Bourne

These cases were by the stipulation of the respective parties consolidated “for the purpose of trial, appeal, and other proceedings” therein — the complaint in each of the actions, in so far as the complainant’s alleged title is concerned, being, according to the stipulation, identical, and the defenses set up in the answers very similar.

[1] The question involved is the ownership of certain ore bodies found beneath the surface of the patented mining claim Ontario, situated in Shoshone county, Idaho, owned by the appellee Jonathan Bourne, Jr. Presumptively, therefore, they belong to the owner of that-claim. Lawson v. United States Mining Co., 207 U. S. 1 , 28 Sup. Ct. 15, 52 L. Ed. 65 . Their ownership, however, is asserted by the complainant in the cases, the appellant here, and owner of an adjacent mining claim called Senator -Stewart Fraction, by virtue of the provisions of section 2322 of the Revised Statutes (Comp. St. 1913, § 4618), conferring upon the owners of mining claims extralateral rights under certain prescribed conditions.

It appears from the stipulation of the parties that a similar action was previously brought by the Stewart Mining Company against certain…