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Jim Butler Tonopah Mining Co. v. West End Co.

December 31, 1916

JIM BUTLER TONOPAH MINING COMPANY (A CORPORATION), APPELLANT, V. WEST END CONSOLIDATED MINING COMPANY (A CORPORATION), RESPONDENT.


Appeal from the Fifth Judicial District Court, Nye County, Mark R. Averill, Judge.

Curtis H. Lindley, Wm. E. Colby, Hugh H. Brown, and J. H. Evans, for Appellant.

Peck, Bunker & Cole; Cheney, Downer, Price & Hawkins; H. H. Atkinson, and Dickson, Ellis, Ellis & Schulder, for Respondent.

By the Court, Norcross, C. J., after stating the facts as above:

This case presents two main questions of law, to wit:

First—Whether the fact that the westerly end line of the surface area of the West End claim as patented, being not a straight, but a broken, line, in and of itself deprives the owner of that claim of extralateral rights upon any vein apexing therein.

Second—Whether, within the meaning of the act of Congress, the crest or crown of a vein which is found in the form of a single anticline may be regarded as the top or apex of the vein, and extralateral rights exist upon such vein in opposite directions.

The answer to these questions must be found in an interpretation of that portion of the mining act which contains the grant of extralateral rights, and which reads as follows:

“The locators of all mining locations * * * shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface

[39 Nev. 375, Page 389]

lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another.” (Section 2322, U. S. Rev. Stats.; U. S. Comp. Stats. 1913, sec. 4618.)

The following diagram shows the relative position of the surface boundaries of the patented West End location: (Map)

[39 Nev. 375, Page 390]

1. The location would embrace a full claim 1,500 feet by 600 feet, excepting for the excluded area embraced within the two triangles 3, 3a, 4, and 7, 7a, 8. The lines 4, 5, and 1, 8, are parallel. While the plat and field notes, accompanying application for the patent, are not in the record, it is probable that they would disclose that the surface boundaries of the claim as located would include the two triangular pieces of ground above mentioned, and that the same were excluded from the patent application because in conflict with prior existing locations. In every great mining district locations are made from time to time in every direction, and a map of such a district presents a confusing mass of conflicting boundaries. In locating a claim the locator may lay his lines upon or across portions of prior existing claims in order to secure parallelism of end lines, and thus secure to himself extralateral rights. (Del Monte Case, 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72.)

While a locator, prior to patent as well as after patent, may have no greater extent of extralateral rights than the extent of the vein within the boundaries of his surface rights (2 Lindley, sec. 574), he may, prior to patent, have his extralateral rights determined by planes parallel to planes passing through his located end lines, even though one or both of such located end lines are upon the surface ground of contiguous prior claims owned by other parties. This is the rule of the Del Monte and other cases. What reason, then, can exist in support of a proposition that because such owner obtained a patent for his claim he must forfeit extralateral rights because in his application for patent he excludes areas in conflict with prior claims, resulting in patented surface boundaries of irregular shape. There is, it seems to us, no reason why such a thing should be. Certainly the securing of a patent to a location ought not to leave a locator with less rights than he had before. That the mining laws are to be liberally construed in favor of the locator is a proposition now too well settled to need a citation of authorities. To hold that, simply because the boundaries of the surface of a

[39 Nev. 375, Page 391]

patented claim are so irregular in shape as not to present parallel end lines, due to exclusions of conflict, extralateral rights are lost, is to place upon the statute a construction contrary to its purpose, as that purpose has frequently been enunciated. (Lawson v. U. S. M. Co., 207 U. S. 1, 28 Sup. Ct. 15, 52 L. Ed. 65; 2 Lindley, sec. 584.)

Even if this is a more liberal construction of the statute than is warranted, which we think it is not, nevertheless, so far as this particular case is concerned, it cannot, we think, be said that the patented surface area of the West End claim does not present parallel end lines. The end lines 1, 8, and 4, 5, are each part of the original located end lines. They should, we think, still be considered end lines, and the true end lines of the patented claim. To so hold requires that the line 3, 4, be regarded as a side line rather than as a part of a so-called broken end line. We think it should be so regarded. Side lines are not required to be parallel. No rule can well be applied governing courses and distances of side lines other than that they shall not be so laid as to increase the statutory width or length of a claim. The line 1, 8, is conceded to be an end line. But if the line 4, 5, is not also an end line, but rather a part of a broken end line, it is drawing a rather fine distinction to say that the lines 3, 4, and 4, 5, are parts of a broken end line, and that the lines 7, 8, and 8, 1, are not. The difference is only in the degree of the angle and the length of the lines—a difference which has no reasonable basis upon which to support a distinction. We think that the ruling that the line 4, 5, is the westerly end line of the West End claim finds support in both reason and authority. (Walrath v. Champion M. Co., 171 U. S. 293, 18 Sup. Ct. 909, 43 L. Ed. 170.)

2. We come now to a consideration of the question whether extralateral rights exist upon a vein in the form of a single anticlinal fold. It is the contention of counsel for appellant that such rights do not exist, for the reason, among others alleged, that the federal statute does not contemplate extralateral rights in opposite directions. It is the contention that only veins dipping in the same direction as the discovery vein may be followed

[39 Nev. 375, Page 392]

extralaterally; that where within the same location a secondary vein is found dipping in the opposite direction as that of the discovery vein, extralateral rights thereon cannot be enjoyed. We think the statute is not susceptible of this construction. The statute gives to the locators “the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines, * * * although such veins, lodes, or ledges may so far depart from the perpendicular in their course as to extend outside the vertical side lines of such surface locations.”

Congress manifestly contemplated that the locator of a mining claim might discover more than one vein within his surface boundaries, and provided that he should have “all veins, lodes and ledges, throughout their entire depth.” But it is contended that the concluding portion of the section, limiting extralateral rights between “vertical planes drawn downward * * * through the end lines * * * so continued in their own direction” negatives an intent to permit extralateral rights in opposite directions, because the words “in their own direction” relate to but one direction, that of the dip of the discovery vein. We are unable to see the force of this contention. The direction of an end line depends upon which end of the line it is viewed from. The courses given in a patent of the two end lines of a claim usually, and doubtless invariably, are in opposite directions. It would be a strained construction, and one, we think, not within the letter or spirit of the statute, to hold that end lines may be considered as having but one direction. If a vein in the form of a single anticlinal fold may be said to have an apex, we think there is nothing in the statute which militates against extralateral rights upon such vein in opposite directions, the same as though it were two veins with separate apices, instead of one vein.

3. The most serious question presented in this case is whether the vein in question may be said to have an

[39 Nev. 375, Page 393]

apex. The vein is in the form of a single anticlinal fold, and the precise question presented by a vein in such form appears never, heretofore, to have been determined. Counsel for appellant, in their brief, say: (Diagram)

[39 Nev. 375, Page 394]

“The definition of the term ‘apex' as employed in the mining statute involves the elements of terminal edge of a vein and downward course extending therefrom. According to this definition, the horizontal sheet ‘a' on figure 3 here inserted and the anticlinal fold ‘b' have no ...


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