Amador ledger., 1900-12-28

hof, VIM. ]. MCGEE and F. j. Solinsky. The de-
| cision follows.1
| This is an action for damages for the
value of ore alleged to have been taken
by defendant from plaintiffs mine, sit
uate N Amador county. The defendant
denies taking any ore, or gold bearing
rock, from plaintiffs mine, and AYERS
that defendant is the owner of the mine
from which the rock was taken.
The cause was submitted in the trial
court upon an agreed statement of
facts, each party having the right to
object to the relevancy, competency and
materiality of any part of it. Certain
objections to evidence were made by the
appellant which were overruled by the
Court, and the main argument here has
been in regard to these rulings. Much
OF the evidence was objected to simply
upon the ground of immateriality. All
that deem it necessary to say in re-
gard to such rulings is that, admitting
that the trial Court erred, as / am in
Fclined to think it did, defendant has
suffered no harm. The question of law
upon which the case must turn is not
changed or affected by receiving this
immaterial evidence.
The controversy is indicated by the
following diagram
The plaintiff owns the Pioneer quartz
mine, the defendant owns the Kennedy
mine and the Silva mine. All three
mines had passed to patent before the
ore was taken out by defendant. The
ore was taken out under the Silva loca-
ton, and within its exterior limits car
ried vertically down. 1t was taken from
the discovery lode of the Pioneer loca-
ton, which is the only lode which has
its apex within that location. 1t enters
that location near the middle point of
the southern end line, and runs north
erly through the location in direction
practically parallel to the side lines,
through the center of the northern end
line. In fact, save that the end lines
are not parallel, the location and the
lode are the ideals upon which the rules
and regulations of miners and the laws
of Congress seem to have been based.
The defendant does not ASSERT any
right to the ore in dispute by virtue OF
its ownership of the Kennedy mine,
and nothing further need be said about
1t. Defendant asserts title to the ore by
reason of it's ownership of the Silva
ground, under what counsel call the
common law right to everything beneath
the surface. 1t admits plaintiffs owner
ship of the Pioneer mine, and that the
lode has its apex, as stated, within its
surface location, but denies that the
quartz taken by it from that lode is
within that location. This is asserted,
as / understand the contention, upon
two grounds: First, defendant contends
that because of nonparallelism of the
end lines of the Pioneer, it carries no
extralateral rights; and, second, if the
Court can as a matter of law construct
for it parallel end lines, the southerly
end line being the base line from which
the location was projected, the parallel
will be made by extending the northern
end line in direction parallel to the d.
rection of the southerly end line.
The dip OF the lode is easterly at an
angle of about sinty degrees from the
plane of horizon, and the end lines of
the Pioneer diverge in that direction to
the extent of about IA degrees As min
utes. The ore was taken out directly
beneath the Silya surface location at
depths varying from fourteen hundred
to two thousand feet beneath the sur
face. The Silva location is more than
nine hundred feet easterly from the
easterly line of the Pioneer location.
The Pioneer was located, as the patent
shows, under the law of 1856. The ap
plication for patent was filed January
IL, 1871. On the 23d day of February,
1872, the Pioneer entered and paid for
its mine, and the patent is dated August
IL, 1872. The act to promote the devel-
opment of the mining resources of the
United States was passed May 10, 1872.
For reasons, which will appear as this
opinion proceeds, | think plaintiff is
entitled to all the rights which would
attach to such location under thu law
of 1866, and to any additional rights
which Injured to such locations under
the act of 1872.
Among the contentious of the re-
spondent is this: "Although the end
lines were not required to be parallel
under the act of 1866, yet if by any
process of reasoning any limitation upon
the extralateral right was imposed upon
the locators' title by reason of the di-
vergence of end lines, such limitation
was removed by the act of May 10, 1872,
which granted to owners of locations
heretofore made the right to pursue
the vein on it's downward course, be-
tween the end line plane of such loca-
ton as it existed"
This proposition is based upon the
language of the first proviso in section
of the law of 1872. After stating that
the locators shall have certain lodes
throughout their entire depth, although
| they may 30 far depart from a perpen-
dicular in their downward course as to
extend outside the vertical side lines, it
proceeds: provided that their right
of possession to such outside parts of
said veins or lodges shall be confined to
such portions thereof as lie between YER
teal planes drawn downward as afore-
said through the end lines of their To-
cation so continued in their own direc-
| ton that such planes will intersect such
exterior parts OF said veins or lodges"
Then follows another proviso, that no
locator by reason of his right to the dip
of his lode shall be authorized to enter
| upon the surface of a claim owned by
another.
These provisos grant no rights addi-
tional to those already given, nor do
they purport to do 30. They are both
express limitations upon rights already
given. The proviso does not confer
ownership to all within those planes,
but says, in effect, that no locator may
pass beyond them. No rule of con-
struction with which l am familiar
would authorize or require a different
reading OF the section, especially in the
face OF the evident policy to strictly
limit the rights of all locators as to
length along the vein or lode.
We have many graphic accounts of
the rush of gold hunters to California in
| lS49. The river banks and gulches were