# Montana Mining Company v. St. Louis Mining Milling Company

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United States Supreme Court
204 U.S. 204
Montana Mining Company v. St. Louis Mining Milling Company
Argued: December 10, 11, 1906. --- Decided: January 14, 1907
The litigation between these parties has been protracted through a series of years. A brief history will help to an understanding of the present questions. Prior to 1884 Charles Mayger had located the St. Louis lode claim in Lewis and Clarke county, Montana territory, and william Robinson and others had located, adjoining thereto, the Nine Hour lode claim. These claims conflicted. Mayger made application for a patent. Thereupon adverse proceedings were commenced by Robinson and his associates against Mayger in the district court of the third judicial district of Montana. For the purpose of settling and compromising that action on March 7, 1884, a bond was executed by Mayger to the other parties, in which he agreed to proceed as rapidly as possible to obtain a patent, and then to execute and deliver to Robinson a good and sufficient deed of conveyance of a tract described as 'comprising a part of two certain quartz lode mining claims, known as the St. Louis lode claim and the Nine Hour lode claim, and particularly described as follows, to wit.' Then follows a description of what is known as the compromise ground,-a tract including an area of 12,844.5 square feet, 'together with all the mineral therein contained.' Mayger proceeded to obtain a patent for the St. Louis claim, including the compromise ground, as did also Robinson and his associates, a patent to the Nine Hour claim, omitting the compromise ground. Thereafter the plaintiff in error acquired the interest of Robinson and his associates and the defendant in error the interest of Mayger. The former company demanded a conveyance of the compromise ground in accordance with the terms of the bond executed by Mayger, which being refused, suit was brought in a district court of the state, which rendered a decree in its favor. That decree having been affirmed by the supreme court of the state, the St. Louis company brought the case to this court, and on October 31, 1898, the judgment of the supreme court of Montana was affirmed. 171 U.S. 650, 43 L. ed. 320, 19 Sup. Ct. Rep. 61. In pursuance of the decree the St. Louis company deeded the tract described in the bond, giving its boundaries, the number of square feet contained therein, and adding, 'together with all the mineral therein contained. Together with all the dips, spurs, and angles, and also all the metals, ores, gold and silver-bearing quartz rock and earth therein, and all the rights, privileges, and franchises thereto incident, appended, or appurtenant, or therewith usually had and enjoyed; and also all and singular the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining, and the rents, issues, and profits therein, and also all and every right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the said premises and every part and parcel thereof, with the appurtenances.'
Prior explorations, the exact date of which is not shown, but apparently long after the compromise agreement, had disclosed the fact that beneath the surface of this compromise ground there was a large body of ore which, it was claimed, belonged to a vein apexing in the territory of the St. Louis claim. This was not the discovery vein, but a secondary vein, frequently called the Drumlummon vein or lode, whose apex was between the compromise ground and the apex of the St. Louis discovery vein. Some of this ore was mined and removed by the Montana company. On September 16, 1893, a year before the specific performance suit was brought, the St. Louis company filed its complaint in the circuit court of the United States for the district of Montana, against the Montana company and several individual defendants, claiming to recover $200,000 for the damages sustained by the trespass of the defendants in removing the ore. In its complaint the St. Louis company alleged that it was a corporation organized under the laws of Montana, and that the Montana company was a corporation incorporated under the laws of the Kingdom of Great Britain, but nothing was said as to the residence or citizenship of the individual defendants.
On November 21, 1898, three weeks after the decision by this court in the specific performance suit, an amended and supplemental complaint was filed, which omitted the individual defendants and sought a recovery from the Montana company alone for the ore so wrongfully removed, as alleged. On June 26, 1899, a second amended and supplemental complaint was filed, also against the Montana company alone, and asking for the same relief. To this an answer was filed, setting up the bond and deed heretofore referred to, and pleading that thereby the plaintiff was estopped from claiming any part of the compromise ground or any mineral contained therein.
Pending this litigation, and on respectively the sixth and twelfth days of December, 1898, orders were issued by the circuit court restraining severally each of the parties to this litigation from taking any more mineral from the disputed ground. On the second amended and supplemental complaint a trial was had in which judgment was rendered in favor of the St. Louis company for $23,209. To review this judgment, the Montana company prosecuted a writ of error from the circuit court of appeals of the ninth circuit, which writ was dated October 7, 1899, and the judgment was affirmed May 14, 1900. 42 C. C. A. 415, 102 Fed. 430. The St. Louis company took out a cross writ of error from the circuit court of appeals dated January 30, 1900, and that court reversed the judgment October 8, 1900, and remanded the case for a new trial as to the recovery sought for the conversion and value of certain ores, which had been excluded by the circuit court from the consideration of the jury. 56 L.R.A. 725, 44 C. C. A. 120, 104 Fed. 664. The parties then brought, by separate writs of error, these two decisions of the court of appeals to this court, on consideration whereof this court held that the judgment in the circuit court was entirely set aside by the second decision of the court of appeals, and therefore dismissed both cases on the ground that there was no final judgment. 186 U.S. 24, 46 L. ed. 1039, 22 Sup. Ct. Rep. 744.
Whereupon the court of appeals sent down to the circuit court a mandate setting aside the judgment in toto, and ordering a new trial. This new trial was held on May 31, 1905, and resulted in a judgment in favor of the St. Louis company for $195,000, which judgment was affirmed by the circuit court of appeals, to reverse which decision the Montana company sued out this writ of error.
After this last decision by the court of appeals, the circuit court, on the application of the St. Louis company, set aside the order which restrained it from extracting ore from the disputed territory. Thereupon the Montana company filed its application in this court for a reinstatement of that order and that it be continued in force until the final termination of the litigation.
The St. Louis company filed a motion to dismiss the writ of error sued out by the Montana company, on the ground that the jurisdiction of the circuit court depended entirely on diverse citizenship, and therefore the decision of the court of appeals was final. The Montana company then made application for a writ of certiorari, which application was passed for consideration to the final hearing of the case.
Messrs. Charles J. Hughes, Jr., W. E. Cullen, Aldis B. Browne, and Alexander Britton for plaintiff in error.
[Argument of Counsel from pages 208-211 intentionally omitted]
Messrs. Milton S. Gunn, Arthur Brown, J. H. Ralston, Thomas C. Bach, J. B. Clayberg, F. L. Siddons, Ira T. Wight, and W. E. Richardson for defendant in error.
[Argument of Counsel from page 211 intentionally omitted]
Mr. Justice Brewer delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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