This is an action to recover certain mining ground, being part of what is known as the 'Adelaide Lode,' in Lake county, Colorado, lying within the California mining district. It was originally brought in the name of Frederick S. Van Zandt, who claimed to be the owner of the lode. Subsequently he transferred his interest to a corporation, created under the laws of New York, known as the Terrible Mining Company, and by consent of parties that company was substituted as plaintiff in the action. To the original complaint an answer was filed by the defendant, the Argentine Mining Company, a corporation created under the laws of Missouri, to which a replication was made. To the complaint, amended by the substitution of the Terrible Mining Company as plaintiff, a new answer, substantially the same as the one to the original complaint, was filed, but it does not appear from the record that any replication was made to it. The parties seem to have considered the replication to the original answer as sufficient, for the trial was had without any reference to this omission. Its absence cannot be made in this court, for the first time, a ground of objection to the subsequent proceedings. Nor do we consider counsel of the plaintiff in error as making any point upon the omission, although he calls our attention to it.
The plaintiff below (defendant in error here) is the owner of the Adelaide mining claim. The defendant below (plaintiff in error) is the owner of three other mining claims, called, respectively, the 'Camp Bird,' the 'Pine,' and the 'Charlestown' lode claims. All these claims lie in the same mining district. The Adelaide claim was located in 1876. The other claims were located in 1877. The Adelaide claim occupies on the surface longitudinally a northeast and south-west direction. The Pine, Camp Bird, and Charlestown claims occupy a position nearly north and south, with end lines practically east and west, thus crossing diagonally the Adelaide claim. During the summer of 1880, the defendant below carried its mining operations through its own ground into the Adelaide claim, and it justifies its action in this respect by asserting that in doing so it followed a vein which has its outcrop or apex within the surface of its own locations. It cites section 2322, Rev. St., in support of its position. That section provides that locators of mining claims, previously or subsequently made, on any mineral vein, lode, or ledge on the public domain, to which no adverse right existed on the tenth of May, 1872, 'so long as they comply with the laws of the United States, and with state, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward, as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges.'
And the defendant requested the court to instruct the jury as follows: 'The law provides that upon a location properly made the claimant shall have the vein upon which the location is made, and all other veins and lodes having their top or apex in the territory within the lines of the location, and not only within the body of the claim within the lines of the location, but beyond those lines as far as the vein or lode may, in its descent into the earth, pass beyond those lines, and within the end lines of the location. The defendant here claims that the lode in controversy originates in its patented territory, by its top or apex, and descends upon its dip through and under the ground in controversy. If, from the preponderance of evidence, you believe that the top or apex of the lode in controversy does, in fact, originate within the patented territory of the defendant, and descends upon its dip into the ground in controversy, your verdict should be for the defendant.' This instruction the court refused to give, and the defendant excepted.