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apexing in the territory of the St. Louis | 664. The parties then brought, by separate claim. This was not the discovery vein, but writs of error, these two decisions of the a secondary vein, frequently called the court of appeals to this court, on considerDrumlummon vein or lode, whose apex was ation whereof this court held that the judg. between the compromise ground and the ment in the circuit court was entirely set apex of the St. Louis discovery vein. Some aside by the second decision of the court of of this ore was mined and removed by the appeals, and therefore dismissed both cases Montana company. On September 16, 1893, on the ground that there was no final judg. a year before the specific performance suitment. 186 U. S. 24, 46 L. ed. 1039, 22 Sup. was brought, the St. Louis company filed Ct. Rep. 744. its complaint in the circuit court of the Unit- Whereupon the court of appeals sent down ed States for the district of Montana, to the circuit court a mandate setting aside against the Montana company and several the judgment in toto, and ordering a new individual defendants, claiming to recover trial. This new trial was held on May 31, $200,000 for the damages sustained by the 1905, and resulted in a judgment in favor of trespass of the defendants in removing the the St. Louis company for $195,000, which ore. In its complaint the St. Louis company judgment was affirmed by the circuit court alleged that it was a corporation organized of appeals, to reverse which decision the under the laws of Montana, and that the Montana company sued out this writ of er. Montana company was a corporation incor- ror. porated under the laws of the Kingdom of After this last decision by the court of Great Britain, but nothing was said as to appeals, the circuit court, on the application the residence or citizenship of the individual of the St. Louis company, set aside the ordefendants.

der which restrained it from extracting ore On November 21, 1898, three weeks after from the disputed territory. Thereupon the the decision by this court in the specific per- Montana company filed its application in formance suit, an amended and supplemental this court for a reinstatement of that order complaint was filed, which omitted the in- and that it be continued in force until the dividual defendants and sought a recovery final termination of the litigation. from the Montana company alone for the ore The St. Louis company filed a motion to so wrongfully removed, as alleged. On June dismiss the writ of error sued out by the 26, 1899, a second amended and supplemental Montana company, on the ground that the complaint was filed, also against the Mon jurisdiction of the circuit court depended entana company alone, and asking for the tirely on diverse citizenship, and therefore same relief. To this an answer was filed, the decision of the court of appeals was final. setting up the bond and deed heretofore re- The Montana company then made applicaferred to, and pleading that thereby the tion for a writ of certiorari, which applicaplaintiff was estopped from claiming any tion was passed for consideration to the final part of the compromise ground or any min-hearing of the case. eral contained therein.

Pending this litigation, and on respective. Messrs. Charles J. Hughes, Jr., W. E. Cul. ly the sixth and twelfth days of December, len, Aldis B. Browne, and Alexander Britton 1898, orders were issued by the circuit court for plaintiff in error. restraining severally each of the parties to Messrs. Milton S. Gunn, Arthur Brown, J. this litigation from taking any more mineral H. Ralston, Thomas C. Bach, J. B. Clayberg, from the disputed ground. On the second F. L. Siddons, Ira T. Wight, and W. E. Richamended and supplemental complaint a ardson for defendant in error. trial was had in which judgment was rendered in favor of the St. Louis company for Mr. Justice Brewer delivered the opinion $23,209. To review this judgment, the Mon of the court: tana company prosecuted a writ of error The first question is, of course, the one from the circuit court of appeals of the ninth of juris tintion. If the jurisdiction of the circuit, which writ was dated October 7, circuit cu...t depended alone on diverse citi1899, and the judgment was affirmed May 14, zenship, then, undoubtedly, the decision of 1900. 42 C. C. A. 415, 102 Fed. 430. The the court of appeals was final, and the case St. Louis company took out a cross writ of could only be brought here on certiorari. error from the circuit court of appeals dated On the other hand, if it did not depend alone January 30, 1900, and that court reversed on diverse citizenship, the decision of the the judgment October 8, 1900, and remanded court of appeals was not final, and the case the case for a new trial as to the recovery | is properly here on writ of error. The orsought for the conversion and value of cer- iginal complaint alleged the citizenship of tain ores, which had been excluded by the the two corporations, plaintiff and defendant, circuit court from the consideration of the but did not allege the citizenship of the in. jury. 56 L.R.A. 725, 44 C. C. A. 120, 104 Fed.'dividual defendants. In order to sustain the jurisdiction of the circuit court on the the two claims, leaving all subsurface rights ground of diverse citizenship, the citizenship to be determined by the ordinary rules recof all the parties on one side must be diverse ognized in the mining districts and enforced from that of those on the other. So, unless by the statutes of Congress. there was a Federal question presented by The argument in favor of this construction that complaint, as the citizenship of the in- is forcibly put by Circuit Judge Gilbert, dedividual defendants was not shown, the cir- livering the opinion of the court of appeals, cuit court had no jurisdiction of the case. when the case was first presented to that It may be that this was remedied by the court. 42 C. C. A. 415, 102 Fed. 430. Withsubsequent first and second amended com-out quoting it in full it is to the effect that plaints, in which the individual defendants agreements and conveyances of the whole were left out, the citizenship of the two cor- or parts of mining claims are to be construed porations, plaintiff and defendant, alleged, in the light of the mining law, as, generally and to which complaints the Montana com speaking, we construe a contract, not merepany, without raising any question of ju- ly by its terms, but having regard to the risdiction, appeared and answered. Conolly subject-matter involved and the surrounding v. Taylor, 2 Pet. 556, 7 L. ed. 518; Anderson circumstances, in order to ascertain the inv. Watt, 138 U. S. 694, 34 L. ed. 1078, 11tention of the parties. Particular reference Sup. Ct. Rep. 449. Be that as it may, in was made to Richmond Min. Co. v. Eureka view of the fact that this litigation has been Min. Co. 103 U. S. 846, 26 L. ed. 557, in twice before this court, has been protracted which this court held that a line specified in for many years, involves so large an amount, a contract between the owners of contiguand also presents questions of Federal min- ous mining claims to be one continued downing law which, though perhaps not necessary ward to the center of the earth was not a for our decision, have yet been elaborately | vertical plane, but must be construed as exargued by counsel, we are of opinion that if tending the boundary line downward the jurisdiction of the circuit court did, aft-through the dips of the veins or lodes where. er the filing of the amended complaints, de- ever they might go in their course toward pend entirely on diverse citizenship, the case the center of the earth. ought to be brought here by writ of certio- Further, the argument is that the adverse rari. As either by writ of error or certiorari proceedings were maintained by the owners the decision of the court of appeals can be of the Nine Hour claim on the theory that brought before this court, and as each the strip of land so contracted to be conhas been applied for, and the im- veyed was a portion of that claim; that if portance of the case seems to demand our the action had gone to judgment, sustaining examination, it is scarcely necessary to con- their contention, the result would have been sume time in attempting to decide positive- simply to fix the surface line of division bely whether there was a Federal question in tween the two claims, without affecting the volved, or the jurisdiction depended solely subsurface rights. Reference was also made on diverse citizenship. The writ of error to the suit for specific performance brought was duly allowed prior to the filing of the by the present plaintiff in error, in which record in the first instance, and, to avoid it alleged that the contract had been made any further question of our jurisdiction, we for the purpose of settling and agreeing upallow the certiorari. Pullman's Palace Car on the boundary line between the two Co. v. Central Transp. Co. 171 U. S. 138, 43 claims, and that the suit was maintained L. ed. 108, 18 Sup. Ct. Rep. 808.

upon the theory that, as owner of the Nine We pass, therefore, to a consideration of Hour claim, it owned the compromise ground the merits; and the first question presented afterwards conveyed. by counsel-indeed, as we look at it, the piv- We are not insensible to the force of this otal question—is the proper construction of argument, and also appreciate fully what is the bond and deed by which the plaintiff in said by counsel in reference to the familerror claims title to the compromise ground. iarity of the several concurring justices with

The bond described the ground, adding, mining law and contracts and conveyances “together with all the mineral therein con- made under it. tained.” The deed executed in pursuance Yet, notwithstanding, we are compelled to of the judicial decree contains the same de- dissent from their construction of these inscription, followed by the words above quot- struments, and to hold that something more ed and also the further words given in the was intended and accomplished than the statement of facts,—"together with all the mere establishment of a surface boundary dips, spurs, and angles,” etc.

line. We premise by saying that nothing Now, the contention of the defendant in can be invoked in the nature of an estoppel error is that the effect of the compromise from the averments in the pleadings in the followed by the bond and conveyance was suit for specific performance. True, the simply to locate the boundary line becween plaintiff in error alleged that the compro

as

mise ground was a part of its mining claim, , follow, "dips, spurs," etc., that the same and that the bond was executed "to settle thing is meant by each expression. While, and compromise the said suit and adverse of course, repetition is possible, yet it is not claims, and for the purpose of settling and to be expected; and when, in addition to agreeing upon the boundary line between” the ordinary words found in conveyances of the two claims; but the bond itself, reciting mining claims, is this extra clause, we natthe fact of a settlement and compromise, urally regard it as making some further and an agreement by the contestants to grant. withdraw their objections to the application The scope of this deed would not be open for a patent, stipulates for a conveyance, to doubt if only the common law was to be after patent, of the compromise ground, considered. And in this connection it may "comprising a part of two certain quartz be remarked that the common law has been lode mining claims, known as the St. Louis kept steadily in force in Montana. “The lode claim and the Nine Hour lode claim,"common law of England, so far as the same they being, respectively, the two claims is applicable and of a general nature, and owned by the parties hereto. Further, the not in conflict with special enactments of answer denied that the compromise ground this territory, shall be the law and the rule was a part of the Nine Hour lode claim, of decision, and shall be considered as of full and alleged that the then owner of the St. force until repealed by legislative authorLouis lode claim executed the bond as a com- ity.” Laws of Montana, 1871, 1872, chap. 13, promise of the adverse claim and suit, and to $ 1, p. 388, substantially re-enacted in Mont. enable him to obtain a patent for the whole Anno. Code, § 5152. See also Territory v. of his claim.

Ye Wan, 2 Mont. 478, 479; Territory ex rel. The facts in the case, as well as the alle. Blake v. Virginia Road Co. 2 Mont. 96; gations in these pleadings, show that the Butte Hardware Co. v. Sullivan, 7 Mont. 312, two claims conflicted, that when application 16 Pac. 588; Palmer v. McMaster, 8 Mont. was made for a patent adverse proceedings 186, 192, 19 Pac. 585; Milburn Mfg. Co. v. were instituted, and that rather than try Johnson, 9 Mont. 541, 24 Pac. 17; Forrester the title of the respective locators to the v. Boston & M. Consol. Copper & S. Min. Co. territory in conflict, and by way of compro- 21 Mont. 544, 556, 55 Pac. 229, 353. By that mise, they agreed that the owner of the St. law a deed of real estate conveys all beneath Louis claim might proceed to patent, and the surface, unless there be some words of then convey the compromise ground to the exception or limitation. But the mining grantors of the plaintiff in error.

laws of both state and territory were in It must also be noticed that the dispute force, and in construing conveyances of minbetween the two claims was not simply in ing claims the provisions of those laws respect to the compromise ground,-at least, must be taken into account, and may add testimony offered to prove this was ruled to or subtract from the rights passing by a out,-but involved a larger area, and that common-law conveyance of agricultural or the disputing parties settled by the bond, timber lands. It is probably not necessary describing what was to be conveyed. to specify extralateral rights in order that

It is undoubtedly true that if the bond a conveyance of a mining claim be operative had simply described the surface area or to transfer them, and yet it is not strange fixed a boundary line between the two that the custom grew up of naming them claims, the subsurface and extralateral for the sake of avoiding the possibility of rights might have been determined by the disputes. While the bond made no mention mining law. It might have been implied of extralateral rights, yet in all probability that there was no intention to disturb the it would have been held to pass them and rights given by it.

the court may have thought that the single Further, while it may be true that the specification, "all the mineral therein conwords "together with all the dips, spurs, and tained,” was liable to be construed as narangles," etc., are generally employed in con- rowing the conveyance so as to include only veyances of mining claims in order to em- the mineral beneath the surface, and therephasize the fact that not merely the surface fore required that there should be incorpobut the extralateral rights which go with a rated in the deed the words "together with mining claim are conveyed, yet it must be all the dips, spurs, etc. Yet, in requiring noticed that in addition to these customary the introduction of these words, which in words are these, found in both the bond and terms define extralateral rights, it also rethe deed: “Together with all the mineral tained the phrase "together with all the therein contained;" and they cannot be ig- mineral therein contained.” nored, but must be given a meaning reason- To the suggestion that giving this conable and consistent with other parts of the in-struction to the bond and conveyance is in struments. It is not satisfactory to say effect the granting of a section of a vein that they are only equivalent to those that of mineral, the answer is that there is nothing impractical or unnatural in such as to recover from the Montana company the conveyance. It does not operate to transfer value of the ore taken by the latter from the vein in toto, but simply carves out from a vein whose apex was within the surface the vein the section between the vertical boundaries of the former's claim, but which side lines of the ground, and transfers that in its dip had passed outside the side lines to the grantee. The title to the balance of into territory claimed by the Montana comthe vein remains undisturbed.

27 S. C.-17.

pany. With that as its claim the litigation To the further suggestion that the owner was dormant for four years. Now, if it were of the apex might be left with a body of ore true that the apex of the vein was within on the descending vein beyond the further the side lines of the St. Louis claim and the side line of the compromise ground which ore taken by the defendants was taken from he could not reach, the answer is that this below the surface of the compromise ground, assumes as a fact that which may not be a and all that was accomplished by the comfact. The owner of the apex may be the promise and bond was the establishment of owner of other ground by which access can a boundary line, leaving subsurface and ex. be obtained to the descending vein, and it tralateral rights undisturbed, there was no also is a question worthy of consideration necessity of postponing the litigation until whether granting a section out from a de- the question of title to the surface was disscending vein does not imply a right re- posed of. As we have said, we do not mean served in the grantor to pass through the that this is decisive, because the St. Louis territory of the section conveyed in order to company may have thought that all controreach the further portion of the vein. Those versies would be ended if it could once esare questions which need not now be de- tablish that the Montana company took termined. This secondary vein does not ap- nothing by virtue of the compromise and pear to have been known at the time of the bond. Still the delay in the litigation is in compromise, and while, of course, there is harmony with the belief that the words in always a possibility of such a vein being dis- the bond, "together with all the mineral covered, yet parties are more apt to contract therein contained," meant all the mineral and settle upon the basis of what they know below the surface. than upon the possibilities of future discov- The disposition of this question compels ery.

a reversal of the judgment. It may also The action of the parties hereto is sug. effectually dispose of all disputes between gestive, although not of itself decisive. This the parties, and, therefore, it would be a action for the recovery of ore taken out mere waste of time to attempt to consider from beneath the surface of the compromise other questions which have been discussed ground was pending when the suit for spe- with ability and elaboration by counsel. cific performance was brought in 1894. In view of this conclusion it is also apNothing was done in this action from that parent that the order restraining defendant time until three weeks after a final decision in error from removing ore from the disof the specific performance case by this puted territory ought not to have been set court, when an amended complaint was filed, aside. and the case thereafter proceeded by ordi- The judgment of the Court of Appeals is nary stages to trial and judgment. The or- reversed and the case remanded to the Ciriginal complaint alleged the ownership by cuit Court with instructions to grant a new the St. Louis company of its mining claim trial. Further, the order restraining deand of all veins, lodes, or ledges having fendant in error from mining and removing their tops or apexes inside of its surface any of the ore in dispute will be reinstated boundary lines, with the right to follow and continued in force until the final dispothose veins, lodes, or ledges on the dips or sition of the case. angles outside the side lines of the mining claim. It also alleged that the defendants entered wrongfully upon one of the veins, lodes, or ledges having its top or apex with- EAST CENTRAL EUREKA MINING COMin the surface location of the St. Louis PANY, James Toman, and Eliza A. Toclaim, and which had in its dip or an- man, Plffs. in Err., gle passed outside the side lines of the St. Louis claim and “entered beneath the mining CENTRAL EUREKA MINING COMPANY. property claimed or pretended to be claimed by the said defendants or some of them, Mines—lode location-parallelism of end

lines. and that, in utter disregard of the right or

1. The requirement of parallelism of title of plaintiff, the said defendants ever end lines of lode mining locations which is since have been and now are extracting and made by the act of May 10, 1872 (17 Stat. taking therefrom large quantities of coarse at L. 01, chap. 152, $ 2, U. S. Rev. Stat. $ rock and ore,” etc. In other words, it sought' 2320, U. S. Comp. Stat. 1901, pp. 1424, 1425), cannot be deemed to apply where the loca- Messrs. S. S. Burdett, Curtis H. Lindley, tion had been made at the time of the pass. and Henry Eickhoff for defendant in error. age of that act, and the proceedings under the act of July 26, 1866 (14 Stat. at L. 251,

Mr. Justice Holmes delivered the opinion chap. 262), had then so far advanced as to

of the court: exclude adverse claims, in view of the various provisions of the later act for the

This is a writ of error to reverse a decree protection of all rights previously acquired in favor of the defendant in error, the origunder existing laws, and of the provision inal plaintiff and hereinafter called the of § 3 of that act, that prior locators shall plaintiff, which was ordered by the superior have "the exclusive right of possession and court and affirmed by the supreme court of enjoyment of all the surface included with California. in the lines of their locations, and of all decree was made on a bill to quiet title,

California. 146 Cal. 147, 79 Pac. 834. The veins, lodes, and ledges throughout their entire depth, the top or apex of which lies upon the following facts, which appeared at inside of such surface lines extended down the trial of the case. The plaintiff is the ward vertically, although such veins, lodes, owner of the “Summit quartz mine” in Calior ledges may so far depart from a per- fornia. The apex of a vein runs through pendicular in their course downward as to this mine between and nearly parallel with extend outside the vertical side lines of the surface side lines. This vein dips under said surface locations."*

the easterly side line and enters the adjoinMines-lode location-rights protected by ing land of the defendants, known as the subsequent legislation as then existing.

2. Rights in mining property entitled Toman ranch. The controversy concerns the to protection under the act of May 10, 1872, portion of the vein under the defendants' as previously acquired under existing laws, land. The main ground of defense is that exist where a lode mining location had been the end lines of the mine are not parallel, made at the time of the passage of that act, but converge towards each other in the di. and the proceedings under the act of July rection of the ranch, and that the plaintiff's 26, 1866, had then so far advanced as to ex- patent was granted on November 25, 1873, clude adverse claims.

when the act of May 10, 1872, chap. 152, 17 Mines-lode location-effect of patent. Stat. at L. 91, Rev. Stat. SS 2320, 2322, U.

3. An election by the grantee of a pat. S. Comp. Stat. 1901, pp. 1424, 1425, was in ent for a lode mining claim to abandon rights acquired under the act of July 26, force. Iron Silver Min. Co. v. Elgin Min. & 1866, cannot be imported from the fact that Smelting Co. 118 U. S. 196, 30 L. ed. 98, 6 such patent, in addition to granting such Sup. Ct. Rep. 1177; Del Monte Min. & Mill. rights, also purports to grant all that would Co. v. Last Chance Min. & Mill. Co. 171 U. have been acquired by a location under the S. 55, 67, 43 L. ed. 72, 77, 18 Sup. Ct. Rep. act of May 10, 1872.

895. But the patent was issued upon an Error to state court-following decisions of application made on February 7, 1871, based state courts. 4. The construction given by the high- June 22, 1865, respectively. The question is

upon two locations of March 20, 1863, and est court of a state to a conveyance of mining property, as not including the portion whether the requirement of parallelism in g of a vein beneath the surface and within | 2 of the act of 1872 (Rev. Stat. § 2320) apthe converging lines, produced, of the plies to such a case. grantor's location, will be followed by the The patent of the mine recites proceedings Federal Supreme Court, on writ of error to in pursuance of the Acts of 1866 [14 Stat. the state court.

at L. 251, chap. 262], 1870 [16 Stat. at L.

217, chap. 235), and 1872, and describes [No. 141.]

and grants the premises by metes and Argued January 8, 9, 1907. Decided Janu- bounds, with the exclusive right of pos

session and enjoyment of the same and of

116556/100 linear feet of the vein throughout N ERROR to the Supreme Court of the its entire depth, although it may enter the

State of California to review a decree land adjoining, with similar rights in other which affirmed a decree of the Superior veins having their apex within the surface Court of Amador County, in that state, in bounds; the extralateral or outside rights favor of plaintiff in a suit to quiet title. in the veins being confined, as by the act of Affirmed.

1872, § 3, to such portions as lie between See same case below, 146 Cal. 147, 79 Pac. vertical planes drawn downward through the 834.

end lines of the survey at the surface, and The facts are stated in the opinion. so continued in their own direction as to in

Messrs. Jackson H. Ralston, Frederick L. tersect the exterior part of the veins. In Siddons, William E. Richardson, Campbell, short, the patent purports to convey the Metson, & Campbell, and Galpin & Bolton rights claimed by the plaintiff in this suit, for plaintiffs in error.

and also the additional rights that would

ary 21, 1907.

I

•Ed. Note.-For cases in point, see vol. 34, Cent, Dig. Mines and Minerals, $ 36. tid. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, $$ 958, 959.

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