Messrs. John Garber, John M. Wright, and Byron Waters for plaintiff in error on original argument.
Messrs. Curtis H. Lindley, Henry Eickhoff, and W. J. McGee for defendant in error.
Messrs. John Garber and John M. Wright for plaintiff in error on reargument.
Mr. Curtis H. Lindley for defendant in error.
Statement by Mr. Chief Justice Fuller:
This was an action for damages for the value of ore alleged to have been taken by the Kennedy Mining & Milling Company from ground belonging to the Argonaut Mining Company, situated in Amador county, California. The Kennedy Mining & Milling Company denied taking any ore or gold-bearing rock which was the property of the Argonaut Mining Company, and averred that it was the owner of the vein or lode from which the rock was taken. The case was submitted to the trial court on an agreed statement of facts, and resulted in a judgment in plaintiff's favor, which judgment was affirmed by the supreme court of California. 131 Cal. 15, 63 Pac. 148. Writ of error was then allowed, and each party docketed the case in this court, but the record was only printed in No. 49.
The parties are coterminous mining proprietors upon the same vein or lode, the top or apex of which passes through the Pioneer location, belonging to the Argonaut company, into the Kennedy location, belonging to the Kennedy Mining & Milling Company.
A certain map of the Pioneer and Kennedy mining claims was made part of the findings of fact, but the supreme court of California made use of a diagram simplified from that exhibit, which is as follows:
[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]
The common boundary is the line A-B, crossing the lode at the point marked I on this diagram. The line A-B-B' this end line produced indefinitely in the direction of the dip or downward course of the vein.
The Kennedy mine was entered, and payment made in November, 1871, and the patent was issued July 29, 1872.
The Pioneer was located under the law of 1866; on February 23, 1872, it was entered and paid for; and the patent was dated August 12, 1872.
During the pendency of the patent proceedings a conflict arose as to a segment of ground lying at the north end of the Pioneer, and at the south end of the Kennedy. This controversy was subsequently adjusted by an agreement between the then owners of the two properties. Both parties had sunk working shafts, the openings of which did not start at the apex, but each intersected the vein, and all the workings of both were on this vein. The vein on its downward course passed underneath the Silva mining claim belonging to the Kennedy Mining & Milling Company, located and patented on another vein, which had its apex within the Silva ground. This Silva ground was patented to the Kennedy Mining & Milling Company, February 6, 1893, and the patent recited an entry made in October, 1892.
The patent contained this reservation: 'That the premises hereby granted, with the exception of the surface, may be entered by the proprietor of any other vein, lode, or ledge, the top or apex of which lies outside of the boundary of said granted premises, should the same in its dip be found to penetrate, intersect, or extend into said premises, for the purpose of extracting and removing the ore from such other vein, lode, or ledge.'
The ore in dispute, although taken from the Pioneer-Kennedy vein, was south of the Kennedy south end boundary, as shown by its patent, and the Kennedy Mining & Milling Company did not assert any right to it by virtue of its ownership of the Kennedy mine. The ore, though taken from beneath the surface of the Silva location, was taken from the discovery lode of the Pioneer location, which was the only lode that had its apex within that location. It entered the location near the middle point of the southern end line, and ran northerly through the location in a direction practically parallel to the side lines, through the center of the northern end line.
Plaintiff in error admitted the ownership by the Argonaut Mining Company of the Pioneer mine, and that the lode had its apex within its surface location, but denied that the quartz taken by it from that lode was within that location, on the ground that because of non-parallelism of the end lines of the Pioneer, it carried no extralateral rights; and that if the court could, as 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 would be made by extending the northern end line in a direction parallel to the direction of the southerly end line.