[207 U.S. 1, 2] This suit was commenced in the circuit court of the United States for the district of Utah by the United States Mining Company, claiming to be the owner of certain mining property, and praying that its title thereto be quieted and the defendant restrained from taking any ore therefrom. Jurisdiction was founded on diverse citizenship. In an amended complaint, filed June 2, 1902, it was alleged that the plaintiff is the owner and in possession of four mining claims known as the Jordan Extension, the Northern Light, the Grizzly, and the Fairview lode mining claims, the boundaries of each being given; that these mining claims are adjacent to each other and to certain other mining claims, all owned and worked by the plaintiff as one property for mining purposes; that beneath the surface of the claims above mentioned is a vein or lode of great value; that the defendants wrongfully claim to own said vein or lode and the ores and minerals therein contained; that they have, by means of secret underground works, obtained access thereto and have mined, extracted, and removed large quantities of valuable ores therefrom; that they threaten to continue such wrongful and unlawful invasion of the premises, and to continue to mine, extract, and remove ores and minerals; that the defendants are in possession of a mining claim adjacent to the four mining claims of plaintiff, known as the Kempton mining claim, united States lot 255, which was located in the year 1871, and, on information and belief, that the defendants pretend that the mineral deposits and ores under and beneath the surface of the four mining claims above mentioned are in and part of a mineral vein and lode belonging to and haveing its apex in said Kempton mining claim and on the dip of said alleged vein, which pretense the plaintiff charges to be contrary to the truth. The plaintiff further alleges that it is the owner and in possession of two certain mining claims, one named the Jordan Silver Mining Company's mine, but usually known as the 'Old Jordan,' located December 17, 1863; the other the Mountain Gem Lode and Mining claim located August 20, 1864, the boundaries of each of which are given; [207 U.S. 1, 3] that in these two claims there is a lode, bearing silver and other metals, whose apex is within the surface boundaries; that the dip of said lodes is toward the Kempton claim occupied by the defendants, and that if there be any mineral vein or lode in the Kempton claim it is not one that has its apex within the limits of that claim, but is a part of the lodes apexing within the 'Old Jordan' and Mountain Gem claims. The relief prayed for was a decree quieting plaintiff's title and restraining the defendants from mining and removing any ores or minerals. To this amended complaint the defendants filed a demurrer, stating, as one of the grounds thereof, that the plaintiff had an adequate remedy at law. This demurrer was overruled, and thereupon the defendants filed an answer and subsequently an amended answer, setting forth their title to the Kempton mining claim, and also to a claim known as the Ashland mining claim, and alleging that there are lodes whose apices are within these claims; that on their dip they enter beneath the surface of the plaintiff's claims, and that it is upon them that defendants have been mining; that the Kempton claim was patented to their grantors and predecessors in interest on February 23, 1875. They further deny that the 'Old Jordan' claim was located on December 17, 1863, or patented July 14, 1877; deny that the Mountain Gem claim was located on August 20, 1864, or that a patent had been issued on said alleged location. They further aver that if there be any lode or vein in either the 'Old Jordan' or the Mountain Gem claims, that such lode or vein is entirely distinct from those which have their apices in the Kempton and Ashland claims. On the hearing the court denied the application of the defendants to set the case for trial as a law case before a jury. At the same time it entered a decree dismissing the plaintiff's bill. From this decree the plaintiff appealed to the circuit court of appeals (67 C. C. A. 587, 134 Fed. 769), which reversed the decree of dismissal, and remanded the case with instructions to enter a decree for the plaintiff in conformity with the prayer of the bill. Thereupon, [207 U.S. 1, 4] on application of the defendants, the case was brought to this court on certiorari.
[ Messrs. Charles J. Hughes, Jr., Ogden Hiles, and Charles C. Dey for petitioners.
[207 U.S. 1, 6] Messrs. William H. Dickson, George Sutherland, A. C. Ellis, A. C. Ellis, Jr., E. M. Allison, and Waldemar Van Cott for respondent.
Mr. Justice Brewer delivered the opinion of the court:
The first question is whether the plaintiff can maintain this suit in equity without a prior adjudication in an action at law of its legal title. The bill alleges ownership and possession. It supported this allegation by patents from the United States of the first four claims mentioned in the bill, and proved that the defendants were working on a vein or body of mineral beneath the surface and extracting ores therefrom. The bill has a double aspect, to quiet title and to restrain defendants from removing any more ores from beneath the surface of these claims. Title by patent from the United States to a tract of ground, theretofore public, prima facie carries ownership of all beneath the surface, and possession under such patent of the surface is presumptively possession of all beneath the surface. This is the general law of real estate. True, in respect to mining property, this presumption of title to mineral beneath the surface may be overthrown by proof that such mineral is a part of a vein apexing in a claim belonging to some other party. But this is a matter of defense; and while proof of ownership of the spex may be proof of the ownership of the vein descending on its dip below the surface of property belonging to another, yet such ownership of the apex must first be established before any extralateral title to the vein can be recognized. This suit was not in the nature of an ejectment, to put the defendants out of possession of the space beneath the surface of plaintiff's claims from which they had extracted ore, but to quiet the title of the plaintiff to the vein in which they had been working, and to restrain them from mining and removing any more ore.
Sec. 3511, Utah Rev. Stat. 1898, reads:
The same question was considered and decided in the same way in respect to a suit based upon a similar statute, in Iowa, in Wehrman v. Conklin, 155 U.S. 314 , 39 L. ed. 167, 15 Sup. Ct. Rep. 129. Of course, as pointed out in Whitehead v. Shattuck, 138 U.S. 146 , 34 L. ed. 873, 11 Sup. Ct. Rep. 276, such a statute cannot be relied upon in the Federal courts to sustain a bill in equity by one out of possession against one in possession, for an action at law in the nature of an action of ejectment affords a perfectly adequate legal remedy. There is nothing in the point decided in Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing Co. 188 U.S. 632 , 47 L. ed. 626, 23 Sup. Ct. Rep. 434, which, rightly considered, conflicts with the case of Holland v. Challen.
It will be further borne in mind that this question was raised by demurrer to the plaintiff's bill and by motion after the [207 U.S. 1, 10] plaintiff had finished its testimony and before the defendants had introduced theirs, and was not renewed at the close of the trial, althought until then the motion was not decided. At the time the motion was made the case presented was one of a clear legal title to the four mining claims by patent from the United States, and an unauthorized entry by subterranean workings into the ground below the surface and the mining and extracting of ores therefrom,-a case for restraint by injunction, which was part of the relief asked for in the bill. It is insisted that in Park v. Wilkinson, 21 Utah, 279, 81 Am. St. Rep. 693, 60 Pac. 945, the supreme court of that state has given a different construction to the statute, but in this we think counsel are mistaken. In that case the plaintiff brought an action which the court says 'was in the nature of one in ejectment.' To the complaint the defendant, as authorized by the practice in Utah, answered with a cross complaint, demanding equitable relief. A jury was empaneled. After the testimony was all in the court ruled against the claim for equitable relief, discharged the jury, and entered judgment for the plaintiff. This was held to be erroneous, the supreme court saying that 'after determining the equitable issue the court should have submitted the case to the jury upon proper instructions.' In other words, the equitable relief sought by the defendant having been denied, the case stood as one in the nature of an action of ejectment, which was a common-law action, entitling the party to a jury. But in this case, upon the allegations of the complaint, the plaintiff was in possession, and therefore could not maintain an action of ejectment. The testimony which plaintiff offered showed that it was the owner and in possession, and, of course, at that time nothing in the nature of an action of ejectment was shown. And it was only by demurrer to the complaint and by motion after the plaintiff had rested that the question of a right to a jury was raised by the defendants. The decision of the court of appeals in this matter was right.
Coming now to the merits, it is not open to dispute that the defendants were taking ore from beneath the surface of the [207 U.S. 1, 11] plaintiff's four claims. The question therefore arises, What right had they to thus mine and remove ore? They must show that the ore was taken from a vein belonging to them. Was there a vein? Where was its apex, and who was the owner of that apex? The testimony is voluminous, and even with the accompanying diagrams it is difficult to come to a satisfactory conclusion as to the facts.
It is insisted that the findings of the circuit court should have bound and concluded the court of appeals upon questions of fact. The difficulty with this contention is that there is nothing to show what the circuit court found to be the facts. Whatever might have been suggested by the course of the argument at the hearing, the comments of the court upon such argument, or in announcing its decision, there is nothing in the record to indicate whether its decision was based upon a question of fact or a matter of law. The record only contains its decree, dismissing the bill. All else is a matter of surmise, except as may be inferred from the allegations of the pleadings and the scope of the testimony. While it is apparent that the circuit court must have based its decision upon one of two or three grounds, yet upon which it is not certain. The circuit court of appeals made no separate finding of facts, but it filed an opinion which indicates the scope of its decision, and it is the decree of that court which is before us for consideration. The attitude of the case is very like that of one in which a trial court refers all things to a master, who takes the testimony and reports it, with a general finding for the plaintiff or defendant, upon which report the trial court states its views of the facts and the law and enters its decree. An appellate court, reviewing such decree, will give its consideration to the conclusions stated by the trial court, irrespective of the report of the master, unless the issue be so narrow that sustaining the decree of the court necessarily involves an overruling of the master on a matter of fact.
From the opinion of the court of appeals it appears that it found that there was a broad vein. It says: 'A careful [207 U.S. 1, 12] examination and consideration of the evidence clearly convinces us that the stratum of limestone constitutes a single broad vein or lode of mineral-bearing rock extending from the quartizite on one side to the quartzite on the other.' This stratum of limestone underlies the four claims of the plaintiff, and one of the contentions of the defendants is that there are several independent veins, one of which has its apex within the surface lines of the Kempton and another its apex in the Ashland, that these independent veins continue down through the stratum of limestone beneath the surface of the plaintiff's claims, and that it was only from these independent veins that the defendants were mining and removing ore. Of course, this difference between the conclusions of the court and the contentions of the defendants affects materially the scope of the inquiry. If the limestone is not, strictly speaking, a vein, but a mere stratum of rock through which run several independent veins, then the inquiry must extend to the location of the apex of each separate vein; whereas, if the stratum of limestone is itself a single broad vein, then the inquiry is narrowed to the location of its apex.
With reference to the conclusion of the court of appeals it is sufficient to say that if the testimony does not show that it is correct, it fails to show that it is wrong, and under those circumstances we are not justified in disturbing that conclusion. It is our duty to accept a finding of fact, unless clearly and manifestly wrong.
Treating this limestone as a single broad vein, it is apparent that the entire apex is not within the surface of either the Kempton and Ashland, but that it is also found in the Old Jordan and Mountain Gem, properties of the plaintiff. The line which divides the surface of the claims of the defendants from the Old Jordan and Mountain Gem claims also bisects the vein as it comes to the surface. In other words, part of the apex is within plaintiff's claims and part within defendants.' In such a case the senior location takes the entire width of the vein on its dip. This was the conclusion of the [207 U.S. 1, 13] court of appeals, as shown by this quotation from its opinion (p. 592):
We fully indorse the views thus expressed. Discovery is the all- important fact upon which title to mines depends. Lindley, in his work on Mines, 2d ed. vol. 1, 335, says:
The two thoughts here presented are reward for the time and labor spent in making the discovery, thus adding to the general wealth, and incentive to others to prosecute searches for veins and mines. To take from the discoverer a portion of that which he has discovered and give it to one who may have been led to make an adjoining location by a knowledge of the discovery, and without any previsous searching for mineral, is manifest injustice.
Again, as indicted in the quotation from the court of appeals, continuing the line of dividion shown upon the surface through the descending vein would be attended with great difficulty and uncertainty. Dealing with question of this nature, a peactical view must to taken. Veins do not continue of uniform width in their descent, but are often irregular and broken, and to attempt to make a division of ore according as it appears on the surface, or equally, would require the constant supervision of a court. It is not strange, then, that the custom of miners has been, as stated by the court of appeals, to regard and treat the vein as a unit and indivisible in point of width, and belonging to the discoverer. This question has been before this court, as well as several of the courts in the mining districts. In Argentine Min. Co. v. Terrible Min. Co. 122 U.S. 478, 484 , 30 S. L. ed. 1140, 1142, 7 Sup. Ct. Rep. 1356, we said:
In Bullion, B. & C. Min. Co. v. Eureka Hill Min. Co. 5 Utah, 3, 11 Pac. 515, the question is discussed at some length by Chief Justice Zane. In the course of the opinion it is said (p. 54):
See also St. Louis Min. & Mill. Co. v. Montana Min. Co. (C. C. App. 9th C.) 56 L.R.A. 725, 44 C. C. A. 120, 104 Fed. 664; Empire State-Idaho Min. & Developing Co. v. Bunker Hill & S. Min. & Concentrating Co. (C. C. App. 9th C.) 52 C. C. A. 219, 114 Fed. 417. Also another suit between the same parties in the same court, 66 C. C. A. 99, 131 Fed. 591; Last Chance Min. Co. v. Bunker Hill & S. Min. & Concentrating Co. (C. C. App. 9th C.) 66 C. C. A. 299, 131 Fed. 579.
But it is contended by the defendants that both the entries and patents of the Ashland and Kempton claims were prior in time to the entries and patents of the Old Jordan and Mountain Gem, and that such priority of entry and patent conclusively establishes the prior right of the owners to this broad vein; that the failure of the owners of the Old Jordan and Mountain Gem to adverse the applications of the owners of the Ashland and Kempton for patent was an admission that the latter had priority of right, and is conclusive against any present testimony as to the dates of the locations. We had occasion in the recent case of Creede & C. C. Min. & Mill. Co. v. Uinta Tunnel Min. & Transp. Co. 196 U.S. 337 , 49 L. ed. 501, 25 Sup. Ct. Rep. 266 to consider to what extent the issue of a mining patent worked an estoppel of the claims of third parties, and it is unnecessary now to repeat the discussion there had.
This case presents the question under different aspects. The entries and patents of the Ashland and Kempton claims [207 U.S. 1, 16] were, as stated, prior in time to the entries and patents of the Old Jordan and Mountain Gem. There is no record of any adverse suits, although it is intimated that there were such suits. In the absence of a record thereof we cannot assume that anything more was presented and decided than was necessary to justify the patents. A patent is issued for the land described, and all that is necessarily determined in an adverse suit is the priority of right to the land. This is evident from 2325, Rev. Stat. ( U. S. Comp. Stat. 1901, p. 1429), which says: 'A patent for any land claimed and located for valuable deposits may be obtained in the following manner.' In the section the only matters mentioned for examination and consideration relate to the surface of the ground. There is no suggestion or provision for any inquiry or determination of subterranean rights. Lindley, in his work on Mines, 2d ed. vol. 2, 730, says:
In New York Hill Co. v. Rocky Bar Co. 6 Land Dec. 318, the Commissioner of the General Land Office declined to recognize an adverse claim where there was no surface conflict, saying (p. 320):
The same ruling was made in Smuggler Min. Co. v. Trueworthy Lode Claim, 19 Land Dec. 356.
Without determining what would be the effect of a judgment in an adverse suit in respect to subterranean rights, if any were in fact presented and adjudicated, it is enough now to hold that there is no presumption, in the absence of the record, that any such rights were considered and determined. Indeed, in the absence of a record, or some satisfactory evidence, it is to be assumed that the patents were issued without any contest and upon the surveys made under the direction of the United States surveyor general, and included only ground in respect to which there was no conflict. If the surface ground included in an application does not conflict with that of an adjoining claimant, the latter is in no position to question the right of the former to a patent. Take the not infrequent case of two claims adjoining each other, the boundary line between which is undisputed. If the owner of one applies for a patent the owner of the other is clearly under no obligation to adverse that application, even if, under any circumstances, he might have a right to do so. Other necessary conditions being proved, the applicant is entitled to a patent for the ground. Generally speaking, if the boundary between the two claims is undisputed the foundation for an adverse suit is lacking. While a patent is evidence of the patentee's priority of right to the ground described, it is not evidence that that right was initiated prior to the right of the patentee of adjoining tract to the ground within his claim.
Section 2336, Rev. Stat. (U. S. Comp. Stat. 1901, p. 1436), makes provision for conflict as to certain subterranean rights. The last sentence of the section reads: 'And, where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection.' Argentine Min. Co. v. Terrible Min. Co. supra. As the place of union may be far below the surface, this evidently contemplates inquiry and decision [207 U.S. 1, 18] after patent, and then it can only be in the courts. And the same rule will obtain as to other subterranean rights.
It is further contended that there is no evidence of a valid location of the 'Old Jordan' and Mountain Gem prior to the entries of the Ashland and Kempton. Location notices of the Old Jordan and Mountain Gem were admitted in evidence, that of the former being as follows:
Notice. Jordan S. M. Co.
The undersigned members of the Jordan Silver Mining Co. claim for mining purposes one share of 200 feet each and one additional claim of 200 feet for original discoverer, George R. Ogilvie, on this lead of mineral ore, with all its dips, spurs, and angles, beginning at the stake situated 100 feet northeast of Gardner's shanties in Bingham (Canion) Kanyon, in West Mountain, and running 2,200 feet in a westerly direction along the said of said mountain, on a line with Bingham canyon, and intend to work the same according to the mining laws of this mining district.
(Signed by 25 locators.)
Bingham Kanyon, Salt Lake City, Utah territory, Sep 17, 1863
A. Gardner, Recorder.
The Mountain Gem location was similar in form, dated August 20, 1864, and recorded August 24, 1864. Now these location notices were long before the time of the locations of the defendants' claims. It is further contended that the locations of the 'Old Jordan' and Mountain Gem were anterior to the act of July 26, 1866 (14 Stat. at L. 251, chap. 262), which was the first legislation of Congress in respect to the granting of mineral claims, and that while that act, in its 2d section, recognizes the rights of locators in so far as they have proceeded according to the local custom or rules of miners of the districts in which the mines are situated, yet in this case there is no evidence that these locations were made in conformity to any such local custom or rules. It is sufficient to say that by stipula- [207 U.S. 1, 19] tion of counsel it was agreed that the patents to the 'Old Jordan' and Mountain Gem were issued upon the location notices. Inasmuch as they were accepted by the government, and patents issued thereon, it was a recognition by the Department of the conformity of the proceedings to the local rules and customs of the district, and such ruling is not open to challenge by third parties claiming rights arising subsequently to such notices.
Summing up our conclusions, the findings of fact as stated in the opinion of the court of appeals are not clearly against the testimony, and must, therefore, be sustained. According to those findings there was a single broad vein,-the apex or autcroppings of which extended through the limits of some of the plaintiff's and defendants' claims,-and not several independent veins. The ore which was being mined and removed by the defendants was taken from this single broad vein beneath the surface ground of claims belonging to the plaintiff. Where there is a single broad vein whose apex or outcroppings extend into two adjoining mining claims the discoverer has an extralateral right to the entire vein on its dip. Acceptance by the government of location proceedings had before the statute of 1866, and issue of a patent thereon, is evidence that those location proceedings were in accordance with the rules and customs of the local mining district. The priority of right to a single broad vein vested in the discoverer is not determined by the dates of the entries or patents of the respective claims, and priority of discovery may be shown by testimony other than the entries and patents. In the absence from the record of an adverse suit there is no presumption that anything was considered or determined except the question of the right to the surface.
From these conclusions it is obvious that the decision of the Circuit Court of Appeals was right, and it is affirmed.