
189 U.S. 1 (1903)
KENNEDY MINING AND MILLING COMPANY
v.
ARGONAUT MINING COMPANY.
No. 49.
Supreme Court of United States.
Argued December 10, 11, 1902.
Decided March 9, 1903.
ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.
*5 Mr. John Malmesbury Wright and Mr. John Garber for plaintiff in error. Mr. Byron Waters was with them on the brief.
Mr. Curtis H. Lindley for defendant in error. Mr. Henry Eickhoff was with him on the brief.
MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.
Plaintiff in error contended in the courts below that, by force of sections 2 and 3 of the act of Congress of May 10, 1872, title to the ore in question passed to it through its patent to the Silva mine, and did not pass to the Pioneer through its patent because the end lines of the latter were not parallel to each other.
The defendant in error contended that its title was not acquired under the act of 1872, but under the act of July 26, 1866, which did not require parallelism of end lines.
In these circumstances it is held by a majority of the court that a Federal question was so presented that we have jurisdiction.
*6 It was stated in the agreed statement of facts that the Kennedy Mining Company on October 13, 1870, filed its application for patent in the United States land office at Sacramento, California, and that a diagram of the premises for which patent was applied for was posted in that land office October 15, 1870; that on January 13, 1871, the Pioneer Gold and Silver Mining Company, the immediate predecessor in title of the Argonaut Company, filed its application for patent in the same land office, and a diagram of the ground it claimed, and for which patent was sought, was posted in the office of the register of the land office, and upon the claim; that there was a surface conflict as to area claimed by the respective applicants for patent, as shown by the proceedings in the land office, the conflict occurring on the northern end of the Pioneer mine as applied for, and the southern end of the Kennedy mine as applied for; that on said January 13 the register and receiver of the land office made and entered an order in respect of the adverse claim of the Pioneer, directing proceedings in the case of the Kennedy Mining Company to be suspended so far as affecting the piece or parcel of land described in the order; that on February 20, 1871, the Pioneer Gold and Silver Mining Company and the Kennedy Mining Company entered into a compromise agreement, in which each of the parties withdrew from their applications their claim to a certain portion of the surface ground in dispute; and which provided that "the dividing line between the claims of the respective companies shall be one drawn at right angles with the general course of the lode or lead, and surface ground thereto appurtenant, and at the point hereinbefore designated." The line thus agreed upon was the line from A to B in the foregoing diagram. Thereafter surveys for the patent for the Kennedy mine and for the Pioneer mine were duly made, and patent was issued to the Kennedy Mining Company, July 29, 1872, and to the Pioneer Gold and Silver Mining Company, August 12, 1872. The Argonaut Company became the owner of the Pioneer mine, July 3, 1893, by a deed from the Pioneer Gold and Silver Mining Company, and the Kennedy Mining and Milling Company became the owner of the Kennedy mine by conveyance from the Kennedy Mining Company, *7 dated December 25, 1886. The Kennedy Mining and Milling Company became the owner of the Silva quartz mine, February 6, 1893, by a patent issued to it on that day, which recited that that company on February 13, 1892, duly entered and paid for the mining claim or premises known as the Silva quartz lode mining claim.
It thus appears that a common end line was established by the patent surveys, which described this line as crossing the lode, and that the Kennedy Mining and Milling Company purchased with the knowledge that this was a common boundary established as such by the patents many years prior to its purchase. The common boundary A B, crossing the lode, was fixed as the result of an adverse proceeding in the land office, and the agreement entered into with respect thereof was as set forth in the agreed statement of facts.
We think, then, that the Kennedy Mining and Milling Company is estopped from asserting any right to the ore body in dispute, which it was also agreed was extracted by the Kennedy Mining and Milling Company from the vein south of the vertical plane drawn through the line A B produced in the direction B, and which was the same vein which had its top or apex in the Kennedy quartz mine, and in the Pioneer quartz mine, and was continuous from the apex of both properties downward to the lowest depths. The boundary line agreed on fixed the rights of the parties in length on the lode, and so involved the extra-lateral right as between them.
The Argonaut Mining Company and the Kennedy Mining and Milling Company succeeded to the interests of the Pioneer Company and the original Kennedy Company, with a knowledge of the boundary line so determined, and both parties were concluded by it and the results following therefrom. Richmond Mining Company v. Eureka Mining Company, 103 U.S. 839, 846.
Apart from the questions discussed by the Supreme Court of California, we are of opinion that the judgment must be affirmed on the foregoing ground.
Judgment affirmed.
MR. JUSTICE WHITE and MR. JUSTICE McKENNA dissented.
