The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1890-05-22
AN Elaborate Document Prepared
by Associate Justice
Dewitt.
The Court Defines the Boundary Lines for
Following the Dip of
Vein.


dated mining claim. The defendant is the =,
owner of the other undivided fourth. The
defendant is the owner of the Amy claim.
The northerly side line of the Amy is the
southerly side line Of the Nom Consolidated.
The west end line of the Amy is 491 feet
long and runs south 90 degrees west. The {
east end line is the same length and course.
The north side line is LAO feet in length
and runs south 66 degrees 30 minutes west.
The south side line is the same length and {
course. The vein of the Amy claim on its
onward course, or strike, passes through
the north side line, and the apex Thereon
crosses said side line at a point 184 feet
easterly from the west end line, and passes
vein runs on northwesterly, and does not
again enter the Amy ground. The apex of
the Amy vein passes out of the south side
line of the location at point between the
600 feet westerly therefrom. The dip, Of
the vein is to tho north. Four hundred
and eleven feet of the north line of the
Amy, commencing at point seven
teen feet east of .h the S;.o n north 1ta
west corner forms IT., the south line ,! OF the
the Consolidated is 181 feet in length,
and runs south l degree 40 minutes west.
The east end line is 10 feet long, and the
same course The north side line is 372
feet long and runs north 50 degrees 55 min
utes west.
Each claim was was located and patented
subsequent to the passage of the United
States mineral land act May 10, 1872. and
the amendments thereto, and il subject to
the provisions of those laws.
The plaintiffs action is for partition, and
accounting against the defendant, alleging
that defendant has taken large quantities
of ore from subterranean workings at
point north of the Amy north side line,
kol oSl oI
line. The only controversy is, as to where
the vertical end line bounding plane should
be drawn downward as q limit of the min
ing operations of the defendant.
Plaintiff contends that the Amy north
Of that claim for all purposes, and that
through that side line the vertical plane
should be drawn downward perpendicular
i ly, beyond which, to the north, the Amy
can not follow the vein on its
see The defendants position is, that the YER
tical bounding plane, limiting it's rights,
must be drawn downward at the point
where the Amy apex crosses the north side
line of the claim, such plane to be parallel
to the planes of the end lines as locat-
ed by the Amy.
on the trial. the court took a view at
i Variance with those of both plaintiff and
defendant, and held that the bounding
p Jane must be placed at the point where
Amy, but that such plane must be drawn
downward at right angle to the strike of
the Vein at. that point. Yhe plat,
indicates the positions of the three planes
described. They intersect at common
point (n. on the plat) viz: the point of de-
parture of the apex from the Amy exterior
boundaries.
Judgment was entered in accordance with
the vii ws of the district court. The plain
tiff appeals.
The3oase comes before the court as a tri-
angular contest. Since the decision below,
the learned Judge who tried the case ap-
pears as counsel for the respondent, and
urges the theory for the respondent, which
respondent presents the theory which he
held below. Appellants position is as it
was in the district court.
For convenience in terms we will desie-
nate these theories as follows: LIST. The
doctrine of the court below will be called
the courts theory, and line and plane. I'd.
That commended for by the appellant. the
plaintiff below, the appellants. Sd. That
urged by the respondent, the defendant
below, and presented by one of its counsel
here, as the respondents.
The point where the ore was taken out by
defendant is north of the appellants plane,
and east of each of the two other planes.
Whether the courts or respondents view is
adopted Is practically immaterial to the res
pondent, but tho principles involved are
vitality at variance. A decision as to which
theory of the plane is the law in the case is
the whole and only controversy. That de-
cision will settle the title to the portion OF
the vein from which the ore was taken.
Mr.. Justice Dewitt, after stating the fore
going facts, delivered the following opinion
The case at bar involves the construction
of section 1892 revised statutes Unitee
States, or rather. the application of til,
facts of the case to that statute.
"Sec. 1892. The locators of all minini
sive right of possession and enjoyment o
all w veins. lodes and lodges, through
out their entire depth, the top or apex o
which lies inside of such surface lines ex
tended downward vertically, although sucl
veins. lodes or lodges may so far depar
from perpendicular in their course down
ward as to extend outside the vertical line
of such sufnce locations. But their righ
of possession to such outside parts of sucl
veins or lodges shall be confined to sucl
portions thereof as lie between vertica
planes drawn downward as above described
through the end lines of their locations, *
continued in their own direction that sucf
planes will intersect such exterior parts O.
such veins or lodges"
AS said by Mr.. Justice Field (Iron Silve
Mining company VS.. Elgin Mining com
pany, lis United States 3O6): This section
appears sufficiently clear ON it's face. Their
is no patent or latent ambiguity in it. Tn
difficulty arising from the section grows GU
of its application to claims, where tn
course of the vein is SO variant from
straight line that the end lines of the sur
face location are not parallel or, if so al
not at right angle to the course OF til
vein.s
We may add to these words, that furthe
difficulties arise, when we are obliged I
apply the statute to facts not wholly With
its contemplation. If a mining location
made regularly, made SO that the strike
the vein crosses the location from end liz
to end line, and at right angles to said en-
lines, there is nothing in the statute to col
strue or interpret. Mining Co. vs.. Tarbe
IS u. S. 469: Iron s. ri. Co. VS.. Elgin NJ. Co
1lS U. S. 2O5; Argentine Cows. Terrible &C
l22 U. s. 4S5. There is no patent or Il
tent ambiguity" But when veins, or the
strike cross the side lines, or a side line al
end line, at all conceivable angles, diff
culties confront the courts, that can be
be fully met by legislative aid. Until sue
aid is invoked, the courts must follow Il
statute and previous construction as clio
as the varying facts permit. Iron S. n. c
vs. Elgin NJ. Co., 118 U. S. 20S. The histol
of mining has proven that the law of NJ,
10. 1872. and amendments thereto, do IL
afford clear, adequate and simple aolutit
for some of the practical conditions til
arise in the development of the mining i
dustry. The case at bar is a notable instanc
1t IL first impression in this court, and {
other appellate courts.
Three solutions of this interesting no
lem are urged upon our considerable
NAit hx.p e ul-