, nnd In that, aa we have seen, plaintiff's right to rccovor la rested upon tho slnglo fact of priority of location." We think It lu manifest from tho extracts quoted and from tho opinion as an entirety thnt tho court recognized that superiority of right Is not always or necessarily controlled by priority of location; otherwise, tho court would not hnvo Inquired and determined with such care whother tho question of priority of locution hnd boen In fact presented and decided de-cided In tho former action nnd would not havo conceded that "other questions may bo litigated liti-gated In nn adverse suit." As btfore Indicated, Indi-cated, It Is not shown In tho present caso whether thoro was nn adverse suit, nor. If 90. what questions wero In fact presented and determined therein, nor upon what ground tho superior right lo iho area In conflict was assorted and sustnlnod In tho patent proceedings. proceed-ings. Tho claim of ontoppol was Interposed by the defendants, and tho burden- was upon them to show the uxlstence of ovory fact essential to sustain It. This they did not do. Tho decree Is reversed with a direction to enter a decree for tho complainant in conformity con-formity to tho prayer of the bill. |