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consequences. As was said by the supreme court of the United States: “If the first locator will not or cannot make the explorations necessary to ascertain the true course of the vein and draws his end lines ignorantly, he must bear the consequences.” 1

And again: “ The most that the court can do, where the lines are drawn inaccurately and irregularly, is to give to the miner such rights as his imperfect location warrants under the statute. It cannot relocate his claim and make new side lines or end lines. Where it finds, as in this case, that what are called side lines are in fact end lines, the court, in determining his lateral rights, will treat such side lines as end lines, and such end lines as side lines; but the court cannot make a new location for him and thereby enlarge his rights. He must stand upon his own location and can take only what it will give him under the law.” 2

The force of the observations presented in this section can be better illustrated by a reproduction of one of the maps used in the case and referred to in the opinion by the supreme court of the United States.

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7470 ft

Fig. 16.

1 Iron Silver M. Co. v. Elgin M. & 2 King v. Amy & Silversmith S. Co., 118 U. S. 196, 207, 30 L. ed. Cons. M. Co., 152 U. S. 222, 38 L. ed. 98, 102.

419.

The ore bodies in dispute lay beneath the surface ground of what is called the "Non-consolidated.” The Amy claim was fourteen hundred and seventy feet long by four hundred and ninety-one feet wide. The strike of the vein was northwest and southeast, crossing the southerly side line six hundred feet west of the easterly end thereof, and the northerly side line one hundred and eighty-four feet east of the westerly end line thereof. The trial court granted extra-lateral rights coterminous with a line at right angles with the strike at the point of departure from the claim. The supreme court of Montana modified this by projecting a new end line into the dip parallel with the westerly end line at the point of departure. What the court was going to do at the other point of departure it did not decide; that is to say, whether it was going to create a new end line there, or call the intersection of the southerly side line with the vein, as it crossed the same, the apex pro hac vice.

It was fortunate in the interest of settled law and titles to mining property that the supreme court of the United States was not affected by the same hallucination as either of the Montana courts, and that it left the case where its distinguishing features placed it, as one where the side lines became end lines, and as such, were drawn vertically, thus cutting off further pursuit of the vein except between those lines extended in their own direction.'

8 828. The effect of such a location as to extra-lateral rights — Pursuit of the vein on its dip beyond the located end line. There has been considerable argument at the bar, and opinions expressed by lawyers well versed in mining law, that the real end lines of a location, that is to say, the shortest lines, were drawn vertically in every case and under all circumstances, and this upon principles of estoppel. No court, however, has ever gone to the length of so deciding?

Ante, $ 826; Parrot S. & C. Co. 2 See the dictum of Hayt, C. J., v. Heinze (Mont.), 64 Pac. Rep. Catron v. Old, 23 Colo. 433, 48 Pac.

Rep. 687, 689.

326

Judge Hawley in a recent case, in following the doctrine which has become settled law ever since the Colorado Central cases, and which no lawyer will dispute, decides that the end lines of the claim, whether they be side lines or end lines in fact, that is to say, those crossed by the vein located, are the end lines for all purposes, and this notwithstanding a cross-vein, spur or offshoot may dip nearly at right angles with the main vein and so pass under such line on its dip.

There can be no possible dispute as to the correctness of this position as a general rule, as we shall elaborate further in another part of this work, but that falls far short of deciding this particular question. So far as we bave been able to ascer. tain, however, from a diligent search of the cases, there is but one case deciding this precise question. This case arose in Connecticut between the plaintiff, a Maine corporation, and the defendant, a Connecticut corporation, upon a contract in relation to mining in the neighborhood of their common boundary, their mines being situated in the territory of Arizona. It appears that the end lines of their claims joined, and the defendant owned a vein apexing on its own land, crossing both located side lines on its strike and descending in its downward course or dip beneath the claim of plaintiff. Said vein on its dip crossed the end lines of defendant's location and penetrated beneath plaintiff's location by crossing the boundary line of the two claims, the common end line of both, so called. Defendant was under contract to explore and open plaintiff's property through its workings, and it was provided, inter alia, in the contract, that defendant should account to plaintiff for the ores mined. Defendant refused to do so upon the ground that the ore mined apexed in its own land, and consequently was its property. The suit being upon the contract, this was the material question involved in the case.

It was contended on the part of the plaintiff that the side

1 Cosmopolitan M. Co. v. Foote, 50 Fed. Rep. 888; S. C., 54 Fed. Rep. 101 Fed. Rep. 518.

662, 70 Fed. Rep. 294. 2 Colorado Central M.Co. v. Turck, 3 Post, ch. III, art. C, this Part.

lines becoming end lines bad the effect to make four vertical planes, beyond which the defendant could not go in pursuit of the vein on its dip. In other words, it was denied extra-lateral rights altogether. While the defendant contended that, inasmuch as the decisions had been to the effect that in such case the side lines became end lines, and end lines side lines, in other words, that, the position of lines. being reversed, the rights were not otherwise affected.

The court, in adopting the theory of the defendant as the law, takes the following language from the supreme court: of the United States: “ The course of this vein is across the Last Chance claim, instead of the direction of its length. Under those circumstances the side lines of that location become the end lines, and the end lines the side lines.” 1 And again: “When a mining claim is located across instead of along the lode, its side lines must be treated as its end lines, and its end lines as its side lines; so that, under Revised Statutes of the United States, section 2322, the dip cannot be followed outside the vertical plane of the original side lines into an adjoining claim.” 2

The court decided that the position of the supreme court of the United States in those cases and others was decisive of the case and sustained the defendants' theory thereof.

To us this seems altogether logical, and that it is in hearty accord with the spirit as well as the letter of the law. Any other rule would be judicial legislation, and by that means deny to the mine owner what the statute plainly gives him — the right to follow his vein endlessly on its downward course, provided he does so between parallel planes,

i Last Chance M. Co. v. Tyler M. 3 Empire M. & M. Co. v. Tomb. Co., 157 U. S. 683. See also Flag- stone M. & M. Co., 100 Fed. Rep. staff M. Co. v. Tarbet, 98 U. S. 463; 910. See also Walrath v. ChamArgentine M. Co. v. Terrible M. Co., pion M. Co., 171 U. S. 293; Iron 122 U. S. 478; King v. Amy & Sil- Silver M. Co. v. Elgin M. & S. versmith M. Co., 152 U. S. 222. Co., 118 U. S. 196; Del Monte M. &

2 Cons. Wyoming G. M. Co. v. M. Co. v. New York & Last Chance Champion M. Co., 63 Fed. Rep. 540, M. & M. Co., 171 U. S. 55. 547.

drawn within the boundary of his own location at the surface, and containing the apex of the vein within his own ground, and by extending such lines so as to include such outside parts.

ARTICLE B.

Veins Crossing Lines Not Parallel, and Herein of End Line and Side

Line Veins, and of Group Claims. $ 834. End and side-line doctrine - Preliminary observations. 835. The decisions of the circuit courts on the question presented by

a vein crossing a side line and an end line, and the equitable

features presented. 836. Effect of location and discovery on the dip of the vein where

apex crosses side line and end line. 837. End line and side-line cases — The equitable reasons of the rule

as originally considered in the Del Monte case. 838. The case of Fitzgerald v. Clark Reason of the rule - A correct

result by reasoning partially right and partially wrong. 839. Criticism of the Clark-Fitzgerald case. 840. Wyoming v. Champion — Ideal or imaginary location of veins

along center of claim not conclusive - End line and side

line - What a vein under the statute. 841. Further as to what is a vein — Flat or bedded veins. 842 The Wyoming-Champion case — Circumstances of the case com

pared with other cases by the court — True construction of the statute - Particular line or angle of crossing immaterial - Pat

ents and rights under law of 1866 considered. 843. Walrath v. Champion - Law of 1866 – Relation of other veins

in claim to located vein - Other veins crossing side line - End

line for one, end line for all - One set of end lines. 844. Comments and criticisms of the Wyoming case - - Classification

the safer plan. 845. Further comments of the court which sustain us throughout in

the position sought to be taken. 846. No force in suggestion to postpone marking. 847. New but progressive statement of the law. 848. Further comments to matters in last section - Dangerously near

the old law. 849. Irregularly-shaped locations consolidated in one patent 850. Same question - The Carson City case. 851. Original location lines immaterial — Doctrine of Doe v. Sanger. 852. Claims patented separately and consolidated, grouped and op

erated as one mine after patent. 853. The doctrine of this article summarized.

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