"or lode, will own all within his lines without being able "to go beyond them. For, as to his right to go into other territory, he can only do so in pursuit of a lode, or vein, "that has its top and apex wholly in his own ground, and having but a part of the lode in his territory he cannot comply with that condition. This appears to be a clear "inference from the language of the act. The right given "relates to veins, lodes, and ledges, the tops of which are "inside the surface lines, which obviously means the whole, "and not a part. If, then, two or more collateral locations "be made on one and the same vein, and the vein appear "to be homogeneous throughout its width,,we are author"ized to say, that each shall be confined within his own "lines drawn down vertically.

Dr. Raymond illustrates the effect of this rule by a simple geological cross-section, as shown in figure 36, drawn

66

A B

FIGURE 36.

through the end lines, 1 2 and 23. Dropping a vertical plane through the common side line, 2 5, leaves but a small triangular segment of the vein to A., and a similar plane drawn through the side line, 34, shows the extent of B.'s rights between the two planes.

At the next trial of the case, Justice Miller charged the jury as follows:

"There is introduced, both by plaintiffs and defendants, evidence tending to prove "that the claims of both parties are located on the "same vein, or lode, of mineral-bearing rock in place, "the general apex, or upper surface, of which is about "one hundred feet wide. If the jury believe this to "be true, then I instruct you, as the law of this case, that plaintiffs, having the prior title from the United States "to that portion of this lode within the lines of their "patent, extended vertically downward to the earth's cen"ter, and the defendant having contested plaintiffs' right "to receive a patent for the parts of the lode in controversy,

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The claims were each fifty feet wide.

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"in the court of the territory, according to the act of congress on that subject, and failed in that contest, and having accepted and read in evidence a patent for their "own claim, which expressly excepts out of its granting "clause the interfering parts in plaintiffs' said patent, "the law of the case is for the plaintiffs, and they are "entitled to all the mineral found within the side lines of "their patent, extended downward vertically."1

When we consider that the defendants' location of the Equator was prior in point of time to the plaintiffs' Grand Central, if the defendants could lawfully base an extralateral right upon the part of the apex within the Equator, they could not be deprived of it by patenting to another the surface overlying the dip. Asserted underground rights are not the subject of adverse claims. Such controversies are confined to surface conflicts. Justice Miller's views are in practical accord with Judge Hallett's.

A case somewhat similar to the Grand Central-Equator controversy came before the supreme court of Utah territory. The facts found by the trial court, which finding was accepted by the appellate tribunal, presented a case where the first locator had the apex of a vein entirely within the surface lines of his claim for a portion of its length, and the remaining portion partly within and partly without, the excluded portion being embraced within the boundaries of a coterminous junior location.

The majority of the appellate court held, that under the act of 1872,

"The discoverer of any part of the apex gets the right "to its entire width, despite the fact that a portion of the "width may be outside of the surface side lines of his "claim, extended downwards vertically. While he has no right to the extralateral surface, he has a right to the "extralateral lode beneath the surface."

Judge Boreman dissented, practically accepting the doctrine of Judge Hallett in the Equator case.

1 See note, 11 Fed. cases, No. 5931, p. 225.

2 Champion M. Co. v. Cons. Wyoming M. Co., 75 Cal. 78, 82. Bullion, Beck & Champion M. Co. v. Eureka Hill M. Co., 5 Utah, 3.

TT

The case of Rose v. Richmond Mining Company1 was decided by the supreme court of Nevada upon the assumption that the first locator took the whole lode to its entire width. No issue was raised as to this point. It was conceded by both parties to the litigation. The supreme court of the United States, in its opinion affirming the judgment, gave no consideration whatever to the subject."

Mr. Morrison, in his "Mining Rights," says, that in Colorado the rule announced by Judge Hallett in the Equator case is uniformly followed by the trial courts in that state. Dr. Raymond refers to the rulings by Judges Rising and Rives, district judges in Nevada, as supporting the broad lode theory. He undoubtedly had in mind the Rose-Richmond case, heretofore referred to.

Without doubt, in Nevada, prior to the act of 1866, and in fact after that act had been passed, locations were made of the vein without any attempt to draw side lines. The entire Comstock lode was located in this way, it being popularly conceded that the locus of the east wall of that remarkable zone could not be determined.

But the act of 1872 revolutionized this method, and ever since, the supreme court of the United States has uniformly emphasized the necessity for regarding surface boundaries as the prime factors in determining controverted questions arising out of the mining laws. In our judgment, the reasoning of Judge Hallett and the doctrine announced by him is in full accord with the spirit of the decisions since rendered by the supreme court of the United States, particularly in the Elgin and Amy-Silversmith cases. While the application of the rule may seem inequitable in individual instances, "the rule, whatever 'hardship it may work, should be settled, and thus pre"vent, as far as practicable, such uncertainty."4

If the law possessed elastic properties, and the courts

17 Nev. 25.

2 Richmond M. Co. v. Rose, 114 U. S. 576.

38 ed., p. 112.

4 Iron S. M. Co. v. Elgin M. & S. Co., 118 U. S. 196, 207.

were permitted to act as a board of equitable arbitration, there are several methods suggested by Dr. Raymond by which individual hardships might be relieved; but considering the law and its interpretation by the highest tribunal in the land upon questions of a kindred nature, we can look for no other ultimate result than that announced by Judge Hallett. '

Where there are two veins within a lode, a condition which frequently arises,' each vein is the subject of an independent appropriation, and the broad lode question cannot arise. It is only involved where, as suggested by Judge Hallett, the lode is homogeneous throughout its width. The "broad lode" theory is the legitimate offspring of the "zone" theory, which had its genesis in the Eureka case.

2 584. Vein entering and departing through the same side line. It seems hardly necessary to discuss the question of extralateral rights as applied to a case where the vein enters and departs through the same side line, as illustrated in figure 37.

Even invoking the theory, that under certain circumstances the courts may apply the plane drawn through the line crossed by the lode on its course as it enters the loca

FIGURE 37.

tion, to a line drawn parallel to it through the point on a boundary line crossed on its departure, we can find no room for such a plane in the illustrated case. The two planes in the case assumed would be coincident. Such plane would necessarily cut off the extralateral right.

Planes parallel to those drawn through 1 4 and 2 3 could not be applied at the points xx, for the simple reason, that neither of them are crossed by the vein, and neither of such lines perform the functions of end lines. They are simply side lines, performing no office, except with

United States v. Iron S. M. Co., 128 U. S. 673, 680. See, ante, ? 367.

reference to the intralimital rights. Under the conditions assumed in figure 37, there can be no extralateral right.

A case somewhat analagous in principle to that shown in figure 37 was recently presented to the supreme court of Colorado, for its consideration.'

The controversy arose out of the following state of facts, which may be readily understood by reference to figure 38, a reproduction of the diagram accompanying the opinion of the court.

Plaintiff owned the Smuggler, defendants the Fulton and Mendota claims. The dotted line shows the apex through the claims. The dip is to the south. All the properties were patented, and there was no surface conflict involved. Defendants, in following the vein on its course downward, penetrated underneath the Smuggler surface and had extracted ore from the vein, the point of the alleged trespass being designated on the diagram by the letter A. The defendants justified their presence underneath the Smuggler surface by asserting ownership of the apex in the Fulton ground and the right to pursue the vein in depth by reason of such apex ownership. The court below sustained the contention of the defendant. Hence the appeal.

1 Catron v. Old, decided Feb. 3, 1897, not yet reported.