Butte semi-weekly miner. [volume] (Butte, Mont.) 1886-1890, 1889-01-05
LOCAT0R'S RIGHTS.
THE DEC1sIOE IN THE AMY AND
sILYERSh1TH CASE.

Full Text of the Conclusions Reached ~
Judge De Wolfe Containing . succinct
Statement of h Case and His Inter
probation of the Federal statute Gov
erning 1t.
The following is the full text of the de-
cision OF Judge De Wolfe delivered on Sat
ufday in the case of King vs.. the Amy and
Silversmith Mining Company, viii j, ON &C.
count Of its interest TO mine owners in
this district, we give in full:
Second District Court OF Montana Terri
tory, Silver Bow County-Silas +. King ct
al. plaintiffs. VS.. Amy and Silversmith Min-
ing Co. ct al, defendants.
This is an action brought by the plaintiff
against the Amy and Silversmith Mining
Co.. for protection of the mining claim and
premises called the Nonconsolidated mining
claim and for an accounting for the issues
and profits OF ores and minerals alleged by
plaintiff to have beel extracted by the de-
fendant from said mining claim and appro-
priated by it to it's own use.
The complaint alleges that the plaintiff
is the owner in fee OF th~reefourths undi-
vided interest in the Nonconsolidated
mining claim, and hat tire defendant, Amy
and Silversmith Mining Company, is the
owner eli the other o~ne.fourth. This is
admitted or not denied by the answer.
The parties to the action have likewise
agreed on special findings OF ~factsnecssSAy
for the determination of action, excepting
only the fact whether the vein or lode on
which the Amy mining claim vas originally
--4 80 ~r.,x.n~
through the south boundary line of the
Amy claim. which divides it from the
Frank Moulton mining claim, or whether
said vein or lode passes out CT the surface
lines of the Amy claim, as located, through
the east end line thereof. Nearly all the
evidence introduced by both parties was
directed and intended to support one or
the other of these theories. Much OF the
evidence was conflicting and much
of it was theoretical or c~onject-
ural, as the witnesses on both
sides admitted that the vein on its strike
or onward course had not been exposed or
developed from the discovery shaft on the
Amy to it's point OF exit from that claim.
In the view which l take ofthis matter and
the law applicable thereto, a finding OF fact
on this point is not indispensable or even
necessary in determining the question at
IS6u6 III UulS tgdbc1 IOIy Wu6uutE Nu6 F0lu III
question departs in it's strike or onward
course through the east end line OF the
Amy location or through it's south side
line and enters the Frank Moulton claim
cannot in the view which | take of the law
affect the question as to whether the plain
tiff or defendant is entitled to the vein on
its dip or downward course at the point in
controversy.
By the seventh finding OF fact admitted
by both parties to the action the Amy
discovery vein on it's onward
course and strike passes beyond the
north side line OF said claim as located and
the apex of the vein passes through the
north side line at q point 1S4 feet from the
west end line Of the Amy and enters the
Nonconsolidated mine, and the question of
law to be determined from this admitted
fact is the right to follow the vein on it's
dip or downward course beyond the north
side line OF the location, or, accurately
speaking, beyond vertical planes drawn
downward through the side line, which is
the theory or construction OF the law con-
tended for by the plaintiff, while the de-
fendant contends that a right construction
OF the law gives to them the apex OF the
vein to the extent in which it is found
within the Amy location on the surface
and lines drawn through the vein ON its
strike or course at it's intersection
or point of departure from the
side lines OF the location and thsrce ex-
tended in a direction parallel to the end
lines of the location define that portion of
the dip or downward course of the vein
which the defendant has the right to follow.
The question Tor determination is which OF
either OF those theories or constructions is
correct.
Section 1922 of the Revised Statutes of
the United States liz the one o recurring
construction AMI application to the facts
as found and admitted in this case. That
section, after stating some other rights
acquired by the location OF q lode claim,
continues as follows: (Locators) ''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 lodges throughout their entire
depth. the top or apex OF which lies inside
OF u surface lines extended downward
vertically, although such veins, lodes or
lodges may SO far depart from a perpendic-
ular in their course downward as to extend
outside OF the vertical side lines OF such
surface locations.
"But their right of possession to such
outside parts OF such veins, lodes or lodges
shall be confined to such portions thereof
as lie between vertical planes drawn down
wards az above described, through the end
lines OF these locations so continued in
their own direction that such planes will
intersact such exterior parts of such veins,
lodes or lodges"
The statute, it will be perceived, evident
ly contemplates that locations upon min.
eral veins or lodges will be made along and
in the direction OF the strike or course of
the vein, n only provides for following
the vein In its dip or downward course
where it passes underneath the side lines OF
the claim located. 1t does not mention
veins or lodges which cross the surface
ground at right or any lesser angle and de-
line in ex press terms the rights oil the To-
Gator on veins thus crossing the surface 10.
and in their course or strike DEPART
Ing through their side lines; but as seen it
does provide that the locator shall have
the exclusive right OF possession of all
veins or lodes throughout their entire
depth, the top or apex of which lies inside
the surface lines of the location extended
vertically"
Now the apex Of the vein in question /
hoes lie within the surface lines OF the Amy |
claim, as located from the point at which |
It enters the surface location 1874 feet |
OF the west end line of the Amy claim
some point on the south boundary line
the same claim (said point, as stated,
being clearly established by the eyi.
ience), when it leaves the Amy location |
enters the Frank Moulton lode. If
,he vein is OF uniform strike from the Amy
discovery shaft to the point at which it
that location and enters the Frank |
claim that it in shown by the
to be from the discovery shaft to
he point at which i5 crossed the north side
inc OF the Amy and enters the N~onconsol-
claim, the length OF the vein and ell
he apex in the Amy claim would in round
numbers be 500 feet.
The vein, by the concurrent testimony
It all the witnesses, has a pitch to the
lorth in it's dip or downward course.
What then is the portion of this vein
Fhich defendants have the right to follow
q the dip, it being conceded in argument
nd the law itself being plain on the point
hat the defendant has no right to follow
he vein on its strike or course after IL
eparts or crosses the side lines of the 10.
on the surface? As the law gives the
the apex within the surface local.
and the right to follow the vein on it's
ip or incline into the earth, is the locator
OF entitled to the same length along the
Elm on it's dip that he has to the apex on
surface, and as the dip OF a vein is sup
osed to be at right angles with it's strike.
mes drawn through the vein at right angles
it'll it's strike or course where the vein de-
arts from the surface side lines OF the