Elk City mining news. (Elk City, Idaho) 1903-1913, 1905-05-20
IMPORTANT MINING DECISION.
Mining and Scientific Press.

changes by reason of the decisions OF
the higher courts. One of the most i'm
portant of these recent phases of Judic-
ial legislation is the decision of the
United States supreme court in the
case of the Creede & Cripple Creek
Mining & Milling company v. the Uinta
Tunnel Mining & Transportation COM
pany. In this case the former company
owned a mine in the Cripple Creek dis
trict of Colorado and had applied for
and received a United States patent for
their claim. The latter company is the
owner of a tunnel right, located prior
to the issue of patent to plaintiff, and
driven a tunnel several hundred feet to
the line of the former company's prop
erty, through their claim and beyond to
veins not apexing at the surface mot
an uncommon occurrence in the Cripple
Creek district of Colorado). The Grip
pie Creek company then sought to re-
strain the tunnel company from passing
through the property owned by the
plaintiff, by means of the tunnel, the
action being also for the possession of
certain mining claims and for damages.
On motion of defendant the action was
removed to the United States circuit
court for the district of Colorado,
where also, on its motion, the pleadings
were reformed and the action made one
for the possession of the property and
for damages. The plaintiff, in an
amended complaint, alledged ownership
of certain lode claims for which it had
obtained patent, and claimed that the
patent related back and took effect of
the date of alledged discovery of the
vein, for all persons given and provided
by the laws of the United States and
the state of Colorado concerning mining
claims. One of the important matters
decided was the relative rights of the
owners of unpatented and patented
claims. Without here going into details
of the several contentious of the parties
to this suit, it may be stated, for brew
ity, that the circuit court of appeals re-
versed the decision of the lower court
and decided for the defendant, the tun-
mel company. The supreme court of
United States being called on to review
the Judgment of the circuit court of
appeals, the higher court rendered a
decision which cannot fail to be far
reaching in its effect and to entirely
change the aspect of the rights of tun-
mel and other claimants to pass through
the country rock under the unpatented
surface of their neighbors, in order to
reach unknown veins and deposits lying
beyond. Heretofore the right had been
uniformly denied, but the opinion of
the supreme court. written by Justice
Brewer, now, under certain conditions.
permits the privilege. In the original
opinion, handed down January 80, 1905,
the court said quoting from the stat
utes, section 1922: 1.-THE locators
shall have exclusive right of possession
and enjoyment of all surface included
within the lines of their locations. and
of all veins, lodes and lodges through
out their entire depth, the top or apex
of which lies within such surface lines
extended downward vertically, although
such veins, lodes or lodges may so far
depart from the perpendicular in their
course downward as to extend outside
the vertical side lines of such surface
locations. " Continuing the court used
the following language: $50 that the
vested property right of the locator is
limited to the surface and the veins
apexing within it's boundaries. I'm.
doubtedly, therefore, until the entry
flor patent) Of the plaintiffs lode
claims, and possibly until the issue of
the patent, the defendant had the right
to drive it's tunnel through the sub
surface of the plaintiffs lode claim
That ground still remaining the prop
erty Of the government, and was free
open to exploration. To this decision
considerable dissatisfaction was ex-
pressed, and the Cripple Creek COM
pany strenuously urged upon the federal
supreme court the ACCESSIBILITY of a
modification of recession from it's posi-
ton.
The application for rehearing, how
ever, failed of any result beyond the
elimination of the doubt under the opin-
ion as first written, as to the right of
subsurface exploration between the
time of issuance of patent. The doubt
was clarified hv the Insertion in nlace