McElligott v. Krogh

This is an action in ejectment brought by plaintiffs, the owners of a mining claim known as th “Granite King,” against the defendants, the owners of another mining claim called the “Live Oak.” These claims join each other, the Live Oak lying to the east of the Granite King as originally staked on the ground; the latter overlapping the former to a considerable extent.

The Live Oak was located October 28, 1898; the Granite King on August 28, 1899, nearly a year later. Neither claim has been patented.

We incorporate herein a copy of the map used in evidence in the case and made part of the findings of the court,- in order to illustrate the points made on this appeal.

The principal controversy, though not the only point in the case, is as to the correct boundary line between the two locations. As the Live Oak location was the senior one, it

Having thus established the common boundary between the two claims, the court further found that the apex of a well-defined vein or ledge existed in the Granite King territory, which apex extended southerly, as indicated on the map, in .a course from the “Mariposa Grant Line” at the letter “X,” and very close to the established common boundary between the two claims, until it crossed “Turners Wire Pence Line” at a point “Y”; that this ledge dipped to the east at an angle •of thirty-five degrees or forty degrees, and that within a few feet of its apex it passed underneath the surface of the Live ■Oak location.

In addition it was found that respondents were entitled to exercise extralateral rights on said vein on its dip underneath the Live Oak surface territory, and the court awarded Them such rights in the judgment.

It was then found by the court that respondents were entitled to a triangular-shaped piece of territory bounded westerly by “Turners Wire Fence Liné,” northerly by the “Mariposa Grant Boundary Line,” and easterly and southerly by the westerly side-line of the Live Oak location, as established by the court.

These are the principal facts as found by the court, and all that are necessary to be stated in order to consider the points presented on this appeal. As we have said, the main question on this appeal is as to the correctness of the action of the court in fixing the position of the common boundary between these two locations. But before approaching a consideration of that point, it is proper first to briefly consider another point urged by appellants, that the location of respondents—the location of the Granite King—was entirely void.

This contention of appellants is based on the fact that not one of the corners of the Granite King location was on ground that was vacant and open to appropriation; that every corner' but one was placed on patented ground—on the Mariposa grant or Turner’s patented agricultural land—and that one-—the southeast corner—was placed within the limits of the-Live Oak location.

It is true that the corners were placed, as appellants contend they were, but we do not perceive how this could affect' the rights of respondents as to land which was within such-boundaries and subject to location. The court found that' the location of respondents was made in good faith, and in substantial compliance with the provisions of section 2324 of" the Revised Statutes of the United States, [U. S. Comp. Stats. 1901, p. 1426], The discovery was made by respondents upon lands subject to location, and their location notice posted thereon in a monument on the lode, and the boundaries were-

Having disposed of this preliminary matter, we now approach the principal point in the case—the correctness of the location by the court of the common boundary line between the two locations.

As we have said, the Live Oak location being the senior one, it was necessary to establish its westerly boundary line in order to fix the easterly limits of the junior Granite King location, and this the court proceeded to do, as we have already shown, by first fixing the apex of the Live Oak lode, extended from its center lode monument along a straight line connecting such monument with its north-center lode monument. Having done this, the court then found that while the

Counsel for appellants claim that the court erred in so establishing the said westerly line of the Live Oak location, and that it should have established the westerly line of said location along the line 11C B A,” so as to include within the. Live Oak location the triangular area embraced within those lines, and which was within three hundred feet of the lode, and we think this contention of appellants is correct.

The Revised Statutes of the United States (section 2320), [U. S. Comp. Stats. 1901, p. 1424], which declare the width of lode locations, provide that “no claim shall exceed more than three hundred feet on each side of the middle of the vein at the surface.” This provision of the statute defining the lateral rights of a claim is equally a declaration that as to all the surface of a lode claim which is within three hundred feet of either side of the apex of the vein at its surface, and which is included within the boundaries as staked by the locator, he is entitled to have his right or title confirmed. A locator is not bound to absolute accuracy in laying out the boundaries of his claim, nor, as a penalty for having included within his side boundaries more than the statute allows as lateral rights, is he to lose any portion of the surface of the claim located, which is properly within these statutory limits. When he includes within his boundaries more than the law permits, he is entitled nevertheless to hold to the limit which the law authorizes within the limits laid out, and only the territory embraced within his boundaries which is in excess of these limits is to be rejected.

■As said in Lindley on Mines (sec. 362), “It frequently happens that the locator marking his surface without the aid of chain or compass includes within his boundaries an area in excess of the statutory limit. The courts uniformly hold

This is the general rule, and is declared as the rule obtaining in this state in Thompson v. Spray, 72 Cal. 528 , 533, [ 14 Pac. 182 ], where it is said: “The location is good for as much as the party is entitled to hold and void for the excess only.” And in Howeth v. Sullenger, 113 Cal. 547 , 552, [ 45 Pac. 841 ], where the declaration is made that “It often happens that claims are located covering more than . . . 600 feet in width, . . . the location being void only as to the excess.” Counsel for respondents cite nothing to the contrary.

Now, while the westerly boundary line of the Live Oak location, as originally laid out, included more surface territory than its locators were entitled to as lateral limits under the statute, still, within the rule announced, the lower court should have established the western boundary line of this location so as to include all territory within the limits staked which was within three hundred feet of the ledge, and only have rejected the excess. When the court established the westerly line of the Live Oak as a straight line between the points “C” and “A,” and rejected the triangular area between it and the line “C B A,” it rejected territory which was not only within the original boundaries as staked, but was within the statutory lateral limits authorized by law. There is no pretense that this triangular area was not within such limits. Measuring from any point along the middle of the vein, the line “C B A” was within three hundred-feet of the vein, and, hence, defined the statutory lateral limits to which the Live Oak location had a right to extend, and the lower court should have established it as the westerly boundary line of such location.

Respondents contend, because the locators of the Live Oak established their westerly line as a straight line between their improperly located northwest monument “0” and their properly located southwest monument “A,” that when the court _ established “C” as the proper northwest corner, the court was also required to establish the westerly boundary line as a straight line between “C” and “A”; that in order to have had the court establish the western boundary line as “C B A,” the locator should have placed a monument at

Nor was the court required to fix the boundary line as a straight line between the northwest corner as established by the court, and the southwest corner, along the line “C A.” There is no law which requires the side-lines as originally located to be straight lines. As is said by Bindley in his work on Mines (sec. 366), “As long as they keep within the statutory width, they may have angles and elbows. ...”

Nor is there in this case any question relative to establishing a boundary line between two original corners where ordinarily a straight line would be drawn from one to the other. Here the court properly discarded one of the original corners—the northwest—“drew it in,” as the mining phrase has it, and established it at a true distance of three hundred feet from the lode.

This corner had no existence till established by the court, and had nothing to do with fixing the original western boundary as the locators staked it. As they fixed this comer, the line therefrom embraced this triangular piece. If, as the law says, the locators are entitled to a surface area of a width

And such a rule of adjustment as to a boundary line originally established by a senior locator in good faith, is not only just and proper, but it cannot be said, with any substantial merit, that it works an injury to a subsequent locator who establishes his boundary line within that of the senior location. Such junior locator, when he intrudes upon the side-line of a prior locator, knows from the monuments established by the latter where the original side-line of the senior location is, and where the vein of that location is, and he intrudes with his location at his peril. He knows, even if one of the corners is outside the three-hundred-foot lode limit from the vein, that the surface territory within the side-line measured from its end monuments is all at least within three hundred feet of the vein. He knows that the law entitles the locator to a side-line

Now as to the only remaining point—the question of extra-lateral rights. It is insisted that respondents are entitled to none at all as to the segment of the vein “P I,” which, it will be observed, under the view we take of the proper location of the westerly line of the Live Oak location, lies entirely within that location. This is no doubt true. As the apex of the vein between those points is outside the Granite King location, and entirely within that of the Live Oak, no extralateral rights in favor of respondents can apply to it. (Lindley on Mines, sec. 591.)

It is further insisted, however, that as to the other segments of the vein within the Granite King location, the respondents are entitled to no extralateral rights, because the end-lines of their claim are not parallel; that according to the map incorporated in the findings, the end-lines of the Granite King, instead of being parallel, converge in the direction of the dip of the vein.

And it is also insisted that if they are entitled to such rights, notwithstanding the end-lines of the claim are not parallel, but converging, that each segment of the vein from “X” to “I” and from “P” to'“Y” must be treated as if it were a distinct and separate vein and apply to the northerly and southerly points of termination of each segment a perpendicular plane parallel to the respective northerly and southerly end-lines of the claim, giving extralateral rights to the respondents between such perpendicular planes, extended easterly in the direction of the dip of the vein until they converge.

Interesting as these questions may be, we do not think, under ' the finding's as made, we can dispose of them, and it is possible that in this case we may never be called on to do so. It cannot be determined from the finding of the court as to these end-lines whether they aré parallel or converging. The court makes the map, a copy of which we have inserted herein, a part of its findings in the case, and then, as to the end-lines o£ the Granite King location, finds “That the end-lines of said Granite King location are substantially parallel to each

For the reasons given the judgment is reversed.

Henshaw, J., and McFarland, J., concurred.

Hearing in Bank denied.