82,;FEDERAlti REPORTER.
.TUS1)IC.EMIN. CO. v. ,BARCLAY et aI. ' ,
(dircuit'Court,D. Nevada. August 9, 1897.) p, No. 632.'
1.' MINES'4ND MINING4CON'rINUIll'Y OF VlllUfS'-ExPERTEvIDENCE. , In determining questions ,as to whether ore bodies found in difl'erent are parts of a continuous vein or lode, or are separate and independent veins, awidl:i latitude is 'always permissible for the purpose of ascertaining the reasoning upon w'hich the conclusions of witnesses are based, as well as general, knqwledge of t!;Ie ground, their experience and ohservlj.t1on, and their quaIiftcMions as pra.ctlcal miners or experts. derived from years of experIence 'In the particular mining district. 2.
,Mthough the owner of It location has failed to do the necessary assessment work, so that the ground is subject to a relocation, yet if, before any such relocation by, others, he perforru the amount of assessment work required by the statute, ,then his rights lU,'e revived, and, a subsequent relocation is jnvalid. SAME-ASSESSMENT WORK-ADJOINING CLAIMS.
WOHK,
8.
Assessment work done upon one of a number of adjoining claims, to the amount required to be done upon all of them for the year, is sufficient to hold all of them, if It be clearly shown that it was intended as the annual assessment work upon all the claims, and that it was of such a character that it would inure to their benefit.
,
4.
SAME-INTERMEDIATE' Rj;JI.OCATIONS-AB,liNDONMENT,
Where relocations have been made after the owner of the original location has falledbeyond the statutory time to do the necessary assessment work, but such relocations are' afterwards abandoned, and, thereafter the owner of the orlginal'location performs assessment work which revives his rights, the fact of such Intermediate relocations cannot aid one who subsequently attempts to relocate the same ground.
This is a sUit in equity by the Justice Mining Oompany against JOhn Barclay and others to enjoin the working of a certain mine, situated in'the Gold Hill mining district, in Storey county, Nev. W. E. F., Deal, for complainant. Alfred Chal'tz, for respondents. RA"WLEY, District Judge. Tb,is is a suit in equity, brought by complainant, to enjoin the respondents from mining, extracting, or removing any quartz rock, earth, or ore from certain mining ground claimed by complainant, situate in the Gold Hill mining district, Storey county,Nev. The is the owner of the Justice patented ground and lode, and of the Woodville patented ground and lode, the surface of which are delineated upon the following diagraxn,. , The ,title of complainaJ;ltto both of these claims as patented is admitted by the respondents, but they deny that either of said lodes inany part of the mining ground, lode, claim, or, premises lying between the easterly side line of the Justice patented claim and the westerly side line of the Woodville patented claim. On April 27, 1895, complainant leased to George Hobart, Charles H. Steele, and respondents Thomas Bell and C. Benham, for the period of one year, the mining ground "commencing at the trestle leading from the Justice Company's tunnel to the Washoe Mill, and running thence in a
JUSTICE
82
Ji'.1llDERAL .REPORTER.
southerly direction, following the course of Gold canon, to the south boundary line of the Jus'qce claim, and extending from the line of the Devil's Gate toll road easterly to the east line of said Justice Mining Company's claim," upon an agreed royalty or percentage of the value of ore extracted. Steele and Hobart testified that, after the lease was executed, the superintendent of the Justice informed them that they could work as far east as the Justice claimed; or as far east as they pleased. Respondents Bell and Benham testified that the lease was only intended for the main Justice lode within the Justice patented lines. The respondents, on January 1, 1896, locate'd certain mining ground, described in the answer as follows: "Beginning at post No. 1 on the east side line of the mining claim and premises first described in plaintiff's bill of complaint, being what was formerly known as the Justice Independent claim, U. S. survey No. 48, but now known as the Justice claim, from which post No. 7 of the Justice Independent claim bears south, 47° east, 307.1 feet distant; thence, for the first course, north, 41 west, 636.9 feet, to post No.2, identical with post No. 6 of the U. S. survey No. 48; thence, second course, north, 49° east, 382.7 feet, to post marked No.3; thence, third course, along the west line of said Woodville claim, south, 10° east, 743 feet, to the place of beginning,-which said last described mining claim and p]:QIDises Is known as and called the Hills QQld and Silver Quartz Mine." ., 0
This ground is situate within the triangle shown on the diagram between the Justice and Woodville side lines. The on the part of the complainant is that the lode located by the respondents has its apex within the patented lines of the Justice claim, and extends downward vertically, entering into the adjoining land located by the respondents. The same contention is made with reference to the Woodville, the theory being that there is but one lode, known as and called the "Comstock Lode." The contention of the respondents iii! that the Hills Gold and Silver Quartz Mine is upon a separate and independent loq.e, weIlJdefined, between foot and hanging walls, having its apex of the surface limits of either the Justice or Woodville ,patented ground, and solely within the ground located by respondents. This is the principal and most important question in controversYi and'upon- which there is a decided contlict in the testimony. It would serve no useful.purpose to'give the substance of the testimony as to the theory of the witnesses, with the facts upon which their conclusions are based. In all. controverSies concerning the identity of ore bodies found on different levels at various depths beneath the sur· face, there is always room for a wide divergence of opinion among men of equal credit and experience as miners. The absolute truth is often difficult to ascertain, except in cases where connections are made between the different bodies of ore found on the different levels; and even then there is often room for controversies unless absolute continuity of vein matter is found, until expensive explorations are made, for the continuity of ore may be broken by the injection of country rock into the vein, or what is known among miners as a "horse" is found, which is not always easily distinguished froIn the actual walls of country rock. One witness, upon a careful inspection, may be of the opin ion that it is the hanging or foot wall of the lode; while another, from
JUSTICE MIN. CO. V. BARCLAY.
557
his examination, gives it as his ouinion that it is simply a horse, and that further exploration will develop the fact that the different bodies of ore are upon the same vein. A wide latitude is always permissible for the purpose of ascertaining the reasoning upon which the sions of witnesses are based, as well as their general knowledge of the ground, their experience and observation, and their qualifications as practical miners or experts, derived from years of experience in the particular district where the ore bodies in question are found. Mining Co. v. Corcoran, 15 Nev. 153; Book v. Mining Co., 58 Fed. 106, 111, 120, 126; Consolidated Wyoming Gold Min. Co. v. Ohampion Min. Co., 63 Fed. 540, 544. Courts, however, are always inclined to give heed to the actual facts which have been ascertained from the workings at different points on the ground in dispute, and especially at the places where it is claimed on one side and denied by the other that the are bodies unite. Upon this branch of the case a brief abstract of the testimony is filed herewith, giving a fair outline, in the language of the witnesses, as to their conclusions in relation to the developments actually made in. the Steele shaft and in the Hills or Barclay shaft, and the various levels, tunnels, drifts, and inclines connected therewith, and the character of rock, earth, and ore found therein, and particularly upon the point whether the ore found in the ground covered by the Hills location is connectoo with, and. forms a part of, the main Justice lode, Which has its apex within the patented ground of the Justice, or is separated therefrom, and belongs to an independent vein or lode, having its apex within the limits of the Hills location, to which reference will hereafter be made. In support of complainant's right to recoverhereiil,it is alleged in the bill that complainant is the owner of, in possession of, and entitled to the possession of, the mining ground, claim, real estate, and premises lying between the easterly side llne of the Justice patented ground and the westerly side line oUhe Woodville patented ground, tQgether . with all the veins of gold and silver bearing quartz rock, the apexes of which are within the surface boundaries of said claim, with the right to follow such veinse; lodes to a;uy depth; that while the respondents Charles Benham and Thomas Bell were in possession of and working on the lode within the Justice ground, as tenants of complainant, the other respondents herein, on January 1, 1896, conspired with them, and made a pretended location of a portion of said ground the Justice and Woodville patented locations in the name of W. P. Hills, but for the use and benefit of the other respondents; that, when said location was made by W. P. Hills, the respondents Benham and Bell were in actual possession of said ground and vein as tenants of com· plainant, and 'were working the same for the purpose of complying with the laws of congress with reference to holding, possessing, and working mining claims; and that complainant had every year up to January 1, 1896, done and performed more than $100 worth of work for the purpose of holding and possessing said claim, in accordance and compliance with the provisions of the act of congress in regard thereto. The title of complainant to the particular piece of ground in contra versy, independent of any rights it may have by virtue of its ownership in the Justice and Woodville patented ground, is derived from the
558
82 FEDERAL REPORTER.
mining location made by A. Cummings on the 19th of March, 1875, which included in its description: all the ground embraced in the location of the' Hills Gold and Silver Quartz Mine. This mining ground was on April 12, 1875, conveyed by deed to the Woodville Con. S. M. Company. In July, 1880, the complainant acquired title to all the mining property of the Woodyille Con. S. M. Company, including, among others, the Cummings claim. At this time S. T. Curtis was the superintendent of the complainant, and upon the trial hereof testified that he went upon the ground, and took possession of all the property, including the Cummings claim; that he received a tracing from the company's office in San Francisco of all the claims; that he took the tracing, went upon the ground, and found a great many of the old monuments and· stakes. It is claimed by complainant that from that time up to January 1, 1896, when the Hills location was made, it continued t9 remain in the possession of the. ground located by Oummings, and that its possession was open and notorious. It is shown that respondents, at the time of, 01' soon after, the Hills location was made, were notified of complainant's claim to the ground, and that they would be held responsible for any damage which might commit. No work was ever done by the complainant within the surface lines of the Cummings location. But it claims to have expended during the year 1895 over $3,000 for the purpose of holding the Cummings and six other claims, to which it has title. This claim is partly based upon the theory that, inasmuch as the Cummings claim is contiguous to the Justice, work done upon the Justice within its patented lines would inure to the benefit of the Cummings, and constitute compliance· with the provisions of the law requiring a certain amount of work upon unpatented claims to be performed every year; and, further, upon the ground that certain work performed by some of the respondents as lessees of complainant was for the purRose of saving it "a cRshexpenditure of money for the purpose of assessment on the different claims," including the Cummings; and that this was the principal object of making the lease. It is not claimed that the notice of location of the Cummings claim, as recorded, is not sufficiently descriptive to enable anyone to ascertain therefrom what particular ground was claimed thereby. The objection urged against this location is that no evidence was offered that A. Cummings ever made the location, posted the notice, or :{Jut any stakes upon the ground, or that he or his grantees or predecessors in interest ever complied with the law requiring annual assessment work to be done upon the location; that the ground was abandoned; that, if not abandoned, it was forfeited; that it was claimed by other parties who had regularly located the ground prior to 1895, but who failed to do the assessment work in 1895; and that the g-round was therefore subject to relocation on January 1, 1896, when the Hills location was made. It appears from the evidence- that some five or. six locations were made at the same time, or about the same time, as the Cummings, all being in proximity with each other. The plain inference to be drawn from all the testimony is that these locations were made at the instance and request and for the use and benefit of the Woodville Company, evidently for the purpose of protecting the Woodville claim. The natural presump-
559
tiQn to be drawn from the testimony is that, at the time, the lode or vein, or. lodes or veins, if more than one, had not been clearly defined; the explorations and developments that had been made were not sufficient to actually determine whether certain seams of .ore which were fOJl,Ild in dift'erent places constituted different lodes or veins, or were in fact but parts of, one lode; and that future workings would demon· strate this to be a fact by absolute continuity and connection of the ore bodies. It is not shown that any, work was done by the Woodville Company on any of the six claims independent of the work that was being cO:llducted and carried on by it within the surface limits of the Woody-ille patented claim. Owing to controversies which thereafter arose between the Justice and the Woodville as towhether both claims werenotupon the same lode, or from other causes, the Woodville Com· pany became involved, and all its property, including the Cummings ground, was sold under execution, and the Justice Company thereafter obtained the title to all the property. The Justice never performed any work upon the ground within the surface limits of the Cummings location, or any work for its benefit, save such as was performed in the regular course of work upon the Justice lode within the surface limits of the Justice patented claim. It had a watchman employed to look after its property, including the Justice, Cummings, and Woodville claim's, and always asserted and claimed. all the ground embraced in said locations and others not involved in this controversy. ' It is a well-settled principle .of law that abandonment of property is always a question of intention. It is a voluntary act. The property in question was never abandoned by complainant. It always asserted a claim 19 the ground. There is no evidence in the record which indicates any intention on its part to give up its right to this particular ground. Forfeiture may occur by failure to comply with some positive requirement of the statute, or of the milling rules or regulations, if the statute or rules provide that' such f:iilure shall work a forfeiture of the claim. Forfeitures, however, are not, as a general rule, favored by the law. A forfeiture of a mining claim cannot be established except upon clear and convincing proof of the failure of the owners of the claim to have the work done or made to the amount reo quired by law. Hammer v. :Milling Co., 130 U. S. 291,301,9 Sup. Ct. 548. COnceding, for the purpose 'of this opinion, that complainant had failed to do any assessment work upon the ground,and that it was,prior to January 1, 1895, subject to be rel()cated, still the respondents are not in a position to take any advantage of such failure on the part of the complainant to do the assessment work. The evidence is direCt and positive that the object of the lease, as executed by complainant, was for the express purpose of performing enough work to hold the Cummings and the other claims lying outside of the patented lines of the Justice and Woodville. This testimony, although criticised and questioned by respondents' counsel, is undisputed. If true, it was sufficient to prevent the respondents from making any valid location in January, 1896. The assessment work by complainant in 1895, prior to the relocation of the grounds by Hills, on behalf of the respondents, and before any intervening rights by other parties had been acquired, revived its. rights under the Cummings location; , and the etn-
660
braced in the Cummings claim could not therefore be considered as forfeited at the time Hills enterednpon the ground, and made the location of the Hills Gold and Silver Quartz Mine. The language of section 2324, Rev. st, is clear, plain, and explidt upon this point. Mter stating the amount of work that must be an· nually performed on each claim, it reads a:Sfollows: ''But, where such claims are held in common, suc:h expenditure may be made upon anyone claim; and, upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, theIr heirs, assigns, or legal representatives, have not resumed work upon the claIm. after failure, and before such location."
.North Noonday Min. do. v. Orient Mi:q. Co., 1 Fed. 522, 539; Jupiter Min. Co. v. Bodie Consol. Min. Co., 11 Fed. 668, 681; Lakin v. Mining Co., 25 Fed. 337, 343; Mining Co. v. Deferrari, 62 Cal. 160, 163; Greg· ory v. Pershbaker, 73 0a1.109, 119, 14 Pac. 401; Pharis v. Muldoon, 75 Cal. 284,17 Pac. 70; Belk v. Meagher, 104 U. S. 279, 282. In order to comply with the law, it was not necessary that the assessment work should be done upon the surface of the claim. It may be done on the snrface or beneath the surface, and tills would be sufficient although it might be that the work was performed on a lode having its apex outside of such surface lines. Mining Co. v. Callison, 5 Sawy. 439, 456, Fed. Cas. No. 9,886. It may be done on other claims or upon other ground, where, as here, it is in reasonable proximity to it; and if the work, as done, would be beneficial, and tend to the future development or improvement of the claims, it is sufficient. Doherty v. MOrI'is, 17 Colo. 105, 28 Pac. 85; U. S. v. Iron Silver Min. Co.. 24 Fed. 568. It has always been held by the supreme court that, when several adjoining claims to mineral lands are held in common, work for the benefit of all done upon anyone of them in a given year to an amount equal to that required to be done upon all in that year meets the requirements of section 2324, Rev,. 1St. Smelting Co. v. Kemp, 104 U. S. 636, 655; Jackson v. Boby, 109U. S. 440, 3 Sup. Ct. ant: Cham· bers v. Harrington, 111 U.S. 350, 4: Sup.,Ct. 428; .Book v. Mining Co., 58 Fed. 106, 117; RoystOn. v. MHler, 76 Fed. 50, 52; Eberle v. Carmichael (N. M.) 42 Pac. 95; . In Smelting Co. v. Kempthe c.ourt said: "Labor and Improvements, wl1frlin the ,meaning of the statute, are deemed to have been had on a miningclaim, whether itconslsts of one location or several, when the labor ,Is performed or, :the improvements are made for Its develop· ment,-that is, to filcllitate theextra.ctlon of the metals it may contain,-thoug1J In fact Eiuch labor and Improvements may be on ground whIch origInally con· stituted only one'of the locations, as in sInking a shaft, or be at a distance from the claim itself, as wJ1er:e the labor Is. performed for the turnIng of a stream, or. the l,Ittroduction of water, or where the hnprovement consists in the construction of.a :flume tociLrry oft the or waste material. It would be absurd to require'll shaft to be sunk on each locatIon in a consolidated claim, when' one shaft would sufiice for alr'the locations."
Some questions are in reSpondents' brief as to whether the work performed within the patented lines of the Justice could be ''harnessed on'" to the rule that work might be sufficient if performed in a tunnel fun for the purpose of developing a mine, etc. Where the work is not done within the surface boundaries of the location, the law undoubtedly casts the' burden upon the party claiming to have
561
done the work, not only to show that the work done outside of such boundary was intended as the annual assessment work on the claim, but that it was of such a character as that it would inure to the benefit of such claim. But, when such facts are clearly established, then it is wholly immaterial whether the work to accomplish such purpose was performed off the ground upon a patented or unpatented mining claim. Hall v. Kearny, 18 Colo. 505, 509, 33 Pac. 373. The fact that the stakes and monuments, as designated in the notice and shown in the tracings, as seen by Curtis when he took possession of the Cummings.ground for the Justice, were not visible at the time of the location of the Hills claim, 'does not vitiate the Cummings location, if the law in all other essential respects has been complied with. Book v. Mining .Co., 58 Fed. 106, 114. The fact that the ''Leermo'' and "Quinn" locations had been made within the surface boundaries of the Cummings prior to 1895 did not defeat complainant's title to the Cummings. If either of said locations were valid, the .respondents would have no standing in court. They do not claim any rights under either of these locations; The proof is that both locations were either forfeited or abandoned, and the evidence in regard to these locations was only admissible as tending to SUDoort the theory of the respondents that the triangular space of ground between the Justice and Woodville patented lines was generally considered by the miners as locatable ground, and that respondents, acting upon that belief, were not conspirators, acting in bad faith in making the Hills location. With reference to complainant's right to the Cummings claim, still treating it to be upon a separate and independent vein from the. WoodVille and the Justice, there still remains the further question whether the complainant has or has not been in the actual possession of the ground since it acquired title thereto, and was in the actual possession thereof at the time the Hills claim was located. This matter has been incidentally referred to simply to show that complainant had not abandoned the ground, and that it was at all times asserting its rights to and claim of the ground dispute. Was this a mere bald assertion, a sham, a pretense without any right, a mere bugbear to frighten off all comers?' Or wllS it acting in good faith, under color of right, in the honest belief that it was the owner of the ground? Its asserted claim 'Vas made at all times, whenever, wherever, or by whom atThe Quinn location was made in July, 1891. John O'Toole, who was interested therein, testified as to what occurred when he and Mr. Quinn commenced work on the locaj"1l1. He said: "At that time Charles LyoDBwas supertntelident of the Justice, and Charles !;Jyons notifie,d us that that ground belonged to the Justice, and we told him that we did not think It did,. and he said, If we took anything out, he would attach 'It; and' we took out some ore, not a great deal, and we got a little behind, and had no money to do further work, and Lyons was making It kind of interesting, and we thought we had better leave it go, and we qUit. We worked until some time in August, I believe, and we quit; and the ore that was there, we left it in the creek, and a freshet came along, and washed it away, and we never got anything out of it. Q. What occurred that made you leave the place-? .A. It was simply through Lyons talking to us, and telling UR that we could not hold it. * * * Mr. Lyons simply told me the ground belonged to the Justice Company, and if we worked it, and took anything out, would' take it from us." 82F.-36
562
,82 FElDERAL Rlil)?ORTER.
, Altoona Q. M.CQ. v. Integral Q. M.Co. (Oal.) 45 Pac. '1041, 1049, il cited by respondents as establishing the proposition that: , "If there wasoIlly the naked claim to be looked after, and a watchman were placed there merely to warn prospectors, ll.lld thus prevent a. relocation, statute." ' It would not be, -labor upon tllemine.ln. t1).e sense ot
It is shoWn, however, that the complainant performed ,the necessary Uillount of work in 1895. The presence of the watchman shows, or tendsto show, the actual possession of the ground by complainant, and that such possession was open and notorious. These results, as to the acts of the complainant and its good faith with reference to'lts ownership of the ground embraced in the Cumroings claim,: taken' in connection with all the circumstances under which respondents Bell and Benham took the lease, coupled,as it must be, with the further condition that, while working, under the lease as tenants of complainant, they discovered the ore body in dispute, lead to the conclusion that complainant has established a better right and superior title to the mining ground in question than the respondents. But the 'judgment in this case need not be based solely upon this ground. The same result would probably be reached U[JM the theory that there is but one vein or lode within the Justice or Woodville patented lines, and that the ore extracted by the respondents was from thM lode. But, be that as it may, after a careful review and consideration of all the' evidence, lam clearly of opinion that the decided weight and preponderance (!It evidence upon the facts, shown by the developments as made in the Steele shaft and the Rills or Barclay shaft, with the different levels, tunnels, drifts, and inclines connected therewith, is to the effect that the ore body, seam, or vein disclosed in respondents' workings is a part of, and is connected in vein matter with, the Justice lode, having its apex within the pat· ented lines of the Justice. Let a decree be drawn in favor of com· plainant, in accordance with the views herein expressed.
P ARTICUI,AltS; , In an action for libel, where it is plain that plall1'l,ifr has no intention or contending at the trial that every assertion contained in each ot several ll11eged libels is false, he shouid be reqUired to set forth, by bill of particuiars, what portions are claimed to be libelous and false.
Action for libel by A.. J. White, f-imited, against George C. Pease, Robert G. Eccles, and others. Motion by defendants to require plaintiff to make complaint more definite. Charles De Hart Brolver, for the motion. Townsend, Dyett & Levy, opposed. LACOMBE, Circllit Judge. The complaint is sufficiently definite and certain to enable f, qefendants to answer. It is perfectly plain, however, that plaintiff has not the remotest intention of contending at