Glacier Mountain Silver Mining Co. v. Willis

Mr. Justice Lamar,

after stating the case as above reported,, delivered the opinion of the court.

The opinion of the court below is not found in the record, and we are not advised by brief or otherwise as to the grounds *480 upon which the court sustained the demurrer. We must, therefore, determine the issues presented in the case by reference to the bill of complaint, and to the causes assigned for demurrer.

.First. That the property sought to be recovered in this action is not described by its legal subdivisions nor by its metes and bounds. We do not think this ground is tenable. The complaint, after setting forth the location by plaintiff’s grantors of the tunnel and tunnel site in Snake River mining district, Summit County, Colorado, at the base of the Glacier Mountain, states that they (said grantors) caused to be made out and recorded in the recorder’s office of the county aforesaid, a location certificate of said tunnel claim, which said certificate described the location and boundaries of said tunnel claim; that the .said tunnel claim was by its locators named the Silver Gate tunnel claim, and is described more fully as follows : “ Commencing at the base of said Glacier Mountain east of Bear Creek, and running southeast and parallel with Coley tunnel through said mountain five thousand feet from the mouth or starting point ■of said tunnel at a stake marked and in or at the mouth of said Silver Gate tunnel, and two hundred and fifty feet northeast and two hundred and fifty feet southwest from said stake or tunnel to its termination.”

We think this description is sufficiently plain and distinct to ■enable the sheriff in case of a recovery to execute a writ of possession, or to enable a surveyor to ascertain the exact limits of the location. The strict rule of pleading -which formerly required exact accuracy in the description of premises sought to be recovered, has, in modern practice, been relaxed, and a general description of the property held to be good. The provisions of state statutes as to the description of the premises by metes and bounds, have been held to be only directory, and a description-1 by ñame where the property is well known is often sufficient.

As to the second cause of demurrer, we think that, though the lodes alleged to be embraced -within the said funnel site location are not each separately described,- the-, statement in the complaint that all the lodes in the tunnel claim have, been *481 worked and mined by the plaintiff and- its grantors, comprehends every part of the property for the recovery of which the action is brought.

With reference to the third ground of the demurrer, it is only necessary to say that the complaint alleges that a valid and legal location of said tunnel was made by persons under whom the plaintiff claims, and that the plaintiff held possession of the same for more than five consecutive years prior to the ouster by the defendants,, and paid all the taxes during' that period legally or otherwise assessed upon said property. This, under the laws of Colorado, would • give the plaintiff- a right to the premises in dispute superior to any other claim, except that of. the government.

The fourth ground of demurrer is: “ That the claim of the said plaintiff to a strip of ground 5000 feet in length by 500/ feet in width as a tunnel site is unwarranted, and • unprecedented and was not at the date of said pretended location nor at any time subsequent thereto authorized by any local, state, or congressional law.” Under § 2323 Rev. Stat. the right is given to locate a tunnel 3000 feet from the face of said tunnel, and the right is also given to -the lodes discovered in said tunnel “ to the same extent as if discovered from the surface,” which, is 300 feet on each side of the tunnel. Under the local laws of Colorado the right is given to “ 250 feet each way from said tunnel on each lode so discovered.” 1801, § 5 General Laws of Colorado, 627. The objection presented by the demurrer is, 'that the tunnel is 5000 feet in length, whereas the statute only recognizes a right of 3000 feet from the mouth thereof, and that this renders the whole claim void.

., We do not assent to this proposition. The-location would be good to the extent of 3000 feet at least. Richmond Mining Company v. Rose, 114 U. S. 576, 580. This would be true had the location- been made under the mining laws now in force. It will be observed, however, that this location was made prior to the passage of any general mineral law. It was made in 1865, and the first general statute passed by Congress on the subject is that of July 26, 1866. ‘ It is alleged by the plaintiff in error that this location was made in accordance *482 with' the local rules and customs of miners in force at the time of the location, and that, therefore, such location was recognized and protected by the general mineral laws of July 26, 1866,14 Stat. 251, and that of May 10,1872, 17 Stat. 91. This allegation, however, is denied by the defendants; but as these local rules and customs differ in the several mining districts as to the extent and character of the mine, the question cannot properly be determined on demurrer.

The-Land Department of the government, and this court also, have always acted upon the rule that all mineral locations were to be governed by the local rules and customs in force -at the time of the location, when such location was made prior to the passage of any mineral law by Congress. Jennison v. Kirk, 98 U. S. 453, 457 ; Broder v. Water Co., 101 U. S. 274, 276; Jackson v. Roby, 109 U. S. 440, 441; Chambers v. Harrington, 111 U. S. 350, 352.

We are, therefore, of the opinion that the cause of action is plainly and fully set forth in the complaint, and that the judgment of the court below cannot be sustained on any ground presented by the record.

The judgment of the Circuit Cowrt is therefore, reversed, and the cause remanded to that cowrt for such further proceedings as a/re consistent with this opinion. So ordered.