Gambar halaman
PDF
ePub

Walrath v. Champion Min. Co. 63 Fed. Rep. 557; Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill, Co. 171 U. S. 55, 43 L. ed. 72, 18 Sup. Ct. Rep. 895; Iron Silver Min. Co. v. Elgin Min. & Smelting Co. 118 U. S. 207, 30 L. ed. 102, 6 Sup. Ct. Rep. 1177. The Victor Consolidated, being a junior location, is not entitled to any of the ore within appellee's claims as patented.

The "Colorado rule" relating to junior cross lodes is not consistent with a proper construction of the statutes involved, and it has led, and is leading, to inextricable confusion, conflict, contradiction, and absurdities in actual practice.

The locator is entitled to "all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically." Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co. 171 U. S. 55, 43 L. ed. 72, 18 Sup. Ct. Rep. 895; Iron Silver Min, Co. v. Elgin Min. & Smelting Co. 118 U. S. 196, 30 L. ed. 98, 6 Sup. Ct. Rep. 177; King v. Amy 8. Min. Co. 152 U. S. 222, 38 L. ed. 419, 14 Sup. Ct. Rep. 510.

Three different interpretations of § 2336 have been suggested, either of which harmonizes it with § 2322, leaving the latter intact,

riz.:

1. That the first two clauses, down to the semicolon, refer to the crossing of veins both on their strike and dip; the last clause, to the union of veins on the dip: and that, in so far as they deal with intersection on the strike, they refer to lodes located prior to the act of 1872, where the lode discovered was located without surface ground, and the locator preserved his right thereto, as against a subsequent overlapping claim.

Properly considered, § 2336 provides: 1) That where veins located prior to 1872, in those districts where the vein alone was taken, intersected on their strike, or where nch a vein was intersected by the vein of an overlapping claim located after that date, the senior locator would take the ore at the point of intersection; the junior locator, of course, retaining the ore in his vein up to the point of union on either side, and also Faving a right of way through the space of intersection for convenience in working; (2) Locations made under the act of 1872, as well as locations made prior to that date, where the veins intersected on their dip, the senior eator would take the ore at the space of intersection: the junior taking the ore in his vein throughout its entire depth, except at the space of intersection, and having the me right of way through this space; (3) where veins located either under the act of 1872 or prior thereto united, the older location to have the ore below the point of union. Wilhelm v. Silvester, 101 Cal. 358, 35 Pac. 997, Waterrale v. Leach (Ariz.) 33 Pac. 418: Lindley, Mines, § 560.

The second interpretation is that this section, throughout, deals exclusively with veins rossing or uniting on their dip. Under this view the section may be treated as dealing with locations made both before and after May 10, 1872.

|

The third interpretation is that the first two clauses deal primarily with locations. That is, the word "intersection" there used has reference to the locations, not to the veins. That it should be treated as if it read: Where two or more veins intersect or cross each other, the prior locator shall take all ore within the space of intersection of the locations to which the crossing veins belong.

Pardec v. Murray, 4 Mont. 279, 2 Pac. 16. This construction is adopted by Mr. Morrison in his work on Mining Rights.

Morrison, Mining Rights, 9th ed. p. 116; Barringer & A. Mines & Mining, pp. 472, 473.

Either one of the three is amply sufficient to forbid the recognition of a conflict, and the nullifying pro tanto of § 2322.

This court, speaking through its chief justice, saw fit to indirectly question the correctness of the Colorado rule on this subject. Argonaut Consol. Min. & Mill. Co. v. Turner, 23 Colo. 400, 48 Pac. 685.

The Colorado rule is in conflict with certain Federal court decisions.

Lindley, Mines, § 591; Last Chance 'Min. Co. v. Tyler Min. Co. 157 U. S. 683, 39 L. ed. 859, 17 Sup. Ct. Rep. 733; Tyler Min. Co. v. Sweeney, 4 C. C. A. 329, 7 U. S. App. 463, 54 Fed. Rep. 284; Last Chance Min. Co. v. Tyler Min. Co. 9 C. C. A. 613, 15 U. S. App. 456, 61 Fed. Rep. 557; Del Monte Min. & Mill. Co. v. New York & L. C. Min. Co. 66 Fed. Rep. 212; Consolidated Wyoming Gold Min. Co. v. Champion Min. Co. 63 Fed. Rep. 540; Tyler Min. Co. v. Last Chance Min. Co. 71 Fed. Rep. 848.

The principles of stare decisis and "rule of property" do not prevent the court from reconsidering and discarding the Colorado rule.

If a prior decision is clearly erroneous, whether from a mistaken application of the law or through a misapplication of the law to the facts, and especially if it is injurious or unjust in its operation and while no injurious results would be likely to flow from a reversal of it, it is not only a departure from the rule in stare decisis, but it is the imperative duty of the court to overrule it.

Black, Interpretation of Laws, p. 403: Rumsey v. New York & N. E. R. Co. 133 N. Y. 79, 15 L. R. A. 618, 30 N. E. 654; McDowell v. Oyer, 21 Pa. 417; 2 Bouvier, Dict. 445; Paul v. Davis, 100 Ind. 426.

A decision, or a series of decisions, cannot be said to have become a rule of property, unless they are pronounced by the highest judicial tribunal that can pass upon the subject.

23 Am. & Eng. Enc. Law, p. 21.

But even where the highest court has announced a rule relating to property, which rule is found to be erroneous, unless more hardship and injury would result from its reversal than from its maintenance the court will promptly recall the rule and correct the error.

Black, Interpretation of Laws, § 151. A junior tunnel has no right to blind veins apexing within a senior lode location.

A junior tunnel has no right of way through a senior patented lode location.

Lindley, Mines, § 491, p. 603; Amador Queen Min. Co. v. Dewitt, 73 Cal. 482, 15 Pac. 74; People ex rel. Aspen M. & S. Co. v. Pitkin County Dist. Ct. 11 Colo. 147, 17 Pac. 298.

A patent to land over which the land department has the power of disposition is impervious to collateral attack.

United States v. Winona & St. P. R. Co. 15 C. C. A. 96, 32 U. S. App. 272, 67 Fed. Rep. 948; Northern P. R. Co. v. Cannon, 54 Fed. Rep. 259, 4 C. C. A. 303, 7 U. S. App. 507; Iron Silver Min. Co. v. Campbell, 135 U. S. 286, 34 L. ed. 155, 10 Sup. Ct. Rep. 765; St. Louis Smelting & Ref. Co. v. Steel, 106 U. S. 451, 27 L. ed. 228, 1 Sup. Ct. Rep. 389; United States v. White, 17 Fed. Rep. 564; United States v. Iron Silver Min. Co. 128 U. S. 673, 32 L. ed. 571, 9 Sup. Ct. Rep. 195; Lec v. Johnson, 116 U. S. 48, 29 L. ed. 570, 6 Sup. Ct. Rep. 249.

A patent is conclusive evidence that all antecedent steps necessary to its issuance have been properly and legally taken.

Davis v. Weibbold, 139 U. S. 507, 35 L. ed. 238, 11 Sup. Ct. Rep. 628; United States v. Iron Silver Min. Co. 128 U. S. 673, 32 L. ed. 571, 9 Sup. Ct. Rep. 195; Kahn v. Old Telegraph Min. Co. 2 Utah, 174: Poire v. Wells, 6 Colo. 406: Justice Min. Co. v. Lee, 21 Colo. 260, 40 Pac. 444; Montana C. R. Co. v. Migeon, 68 Fed. Rep. 811; Iron Silver Min. Co. v. Campbell, 17 Colo. 272. 29 Pac. 513; Anderson v. Bartels, 7 Colo. 256, 3 Pac. 225; Barringer & A. Mines & Mining, 415 et seq.; Beard v. Federy, Wall. 492, is L. ed. 92; Stark v. Starr, 6 Wall. 402, 18 L. ed. 925: St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 636, 26 L. ed. 875; Eureka Consol. Min. Co. v. Richmond Consol. Min. Co. 4 Sawy. 302, Fed. Cas. No. 4,548.

A mining patent is conclusive proof of discovery and location according to law. Such patent takes effect by relation as of the

date of location.

Clark, Mineral Law, Dig. ¶ 263, p. 417; Last Chance Min. Co. v. Tyler Min. Co. 9 C. C. A. 613, 15 U. S. App. 456, 61 Fed. Rep. 565: Northern P. R. Co. v. Cannon, 4 C. C. A. 303, 7 U. S. App. 507, 54 Fed. Rep. 259; Lindley, Mines, § 783.

Gabbert, J., delivered the opinion of the

court:

Appellee, the owner of the Monarch, Mammoth Pearl, Ajax, and Champion lode mining claims, commenced this action in the court below to recover damages, and restrain appellant, as defendant, from removing ore 50 L. R. A.

claimed to be within the boundaries of these claims, and to which it asserted it was entitled by virtue of such ownership; and also to restrain defendant from prosecuting work upon a tunnel which the latter was excavating underneath such claims. Defendant answered, justifying its removal of ore and excavation of the tunnel upon two grounds: (1) That it was the owner of the Victor Consolidated claim, the vein of which crossed each of those embraced within the claims of plaintiff. (2) That it was the owner of the 1thica tunnel site, projected across these claims, by virtue of which it was entitled to extend a tunnel underneath them; that in prosecuting work thereon it had penetrated the claims of plaintiff, and discovered, located, and claimed numerous blind veins underneath the surface of such claims; that it had also cut the vein of its Victor Consolidated claim in this tunnel underneath the surface of plaintiff's claims, and removed ore therefrom of the value of $400; and that it claimed to be entitled to excavate and run this tunnel for the purpose of discovering such blind veins, to work and remove ore therefrom, and from its Victor Consolidated vein. By stipulation, the Champion was dropped from the case. Upon the issues made by the pleadings, the facts thereby admitted, a stipulation as to those controverted, and certain documentary evidence, the cause was tried to the court, which resulted in a judgment adjudging plaintiff to be the owner in fee of each of its lode claims in controversy in their entirety as patented, and, inter alia, with respect to veins, "together with all veins, lodes, or ledges having their tops or apexes therein, and including all that portion of the said Victor Consolidated vein within the side and end lines of the plaintiff's said claims extended downwards vertically;" for damages in the sum of $400; and also enjoining defendant from prosecuting work upon, or extending its tunnel underneath, the claims of plaintiff; and, with respect to removing ore, enjoined defendant (employing the language of the judgment) "from further taking out, extracting, or removing ore, by means of said tunnel or otherwise, from within the side and end lines of plaintiff's said claims extended downward vertically." From this judgment the defendant brings the cause here on appeal.

The following reproduction of the plat, which the parties stipulated below was correct, showing the relative location of the respective properties over which this controversy arises, will materially aid in understanding the questions involved:

[merged small][ocr errors][subsumed][subsumed][ocr errors][subsumed][subsumed][ocr errors][subsumed][merged small][graphic][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][ocr errors][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed]

not been discovered on the Monarch and Mammoth Pearl lode claims. The rights of the parties depend principally upon a construction of the following sections of the Revised Statutes of the United States:

The controversy over the right of appellant | the Victor Consolidated without any reserto extend its Ithica tunnel is from the point vation as to either surface or veins, and in where it enters the Monarch on the souther- this respect conform to the receiver's receipts ly side, and from thence across the claims of upon such claims; that the patent on the plaintiff. The blind leads discovered are in Victor Consolidated excludes the surface in that portion of the tunnel between the point conflict with the claims of appellee, and all where it enters plaintiff's claims on the veins having their apex within such conflict, south and the breast of its excavation. The which are the same exceptions contained in vein of the Victor Consolidated is also cut in the receiver's receipt for that claim; that the this tunnel at point marked "961." The con- portal to the Ithica tunnel site was, at the flict in the lode claims of the respective par- date of its location, on public domain; that ties is included in the territory bounded by work thereon was prosecuted diligently, and the south side line of the Monarch, the north that the location of such tunnel was in all side line of the Mammoth Pearl, and the side respects regular; that all necessary steps lines of the Victor Consolidated between were taken by appellant to locate the blind these two lines. We are relieved from stat- veins cut in such tunnel, which are in coning the pleadings to any considerable extent, troversy in this case; that the record titles or determining the questions of law thereby of the claims of appellee are vested in it, and presented, because on the trial below it was the record titles of the Victor Consolidated, stipulated that the following are involved: the Ithica tunnel site, and blind veins discov"First. Whether or not the Ithica tunnel, in ered therein underneath the claims of apsuch pleadings described, is entitled to a pellee are vested in appellant. The record right of way through plaintiff's lode claims. discloses that appellant offered testimony Second. Whether or not defendant has ac- tending to prove that at the date of the locaquired, by virtue of said tunnel and tunnel-tion of its tunnel site mineral in place had site location, the ownership and right to the possession of the blind veins cut therein, to wit, veins or lodes not appearing on the surface, and not known to exist prior to the date of location of said tunnel site. Third. Whether or not defendant is the owner and "Sec. 2322. The locators of all mining loentitled to the ore contained in the vein of cations heretofore made or which shall hereits Victor Consolidated claim within the sur- after be made, on any mineral vein, lode, or face boundaries, and across plaintiff's lode ledge, situated on the public domain, their claims. Fourth. Whether or not the defend- heirs and assigns, where no adverse claim exant may in this cause introduce evidence for ists on the tenth day of May, eighteen hunthe purpose of showing that there was no dred and seventy-two, so long as they comply discovery of mineral in place on the Monarch with the laws of the United States, and with and Mammoth Pearl claims of plaintiff prior state, territorial, and local regulations not to the location of said tunnel site." From in conflict with the laws of the United States the pleadings, evidence, and stipulation of governing their possessory title, shall have the parties, the facts established, so far as the exclusive right of possession and enjoymaterial to the controverted questions of lawment of all the surface included within the involved, are: That each of appellee's lines of their locations, and of all veins, lodes, claims was located prior to either the lode and ledges throughout their entire depth, the claim or tunnel site of appellant; that the top or apex of which lies inside of such surreceiver's receipt on each of the claims of ap- face lines extended downward vertically, alpellee issued prior to the location of the tun- though such veins, lodes, or ledges may so nel site, and prior to the issuance of receiv- far depart from a perpendicular in their er's receipt on the Victor Consolidated; that course downward as to extend outside the the patents upon the lode claims of appellee vertical side lines of such surface locations. issued prior to the patent on the lode claim But their right of possession to such outside of appellant; that the patent to the Apex is- parts of such veins or ledges shall be confined sued prior to the location of the tunnel site, to such portions thereof as lie between vertiand on the Mammoth Pearl and Monarch cal planes drawn downward as above desubsequent to such location; that the vein of scribed, through the end-lines of their locathe Victor Consolidated was discovered and tions, so continued in their own direction located from the surface, was not known to that such planes will intersect such exterior exist prior to such discovery, extends parts of such veins or ledges. And nothing throughout the entire length of that claim, in this section shall authorize the locator or and on its strike crosses each of the veins possessor of a vein or lode which extends in in the claims of appellee upon which they its downward course beyond the vertical lines were respectively discovered and located; of his claim to enter upon the surface of a that the tunnel cuts numerous blind veins claim owned or possessed by another. underneath the surface of the claims of appellee, which do not appear upon the surface, and were not known to exist prior to the location of the tunnel; that the vein of the Victor Consolidated was cut in this tunnel underneath the claims of appellee, and ore of the value of $400 removed therefrom. It also appears that the patents upon the lode claims of appellee embrace the conflict with

"Sec. 2323. Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnels shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations

on the line of such tunnel of veins or lodes | monwealth have a right to presume that, not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid; but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel."

when a question has been once settled by this court, its decision is correct, and that all may rely upon it. We understand, generally, that when a decision has established a settled rule of property, upon which rights are predicated (and especially those relating to real estate), the law will be adhered to by the court announcing it, and those "Sec. 2336. Where two or more veins inter- bound to follow its adjudications, even if ersect or cross each other, priority of title shall roneous (Black, Interpretation of Laws, § govern, and such prior location shall be en-152); but this rule is not inflexible. Courts titled to all ore or mineral contained within the space of intersection; but the subsequent location shall have the right of way through the space of intersection for the purposes of the convenient working of the mine. And where two or more veins unite the eldest or prior location shall take the vein below the point of union, including all the space of intersection."

The main questions presented for our determination for convenience we summarize as follows: (1) Is appellant the owner and entitled to the ore contained in the veins of its Victor Consolidated claim, within the surface boundaries of appellee's lode claims? (2) Has appellant acquired, by virtue of its tunnel-site location, the ownership and right of possession to the blind veins cut therein underneath appellee's claims, and is its tunnel entitled to a right of way through the lode claims of appellee? (3) Should appellant have been permitted to introduce evidence for the purpose of showing that there was no discovery of mineral in place on the Monarch and Mammoth Pearl claims of appellee prior to the location of the Ithica tunnel site?

are not bound to perpetuate errors merely upon the ground that a previous erroneous decision has been rendered on a given question. If it is wrong it should not be continued unless it has been so long the rule of action, and relied upon to such an extent, that greater injustice and injury will result by a reversal, though wrong, than to observe and follow it. Black, Interpretation of Laws, supra; Sutherland, Stat. Constr. § 316; Boon v. Bowers, 30 Miss. 246. The law as announced in Branagan v. Dulaney has led to much confusion, and has been a fruitful source of litigation. Under it doubts have been cast upon titles to mining properties, and supposed rights reduced to uncertainties. Judging by the experience of the past, coupled with the knowledge of the present great activity in mining, to some extent caused, perhaps, by the marked improvements. in mining and the reduction of ores, this industry is comparatively in its infancy in this state; and, if the rule regarding cross leads as announced by this court is wrong, it will result in more injury in the future to perpetuate it than will temporarily be caused by its reversal. It is a matter of common All these were answered in the negative by knowledge that ever since the decision of the court below. The first question pre- this court on that question its correctness sented involves particularly a construction has been doubted by many eminent members of § 2336, supra. The rights of a junior lo- of the bar of this state familiar with mining cation to the ore of its vein embraced in the law, and has even been the subject of expresconflict with a senior have been determined sion to that effect by this court. Argonaut by this court in Branagan v. Dulaney, 8 Consol. Min. & Mill. Co. v. Turner, 23 Colo. Colo. 408, 8 Pac. 669, and in several subse- 400, 48 Pac. 685,-in which it was said, in quent cases which have adopted the doctrine speaking of the rights conveyed by patent to announced in that case on this subject; and, a mining claim, that it conveys all lodes or if we adhere to the law as announced in veins having their apexes within the boundathose cases, then the rights of appellant to ries of such claim, except, perhaps, cross the ore in the vein of the Victor Consolidated lodes. This doubt has been generally enterincluded in the territory of that claim con- tained by those engaged in mining, so that, flicting with that of appellee are fixed and notwithstanding the length of time which settled, for under these decisions it would be has elapsed since the rendition of the first entitled to all this part of its vein, except decision of this court on this question, it is where it intersects the veins of appellee's safe to assume that it has not been implicitclaims. It is contended by counsel for ap- ly relied upon as a sound exposition of the pellee that the ruling in Branagan v. Dulan- law relating to cross leads, and that, in the ey and cases following it is wrong, and that great majority of instances, parties have govthis question should now be reconsidered. erned themselves accordingly. The law conIn opposition to a reconsideration of the strued in Branagan v. Dulaney is an act of rights of cross-lode claimants, as declared by Congress. The doctrine of stare decisis is those cases, it is urged that the doctrine of based upon the assumption that the rules of stare decisis applies, and, even if wrong, law to which this doctrine applies have preshould not now be disturbed, because the viously been determined by a court having rule therein announced has been established final jurisdiction of the questions involved. for such great length of time as to become a For this reason, where the decision of a trisettled rule of property in this state. We bunal is subject to review by one having suare aware of the gravity of reversing a long-perior authority over it for that purpose, or established precedent, and realize that it the question determined may be passed upon should not be disturbed except for the most by such tribunal in another case, the doccogent reasons; that the people of this com- trine of stare decisis does not apply with full

« SebelumnyaLanjutkan »