The plaintiff claimed that their extralateral rights on the "Back Vein" were bounded by the perpendicular plane drawn through

the line f g. The defendants claimed as the boun

dary of these rights the plane drawn through vv, which is parallel to gh. The court below found for the defendant.

and g

h were

and that its

The Court of Appeals found that a p the end lines of the Providence claim, extralateral rights as to all veins were bounded by the plane drawn through g h extended.

Carson City G. & S. M. Co. v. North Star M. Co., 73 Fed. 597 (1896), C. C. N. D. Cal. The question

of a right to a patent covering several lode claims, which were located before the enactment of any mineral law by Congress, is within the jurisdiction of the Land Department; and after the same is determined, and a patent issued, the boundary lines as defined by the patent are the lines by which the rights of the parties are to be determined, and not the lines of the several claims of which the patented survey is composed.

Where a vein passes through the east end line of a claim and comes to an end before reaching the west end line, the owner of the claim may follow it on its dip between a perpendicular plane drawn through the east end line and a parallel plane through the western terminus of the lode, provided that in no event shall he pursue it beyond a perpendicular plane drawn through the west end line.

Arizona.

Tombstone M. Co. v. Way Up M. Co., 1, 426 (1883). "If the vein crosses the side lines on its strike, such side lines become the end lines, and terminate the owner's right to follow the vein in that direction."

Plaintiff's claim was located in a northwest and southeast direction; defendant's claim adjoined, the northeast side line of the former being one of the end lines of the latter, which extended in a northeast and southwest direction. Plaintiff claimed that a vein or ledge of mineralbearing rock extended through his claim, substantially parallel with the side lines, and on its dip extended beneath the surface of the claim of defendant, who was extracting ore from it. Defendant claimed that a fissure vein extended through his claim substantially parallel with his side lines, that this vein extended into the plaintiff's claim, and that defendant's shaft was sunk upon this vein. The court, on these facts, found against the plaintiff and denied an injunction.

Brown v. 49 and 56 Quartz M. Co., 15, 152 (1860). California. The first locator of a quartz lode is not confined simply to

the solid quartz actually embodied in the bed rock, but is also entitled to the loose quartz and rock and decomposed material which were once a part of the lode, and are now detached so far as the general formation of the ledge can be traced. The only question of fact in this case being whether the quartz rock parted from its original connection was a portion of the same quartz lode or claim taken

up by defendant; it was not important whether the rock was upon the surface, or what its condition, provided it was a part of such lode or claim.1

Eclipse G. & S. M. Co. v. Spring, 59, 304 (1881). "Prior to May 10, 1872, each locator was entitled to one ledge only. Before that time neither could have obtained a patent for more than one. Under the act of Congress of May 10, 1872, a patentee is entitled to all the ledges having their apices within the surface lines of the land granted to him." The act does not affect those who acquired rights or interests in ledges prior to the passage of the act. One to whom a patent for mining land under this act issues takes no title to ledges so located before the act, even though the locators thereof have given no notice of adverse claim as required by the act. This requirement has no application to this class of claimants.

Doe v. Sanger, 83, 203 (1890). The Silver King mine was located as in the diagram. The provision of Rev. Stats. 2320, requiring the end lines of lode claims to be parallel, is

merely directory, and no consequence is attached to a deviation from its direction.2

"But sec. 2322, which gives the right to

follow veins beyond surface lines, does con

tain some provisions about that right which are important. By that section a vein can be followed outside of the side lines only, and not outside of the end lines. And so a surface location might be made in such an irregular and many-sided shape as to destroy the right to go beyond the surface lines.

"That consequence, however, would not be because the end lines were not exactly parallel, but because it would be difficult, if not impossible, to tell which were side lines and which were end lines."

"If a location is made in substantial compliance with the intent of the statute, that is, where there are two side lines running along the course of the vein, and two shorter end lines running across it, so that the two sets of lines are distinct and apparent, such a location is not void, but gives the right to follow a vein laterally, although the original end lines may not be exactly parallel, or although they may differ from a true parallel as much as they did in the case of the Silver King." "The statutes of Congress, except so far as they provided for patents, were little more than mere formal legislative declarations of what had before rested in unwritten consent."

Patterson v. Hitchcock, 3, 533 (1877). If a located lode

Colorado. terminates or departs from the side line at any point within the location, the location beyond such point is, before patent, defeasible, if not void. In ejectment for land contained within such location, evidence is admissible that the located lode did not extend into the land in controversy.

Wolfley v. Lebanon M. Co. of N. Y., 4, 112 (1878). Act of Congress, July 2, 1866, sec. 2, clearly permits the patentee of a lode claim to follow the lode in its descending course to any depth, although in its downward trend it is carried into the adjoining land.

1 It will be noticed that this was before the act of 1872.

2 See Horswell v. Ruiz, 67 Cal. 111 (1885).

The central idea of a mining location is that there must be a discovered lode within it, whose locus in its onward course or strike is embraced by its boundaries. The surface ground and the lode are not independent grants. It is not the purpose of the acts to grant surface ground without a discovered lode. The lode is the principal thing, and the surface ground incident thereto. A lode claim is to be fixed by reference to the plat or survey of the location; on its onward course or strike the lode may not depart from the lines of location. If it does so, the patentee may not follow it beyond the lateral boundaries as against one who has subsequently located and patented it.

If the patent is broader than the law, it is to that extent ineffectual. The claimant is required to file in the Land Office a diagram of his vein or lode. Before he prepares this diagram, he should so far develop his lode as to be able to trace its course. If the surveyor does not cover the lode, the patentee may not shift his lines so far as to include it. The error is his mistake, not that of a government officer.

Johnson v. Buell, 4, 557 (1879). To the extent that a lode in its onward course or strike departs from the side lines of the patented location, plaintiff in ejectment cannot recover. Wolfley v. Lebanon M. Co. followed.

Armstrong v. Lower, 6, 393 (1882). One who has made a proper and valid location of a lode claim is entitled to the presumption that his lode extends the full length of his claim. A subsequent and conflicting locator, who sets up that the lode does not extend to the conflicting premises, has the burden of proving this.

Armstrong v. Lower, 6, 581 (1883). This case explains the last proposition above (last case), as follows:

There must be some proof of the position of the lode with reference to the location, some evidence, however slight, that the strike of the vein is in the direction of the location. This proof establishes, prima facie, the position of the vein where it has not been traced; in other words, the jury are to infer that the vein extends throughout the location which, when valid, is laid out along the course of the vein as discovered.

Colo. M. Ry. Co. v. Croman, 16, 381 (1891). "The rights of the miner to the surface ground of his location are dependent upon his discovery, and upon the relation which the vein, in its course and direction, bears to the surface as it has been located. The grant of the vein has always been held to be the principal thing, and the surface but an incident, which, as to its extent, is entirely determined by the course of the principal thing granted, to wit, the vein."

Where a petitioner in condemnation proceedings desires to avail himself of this principle, and to avoid the payment of damages on the ground that the claims whose surface is taken were located across the strike of the vein, it is incumbent on him to establish the fact.

Iron Silver M. Co. v. Campbell, 17, 267 (1892). In an action to recover possession of mining property, a patent is prima facie evidence of plaintiff's right to mineral beneath the surface, and the burden of proving that he was following the dip of a vein whose apex was in the defendant's claim, lay on him. The prima facies were not changed by the fact that plaintiff, in his complaint, anticipated the

defence, and made certain allegations as to the mineral formations beneath the claims.

Duggan v. Davey, 26 N. W. R. 887 (1886). In an action to Dakota. restrain defendants from mining within plaintiff's lines it was set up that they were following a vein which had its apex on their own claim. The burden of proving this is on defendants. This is equally the case whether plaintiff's title was a mere possessory right, or one derived by patent from the government.

Apex and outcrop are not synonymous. A vein may outcrop below the apex by an exposure of a portion of it on the line of its dip. "The word apex' ordinarily designates a point, and so considered, the apex of a vein is the summit, the highest point in the vein in the ascent along the line of its dip or downward course, and beyond which the vein extends no farther, so that it is the end, or reversely the beginning, of the vein. The word 'top,' while including apex,' may also include a succession of points, that is, a line - so that by the top of a vein would be meant the line connecting a succession of such higher points or apices thus forming an edge."

Idaho.

6

Gilpin v. Sierra N. Con. M. Co., 2, 662 (1890). On bill to enjoin him from working a vein on plaintiff's claim, defendant alleged that he was working on the dip of a vein having its apex on his claim.

Follow

It appeared that plaintiff sunk a shaft near his eastern line, in ledge matter consisting of various substances, including some ore. ing the dip, deflecting to the south one hundred

and fifty feet he struck defendant's underground workings. The ledge matter was continuous

and the ore was of a kind sometimes found in "blanket veins," and it was doubtful if the vein was a fissure vein. The dip was nearly at right angles with the north side line of plaintiff's claim, and deflected little, if at all, from the course of defendant's ledge. All the defendant's tunnels were on the bed rock or floor of the ore deposits, rose slightly as they receded

DEFENDANT'S CLAIM

3 CLAIMS PLAINTIFF'S

The

from their mouths, and pursued an almost due westerly course. mouths were at an outcrop of a deposit nearly horizontal in position on a mountain side. The dip of the floor of the deposits was from north to south. A temporary injunction was issued.

Burke v. McDonald, 29 Pac. 98 (1892). Court was asked to instruct the jury as follows: "A lode, within the meaning of the statute, is whatever the miner could follow and find ore. Under the requirements of the law a valid location of a mining claim may be made whenever the prospector has discovered such indication of mineral that he is willing to spend his time and money in following with the expectation of finding ore; and a valid location of a mining claim may be made of a ledge deep in the ground and appearing at the surface, not in the shape of ore, but in vein matter only."

This was held to be correct, and it was error to modify it by changing willing" to "justified."

Burke v. McDonald, 33 Pac. 49 (1890). Beatty, C. J.: "Every seam

or crevice in the rock, even though filled with clay, earth, or rock, does not constitute a vein, or every ridge of stained rocks, its cropping. Nor, on the contrary, is it required that well defined walls shail be developed, or paying ore found within them. But something must be found in place, as rock, clay, or earth, so colored, stained, changed, and decomposed by the mineral elements as to mark and distinguish it from the enclosing country. While the contents of ore-bearing veins widely differ, there is that indescribable peculiarity in the 'ledge matter,' the matrix of all ledges, by which the experienced miner easily recognizes his ledge when discovered."

Foote v. National M. Co., 2, 402 (1876). "A lead or

Montana. lode is not an imaginary line without dimensions; it is not a thing without shape or form, but before it can legally and rightfully be denominated a lead or lode it must have length and width and depth; it must be capable of measurement; it must occupy defined space and be capable of identification. Before a quartz claim can be legally located, a lead or lode containing gold or silver must be discovered, and before such discovery can be called a discovery, at least one well defined wall or side to the lode must be found. What, then, is a quartz lode? It is a fissure or seam in the country rock filled with quartz matter bearing gold or silver. This fissure may be wide or narrow; it varies in width from one inch or even less to one hundred feet or much more. The sides of a lead are represented and defined by the walls of the country rock, and these walls must be discovered and the lead identified thereby, before it can be located and held as a lead."

Pardee v. Murray, 4, 234 (1882). Possession of the surface of a lode claim is possession of all veins, lodes, and ledges whose tops or apices are within such surface lines, and possession of such surface protects all such veins, lodes, and ledges from the operation of the Statute of Limitations. No adverse possession could become operative by sinking a shaft to such a vein outside of the surface boundaries, on what was claimed as another location. In such case the statute would begin to run only from the time that it became known to the prior locator that the adverse claimant has entered into possession of a vein whose apex was within the former surface boundaries.

Driscoll v. Dunwoody, 7, 394 (1888). Trespass for ore taken from a certain vein. Plaintiff proved title to a surface claim within whose vertical planes the vein was. Defendants offered to prove that the apex of the vein was in another claim. This was proper testimony, and was properly rebutted by testimony that the apex was within lines of plaintiff's claim. This was not an action involving title to real estate. The question was one of boundary.

Plaintiff, in following

Blue Bird M. Co. v. Murray, 9, 468 (1890). its vein on the dip and beyond the side lines of its claim, worked within the limits of defendant's claim. An injunction had been granted restraining defendant from working upon plaintiff's mining claim, and afterwards, on defendant's motion, an order was made, permitting him to prosecute certain specified work within his own boundaries under certain restrictions and the control of the court, for the purpose of obtaining evidence for the trial of the case, and the ascertainment and