plaintiff contends for all included between planes drawn through its end lines, although they diverge and would inevitably extend his rights along the strike. While defendant contends that because of such divergence plaintiff has no extralateral rights. But each party has an alternative theory, in case its primary contention is not sustained. Plaintiff says, if planes through its end lines do not control, then planes are indicated between lines perpendicular to the general course of the lode.

Defendant's alternative is that, as the southern end line constitutes the initial line in the survey, it necessarily follows from the requirement of parallel end planes that the northern end line shall be parallel to it. That by locating and fixing the southern end line first the northern end line was thereby also definitely and finally located. These theories are shown in the diagram: 3-5 is the southern end line continued; 1-6 is a parallel line from the northern end of the lode. This shows defendant's theory. These lines would give the ore in dispute to defendant.

The lines suggested by plaintiff are 1-2 and 3-4. These are at right angles to the general course of the lode, and planes descending through them would give the ore to plaintiff. The line B-B' is the northern end line continued, and between that line and 3-5 is plaintiff's first contention, which we have considered.

I am not referred to any authorities which support the contention of appellant that the southern end line must be considered as the base from which the surface form of the location was projected. As stated, the argument is that having been first located it followed, as matter of law, that the other end line must be in the same direction in order that end lines may parallel. But the location was made, surveyed, the land paid for, and application made for the patent before the law of 1872 was enacted. The act of 1866 did not require parellel end lines to insure extralateral rights, or at all. There was, therefore, no implication that the second end line should be parallel to that first established. It was not an absolute necessity that by a naked description one end line should be described before the other. A side having been located, one sentence could have created both end lines from each end and

at right angles to the side line in a certain direction. No such general rule, therefore, applicable to all cases could be adopted. Planes so constructed could not result as matter of law.

Planes through the lode at the end lines of the location at right angles to the general course would impose the required limitation upon the rights of the locator along the lode. The rule that they must be so constructed would be universally applicable at least theoretically. The congressional system for the sale of mineral lands is founded upon the proposition that the course of the lode can be traced. That nature, in her infinite variety, does not always so deposit her mineral gifts is unfortunate; but I think in construing the law we may have regard to the views of the lawmakers in regard to its subject, however crude and inadequate such views were. The law of 1866 is said to have been but a crystallization of the rules and customs of the miners. The first lodes worked were, I think, nearly in a uniform direction. The individual claims were short, usually two hundred feet. Under such circumstances it was not difficult to appropriate to each his number of feet on the dip at any depth. In California mines such claims were very often consolidated and disputes avoided. Often, as on the Comstock lode, the miners agreed upon a base line from which the surface form of locations were projected, or to which they were adjusted. This would result in parallel end lines.

The general practice, I think, was to have their claims bounded, so far as the lode was concerned, by parallel end lines, whatever might be the form of their surface location. In fact, they adopted the idea put forth by Judge Field in the Eureka case. Their rights on the lode were limited to planes at the limit of their right to the lode on the surface, at right angles to the general course of the lode.

The Eureka case is perhaps the only express authority for this proposition, but I do not find, as claimed by the learned counsel for the appellant, that it has been repudiated by later cases. On the contrary, these cases which imply extralateral rights when the end lines are not parallel seem to concede this rule. I am unable to understand Walrath v. Champion Min. Co., supra, upon any other theory. There was liberty of surface form under the act of 1865, but the law strictly

confined the right on the vein below the surface. This accords both with the Eureka case and the Flagstaff case. In the latter case it was said: "But our laws have attempted to establish a rule by which each claim shall be so many feet of the vein lengthwise of its course to any depth below the surface, although laterally its inclination shall carry it ever so far from a perpendicular." But rights on the strike were limited by the surface lines of the location under both laws. Judge Field was familiar with the mining customs and laws. I have no doubt he expressed in the Eureka case what had been and was the universal understanding and practice of miners. The rule there declared seems to me reasonable, and, in fact, the only one that can be applied to such patents issued under locations made before the law of 1872 came into existence. If, as suggested, the officers of the land office usually adjust and make the end lines of locations parallel before issuing the patent, such patents, when issued, will be conclusive evidence that such also was the location.

A case has been cited in which the end lines of the location converge in the direction of the dip. (Carson City etc. Min. Co. v. North Star Min. Co., 73 Fed. Rep. 597.) It was held that the locator had extralateral rights because the conveyance would give less, rather than more, on the dip of the vein. This may be all right, as it seems to me, however, not because the patent carries less, rather than more, than would pass had the end lines been parallel, but because that which is granted is described so that it can be definitely located. Under the force of the restriction contained in section 3 of the law of 1872, the locator could not take beyond planes. through his end lines. This confined him within well-defined boundaries to less on the dip below the surface than he had upon the surface. If this was an attempt to construe the act of 1872, the logic might be questioned. That act, as construed, does not grant extralateral rights, because the end lines are parallel or converge towards the dip of the vein, but if they are parallel. The location there under consideration was made under the act of 1866, and carries extralateral rights because the extent of such rights are definitely described. At least, such was the fact, and no other reason was required. It was, therefore, not necessary in that case to consider the point here under debate.

If this position be correct, the complaint does definitely describe the segment of the lode from which the ore was taken. The judgment is affirmed.

McFarland, J., Garoutte, J., Henshaw, J., Harrison, J., and Beatty, C. J., concurred.

[Sac. No. 687. Department Two.-December 20, 1900. In Bank.January 19, 1901.]

THE PEOPLE ex rel. JOHN F. SILVA, Appellant v. LEVEE DISTRICT NO 6 OF SUTTER COUNTY et al., Respondents.

LEVEE DISTRICT-VOID ORGANIZATION-LEGISLATIVE RECOGNITION.-A levee district, whose organization under an unconstitutional law was irregular and void, may nevertheless have its existence confirmed by direct and positive recognition thereof by legislative acts passed in the exercise of constitutional power.

ID.-POWER OF LEGISLATURE UNDER OLD CONSTITUTION-SPECIAL LEGISLATION. The legislature, under the constitution of 1849, had power to pass a special act creating a corporation for municipal purposes; and its distinct legislative recognition by the act of March 30, 1872, of the existence of a levee district whose organization under section 21 of the act of 1868 was irregular and void, gave it a legal existence.

ID.-CONSTRUCTION OF NEW CONSTITUTION-LEVEE DISTRICT NOT A "MUNICIPAL CORPORATION"-SPECIAL ACTS OF RECOGNITION.-Though the legislature has no power under the new constitution to pass any special act creating or recognizing a municipal corporation, a levee district is not a "municipal corporation" within its meaning; but if it be a corporation, it belongs to a class by itself, the creation, organization, and control of which is not limited by the new constitution. The special acts of March 31, 1891, recognizing the existence of Levee District No. 6, gave it a legal existence thereunder.

APPEAL from a judgment of the Superior Court of Sutter County. E. A. Davis, Judge.

The facts are stated in the opinion of the court.

Tirey L. Ford, Attorney General, Hart & Aram, and Kirby S. Mahon, for Appellant.

E. A. Bridgford, Amicus Curiae, for Modification of Department Opinion.

W. H. Carlin, and M. E. Sanborn, for Respondents.

THE COURT.-The opinion of the Department heretofore filed herein, is modified so as to read as follows:

"HENSHAW, J.-This is a proceeding in quo warranto to test the legal existence of Levee District No. 6. The other defendants are the officers of the district. The case was heard and determined upon an agreed statement of facts, which are the findings in the case. Upon these facts judgment was rendered for defendants, and plaintiff appeals. Levee District No. 6 was organized under the act of March 25, 1868. (Stats. 1867-68, p. 316.) By virtue of that act Levee District No. 1 was created, and there was provided a scheme for the organization and government of other levee districts which might thereafter be formed. But section 21 of the act setting forth the method of organization for such districts has been declared unconstitutional and void. (Moulton v. Parks, 64 Cal. 183; Brandenstein v. Hoke, 101 Cal. 134.) It follows, therefore, and is conceded that the organization of Levee District No. 6, effected under section 21 of the act of March 25, 1868, was irregular and void.

"Notwithstanding this fatal irregularity in its organization, the legislature made distinct recognition of the existence of the district by an act approved March 30, 1872 (Stats. 1871-72, p. 734); and again by acts approved March 31, 1891. (Stats. 1891, pp. 235, 237.) The first of these acts of recognition was passed under the constitution of 1849, the latter two under the present constitution. That they are positive acts of recognition sufficient to invest the district with the functions and attributes which it had assumed to exercise under the law of 1868 may not be doubted, under the authority of People v. Reclamation Dist. No. 108, 53 Cal. 346, and Reclamation Dist v. Gray, 95 Cal. 605, unless it can be said that the legislature itself was without power so to validate the existence of a levee district thus irregularly organized. This is the contention of appellant. But legisla