Lowry v. SILVER CITY G. AND S. MINING CO., 179 U.S. 196 (1900)
Uploaded by
Scribd Government DocsLowry v. SILVER CITY G. AND S. MINING CO., 179 U.S. 196 (1900)
Uploaded by
Scribd Government Docs179 U.S.
196
21 S.Ct. 104
45 L.Ed. 151
MARK K. LOWRY, Delucius L. De Witt, and James G. Smith,
Plffs. in Err.,
v.
SILVER CITY GOLD AND SILVER MINING COMPANY.
No. 104.
Argued and Submitted November 14, 1900.
Decided December 3, 1900.
On January 1, 1889, the Wheeler Lode mining claim, a claim 1,500 feet in
length by 600 feet in width, was duly located on mineral lands situated in
the Tintic mining district, Juab county, Utah. The title to the claim passed
to the defendant in error, and its right thereto was kept alive by regular
performance of the prescribed annual work. On February 8, 1897, it
leased this claim to two of the plaintiffs in error, Lowry and De Witt, for
eighteen months, and those lessees went into possession and continued
work on the mine. On June 4, 1897, the owners of a mining claim called
the Evening Star applied for a patent, and included in their application a
portion of the Wheeler claim. They published due notice of their
application, and the sixty days given by statute for commencing an
adverse suit passed without any such suit by the defendant in error, the
owner of the Wheeler mining claim. Thereupon the two lessees, together
with the other plaintiff in error, Smith, attempted to locate a new claim,
called the Little Clarissa, upon the ground covered by the Wheeler claim.
This attempted location was made two or three days after the expiration of
the sixty days' publication by the owners of the Evening Star, and while
the lessees were in possession under the lease from the owner of the
Wheeler claim. It appears by the surveys that the premises claimed by the
Evening Star included the original discovery shaft of the Wheeler
location, the same being within 2 1/4 feet of the boundary line. It also
appears that the original discovery shaft of the Wheeler claim was sunk
only about 9 1/2 feet in depth, and was then practically abandoned; that
the vein was traceable and was traced on the surface for something like
500 feet within the boundaries of the Wheeler location, and that thereafter
and many years before the lease referred to a new shaft had been sunk on
that vein some 200 or 300 feet in depth at a point far outside of the
Evening Star location and entirely within the limits of the Wheeler
location, and that this was the condition at the time the lease was
executed. The contract of the lessees was that they should sink this shaft a
depth of at least 6 feet each month during the life of the lease and should
not allow or permit any miner's or other liens to be filed against the claim,
or suffer any act or thing whatever to be done whereby the title of the
defendant in error to the claim should be encumbered. After the location
by the plaintiffs in error of the Little Clarissa claim, and a repudiation by
them of the obligations of the lease, the defendant in error filed its bill in
the district court of Utah in and for the county of Juab, to quiet its title,
restrain the defendants from occupying the premises, and for restitution
thereof. This suit was commenced after the publication by the locators, the
lessees, and Smith, of an application for a patent for the Little Clarissa
mine, and within the sixty days required for commencing an adverse suit.
The district court entered a decree quieting the title of the plaintiff,
ordering restitution, and enjoining the defendants from entering upon the
premises, or in any way interfering with plaintiff's possession and
enjoyment of the premises. This decree was affirmed by the supreme
court of the state (19 Utah, 334, 57 Pac. 11), and thereupon this writ of
error was brought.
Messrs. O. W. Powers, Arthur Brown, and H. P. Henderson for plaintiffs
in error.
Messrs. C. S. Varian and F. S. Richards submitted the case for defendant
in error.
Mr. Justice Brewer delivered the opinion of the court:
This was plainly an attempt on the part of the plaintiffs in errortwo of whom
were lessees of the defendant in errorunder the forms of law to appropriate to
themselves property which for years had been in the unchallenged possession of
the defendant in error, and upon which it had expended many hundreds of
dollars. That such attempt was unsuccessful in the courts is no more than was
to be expected.
The supreme court of the state placed its decisions upon two grounds: First,
that, although the Evening Star claim included the original discovery shaft of
the Wheeler claim, it did not thereby destroy that claim in view of the fact that
long prior to the location of the Evening Star the owners of the Wheeler had
located a new shaft and developed the mine in that shaft. Gwillim v. Donnellan,
115 U. S. 45, 29 L. ed. 348, 5 Sup. Ct. Rep. 1110, was held not applicable. The
other ground was estoppel by virtue of the lease under which two of the
plaintiffs in error acquired possession. While the former ground is the one
principally discussed in the opinion, the latter was adverted to in a few words at
its close. The latter is sufficient to dispose of the case in this court. Eustis v.
Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131. See also De
Lamar's Nevada Gold Min. Co. v. Nesbitt, 177 U. S. 523, 44 L. ed. 872, 20
Sup. Ct. Rep. 715, and cases cited in the opinion. The writ of error is dismissed.
