dates from the date of the entry and payment, and not from the date of the patent; and the reservation in the patent relates to that date, and therefore antedates the mining location of the defendants. The plaintiff in each case has the legal title to the mine, as well as the land, and is entitled to recover the lode from which it has been ousted, and it is so ordered. 'CHEESMAN ET AL. V. SHREVE ET AL, (37 Federal Reporter, 36. In the Circuit Court of the United States; District of Colorado. 1888.) The dip right a federal question. The claim of right to follow the dip under terms of Sec. 2822, R. S. U. S., makes a substantial question involving construction of a Federal statute and giving Federal jurisdiction. 'Prima facie trespassers. Parties claiming the right to pass beyond their own lines within the lines of another in the exercise of the right to follow the dip, are prima facie trespassers. Preliminary injunction. Where the affidavits are conflicting, a preliminary injunction will be issued against alleged trespassers, leaving the question of the title to the property to be settled by a suit at law. In Equity. On bill for injunction. Application for injunction by Walter S. Cheesman and others against James A. Shreve and others to prevent trespass upon mining lands. C. J. HUGHES, JR., for complainants. B. F. MONTGOMERY, for defendants. These defendants are entering beneath the surface, within the side lines of ground patented to complainants, and seeking to mine and take ore therefrom. Prima facie they are trespassers. They justify this entrance under authority of the laws of the United States, and especially Section 2322 of the Revised Statutes, which give to the owner of a vein, lode, or ledge, the top or apex of which lies within the surface lines of his own location, the right to follow that vein downward, outside of the side lines of his location, and into territory whose surface belongs to another. Involved in their claim is the question whether there is such a vein as is provided for in that section; a question as to the right of entrance, as affected by priority of location and the dip of 1 Blue Bird Co. v. Murray, 23 Pac. 1022. the vein. These questions are presented, and, whatever may be the true answers thereto, it is obvious, from past judicial expressions, that they can not be considered as a mere sham, or pretended, but as real, substantial questions. Hence, as questions arising under the laws of the United States, they present a case cognizable by the court: Frank M. Co. v. Larimer Co., 8 Fed. 724; Starin v. New York, 115 U. S. 248. As the defendants are entering within the side lines of complainant's property, prima facie they are trespassers; and where the affidavits, upon an application for a preliminary injunction, are conflicting, the rule is to preserve the possession as against such prima facie trespassers by a preliminary injunction, leaving the question of title to the property to be established by a suit at law. Temporary injunction will issue upon the giving of a bond in the sum of $25,000, conditioned according to law. 1 MONTANA CO., LIMITED, V. CLARK ET AL. (42 Federal Reporter, 626. In the Circuit Court of the United States; District of Montana, 1890.) Triangle shaped claim. When a claim is located in the form of an isosceles triangle, the locators can not follow down their vein on its dip beyond the exterior lines of the location. Parallelism in end lines is essential to the exercise of such right. Veins within lines extended downward vertically but its apex outside. Defendants owned a claim which included the apex of a vein which dipped under, and so, on its dip, came within the lines of plaintiff's adjoining claims. The defendants, although covering the apex, could not follow down underneath plaintiff's claim because defendant's end lines were not parallel. Held further, that plaintiff was not the owner of the vein underneath its own side lines because it did not have the apex within its lines. Destruction of tunnel enjoined, though both parties without title. Plaintiff had already run a tunnel into and defendant was driving an incline toward, parcel of a lode, the title to which the court considered to be in the United States-the incline threatening to break in and destroy plaintiff's tunnel. Held, that defendant should be enjoined from breaking into the tunnel, and so interrupting the first possession of plaintiff. 1 See Gilpin v. Sierra Nev. Co. 23 Pac. 547. In equity. Bill for an injunction. Rev. St. U. S. § 2322, provides that the locators of all mining claims shall have the exclusive right of possession and enjoyment of all the surface included within the lines. of their location, 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 location. CULLEN, SANDERS & SHELTON and E. W. TOOLE, for complainant. MCCONNELL & CLAYBERG, for defendants. KNOWLES, J. The plaintiff moves for a judgment on the pleadings. This presents the question as to whether there are any material issues presented by them. The plaintiff sets forth that it is the owner in fee simple of the Drum Lummon lode claim and the Marble Heart lode claim, and of all the precious ores therein contained, and was, at the commencement of this suit, in the possession of said premises, except so much as defendants wrongfully withheld from it; that in said premises is a vein or lode which runs through said Drum Lummon lode claim, and on its dip passes out thereof into the said Marble Heart lode claim; that plaintiff has for a long time past been engaged in working and mining upon said lode claims, and at great cost and expense has driven tunnels and drifts in, along and upon said vein or lode, from said Drum Lummon claim into said Marble Heart claim, which are necessary in order to enable plaintiff to work and mine its said mining claims; that defendants, commencing upon the Hopeful claim, have drifted into said Drum Lummon lode or vein in the Marble Heart claim, and have approached so near to the tunnels, drifts and workings of plaintiff in said claim as to endanger the same, and destroy them and the use thereof by plaintiff, and that VOL. XVI-6 defendants threaten, by means of their shaft or incline, to enter into the tunnels, drifts and workings of the plaintiff, and to destroy the same, and to deprive the plaintiff of the use of the same, and are so near to the workings of plaintiff as to be dangerous to plaintiff's workmen and employes, and, if permitted to continue, will greatly damage and injure plaintiff's property; and that defendants threaten to enter into plaintiff's Drum Lummon lode, and to extract the ores, quartz rock and precious metals therein contained. The defendants in their answer do not deny the title of the Drum Lummon lode claim and Marble Heart lode claim to be in plaintiff. They admit that plaintiff has driven tunnels and drifts in said claims. They admit that the location of the Hopeful claim was made subsequent to the other two claims above named, and that plaintiff was in possession of said two claims. Defendants admit that their shaft or incline has reached very near to the tunnels, drifts, and workings of plaintiff, and that by their incline they have passed out of their side lines, and within the side lines of plaintiff's Marble Heart claim. There was some doubt in my mind as to whether the complaint did not present such an issue as should call for the determination of the legal title to the place of the alleged trespass of defendants before the court could grant the relief asked by plaintiff, namely, a perpetual injunction restraining defendants from committing the acts complained of. There seems to be no claim on the part of the defendants but that the complaint states a sufficient cause of action. The complaint, with the admissions in the answer, probably dispenses with any such proceedings as above indicated on the part of the court. The defendants, in what they term a "cross-bill," disclose their defense, and justify their action of entering by means of an incline from the Hopeful claim into the Marble Heart claim. Although the defendants term this part of their pleadings a "cross-complaint," the court is justified in treating it as an answer, setting up new matter constituting a defense. This undoubtedly is what the pleading is. The plaintiff has so treated it by replying to it instead of answering it. In taking this position as to this pleading I am justified by the case of Doyle v. Frank |