Hope Mining Co. v. Brown , 7 Mont. 550 ( 1888 )

Liddell, J.

The plaintiff in this case appeals from a judgment of the district court sustaining a demurrer of no cause of action; and in order that we may have a-clear understanding of the points presented, it will.be necessary to examine carefully the allegations of the complaint. It seems that the plaintiff is the owner and in the possession of a certain tunnel right and claim, known as the “Jubilee Tunnel,” in the Flint Creek mining district, in Deer Lodge County of this territory. It alleges that in June last it caused the'proper notice of the location of paid tunnel to be duly-filed in the county recorder’s office for the above county, and that the location and description of the tunnel right was made after proper survey, and that it caused the boundaries of the claim to be marked by certain posts, together with the plan of commencement of the tunnel, the course thereof, the names of the parties in interest, in all respects complying minutely with the law in such descriptions and notice. It further alleges that it is entitled to all undiscovered veins, lodes, or deposits on the line of the tunnel for a distance of three thousand feet between the two boundary posts; that about December last the defendant, without right, entered upon the claim of plaintiff, within three hundred feet of the line of the tunnel, and located a quartz claim; that the defendant has caused a tunnel to be opened, and beneath the surface of the ground has discovered a body of ore, vein, or lode, and is extracting the ore from the tunnel, and converting it to his own use; that the defendant has already converted over five hundred dollars’ worth of ore, and is continuing his operations in violation of plaintiff’s rights. The plaintiff further alleges that the lode or vein of ore which is being now worked by the defendant appears to trend across the tunnel of plaintiff, which has been extended over one hundred feet, and is now being diligently prosecuted. Finally, it prays for damages, and a perpetual injunction restraining the defendant from excavating the ore claimed.

The rights of the plaintiff depend entirely upon the construction to be given section 2323, Revised Statutes of United States. Manifestly, that section was enacted for the encouragement and protection of those persons who were engaged in exploring for precious metals by means of tunnels. They are allowed the right of possession of all veins or lodes along the line of the tunnel for three thousand feet from its face, and not previously known to exist; but such veins or lodes must have been discovered in the tunnel. The extent of the rights of parties discovering viens or lodes by means of tunnels is the same in extent as when discovered from the surface. By referring to section 2320, Revised Statutes of United States, we can there see the extent of the rights of one who locates on a surface discovery. In express terms it declares that no location shall be made until there has been a discovery of the lode or vein within the limits of the location; and that no right arising from such a claim shall extend beyond three hundred feet on each side of the middle of the vein at the surface, Measured according to this rule, the tunnel claimant will have no right to any claim except for such veins or lodes as may be discovered within the three thousand feet from the face of the tunnel, and in the tunnel itself. But when veins or lodes are discovered in the tunnel, the claimant will be entitled, as a matter of right, to the vein or lode for fifteen hundred feet in length along the vein or lode, and to the extent of three hundred feet on each side thereof from the middle of the vein or lode. After the discovery of the vein or lode in the tunnel, his rights are exactly in extent what they would have been if his discovery had been made from the surface. But he has an additional right, not accorded to the surface discoverer. As before stated, the object of the law is to protect those explorers in the possession of the lode or vein discovered by means of their tunnel, and therefore the law-maker has seen fit to announce that if, after the commencement of a tunnel, and pending the progress of its construction, a third person should locate a vein or lode on the line of the tunnel, which was not discovered from the surface, the location would be invalid. On the other hand, if the veins or lodes so, located by third persons exist on either side of the tunnel, but which neither cross it nor are discovered in the tunnel, they will not belong to the tunnel claimant, but to the person discovering and locating them. The contention of the plaintiff in this case is, that third persons have no right to locate any veins or lodes within a distance of three hundred feet on either side of the line of the tunnel right. We have carefully considered the sections referred to, and weighed the importance of a decision on this point to the mining interest, but we are unable to agree with the plaintiff’s view of the law, which, on casual inspection, would perhaps justify such a constructibn. The section (2323) does not state what shall be the limits of a tunnel right, and there is no reason or authority for saying that it extends to three hundred feet on each side of the tunnel, any more than to fifteen hundred or three thousand feet. In explicit terms, such a right exists only on the line of the vein or lode discovered, whether from the surface or “in the tunnel.” This necessitates our saying what is meant by the “line of the tunnel” ; and as was well said in Tunnel Co. v. Pell, 4 Col. 507, a literal construction of the expression would lead to an absurdity, for a line, geometrically speaking, has length without breadth; while it is equally plain that to say that the statute intended to give the tunnel claimant, three hundred feet on either side of his location as a line of tunnel would be interpolating into the law a provision which it does not contain, and might justly be considered a piece of judicial legislation. In fact, there is no other reasonable or fair construction to be placed on the words “line of the tunnel,” as used in the statute, than that given by the court in the Colorado case. “ It designates a width marked by the exterior lines or sides of the tunnel.” Now, if the line of the tunnel is the width of the tunnel excavation, and no more or less, it follows that the location of defendant’s claim is not within the limits of the plaintiff’s tunnel rights.

The reasonings of the case commend themselves to our view, not only as a proper construction of the rights of the tunnel claimant, but as being in accord with the mining policy of the general government. Counsel for appellant, with great earnestness and ability, press upon our consideration the case of Black v. Sierra Nevada Con. Min. Co., from Idaho, and reported on page 88 of volume 17 Pacific Reporter. We have carefully examined the case, and do not find that it conflicts with our views, but is rather in support' thereof. It appears from the statement that though' the plaintiff had located his tunnel, and marked off its length and line, setting up posts every hundred feet along the line, each post being plainly marked with the name of the tunnel, — at post No. 9 the defendants entered upon his line, sunk a shaft, and at a ■ depth of twelve feet they discovered a lode or vein. The plaintiff alleged, besides the requisite averments, that upon the prolongation of the tunnel along the line marked out, it would pass through the lode or vein discovered by the defendants in their twelve-foot shaft at post No. 9. He prayed for an injunction, which was properly granted; because as long as the tunnel claimant prosecutes diligently his' work, no one has the right to make locations on the line of his tunnel. The question at issue in the cause at bar did not come up in the Idaho case; and what we here decide is, that third persons have a right to locate any veins or lodes within a distance of three hundred feet on either side of the line of the tunnel, but not on the line of the tunnel, which we hold means a line the width of the sides of the tunnel. Of course, any locations so made are at the risk of the locators, for upon the discovery of the vein or lode in the tunnel, all locations made subsequent to the commencement of the tunnel become invalid, if they are within three hundred feet on either side of the vein or lode, and within fifteen hundred feet as located along the vein or lode discovered. As a matter of course, veins or lodes discovered from the surface, or previously known to exist, are not affected by the rights of the tunnel claimant, which we may here remark to be most ample and sweeping. Owing to the importance of the matter to litigants through mining interests, we have thought fit to decide this question presented by the demurrer; but on other grounds the complaint did not state facts sufficient to constitute a cause of action. It will be observed from reading the complaint that the court is asked to infer from certain allegations that the vein or lode discovered by the defendant will be found in the plaintiff’s tunnel. Now, in what direction a vein or lode will continue its course is mere conjecture, and altogether too speculative to be made the basis of an injunction. Especially is this the case when the complaint alleges, as in this instance, that “the trend of said vein appears to be across the tunnel right.” There is an utter absence of any positive allegation that the vein or lode in dispute will cross plaintiff’s tunnel, or that the complainant believes that it will. Nothing is better recognized in pleading than that the facts to support a legal right must be set forth in positive and unequivocal terms; and this rule applies even when averment is made on information and belief. See 1 Estee’s Pleading, p. 182, secs. 109, 110. We conclude that the complaint is wholly insufficient, as well in the accuracy of its allegations as in the legal conclusions to be drawn from the facts stated.

The judgment of the lower court is affirmed, at cost of appellant.

Judgment affirmed.

McConnell, C. J., and Bach, J., concur.