12. Argument for Appellant. ways obtains in favor of the owner of the surface against others seeking to take vein areas or ores therein beneath it. Del Monte Mining Co. v. Last Chance Mining Co., 171 U. S. 55, 66; Montana Mining Co. v. St. Louis Mining Co., 194 U. S. 235, 239; Mammoth Mining Co. v. Grand Central Mining Co., 213 U. S. 72. Plaintiffs must prove a valid location anterior to the Black Rock patent and location, for they have admitted the latter to be valid. The presumption could not apply in favor of the plaintiffs on their Elm Orlu claim because: (1) The finding with respect to discovery and marking replaced both presumption and evidence; (2) the Elm Orlu having affirmatively alleged the facts in that regard attempted to prove them; (3) a presumption cannot flow from a record not authorized by law; (4) when the only step proven-the record-appears on its face to have been taken contrary to law, it cannot form any basis for a presumption that either of the other two steps were taken in accordance with law; (5) the Elm Orlu as an extralateral claimant can have no aider by presumption to take ores from beneath the Black Rock or Jersey Blue surface. [Counsel here cited and analyzed Hickey v. Anaconda Mining Co., supra; Washoe Copper Co. v. Junila, 43 Montana, 178; Creede Case, 196 U. S. 337; Calhoun Gold Mining Co. v. Ajax Gold Mining Co., 182 U. S. 499; Baker v. Butte City Water Co., 196 U. S. 119; Lawson v. United States Mining Co., 207 U. S. 1; Hussman v. Durham, 165 U. S. 144, 148; Clason v. Matko, 223 U. S. 646; El Paso Brick Co. v. McKnight, 233 U. S. 250.] The actual notices of location were void and the Black Rock gained priority upon the constructively valid location born of its earlier patent. Hickey v. Anaconda Mining Co., supra; Baker v. Butte City Water Co., supra; Van Buren v. McKinley, 8 Idaho, 93; 2 Lindley on Mines, §§ 384, 385; Cloninger v. Finlaison, 230 Fed. Rep. 98; Clason v. Matko, supra. Argument for Appellant. 249 U. S. Plaintiffs' "holding and working" allegation was wholly unproven, and if proven would have been immaterial: (1) Because not made the basis of the application for patent, such working may not now be relied on to create for the benefit of the patent an earlier priority, or for any purpose; (2) the segregation, if the statute provided therefor, would only be complete at the end of the period of holding. Plaintiffs may not go back to any other pre-patent claim than the one they used as a basis for their application for patent. 3 Lindley on Mines, § 783, p. 1920; Jacobs v. Lorenz, 98 California, 332. The evidence and findings do not warrant the claim that the Black Rock locators had actual knowledge of the facts concerning the Elm Orlu. The Black Rock locators enjoyed the same right as any other citizen to locate any ground not theretofore segregated by a prior valid location. There could not be constructive segregation and private ownership of extralateral rights in the Elm Orlu on November 6, 1875, as to some citizen third persons, and no such rights as to others. If you could dispense with recording in Montana, equally could you dispense with marking of boundaries, so that a mere oral claim publicly asserted in connection with a discovery would be the equivalent of a complete valid location. Thus a quarter or possibly a half a century later, the question of priority of extralateral rights under patents, involving millions in ore values, might turn on mere oral assertions of claim and oral notice thereof. The act of Congress does not contemplate any such possibility. If knowledge by a third party of some step in an incomplete or invalid location by another were sufficient to protect the latter, forever, without compliance with the law, the United States statute (Rev. Stats., § 2324) would be set at naught. That statute positively requires mark 12. Argument for Appellant. ing of the boundaries. It likewise specifies some matters that recorded notices must contain. Notice or knowledge cannot be said to dispense with these requirements, even as against third persons. Yosemite Mining Co. v. Emerson, 208 U. S. 25, is not at all in point. There the relocation was of the identical surface, so that there never could be two valid locations. When the Black Rock owners included in their application for patent surface in conflict with the Elm Orlu, they set in motion a statutory proceeding under § 2336, Rev. Stats., that must necessarily result in a determination of right as between those two claims. Had the Elm Orlu people adversed, they must have claimed this conflict as a part of the Elm Orlu, and the resultant suit would necessarily have depended on and determined priority of location, at least in the absence of special dealings between the parties. It is submitted that there can be but one single and uniform priority in one location as against another. If this be so, did not the surrender of the Elm Orlu with respect to the fraction necessarily operate to establish priority for all time for the Black Rock as a single entire claim against the Elm Orlu? Bunker Hill Mining Co. v. Empire State-Idaho Mining Co., 109 Fed. Rep. 538; Empire State-Idaho Mining Co. v. Bunker Hill Mining Co., 114 Fed. Rep. 417; Round Mt. M. Co. v. Round Mt. S. M. Co., 36 Nevada, 543. Mr. W. H. Dickson, with whom Mr. J. Bruce Kremer, Mr. A. C. Ellis, Jr., and Mr. William Scallon were on the briefs, for appellant: The location certificate of the Elm Orlu claim was defective, not being verified as required by Montana Laws, 1873, ex. sess., p. 83. Under the Montana decisions this defect made the location invalid. Butte Northern Copper Co. v. Radmilovich, 39 Montana, 157; Ferris v. McNally, Argument for Appellant. 249 U. S. 45 Montana, 20; and cases cited in note, post, p. 25. Compliance with the state regulation, not conflicting with any federal regulation, was essential, Baker v. Butte City Water Co., 28 Montana, 222; s. c., 196 U. S. 119; Belk v. Meagher, 3 Montana, 65; s. c., 104 U. S. 279, 284; Garfield Mining Co. v. Hammer, 6 Montana, 53; Clason v. Matko, 223 U. S. 646; 1 Lindley on Mines, § 249, pp. 544-5; 2 id., § 329; and the interpretation of the regulation by the state court should be accepted by the federal courts. Clason v. Matko, supra. To authorize the courts to give effect to a mining patent as of a date anterior to the final entry, it must be made to appear that prior to that date there was a valid location upon which the patent issued; and in this connection it must be borne in mind that the owners of the Black Rock claim, having obtained their patent on an earlier application, and there being no surface conflict, were not called upon and had no standing to adverse the Elm Orlu application. Last Chance Mining Co. v. Tyler Mining Co., 61 Fed. Rep. 557, 565, 566; Hickey v. Anaconda Mining Co., 33 Montana, 46; Uinta Tunnel Mining Co. v. Creede & Cripple Creek Mining Co., 119 Fed. Rep. 164; s. c., 196 U. S. 337, 353, 354. The question whether or not the patent related back to the date of the location was not involved in Calhoun Gold Mining Co. v. Ajax Gold Mining Co., 182 U. S. 499. Lawson v. United States Mining Co., 207 U. S. 1, and El Paso Brick Co. v. McKnight, 233 U. S. 250, distinguished. Sections 2292 and 2294, Montana Rev. Code, 1907, properly construed, do not validate the Elm Orlu location and could not so operate without impairing rights vested under the Black Rock claim. Presumptively the owners of the Black Rock claim are the owners of all the veins and ore bodies found within the exterior limits of the claim extended downward vertically. Leadville Mining Co. v. Fitzgerald, 15 Fed. Cas. 12. Argument for Appellant. No. 8158. That this presumption can only be overcome by clear and satisfactory evidence is well settled. Appellant denies that the apex or any portion of the apex of the "Pyle strand" is found anywhere within the Elm Orlu. Where its apex is found is altogether conjectural. For aught that appears from the evidence, it may have its apex in the Black Rock and, indeed, this is probably the case. Heinze v. Boston & M. Mining Co., 30 Montana, 487; Consolidated Wyoming Gold Mining Co. v. Champion Mining Co., 63 Fed. Rep. 540, 550. Indeed, in the case at bar, the District Court reached the conclusion that the evidence failed to support the plaintiffs' contention in this regard. Respecting that vein, therefore, a definite and conclusive decree in favor of the defendant should have been entered. It is well settled that a supplemental bill should not be allowed, or a rehearing granted, after final decree, upon new evidence which the plaintiff (as in this instance) with reasonable diligence could have discovered before beginning the suit. Jenkins v. Eldredge, 3 Story, 507, 509, 510; Quaint v. McMullen, 103 California, 381; and other cases. See also Detroit v. Detroit Street Ry. Co., 55 Fed. Rep. 569, 572; Callaghan v. Hicks, 90 Fed. Rep. 539-542, 543; Electrical Accumulator Co. v. Brush Electric Co., 44 Fed. Rep. 602–604. The deed of the plaintiff Realty Company granted the fractional interest in "all earth, rock and ores" found within the exterior limits of the Black Rock claim extended downward vertically. This is its plain language, and gauging the intent by the situation of the parties but one conclusion can be drawn from the testimony, viz, that the acquisition of the Rainbow vein, within the Black Rock claim, was the chief incentive for paying a large price for the conveyance, and the grantee must have understood that this was being conveyed, for it was the only thing of value within the latter claim, so far as the parties then knew. |