289 i'
BLUE
Bmb ·MIN. CO.,
'LARGEY et al. February 8,1892.)
(CirctiitOourt,D. Montana.
1.
Whether a certain mine' IS a "vein," "lode," or "ledge," within the meaning of , Re'V. St.' U. S. §§ 2820; 2322, 2825, is a question of facHo be determined from the use of those terms among pract,ical miners, and the decision thereof involveetno , question, within the meaning of the removal of causes acts. A question as to. what is, the'top or apex cit a vein is also one of fact,' which involves,no federal question. .. ,
REMOVAL oJ!' CAUSEs-,-FEDEBAL QUESTION-MINING ACTS.
S.SAME.
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S. QUESTION. , , . A cause is not removable when there is any doubt as to whether a federal ques, ' tiol1 il\ presented. , , 4.SAllfE-PRIOB DECISION BY SUPREMlI. COURT.. .
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I.
When' the apex ofa vein passes through ODe end line and one side line oftbe claim, the owner's rights are determined by Iron Silver Min. 00. v; Elgin ing &: 00., 118 U. S. 196,6 Sup. Ot. Rep. 1177, and the case comes UItdl1r the rule that, when a proposition has been decided by the United States supreme ' , couIti, it no longer involv'es a federal question.
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SAME-PATENT BY UNITlID,STATES-QUESTIONS OJ!' FACT.
, The conveyance by patent of a vein or lode whose top or apex is cut by the end ;lines of the claim is a complete· .grant of the vein throughout its entire depth; although it may extend outside tbe vertical lines of the location, and hence any subsequent disJilute as to boundaries is a controversy of fact, wbich involves no federal question. ! . .
At Law; Action in the. s,tate court "by the Blue Bird Mining Company, Limited, against Patrick A. Largeyand Lulu F. Largey,to qlliet title to the Blue Bird vein or lode. 'Fhe eausewas removed to this court by defendants, and is now heard on motion to remand to the state court. Granted. Forbia « ForbiB. for plaintiff., F. T. McBride, (E. W. 1bole; of counsel,) for defendants. KNOWLES, District Judge. 'this cause was commenced in the district court for Silver Bow county,.'state of M6ntana. Defendants filed their pe.;. titTon for a rem.oval of the cause from tHat court to this. The parties are citizens of Montana. If this court 'hasjnrisdiction of this cause, it must be that its determination involves the decision of a federal question. Plaintiff brought its action in equitytd quiet its title to the BIue Bird vein or lode, which it is alleged departs in its dip from the sidelines of the BIue Bird lode claim into ground called the" Little Darling Lode," which is owned in part by defendants. Both plaintiff and defendants have a patent title to their respective Claims. The petition for removalsets forth that plaintiff claims to have within the limits of its lode claim a certain vein, lode, ledge, or mineral deposit, carrying silver and other precious metals, which has its apex or top within the boundary lines of its said claim; and that said vein or lode ,is such a one as is within the meaning of the Retsof congress mentioned in sections 2320, 2322, and 2325 of the Revised Statutes of the United States. It is further asserted that plaintiff Jelaims that this BIue Bitdvein or lode has its top or lboundaries·()f the Blue Bird claim'J and'that said apex is crossed by the v.49F.no.5-19
end lines of said claim. The said petition also shows that defendants deny that claim, if! a vein, lode, or ledge of rock in place, bearing silver and other precious met,and 2322 of aaid Revised Statals, within the utes. They deny that the veins or deposits in dispute lying within the of the Little,parling h,8,:ve: their apexes ,or tops within tbe'bOup'c;la,rylines ofthe said Blue Bird 'claim. They also deny that tbe apex of 'What is cll.lledthe"BlueBirdVein," under a proper and cortect definition of the word "apex" as used hi Revised Statutes, is crossed by,tbeend lines of the said Blue, BirdclaiIIt, and aver that said vein runs out at least one of the surveyed side lines of saig lUue Bird c!,aim. Theya.Jso set forth that, notwithstnnding.the sa.idBlue Bird vein or lode does cross the end lines of said claim, plaintiff claims the right to 10)", outside oft:ile. vertic;U. lines claim beneath the surface·bf the Little Darling claim·. rThey forth that the vein vein as; ,upder the laws orcongress, plaintiff is permitted to follow outside of the sidelines of itsc1aim, is .not flo vein or within tpe aforesaid ofthe·sai<:r'Revised Statutes. They further show that-there is a dispute al;\tqwhether the vein<#' lode of plaintift' and of the Little'parling' are 'di'stinct veiiuf And,' lastly, 'they aver that plaintiff claims the right to drift and cross-cut through the country rock of the flai'<'1Little'Darlirig claim!1'or 'thelpurpose::of deposits, in to use such oross-cutSOl' drifts, which. defendantS deny; Much, is!set forth in this petition whi'ch 'isnoHhought to be of sufficient importance to be' set forth in this opinion. I think the points sought to be presented might have been presented in fewer words.: ';. The first question for discussion is as to the' dispute ,as to whether the Blue Bird vein, lode,dr ledge !1s8uch'a orie lis iSirefel'red to in the eral acts of congress. This is not a question of law, but of fact. Language used in an actor congressllhould' be cou%trued according to its ortlinary and natural import., ,Selig. St,l& Const. Law, § 220; Waller v. Harria, ,20 655; Martin:v· .Hunter'.8 U8S8e1 1 Wheat. ,805. When themeal1ing of theten:ns "lode," or "ledge" is sought,we do not go to the minerallacta of congress,bllt to ooiners who UBe. these terms. Said.Justice Fn:LD in the Etweka Case, 4,Sawy. 302, in discussiug .these tenu&: , "These acts :wprenot drawn by geologists or for geologists; they were not framed. iathe intere8,t ofscJence,·anli with scientific aC(iuracy fn,the use of . They were framed, ,f4?l' the protection of minel1l in. the c]q,i'ns which. tbey lIad. located andlievel{lped. and sl)o,uld receive suell a con" ' . '., strUction as will c!irry ont this' purpose:" . .
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In this case the learne.d justice @QW:s that the Jniners. made defiilitiQna were made by. ,scientific wen. Henoo, in deQHhese terms before, ,te1;IDining what is a ulodel'lor"ledge" Qhockin place, bearing sHver or ,lDeta!a, w,il)ers,themsehres must be called in. What is their ,undeJ:ettinding of lJlea.ning of these termg must COIltI:ol Of ,give meaning. of If a dispute as to whether a
BLtfE; BtR:b' MIN.
c6. 'tI.URGEt.
291
given deposit is' a' or dledge," a (ederal question; then every case involving a as to mlnerallantls'could be drawn into the nfttiolml' courts.· ' " ' ", · .'" As to what is the "top" or I< a,pex" ora \Tein is also a question of fact, and not of laW':, These words 'are not scientific expl'e'8si!.ms,but words in common use; the meaning ohvhichacommon dic'tHmary will determine':'There is'anissue,it appearsiasto'whethetbr hot the apex of the Blue Bird vein is cut by the end or side line of the, Blue Bird claim. This is an issue offact,to be determitletfvy the eviaertce. Admitting that, if it should be determined in favor6f defendants, then there would be presehted a federal question, still, until 'that question is determined, there must be doubt as to whether or not ll. federal question is presented; and, when there is ti doubt upon thip point, the federal courts never take jurisdiction of a case.' SaitlJudge CALDWELL inJi'itzgeraldv. Missouri Pac. R. Co., 45 Fed. Rep. 812: "When it ill 'settled that the jurisdiction of a C01Ut in is doubtful, all dOllbtasto what the court should do is dIspelled, and the cause is remanded:" ; But if it should appear that the apex of tbe Blue Bird vein did not pass through the end lines of 'that claim. but passE)dthrough one end lineiJand one side line, then the rights of plaintiff, at least, are determined by the case of iron Silver Mit/,,' Co. v. Elgin M,ining &' Smelting 00.; 118·U. S. 196, 6 Sup. Ct. Rep. 1177. And whElD a proposition has once been decided by the supreme court of the United States it no involves a federal question. Dill. Rem. Causes, (5th § 79; State v. Bradley, 26 Fed. ' Rep. 289. As to the right of plaintiff to follow its vein outside of its side lines, if itS apex is not cut by both end lines of its claim, was fully determined in the CRse of Iron Silver Min. Co. v. Elgin Mining &' Smelting 00., I!Upra, just referred to. The point as to the dispute as to the identity of the Blue Bird and Little Darling 10des or veins is a question of fact. Where the contest is about facts only, no federal question is presented. Austin v. Gagan, 39 Fed. Rep. 626. The question of the right of plaintiff to cross-cut through the country rock of the Little Darling claim is not involved in the determination of this case, and, if it was, 'this right would be determined by sections 1495, 1496, Compo St. Mont., and not by any act of (Jongress. The general question as to whether there was presented a federal question when the right of a holder of a lode claim to follow a vein or lode, whose apex lies within the boundaries, of his claim, into the premises' held by another beneath the surface of the same, waS, decided by J uuge HANFORD in the case of Murray v. Mining 00., 45 Fed. Rep. 385. 'This was a case.involving a dispute.about the same ground, and must be considered as rully covering tbis point. . . There cannot be much, dispute but that, when .the United States has parted with its title to land, any dispute concerning the same which does not draw in qu stion the validity of the grant by which the title was \Teyed presents no federal question. Trafton v. Notigues, 4 Sawy. 178;
292
REP9RTER,
vol. 49.
Gh8uno-pu, 91 U. S. 380; ,McStay v· .Fri.edman, 92U. S. 723; Hoac1kJJl. v. San FTmici8co,,94 U. S. 4. ' ' , The conveyance by a patent of a vein or lode \Vhose top or apex: is within the limits ()f a claim, and whose apex is cut by the end lines of t\1e claim, is a,S and full as the conveyance of the surfacEil of tpe claim or orany piece,: or parcel of agricultural land. The grant is, of this vein oJ; lode thro:qghout its entire depth, extended downward vertically; although it mayso.far depart from a perpendicular in its course downward as ,to exte;nd. outside the vertical side lines. of the surface)Qpation. Rey. St. u.s.l,2322. As far as this l<;lde or vein.is is in thj'lnature of the conveyance of a mine which may be carved out of any portion oflanq embracing the same. If there is any dia,pute as ,to question of boundaries, this is a question of fact. If t,here il:) any dispute as to whether any portion of land. is that canyeyed,it a questiol'i of fact. ' ,I,r there is apy dispute as to whether a lode, we consult mene;perienced in giveoparcel of 1and is a vein t;Ilining,and determine the question as a fact,and not as a,m.a,tter oflaw. If we ,wish to learn what is a "vein," "lode," or "ledge" containing precious metals, we must take the Qrdimary signification of these words as used by' p,ractical to thEil calling of mining. Should we hav.e t9, gP to scientific men for a definition of these words, this wopld oot make it a question,oflaw. Hit is said that the object is to ascertain 'in' w.hatsense the ,term was in the act of congrlll:>S, ,and therefore a legal, guesti9n to be determined. py a federal question, theabswer is that, if this should be maintained, then, whenever a party shollld· allege that to determine the meanil1g of any term, s'llcnas an acre <;lfland, ,or a section ,of land, as use\l in an act pf, 9:\l.el>tion be,presented, ,This ?ardly be contended for. Fll1ding, as I do, that no federal IS presented i'[l,this case, this CQ.Qse to the state court from which it cameishereb'y eustained; and it ]a s,o ordered. . '
Romi.e v.
LARGEYtl,'Er..qE BIRD MIN. Co., timlted. (Circu-tt Court, D. MOntana. February'S, 1892.)
Ali Law.. Action by,PatrtckA.Lal'gey against the BIue Bil'd Mining Company, Limited. Heard on demurrer to the complaint. Demurrer sustained. F. T. lJIcBride and J.'oo?e:d4 Wallace, for plllint.iff. F01'bis. & F01'bls, for defendant.
KNOwLES, District J ridge. The property described in. the in this case is the same as that described in the case of Blue Bird MtninrJ Ob. v. Largey, 49 Fed: Rep. 289,:whicli, hav.ing been removed from the district court of Silver back to said state court, for the Bow county, Mont., reason that no was in:volved In. dt;ltermining the same. Precisely the same points, as il;lVolyingfeder,,1 which were presented in '.. ' ! -, \. ' , .