Mr. W. E. So Relle for plaintiff in error.
Messrs. Joseph C. Helm, Ernest A. Colburn, and Charles H. Dudley for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
This action was brought in one of the district courts of the state of Colorado by the defendant in error to recover damages from plaintiff in error for certain trespasses on, and to restrain it from removing ore from ground claimed to be within the [182 U.S. 499, 500] boundaries of, the mining claims of defendant in error. The answer of plaintiff in error justified the trespasses and asserted a right to the ore by reason of the ownership of another mining claim and the ownership of a certain tunnel site.
The rights of the parties are based on, and their determination hence involves the construction of, the following sections of the Revised Statutes of the United States, empowering the location of mining claims:
The especial controversy is whether the rights conferred by 2322 are subject to the right of way expressed in 2323, and limited by 2336. Or, in other words, as to the latter section, whether by giving to the oldest or prior location, where veins unite, 'all ore or mineral contained within the space of intersection,' and 'the vein below the point of union,' the prior location takes no more, notwithstanding that 2322 gives to such prior location 'the exclusive right of possession and enjoyment of all the surface included within the lines' of the location, 'and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically.'
The defendant in error denied such effect to 2323 and 2336, and brough this suit, as we have said, against plaintiff in error for damages and to restrain plaintiff in error from removing ore claimed to be within the boundaries of the claims of defendant in error, to which ore defendant in error claimed to be entitled by virtue of 2322. The judgment of the lower court sustained the claim of the defendant in error, and damages were awarded it, and the plaintiff in error was enjoined from further prosecuting work. An appeal was taken to the supreme court of the state, and the judgment was affirmed. Thereupon this writ of error was allowed. [182 U.S. 499, 502] The annexed plat exhibits the relative location of the respective properties of the parties. The Champion location was dropped from the case. There is no controversy as to the validity of the respective locations, none as to the tunnel site or of the steps necessary to preserve it. Indeed, the facts are all stipulated, and that the respective locations are evidenced by patents, the defendant in error being the owner of the Monarch and the Mammoth Pearl, and the plaintiff in error the owner of the Victor Consolidated and the tunnel site. The facts are stated by the supreme court of the state as follows:
The assignments of error present the following propositions, [182 U.S. 499, 504] which it is stipulated the case involves and to which the decision may be directed:
The third proposition involves the relation of 2322 and 2336. It is first discussed by plaintiff in error, and is given the most prominence in the argument, and we therefore give it precedence in the order of discussion. It presents for the first time in this court the rights of a junior location of a cross vein within the side lines of a senior location under 2336. Prior to the decision by the supreme court of Colorado in the case at bar that court had decided that the junior location was entitled to all of the ore found on his vein within the side lines of the senior location, except at the space of intersection of the two veins. Branagan v. Dulaney (1885) 8 Colo. 408, 8 Pac. 669; Lee v. Stahl (1886) 9 Colo. 208, 11 Pac. 77; Morgenson v. Middlesex Min. & Mill. Co. (1887) 11 Colo. 176, 17 Pac. 513; Lee v. Stahl, 13 Colo. 174, 22 Pac. 436. In Coffee v. Emigh (1890) 15 Colo. 184, 10 L. R. A. 125, 23 Pac. 83, it was held that the rule laid down in the foregoing cases had become established law. The claims of the plaintiff in error were located after the decisions, and it is contended that the rule laid down by them became a rule of property in the state, and it is earnestly urged that to reverse the rule now would take from plaintiff in error that which it [182 U.S. 499, 505] 'had reason to believe was a vested right in the Victor Consolidated vein.'
There are serious objections to accepting that consequence as determinative of our judgment. We might by doing so confirm titles in Colorado, but we might disturb them elsewhere. The statute construed is a Federal one, being a law, not only for Colorado, but for all of the mining states, and, therefore, a rule for all, not a rule for one, must be declared. Besides, what consideration should have been given to prior cases, the supreme court of the state was better able to judge than we are. It may be that the repose of titles in the state was best effected by the reversal of the prior cases. At any rate, a Federal statute has more than a local application, and until construed by this court cannot be said to have an established meaning. The necessity of this is illustrated, if it need illustration, from the different view taken of 2322 and 2336 in California, Arizona, and Montana, from that taken in the prior Colorado cases. The supreme courts respectively of those states and that territory have adjudged a superiority of right to the cross veins to be in the senior location. Manifestly, on account of this difference, if for no other, this court must interpret the sections independently of local considerations. And in doing so we do not find in the sections much ambiguity so far as the issue raised by the record is concerned; indeed, not even much necessity for explanation. Section 2336 does not conflict with 2322, but supplements it. Section 2336 imposes a servitude upon the senior location, but does not otherwise affect the exclusive rights given the senior location. It gives a right of way to the junior location. To what extent, however, there may be some ambiguity; whether only through the space of the intersection of the veins, as held by the supreme courts of California, Arizona, and Montana, or through the space of intersection of the claims, as held by the supreme court of Colorado in the case at bar. It is not necessary to determine between these views. One of them is certainly correct, and therefore the contention of the plaintiff in error is not correct, and, more than that, it is not necessary to decide on this record. A complete interpretation of the sections would, of course, determine [182 U.S. 499, 506] between those views, but on that determination other rights than those submitted for judgment may be passed upon, and we prefer therefore to reserve our opinion.
There was some contrariety of views in the cases on other points. There was discussion as to whether veins cross on their strike or their dip, and it was held that they could cross on both strike and dip, but as to the exact application of 2336 to either there was some disagreement.
The supreme court of Arizona said: 'Congress had in mind, at the time of the enactment of the law of 1872, that, as mining rights then stood, A's lode might legally cross B's lode on the strike, and whether on the dip or not, makes no difference; and 2336 was designed to define the rights of A and B in the space of intersection.' Watervale Min. Co. v. Leach, 33 Pac. 418.
The supreme court of California held in Wilhelm v. Silvester, 101 Cal. 358, 35 Pac. 997, that the provisions of the section could readily be construed as intending to protect the rights of old ledge locations; and, speaking of veins intersecting on their dip, said: 'Moreover, there is strong reason for thinking that such an intersection was the very one in the mind of Congress when it passed 2336; for in that section, and speaking of the same subject, it says that 'where two or more veins unite, the oldest or prior location shall take the vein below the point of union,' and if the other kind of intersection [on the strike] was in the minds of the legislators at that time they would not have used the word 'below;' for 'below' would not apply at all to a union on the strike of two veins, such as the appellant's rights depend on in the case at bar.' But the chief justice of the state, concurring in the result, observed:
The supreme court of Colorado concurred in the conclusions of the courts of Arizona and California, and expressed its own view as follows:
See, for the views of the supreme court of Montana, Pardee v. Murray, 4 Mont. 234, 2 Pac. 16.
2. The other assignments of error relate to rights claimed by plaintiff in error by the location of the tunnel site, and present the questions whether such location gave to the plaintiff in error the following rights: Of way through the lode claims of the defendant in error; of possession of the blind veins cut by the tunnel underneath the claims of the defendant in error.
The plaintiff in error asserts the right of way for its tunnel under 2323 by implication, and from that implication, and the rule it contends for as to cross veins, deduces its right to all of the blind veins. The contention as to cross veins we have answered, and the deduction as to blind veins is not justified. The section contemplates that tunnels may be run for the development of veins or lodes, for the discovery of mines, gives a right of possession of such veins or lodes, if not previously known to exist, and makes locations on the surface after the commencement of the tunnel invalid. There is no implication [182 U.S. 499, 508] of a displacement of surface locations made before the commencement of the tunnel. Indeed, there is a necessary implication of their preservation. And there can be no implication of a conflict with the rights given by 2322. The exclusiveness of those rights we have declared. The tunnel can only be run in subordination to them. How else can 2322 be given effect? There are no exceptions to its language. The locators 'of any mineral veins, lode, or ledge' are given, not only 'an exclusive right of possession and enjoyment' of all the surface included within the lines of their locations, but 'of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically.' A locator therefore is not confined to the vein upon which he based his location and upon which the discovery was made. 'All veins or lodes having their apices within the plane of the surface lines extended downward are his, and possession of the surface is possession of all such veins or lodes within the prescribed limitations.' Barringer & Adams, Mines & Mining, page 44.
Under the old law the miner 'located the lode. Under the new [the act of 1872] he must locate a piece of land containing the top or apex of the lode. While the vein is still the principal thing, in that it is for the sake of the vein that the location is made, the location must be of a piece of land including the top or apex of the vein. If he makes such a location, containing the top or apex of his discovered lode, he will be entitled to all other lodes having their tops or apices within their surface boundaries.' Lindsay, Mines, 71.
And this court said, speaking by Mr. Justice Brewer, in Campbell v. Ellet, 167 U.S. 116 , 42 L. ed. 101, 17 Sup. Ct. Rep. 765:
The only condition is that the veins shall apex within the surface lines. It is not competent for us to add any other condition. Blind veins are not excepted, and we cannot except them. They are included in the description 'all veins' and belong to the surface location.
3. The same reasoning disposes of the claim of plaintiff in error to the right of way for its tunnel through the ground of defendant in error, so far as the right of way is based on the statutes of the United States. So far as it is based on the statutes of Colorado it is disposed of by their interpretation by the supreme court of Colorado, and, expressing it, the court said:
4. An assignment of error is based upon an offer of plaintiff in error to prove that at the time of the location of the Ithaca tunnel site no ore had been discovered in two of the patented [182 U.S. 499, 510] claims of the defendant in error, to wit, the Monarch and the Mammoth Pearl. The ruling was right. The patents were proof of the discovery and related back to the date of the locations of the claims. The patents could not be collaterally attacked. This has been decided so often that a citation of cases is unnecessary.