Empire Mill. & Min. Co. v. Tombstone Mill & Min. Co.

Citations

• 131 F. 339
• 1904 U.S. App. LEXIS 4906

Syllabus

<p>1. Mixes and Mixing — Location oe Claim — Errors.</p> <p>AVliere tlie locators of a mining claim mistook the direction of the vein manifested by the outcrop of ore on the surface, and laid out their claim crosswise instead of lengthwise of the vein, the original side lines of the claim became the legal end lines, and the original end lines became the legal side lines, so that the locators were entitled to follow the vein within the surface lines of the claim on its downward course into the earth so far as it departs from a perpendicular as to carry it underground beyond the legal side lines to a point where it shall he cut off by its legal end lines vertically extended perpendicularly in their own direction.</p> <p>2. Conversion op Ore — Trespass—Estoppel—Pleading.</p> <p>AVhere, in an action to recover for the conversion of ore, plaintiff took the ground that defendant was a naked trespasser when he took away the ore underneath the surface lines of plaintiff’s claim, plaintiff could not plead that defendant was estopped to claim the right to remove such ore under a contract between the parties for the development by defendant of plaintiff’s mine.</p> <p>3. Contracts — Money Paid — Misapplication—Recovery.</p> <p>AVhere plaintiff paid money to defendant under a contract by which defendant agreed to develop plaintiff’s mine,' but the money was in fact expended by defendant in cutting inclines, drifts, etc., wMcli either helped defendant directly in getting out its own ore, or developed workings whieh might have shown other ore belonging to defendant if they had not proved barren, plaintiff was entitled to recover the money so paid.</p>