SILVER KING CO. V. CONKLING CO., 256 U. S. 18 (1921)

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U.S. Supreme Court

Silver King Co. v. Conkling Co., 256 U.S. 18 (1921)

Silver King Coalition Mines Company

v. Conkling Mining Company

No. 158

Petition for rehearing

Decided April 11, 1921

256 U.S. 18



1. Petition for rehearing treated as a motion for the determination of questions argued but left open by the former decision, 255 U. S. 255 U.S. 151. P. 256 U. S. 25.

2. Within the intent of the mining law, Rev.Stats., § 2322, with respect to the right to pursue a vein extralaterally on its dip, those are the "end lines" of a lode location that cut across the strike of the vein if it crosses the location. P. 256 U. S. 25.

3. A presumption that there was a discovery vein crossing the end lines of a location as laid out should not be indulged, for the purpose of denying extralateral rights to a vein crossing the side lines, where there is substantial evidence that this was the only vein apexing within the location, and no substantial evidence to the contrary. P. 256 U. S. 26.

4. Where the vein of a patented claim crossed the location transversely, held that the right to pursue it on dip beneath an adjacent junior patented claim was not affected by the fact that either the discovery shafts of the senior claim or the vein would be left outside of it if its side lines (located as end lines) were limited as they should be, because a discovery shaft was not essential to the validity of the location at the time when it was made, and because discovery of the vein must be presumed in favor of the senior patent. P. 256 U. S. 27.

5. Evidence held to prove that one of a series of similar deposits, found at many different horizons, connected with a fissure vein and similar in composition to the ore in the fissure, was a part of that vein, rather than a distinct bedded deposit. P. 256 U. S. 27.

Decree (230 Fed.Rep. 553) reversed.

Petition by the respondent for a rehearing as to questions presented but left undecided in s.c., 255 U. S. 255 U.S. 151. The questions are disposed of on the argument as originally made.

Page 256 U. S. 24

MR. JUSTICE HOLMES delivered the opinion of the Court.

This is a suit brought by the respondent to establish its right to a large body of ore found within the lines of the respondent's patent as it construed that document. The main contest concerned the southwesterly 135.5 feet of the patent as laid out by courses and distances, from which was taken the main body of the ore. At the argument, the petitioner's statement was that "practically all the ore in controversy was taken from within this 135.5 foot strip."

Page 256 U. S. 25

The decision with regard to that strip was in favor of the petitioner, and as it seemed possible that the respondent would not be able to establish that any appreciable amount of ore was taken from the land belonging to it, and that it might not care to attempt the proof, the questions raised with regard to such ore, if any, were left undecided, according to the usual practice. But the respondent points out that the petitioner has admitted that a small amount of ore, not exceeding $20,047.50 in value, did come from the respondent's land, and presses for a decision concerning its right to that. The motion is put in the form of a petition for rehearing, but the main thing asked, and the only thing for which we see any reason, is that we decide the questions argued but left open by us. That we proceed to do. Nothing that has been decided will be reopened, but leave to file the petition is granted to that single end.

It is not disputed by the respondent, the Conkling Mining Company, that a fissure on its strike crosses the parallel side lines of the petitioner's claims, and, on its dip, passes beneath the Conkling mining claim in the immediate vicinity of the ore body in dispute and between vertical planes drawn through the parallel side lines of the petitioner's claims and continued in their own direction. What is disputed is that this ore body is any part of the vein referred to, known as the Crescent Fissure, and that, if it is, the petitioner has any right to treat the end lines of its claims as side lines, and to pursue the vein underground beyond the vertical planes drawn through those lines.

We take up the last question first. The typical case supposed by Rev.Stats. § 2322 is that of a claim laid out lengthwise along the strike of a vein. In that case, the end lines of the location will limit the extralateral right. But that case is only the simplest illustration of a principle. The general purpose is to give a right to all of the vein

Page 256 U. S. 26

included in the surface lines if there is only one, provided the apex is within the location. It often must happen that the strike of the vein is not known, but must be conjectured at the time of discovery, and that the location is across, instead of along, the vein. This has been obvious always, and therefore it would be wrong to interpret the words "end lines" narrowly, as meaning the shorter ones in every instance. Those are the end lines that cut across the strike of the vein if it crosses the location. We see no sufficient reason for thinking that, because the discoverer has not claimed as long a portion of the strike as he might have, he should be deprived of even his diminished lateral rights. It has been the accepted opinion of this Court for many years that where, as here, the strike of the vein crosses the location at right angles, its dip may be followed extralaterally, whatever the direction in which the length of the location may run. If across the strike, as here, the side lines, as it commonly is expressed, become the end lines. Subsequent locators know as well as the original ones that the determining fact is the direction of the strike, not the first discoverer's guess. Flagstaff Silver Mining Co. v. Tarbet, 98 U. S. 463; King v. Amy & Silversmith Consolidated Mining Co., 152 U. S. 222, 152 U. S. 228. Del Monte Mining & Milling Co. v. Last Chance Mining & Milling Co., 171 U. S. 55, 171 U. S. 90-91; Jim Butler Tonopah Mining Co. v. West End Consolidated Mining Co., 247 U. S. 450, 247 U. S. 453.

But it is said that, when the end lines are determined, they are end lines for all purposes, even if there are different veins running in different directions having their apexes within the claim. Walrath v. Champion Mining Co., 171 U. S. 293, and it is argued that there is a presumption that has not been overcome that there was a discovery vein running parallel with the side lines, that this determined the end lines, and that therefore the petitioner got no extralateral rights in the Crescent Fissure. The circuit

Page 256 U. S. 27

court of appeals, approaching the petitioner's claim as a claim of an exceptional privilege, seems to have attached a weightier burden of proof to it than we are disposed to do. They were not satisfied that the discovery vein which determined what the end lines should be was not some other vein than the Crescent Fissure. But we see no substantial evidence that there was another vein. We have the distinct testimony of experts that there was no such, and we agree with the view of the district judge sustaining the petitioner's extralateral rights. Whether there are other answers to the contention we need not decide. See Jim Butler Tonopah Mining Co. v. West End Consolidated Mining Co., 247 U. S. 450, 247 U. S. 454 et seq.

It is urged that, if the end lines be taken as the side lines, then the discovery shafts, being four hundred feet distant from the apex of the Crescent Fissure, left either the vein or the discovery outside the location with the side lines, limited as they should be. But, at that time, there was no requirement making a discovery shaft essential to a valid location. And, in any event, our conclusion being that the petitioner must be presumed to have discovered the Crescent Fissure, however it may have been done, the distance of the shafts does not affect the case.

The only question that remains is whether the ore within the respondent's lines formed part of the Crescent Fissure vein. The circuit court of appeals, in view of its opinion upon the last point, made no decision upon this. But the experienced district judge, after careful consideration, was of the opinion that the ore belonged to the vein. We see nothing to convince us that he was wrong. The position of the respondent is that the ore in controversy is a distinct bedded deposit. But, as the district judge remarks, similar deposits are found at many different horizons, connected with the fissure and similar in composition to the ore in the fissure. The deposit in question was like the others. Whether we consider merely the

Page 256 U. S. 28

practical fact of the continuously occurring deposits along the course of the vein or the theory of their origin which seems to us the most probable, we believe the district judge to have been right.

Decree of circuit court of appeals reversed.

Decree of district court affirmed.

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