Show DECISION OF importance judge marshals comprehensive review of the conkling mining co s suit against king coalition the following is the opinion handed down by judge john marshall in the suit of tile the oon kling mining company vs silver king coalition mines company involving title to a 1 strip of ground off the southwest end of tile the conkling mining claim it at park city judgment was in favor of defendant the plaintiff is the alie owner of an ail undivided three fourths of the arthur and colliding Oon kling claims the defendant owns tile alic remaining one fourth the object of this suit is ig to determine deter mans an adverse claim of the defendant to a strip ol of land ons one hundred and thirty five and five tenths 1355 feet in width off the southwest end of the conkling claim as the plaintiff alleges and to obtain an accounting of ores mined beneath the surface ol oi this claim by tile defendant and its predecessors decess ors in title whose liability it ii has assumed these ores came c chiefly but not entirely from beneath the strip of land in controversy the defendant defon JAnt claims title to the contested strip of land under the ownership of tile U J wenner cr tile the cus terr no 2 and silver hill no ko 4 mining claims and ownership of a vein on the mouroe monroe doctrine cumberland and constitution miming claims and extending on its dip beneath the ground claimed by plaintiff all of the claims heretofore named are patented but the conkling patent is prior in time to the claims under winch which defendant asserts title to the feet strip ani aill if this strip le be in fact included in the conkling en y patent the plaintiff is the owner of in an undivided three fourths thereof so far as it is material to the disputed strip in controversy the description in the conkling pat parent is this it ii is recited that the patentee did enter and pay for that certain mining 0 claim designated deo signa ted by the surveyor general as lot no and bo bounded unfed described and platted as follows thence second course south CO 60 degrees and 45 minutes west 1500 feet to corner no 3 thence third course south 21 degrees 9 minutes east feet to corner comer N no to 4 thence fourth course north 60 degrees 45 minutes east 1500 feet to corner comer no 1 the place of beginning said lot extending 1500 feet in length along said conkling vein the grant is of the mining premises before described deser abed together with all that portion of the conkling vein and of all other veins throughout their entire depth the t tops aps ops or apexes of which lie inside of tile the surface boondry lines of said granted premises in said lot no it is also provided that the right of possession to said austide parts of said vein shall he be confined to such portions thereof as lie between vertical plans drawn downward through the end lines of said lot no and so continued in in their own direction that such planes will intersect such exterior parts of said vein survey for patent if the calls of courses and distances found in this description ire are followed the strip is included in the conkling ding patent the defendant fen dant however contends that this claim was officially surveyed for patent under tile the direction of the surveyor general and that as so surveyed posts were placed upon the ground marllie marking the southwest end line of the t e monuments and shortening the distances and to conform therewith the strip was excluded and was subsequently patented as a part of the claims owned by it this contention is supported by the official field notes of the t c survey and evidence as to the existence and position of tile the monuments but blit it is urged by the plaintiff that such evidence is inadmissible because it is said ahta the description in the patent is free from ambiguity and no embi ambiguity guity arises in applying this description to tile the ground patented thence an ambiguity cannot be imported into this description ty ly parol paol evidence there would le be force in this if the promises opre opre correct it is true that the description in the patent fails to call for monuments or posts at corners comers 3 and aad 4 the call for a corner is but a call for an abrupt change of direction but tho the patent purports to convey lot no as designated by tile the surveyor general and the deseria description by metes and bounds is but an attempt to properly describe this I 1 lot ot now if in applying this d description to the ground it be found that there is as so desi mateland Mate dand the ground included by giving effect to the call for distances the ambiguity at once arises and it arises not nobby by importing into the patent what is not called for but from the mere ascertainment of the beani meaning dg of tile the patent calls in view of 1 this liis conflict which call is to prevail ail the survey and official marking 0 of the lot is preliminary to tile the application for patent the notice given to adverse claimants is of a claim to the ground so marked the intent to convey by patent that ground and only that ground is kippar apparent elit this is the ordinary rule where land is described by an official lot number and by metes and bounds varying v tracy 48 no see also lodge v leo 6 cranch keith v reynolds 1 I 1 greenloaf greenleaf ruled for defendant the object to the consideration of the evidence offered by the defendant to prove the position on the ground of latno as designated desina ted by the surveyor general will be overruled and the iss issue lie as to tle the one hundred and thirty five and five tenths 1355 feet strip will be found for the defendant fen dant it is not disputed that a fissure called the crescent Ore scent fissure apexes apex es in the monroe doctrine Cumber cumberland lard and constitution mining claims owned by the defendant fen dant which fissure on its strike crosses tile the parallel side lines of these claims nor that this fissure on its dip passes beneath the conkling mining claim in the immediate vicinity fi f the ore body in di dispute tand and between vertical lines of defendants claims and continued in their own direction so that ta tle e segment of the fissure beneath the conkling is the exclusive elusive property of the lie defendant if it lias has any right thereto in m view of the fact that the fissure crosses both side lines ines it if I 1 correctly understand the admission made in in the course of tile the argument it also is not disputed that the crescent fissure is a mineral vein the subject of location and patent under the mining act of may 10 1872 but the position of the plaintiff is that the ore body as to what an is so sought light is a distinct baddin bedding deposit and no part of this fissure as to pass as a part of it further that tile de defendant feu daut lias has nj ni ri right lit to a fissure vein crossing b oth both side lines C crescent r ascent fissure these contentions are dese deserving rvin of serious consideration and any conclusion reached cannot be claimed as free from all doubt the Cr crescent scent fissure has been developed on its strike for many thousands of feet and on various horizons this fissure shows 0 evidence vi deuce of two distinct list inet periods rf of fissuring the first resulted in a filling of the fissure with secund reopen deop enid ened the old fissure constituting g is as it did a plane of weakness fractured ground up and in places seems to have removed the he porphyry and was ahm followed by tho the circulating waters that originated the vein the country rocks within the limits embraced in the controversy is is limestone striking approximately past cast and west and lipping dipping about 20 degrees to the north tins the fissure strikes north CO 60 degrees east and south 60 degrees dog rees west and dips to the southeast at I 1 an n angle in le of about 53 degrees on tile the foot wall side of the fissure at many different horizons ore bodies are arc found in the foot wall lime but fading out within a short distance away a vay from the fissure these bodies have not been found faund on the hanging wall side of the fissure the ore body in controversy is one of these bodies where the porphyry is still existent exi stant it is almost invariably the hanging wall p portion artion of the fissure vein the fi assure itself is but feebly mineralized erali crali zed in comparison with the bedded off shoots but in places ere cre is found in considerable quantity in the fiss fissure irre and then in a continuous body makes off in the lime the greatest distance a bedded badde d deposit is shown existing ng away from tho the fissure is in the ore body in dispute and there it has bevia scoped for about one hundred and fifty feet measured along tile limo lime beds its extremity there is about one hundred and ten feet in a direct line from the foot wall of the fissure the ore in the beds and that in the fissure is similar in composition aud and 1 see sec no reason to believe them genetically distant the fait baet that tile the fissure is not uniformly mineralized edana and that tile tho larger and more valuable ore bodies ha have ve been found in the beds is not entitled to great weight 0 it is just would be expected in the alie case of of a large fissure even if this fissure be the only channel through which the mineralizing mineral izing solutions came from the deep in spurrs giolo geology y applied to mining page page it is said frequently abc rock on both sides of the fault zone is thoroughly wrenched and with tiny cracks even where it appears solid to the naked eye the mineral solutions are more effective among slight fractures than in a large fissure thoroughly t ii seamed rock is a very favorable place for ore because the solutions are re checked and held in a N way my that seems fitted for tile the working of tile the reactions which lead to the precipitation of ores if the is slightly 0 along the main fault fracol fracture lre it may be considerable along ion some of the auxiliary fractures and in the trained strained s rock nearby this is especially the case in lime stones where great dc deposits pOsits thus ori originate ghate therefore the search for along a fault plane in districts w where 1 bere iere the two ire are associated should extend over a com ively wide zone A good illustration of this condition is found in the cross section of the bushwhacker park regent 0 mine of aspen colorado found in ill this work at page are tile the bedded ore abated and distinct veins eins or must they be considered as mere enlargements large ments of the fissure vein this question naturally depe depends nils on the definition of f the fissure vein Is that vein to be considered as sharply defined by the walls of the fissure fisser i or does it also include such enlargements as are due to the local infiltration in stained or fractured T wall rock if those cul enlargements t are not to be considered a part of the hie fissure vein it is difficult to classify them or to bring them under the general theory of f tie the t mining act individually ll Y 0 they are of trifling extent and the only connection between an any 3 r two of them is the fissure prof heinrich ries in his economic C geology of the united states as quoted d in costigane Cost igans mining filling law banys A fissure vein A fissure vein may be defined ae as a tabular mineral mass occupying or closely associated with a fracture or set of fracture in the inclosing rock and formed either cither by filling of the fissures as well as pores in tile the wall rock or by replacement of the latter when the vein is simply the result of fissure filling the ore and gangue minerals are often deposited in successive layers on the walls wall of tile fissure the width of the fissure and the boundaries of the oie 01 e mass being sharp in most cases however the ore bearing solutions have entered the wall rock and either filled its poro pores or replaced it to some ext extant ent thus giving the vein vain an indefinite boundary therefore the width of the fissure does not necessarily stand in any direst relation tp to the width of the vein M while bile this is a geological niton of a fissure vein as distinguished t from a iii miners iners definition it is apt aud and not in conflict with the latter under this di definition ifa the bedded df dc posits must mast be considered parts of the vein the fact that these enlargements follow the bedding planes of the lime results from these plants planes of stratification bein being planes of weal weakness mess and inore more readily permeable than the rock is elsewhere in the case at bar the is of course not confined to a bedding plane or an number of bedding planes but the lime is mineralized or replaced generally along and in corn com forin ity to the direction of those planes the fact that these enlargements large ments are not found in the hanging country is interesting but the cause is purely speculative there is no evidence of any extensive baultin faulting or throw in places the prop hyry doubtless furnished famished a barrier to tho the permeating waters elsewhere it may be that the re laiton of the direction locally by tile the fissure along the plane of least resistance was such 1 as to especially stain and render rend er permeable tile the foot wall country whatever may have been tile the cause we can simply s i deal with i tile result the fact chaat each of these bedded deposits has been discovered by exploring b the fissure nad not othen otherwise vise aana that once ignored the fissure and there is no other index to their existence is strong evidences evi donece of their unity with the fissure I 1 think the deposit in dispute is a L part of the crescent fissure vein vein discovery vein this vein crosses the side lines of the defenda claim does of the apex give any right k 1 in the case of keely vs ophir hill consolidated mieng ilind I 1 ng company I 1 gave the reasons reas ons impelling lm 0 me to conclude that where tile vein in question is the discovery vein the side lines crossed by tile the vein becoming end lines and that an right exists notwithstanding I 1 tile the for the plaintiff here I 1 have not changed my iny opinion there are some new suggestions 0 however requiring notice it is said that there is a presumption that the mhd ds discovery covery vein ol of each of these claims courses along the length of the claim and that the land office lias has so adjudged when the claims were patented the land lan 1 I department continued on page seven DECISION OF importance continued contina ed from page bage two oi of the government does not le de bennine the strike of the vein as said by judge hawley in consolidated soli dated Wyon wyoming ring G 21 co vs champion alining co 63 fed 5 this court cam cannot ot presume t that at the land office determined the course of the lode the making of an ideal line lina across the survey and diagram did not have tile the effect of putting r a lode into the ground if there was no vein there the respondent has a right to show what the facts are it is true that such a presumption does docs arise a against ainest the locator and those in privity with him but this presumption is disputable pu table and only casts tile the burden of proof on those disputing it and in this case T I 1 think that 7 burden ha lias been sustained an estoppel is next urged it is said that the mining act restricts the locator to throe three hundred feet on each side of the center of iris his vein that by locating across instead of along the vein in this case the locator has obtained an aggregate of fifteen hundred foet feet instead of six hundred feet and by so doing might embrace many se condry veins the united states has seen fit to lo grant tile the patents the area embraced in any patent did not exceed the jurisdiction to grant conferred by statute if there was a mistake or misrepresentation the patent was not void and cannot be |