Appeal from the Circuit Court of the United States for the District of Montana. •

Suit by the South Butte Mining Company against Lulu P. Largey Catron, as administratrix of the estate of Patrick A. Largey, deceased, and others. Prom a decree for complainant, defendants appeal.

On February 23, 1902, patent was issued to Patrick A. Largey, Noah Armstrong, and the heirs of Robert P. Hopkins, for the .Otisco lode mining claim. Thereafter, Armstrong conveyed his interest to Largey, and on July 19, 1896, Largey and his wife executed to Emery, Colbert, and Tong, a deed for their undivided two-thirds interest in “the following described surface ground of the Otisco mining claim.” Then followed the description of the portion conveyed, and the following: “It being understood that the surface only is hereby conveyed, and that all minerals and metals and ores below the surface, with the right to mine, prospect for, and extract the same, is hereby reserved to the parties of the first part, their heirs, representatives, and assigns, and excepted and excluded from and not passed by this conveyance. But the said parties of the first part, their heirs, representatives, and assigns, covenant and agree that they will not mine or excavate under the surface of that portion of the lot above described, and which is covered by the said Otisco lode, nearer to the surface than twenty (20) feet from the present surface of the ground, but will, in their mining operations, leave twenty (20) feet below the present surface- of the ground for support. But they do not obligate themselves, or. their heirs, representatives, or assigns, to support or maintain the said twenty (20) feet by timbers or otherwise, but only not to mine or excavate within twenty (20) feet of the present surface.” Thereafter the- Montana Central Railway Company, which had acquired the interest of Colbert, Emery, and Tong under said deed from Largey and wife, procured a conveyance from the heirs of Robert P. Hopkins, deceased, and later conveyed its interest to the South Butte Mining. Company, the appellee herein. The deed from- the heirs of Hopkins to the Montana Central Railway Company contained the following provision: “And the said parties of the first part, for themselves, their heirs, personal representatives, and assigns, covenant and agree that they will not mine or excavate under the surface of that portion of the Said Otisco lode claim which is hereinbefore described, and hereby conveyed, nearer to the surface, thereof than twenty (20) feet, hut will so conduct their - mining operations as not to injure the surface rights hereby conveyed, find.so .as’to at all times,abundantly protect said surface with-a depth of twenty (20) feet thereunder.” . .

The appellee,- as complainant in the court below, brought the present suit to quiet its title as against the claims of the- heirs at law of Patrick A. Largey,, deceased, the appellants herein, and others. In its amended and supplemental "bill, after describing the portion of the surface ground of the lode claim conveyed by Largey and wife to Emery, Tong,' and Colbert, it proceeds to allege: “That there is excepted from the land herein described all the ore, quartz, and rock-in place, lying beneath the. surface and within the limits of .the Otisco mining claim.” All of the defendants in their answers and cross-bills asserted a claim of title in and to a portion of the' lands described in the bill. Upon the issues made, the court below entered a decree, adjudging that the appellee is the owner in fee of the surface of the said land,- together with the right to have the said surface, with 20 feet underlying the same, undisturbed by mining operations or otherwise, and also is the owner of the right to subjacent support for the said surface; .that, as to said lands ¿.portion of the defendants (the appellants herein) are the owners of an undivided two-thirds interest in. and to all the ores, leads, lodes, veins, and ledges, and all the minerals .in the same, and the decree contains the further provision: “Should mining operations be conducted underneath the said surface by the said defendants, or any of them, or their servants, agents, or successors in interest, they shall so conduct their' mining operations as not to injure the said surface right, and so as to at all times abundantly protect said surface with a depth of twenty (20) feet thereunder.”