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stantly and rapidly diverging dip proceeding fan-shaped into the earth, and comprehending within its possible range an enormous segment of the vein. There are but two ways to prevent this result: either draw all lines vertically or project a new end line into the dip at the point where the vein leaves the side line of the claim. Since there is no authority to do the former, this court and other courts have wisely pursued the latter course and kept well within the spirit of the law.” The court proceeds as follows: “As we leave this confusion and turn to the other solution, that of the Amy & Silversmith case, difficulties disappear and there is light upon the whole path. We can, then, do, as the United States supreme court said in its decision in the Amy & Silversmith case,

"The most that the court can do, where the lines are drawn inaccurately and irregularly, is to give the miner such rights as his imperfect location warrants, under the statute;' that is to say, we can give to the miner, or rather the law, as we construe it, gives to the miner, as much length of strike, no matter how deep he goes upon the dip, as he has length of the apex, and he loses in strike and dip only what he has failed to get in


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apex.” 1

$ 839. Criticism on the Clark-Fitzgerald case.- We think the court was entirely right in the case last cited, and agree with much of the reasoning of the court. Not because it followed its interpretation of the Amy case, however, for we do not agree that it did follow it, but because it departed from it, and because of the reasoning of Judge Hawley and Judge Hallett quoted in the opinion, and because of the reasoning of the court, which agrees with what we have elsewhere said, viz., that it was the intent of the statute to give the miner as much of the strike of the vein on its dip as he has of its apex; no more, no less. The Montana court loses sight of the fact that the Clark case, as also all

1 King v. Amy & Silversmith Cons M. Co., 9 Mont. 542, 24 Pac. Rep. 200; reversed, 152 U. S. 222

other cases of crossing an end line and a side line, rests upon a wholly different and distinct principle from the Amy case and the Flagstaff case, which must of necessity rest upon the same principle as decided by the supreme court of the United States. It will thus be seen that in the Clark-Fitzgerald case the Montana court was, in a sort of nolens volens way, guided by correct principles, and was not correct in the Amy & Silversmith case. It only goes to show that even the best of courts are sometimes intuitively guided by the hand of the blind goddess rather than by their own process of reasoning

§ 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.While this case could have been properly cited as authority for the same principle involved in the last section, the Del Monte, the Clark-Fitzgerald and the Tyler cases; still there are some new and unique features presented, some of which, while they are good law in the abstract, must be relegated to the field of mere dictum, not necessary to the decision of the real point involved in the case. It presents, besides the question of crossing lines not parallel, the further question as to what shall be considered the vein or lode line, the real one or an imaginary one established for purposes of survey. And further, whether the hanging wall or footwall is to be the line measuring the right. While the decision itself was written by one of the most able mining judges on the bench, the wide range covered by it serves to illustrate the danger, which even tbe best judges are falling into, of enlarging rather than reducing the mass of an opinion to a decision of the questions under discussion. In that case ? it was decided and held what would seem to be unnecessary, yet it is undoubtedly a correct statement of the law, that mere ideal lines along the center of a location, from which all distances are measured for the purpose of a patent, do

1 Cons. Wyoming G. M. Co. v. Champion M. Co., 63 Fed. Rep. 540.

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not necessarily constitute the vein, nor is any person accepting such patent, or holding under it, estopped by any such circumstance or condition. And further, that that is the vein which is officially demonstrated to be the vein, no matter where it runs; and that must be the law everywhere. That, and that only, is the vein which answers the description we have tried to give elsewhere in this work of what constitutes a vein or lode. To epitomize: the vein, then, in the light of the authorities and the statute, as we attempted to point out in the chapter relating to discovery, must be held to be the mineralized sheet zone or mass in place, that is fixed where nature placed it in the body or mass of the mountain. If between plainly distinguishable walls, or between two different kinds of rock, these walls or specific character of rock will mark the margins of the vein, and the mass between will be the vein regardless of its richness so long as it shows a trace of vein matter. If the vein is one of substitution, replacement or infiltration, where the mineralized substance has eaten out and occupied the place once held by the country rock, as in some limestone regions, the entire mineralized mass must be held to be the vein, and the barren rocks on either side must be called the walls.

$ 841. Further as to what is a vein – Flat or bedded veins,– While we discussed in our chapter on discovery the question as to what constitutes a vein, and again in considering the apex, still we were properly led into a discussion in the last section as between the real vein and the wholly imaginary lode line which the clerks of the land office have required to be marked upon the diagram in applications for patent. And while we are digressing for one purpose, it will not be wholly out of place to consider another species of “irregular” vein, which some say cannot be pursued on its downward course. Much theoretical speculation and impracticable observations have been indulged by mining experts, geologists and law writers as to what rights can be acquired by location upon a bedded vein lying

almost horizontal or folded so as to present an apex exposure either flat or inclining upward. The answer is found in the law itself. While the theory upon which the law was enacted was that veins were more or less vertical, it by no means withheld from location those veins that were not so. Since the apex is the part approaching nearest the surface, if the ore is in defined boundaries the inclination or the lack of it becomes an immaterial question, and the outcrop may be located and the vein followed on its dip. And the spirit of the law will be satisfied by allowing lateral pursuit; the discovery is upon the edge of the vein, which agrees with the court's definition of apex, precisely the same as if the stratum containing the vein stood upon its edge vertically or upon any angle between the vertical and the horizontal.

$ 842. The Wyoming-Champion case — Circumstances of the case compared with other cases by the courtTrue construction of the statute - Particular line or angle of crossing immaterial - Patents and rights under law of 1866 considered.— The main question in this case was the ownership of the ore existing beneath the surface of the New Year's and Climax locations, the property of the Champion company, and claimed to have its apex in the Ural location, lying westerly therefrom, the property of the Wyoming company. The imaginary or ideal strike of the vein was from the northerly end line of the Ural southward; the real strike was the margin of the zone of croppings and the line of contact of the granite hanging wall with the slate foot-wall. There were other veins dipping in the same direction and having their apex elsewhere, which united with these at considerable depth. But that question belongs properly to another branch of our inquiry." ticular vein apexing in the Ural ground, by its foot-wall crossed the easterly side line of the Ural location, and it was contended as in the Del Monte, Clark-Fitzgerald, and other

The parsimilar cases, that that line constituted an end line, and must be drawn down vertically, cutting off the extra-lateral rights of the Wyoming people. Judge Hawley in commenting upon the different cases presented the principles involved in the Flagstaff, Amy, Tyler and Del Monte cases (although it was before the decision of the Del Monte case, yet the same principles were involved), sustained these principles and repudiated the contention above mentioned. It was further contended that the lines were laid so that, under the decision in the Horseshoe and Argentine cases, extralateral rights should be denied. But the court was not misled by this sopbistry, and correctly ruled that where one line is crossed by the vein on its strike substantially at right angles therewith, the angle at which the other line is crossed is immaterial, and a new line would there be drawn parallel therewith and extra-lateral rights granted accordingly. The learned judge then proceeds to distinguish, as we have sought to do elsewhere, between the cases where the lode crosses an end line and a side line, and those where it crosses both end lines or any two lines running parallel to each other, or substantially parallel, and concludes as follows: “It cannot, it seems to me, consistently be said that complainant is deprived of any of its extra-lateral rights to the fourteen hundred feet, more or less, which is all entirely within the surface lines of the Ural patent, and substantially parallel with its side lines as marked upon the surface ground. The statute of the United States is not, in my opinion, susceptible of any such construction, and no decision of any national or state court has ever gone to that extent. The supreme court of the United States in the Amy case simply decided that 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; there is nothing in either

1 Post, ch. III, art. D.


1 Cons. Wyoming M. Co. v. Cham- rath v. Champion M. Co., 63 Fed. pion M. Co., 63 Fed. Rep. 540. See Rep. 552, 72 Fed. Rep. 978; S. C., 171 also other branches of the litiga U. S. 293, 163 U. S. 710. tion over the same ground. Wal

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