ON THE AMERICAN LAW RELATING TO MINES WITHIN THE PUBLIC LAND STATES AND TERRITORIES AND GOVERNING THE ACQUISITION AND ENJOYMENT THE PUBLIC DOMAIN BY CURTIS H. LINDLEY OF THE SAN FRANCISCO BAR SECOND EDITION IN TWO VOLUMES VOLUME II "I hold every man a debtor to his profession; from the Bacon's Tracts. "Et opus desperatum, quasi per medium profundum -From Dedication of Justinian's Institutes. SAN FRANCISCO BANCROFT-WHITNEY COMPANY 1903 CHAPTER III. THE EXTRALATERAL RIGHT. ARTICLE I. INTRODUCTORY. II. EXTRALATERAL RIGHTS ON THE ORIGINAL LODE UNDER III. EXTRALATERAL RIGHTS FLOWING FROM LOCATIONS MADE IV. CONSTRUCTION OF PATENTS APPLIED FOR PRIOR, BUT ISSUED V. LEGAL OBSTACLES INTERRUPTING THE EXTRALATERAL RIGHT. 2564. Introductory.-The extralimital rights of a lode locator, other than the right to pursue the vein on its downward course out of and beyond his vertical bounding planes, are few and comparatively unimportant. The right to locate and hold a millsite in connection with a located lode under the first clause of section twenty-three hundred and thirty-seven of the Revised Statutes may be said to be extralimital. It is wholly dependent upon lode ownership. A loss of the lode 303483 location by forfeiture or abandonment would undoubtedly destroy the right to the associated millsite, unless it had thereon a quartz-mill or reduction works, when an entry might be made thereof under the second clause of that section. But the selection of a millsite is an independent act.1 It is a privilege which may or may not be exercised. The same may be said of the permission granted under the various laws of congress to cut timber for mining purposes upon public lands, which is a mere transitory privilege, not to be classified distinctively as a right.2 The principal right which may be exercised beyond the surface boundaries of a lode location is that which is now commonly designated by the term "extralateral.” 3 In determining the nature and extent of this right, it will be necessary to consider not only the provisions of the Revised Statutes, but also the act of July 26, 1866. As we have heretofore observed, to a considerable extent this act and the titles predicated upon it are brought into connection, and are at least partly blended with the later, or present, legislative system and the titles held thereunder. 2 565. Origin and use of the term "extralateral."The word "extralateral" does not appear in any of the standard dictionaries. We are indebted to Dr. Raymond for its introduction into the mining literature 1 Ante, § 521. The privilege of cutting timber from the public lands, both mineral and non-mineral, is not confined to locators, or even owners, of mining claims. Under regulations prescribed by the secretary of the interior, it may be enjoyed by a large class of people. It is a subject not so intimately associated with the mining laws as to warrant any extended treatment in the text. It will be found discussed in the appendix, where an outline of the federal legislation and departmental regulations may be consulted. 3 Ante, § 60, of the period.1 Its etymological signification is obvious. Its application, to denote the right to pursue a vein on its downward course, outside of and beyond vertical planes drawn through the side-lines of a lode location, into and underneath the surface of adjoining or contiguous land, affords us a simple and comprehensive term with which to express a somewhat complex idea. The phrase "right of lateral pursuit," employed by Mr. Willard Parker Butler,2 is an equivalent. Either expression, when used in connection with the federal mining laws, is free from ambiguity and sufficiently explicit. 2566. The "dip right" under local rules. - The "dip right" of the early miner was the forerunner of the modern extralateral right. Whether, in framing their local regulations on this subject, the pioneers of the west drew their inspiration from the traditions of early German customs, which sanctioned the inclined location, received their suggestions from mining on "rake veins "in Derbyshire, or were induced to provide for following their vein on its dip indefinitely, on the consideration that the miner might obtain more that was valuable by this method than any other, is not at this late day necessary to inquire. The fact remains that ever since the discovery of the auriferous quartz veins of California, the “dip right " in some form has been an all-important attribute of the ownership of lodes and lode locations. The local regulations which established and governed this right, as well as all others during that period, were not framed with serious regard to precision of expression. The locator Law of the Apex, Trans. Am. Inst. M. E., vol. xii, p. 387. 3 Ante, § 43. * Ante, § 8. |