FEDERAL REPORTER"
vol. 42.
MONTANA CO.,
Limited, v.
CLARK
et al.
(Circuit Cou1i, D. Montana. June 6, 1890.
, 1. HINES AND
Wbere defendants' m.iniQg"olaim Is in the form of an isosoeles triangle, can· 'not!tollow their lode or vein on its downward dip, through the side lines of their oliW:u, claim. Parallelism in the end lines of the claim is essential to tlle exerCIse of such right. F?Ilbwing Iron SiwerMin. 00. v. Elgin Min. & S. OOi, 118U. S. 208, 6 Sup. Ct. Rep.,U77. ' Rev. St. U. S. 5 2392, provides that the looators of all mining claims, sltal1 have 1ih6 exclusive right of possession :altd enjoyment of all the snrface included wlth,in. the lines, of their location, and {jfall veins, ,1I)des, and ledges, throughout their entire depth, the or apex of whioh lies inside of such sudace lines extaMed downward vertically, although !such veins shall so far depart from a perpendic,ular in their cou1'lle ',&8 to extend outside tbevertioal side lines. He,14 that, tile apex or top of a certain lode beillg within thesurfl\Ce lines of defe1!dants"olaittJ, plaintiff had no tit,ileto'8ny potti,on 01 such vein u, the prewes granted to It, and therefore,waS;not entitled to an injunction restralDing defendants from working a portion of such ,vein within the side lin,e,s of plaintiff's olaim.' " " " ' , :
MINING.
9.
BAME-INJUNCTION.
,&:SurJi.,
dug and owne<! a tunnel which was neoossaQ' to:the working of a tts claim. By means of this tunnel plaintift was in the actual pos:lse8&lon of a ,portion of the vein or baving Its 'apex In defel).danta' claim. Depro:posed to extend,an Inoline along, theit: lode ,the side.Jlnes of plai'n:tlff'8 clauD. in such a way as to out the 'tunnel. The effeotof such, extension ,wouldbe,todestrdytbe:tunnel for the pU1'ptl8eS of plaitltlff,anci; when extended be. ,Y\l.%ld the tUnnel, the incline wouidpil the lode owned by plaintiff. Held, ,thatdetendants would be enjoined fl'o.m extending their inclillG so as to cut'the tun-
lode or'vein
"',
",
.
"
Biij for-an R$v. St. U. S. § ,2822,providesthat the locators ,of all mining claims lilba,U havethe exclusive right of possession ,and enjoyment of all the surface included withinthelinesoftheirlQcation, and ofall veins, lodes, and ledges throughout their; entire depth, .the top or apex of which lies inside of sucheurface lines extended downward vertically, although such veins, lodes, ,or ledg.esnaayso, far depal't frod! ,It perpendiculal'in their course downward:.s,toextend outside the vertical side lines of such surface location. Sa,nders &0 Shdton,and E. W., Toole. for complainant. McConrieU &0 Clayberg, for defendants. KNOWLES,.,J.". The plaintiff moves"for:a; judgment on the pleadings. This presents the question as to whether there'llreanymllterial issues presented by them. The plaintiff sets forth that it is the owner in feesimple of the Drum Lummon lode claim and the Marble Heart lode claim, and of all the precious ores therein contained, and was, at the commencemt'nt of this suit, in the possession of said premises, except so much as defendants wrongfully withheld from it; that in said premises is a vein or lode which runs through said Drum Lummon lode claim, and on its dip passes out thereof into the said Marble Heart lode claim; that plaintiff has for a long time past been engaged in working and mining upon said lode claims, and at great cost and expense has driven
MONTANA
co.
V. CLARK.
627
tunnels and drifts in, along, and upon said vein or lode, from said Drum Lummon claim into said Marble lIeart claim, which are necessary in order to enable plaintiff to work and mine its said mining claims; that defendants, commencing'upon the Hopeful claim, have drifted into said Drum Lummon lode or vein in the Marble Heart claim, and have approached so near to the tunnels, drifts and workings of plaintiff in said claim as to endanger the I;lame, and destroy them, anli the use thereof by plaintiff, and that defendants threaten, by means of their shaft or incline, to enter into the tunnels, drifts, and workings of the plaintiff, and to destroy the same, and to deprive the plaintiff of the use of the same, and are so near to the workings of plaintiff as to be dangerous to plaintiff's workmen and employes, and, if permitted to continue, will greatly damage and injure plaintiff's property; and that defendants threaten to enter into plaintiff's Drum Lummon lode, and to l'xtract the ores, quartz rock, and precious metals therein contained. The defendants in their answer do not deny the title of the Drum Lummon lode claim and Marble Heart lode claim to be in plaintiff. They admit, that plaintiff has driven tunnels and drifts in said claims. They admit that the location of the Hopefulclaim was made subsequent to the other two claims above named, and that plaintiff was in possession of said two claims. Defendants admit that their shaft or incline has reached very near to the tunnels, drifts, and workings of plaintiff, and that by their incline they have passed out of their sidelines, and within the side lines of plaintiff's Marble Heart claim. , There was .some doubt in my mind as to whether the complaint did not present such an issue as should call for the determination of the legal title to the place of the alleged trespass of defendants before the court could grant the reliefasked by plaintiff, namely, a perpetual injunction restraining defendants from committing th,e acts complained of. There seems to be no claim on the part of the defendants but that the complaint states a sufficient cause of action. The complaint, with the admissions in the answer, probably dispenses with any such proceedings as above indicated on the part of the court. The defendants, in what they term a "cross-bill," disclose their defense, and justify their action of entering by means of an incline from thf:l Hopeful claim into the Marble Heart claim. Although the defendants term this part of their pleadings a "cross-com'plaint," the court is justified in treating it as an answer, setting up new matter GO,nstituting a defense. This undoubtedly is what the pleading is. The plaintiff has so treated it by replying to it instead of answering it. In taking this position as to this pleading I am justified by the case of Doyle v.Franklin, 40 Cal. 106. In this answer the defenuants set forth that the said Drum Lummon vein or.lode enters the Hopeful claim, owned hydefendants, at a point near the top or apex of their claim, and passes, through same, and. out at the base of the triangular part of ground which defines their claim; that ,the apex of this vein odoQ.e is in the Hopeful claim from the point of entrance to said base line therepf; that they commencE:d upon the apex of this vein with their said incline, and have followed the same down some 118 feet; that in its dip said