Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1892-07-09

dhel uuJ fJUtOUU NOFtll Vi ore rum tlle
anaconda lead and say that unless per
,etually restrained by order OF the court
hey will extract all the ore from this
lain which is estimated to be worth over
100000.
On June 20 the case came up on de-
nurrer filed by II. L. Warren as attorney
or the Lincoln Lucky company, and YVES
rgued by Judge Warren and Hon. 7. B.
Jatron, the latter appearing for the Ana
onda people.
THE DEMURRER
Isked to have the temporary injunction
dissolved, because petitioners for relief
all to set out their title to the Anaconda
claim; because the questions involved are
hose of law and can not therefore be adj
Indicated in q court Of equity, such as is
this court in the present case, and be-
cause if the Lincoln-L Lucky vein does, as
is alleged, pass beyond the side lines of
The company's claims and extends below
the surface OF the Anaconda, the law OF
gives the company the right to
follow this vein, the apex OF which, it it
claimed, is on the Lincoln-Lucky com
pany's ground.
Judge Seeds yesterday afternoon filed
his opinion everything the demurrer. A
part Of it is OF special interest to mining
men generally.
1t reads: To say that a person who has
been in the undisputed possession Of real
for years, or for a day even
claiming as owner and with no dispute as
to the title, must 60 into court of law
first and settle an undisputed title before
he can proceed in equity to restrain ire
parable injury by trespasser is to con
tend for q palpable absurdity which
can not for an instant suppose the
learned counsel for the respondents mean
by their second ground. understand
rather that both the first and seconC
grounds rest upon and grow out of the
third ground of demurrer.
That ground is, in substance, that the
bill shows the ownership of the Lucky &
Lincoln mines in the defendants; that i
alleges that the vein or lode in question
commences on the Lucky mine; that tht
sketch map shows that the vein passe
out of
TIE SIDE LINES
of the Lincoln mine into and upon tn
Anaconda mine, where the trespasse
took place, and that under the law thi
gives the defendants the right to be upol
and mining said vein, and, therefore
there is upon the face of the bill q dis
pute as to the title which must be settle
at law. If this contention is true, the
the first three grounds of the demurre
are well taken, and the demurrer ma
have to be sustained. 1t was stated npo
argument that words were immateria
upon this point, and acting upon tbs
proposition the counsel have used tn
words "top" and "apex" as equivalent
Commenced" as used in the bill. BIT
words are often material, and in my jud,
ment under the law, very materially i
this case upon this point. The bill say
the defendants are the owners OF tW
mines, and that they are mining an
extracting ore from vein bearing silvt
Lucky mine at or near point indicate
on said sketch map by the letter A.
The sketch map is part OF the bill an
by consulting it the point "a is found
be at or near the west boundary line I
the Lucky mine.
The defendants contend that the meal
ing is that
OF the vein is upon the Lucky mine, an
hence they have the right to follow
under and outside the side lines and int
the property of the Anaconda mine. b
it is first to be noticed that the allegatio
is sat or near" the point A Now,
near is not on the west side line it ma
be west of that line, in which case tt
apex would not be upon the defendant
property and their whole contention wou
fall. But if ii be insisted that the alleg
ton must be taken most strongly again
the pleader, then the question arises VIII
does the phrase Commenced on" sa
Lucky mine mean? 1t commenced
the mine at its western side line. III
word ON could be considered as an a
verb Of progression as here used, in whi(
case the meaning would be that the We
in its trend or course entered upon tt
Lucky mine at that point, in which ca
the apex could not be upon tn
mine. 1t seems to one that is the natur
meaning OF the word taking its use in CO
nection with the location upon the skett
I ~ huf a M
even assuming that it is the apex of Il
vein, still the allegations of the bill CO
clusiveIy estop the defendants from "a;
ing the question. The law is that plrti
may follow the dip of the vein which b
| it's apex within their surface lines in
downward course outside the side lines
the location and within the vertical er
lines extended downward. Sec. 1922
S. Rev. Stat, Mining Co. vs. Tarbot,
U. S. 4G3.
IT MUST BE UPON THE DIP,
and not upon the strike or trend or cours
The allegation in this bill is that the We
extends easterly across the Lucky al
Lincoln mines diagonally upon the trer
or course. This is not the DIP. Besld
the sketch map, together with the abo
allegation, shows conclusively that tn
vein, ledge or lode on its course or treI
passes through the side lines of the Ii
coin and Lucky mines, and therefore tn
the owners of those mines have locat
across the vein nearly at right angles, al
under the law, as decided by the U.
supreme court, the side lines become d
end lines of their claims.
Mining Co. V. Tarbet, 90 U. S. 1853
Argentine Co " Terrible Co l22 U.
47S.
Iron Silver Min. Co. v. Elsin Min. O.
1888 L. ). 1876
That / am not assuming somethi
which. is not fact in considering t.
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