Page images

of the opinions of the circuit court of appeals in the Tyler cases which is at variance with this principle. On the contrary, this rule is expressly recognized.” 1

The court further attempted to lay down the rule that where a vein enters a claim over the side line, say five feet from the end line, and crosses the other side line a like distance from the other end, but proceeds more nearly lengthwise than crosswise of the claim, a new and different rule, similar to that of the Montana supreme court in the Amy case, should prevail, and lines be projected into the dip parallel with the end lines proper.

But as this was not necessary to the decision of the case, and would subvert the entire system and open the door to hair splitting as to what cases would fall within such a rule, it is best to place it in retirement by simply saying it would be impracticable.

$ 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.— The question as to the general relationship of the located vein to all others apexing within the claim is postponed to a further part of this work, but the question was discussed in the case mentioned in the heading : in such a way as to make it strikingly applicable to the general end and side-line question.

The matter in hand can be better illustrated by the diagram (on page 739) used in the supreme court to illustrate the decision.

Both veins dipped towards the east, and the Providence or

i Cons. Wyoming M. Co. v. Cham- 2 Post, this Part, ch. III, art. B, pion M. Co., 63 Fed. Rep. 540. See also SS 885–89. Champion M. Co. v. Cons. Wyoming 3 Walrath v. Champion M. Co., 63 M. Co., 75 Cal. 78, 16 Pac. Rep. 513; Fed. Rep. 552; modified and afTyler M. Co. v. Sweeney, 54 Fed. firmed, 72 Fed. Rep. 978, 19 C. C. A. Rep. 284,4 C. C. A. 329; Last Chance 323; affirmed, 171 U. S. 293, 43 L. ed. M. Co. v. Tyler M. Co., 61 Fed. Rep. 170. 557, 9 C. C. A. 613; Doe v. Waterloo M. Co., 54 Fed. Rep. 937.

granite vein, the one located upon, crossed lines a-p and g-h substantially parallel. The contact vein, so far as involved

[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][ocr errors][ocr errors][ocr errors][ocr errors][merged small]

in the case, ran parallel with the main vein, and, as shown in other litigation involving the same vein further north,' united

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

with it at depth, also on the strike; but that is not important here.

The complainant owned the Providence claim, which was located and patented under the law of 1866, and the respondent owned the New Year's Extension (marked on the diagram “N. Y. Ext."). The general rule announced in the case, and which we may consider as settled, is that there can be but one set of end lines, which are those that control the main or located vein. We take it there can be and will be no disputing the proposition that there can be but two sets of lines in a mining claim, no matter how many lines there may be, and that one set of those, composed of two lines only, must be called end lines, and all other lines must compose the other set and be called side lines. We leave out of this consideration all imaginary lines projected into the dip, as in the Del Monte, Clark-Fitzgerald and similar


Starting with premises thus laid it must be apparent that the line f-g is a side line. The pertinent question then becomes: what rule is to be applied to a side vein (if we may use the expression) paralleling the main vein, and crossing such side line on its strike? If the court, whose decision is final, had not decided otherwise, we would be compelled to say, following the principle of the Del Monte and similar cases, and the exact rule of the circuit court of appeals of the ninth circuit, in the Montana case cited above, that a new line parallel with the end line should be projected into the dip at the point of such departure, and the right of the Providence to the portion thereof as to which it had no apex be thus circumscribed, and the contention of the Champion company adopted. But the supreme court has decided otherwise, and consequently the law is, or at least seems to be, to the contrary, but with due deference, it is the reasoning of the judge and not the reason of the

1 Walrath v. Champion M. Co., 63 Montana v. Montana M. Co., 104 Fed. Rep. 552; Iron Silver M. Co. v. Fed. Rep. 664. Elgin M. Co., 118 U. S. 196, 198, 30 L. 2 St. Louis M. & M. Co. v. Mon. ed. 98, 99; St. Louis M. & M. Co. of tana M. Co., supra.

law, a greater show of power than of reason, which makes it so. It is the province of the law writer to attempt a reconciliation of the law upon lines consistent with the reason of the law. Cases like this make the performance of that duty very difficult.

The logic which binds us to the end line and side line rule seems invincible, and by that we are taught that where a vein crossed an end line and side line of a claim, a line parallel with the end line at the point of departure marks the limit of the right of pursuit of the vein on its dip, these lines of course to be produced endlessly in their own direction. Why should a different rule apply to a side vein ? We can see no reason therefor. But it is said, and truly too, that the end lines of the located vein are end lines for all purposes and all other veins. True, but it does not follow that all other veins are to be given the same length of strike, regardless of the ownership of apex, as the main vein. The principle will be sufficiently vindicated by applying the same rule as that applied to the main vein and drawing a line parallel with the end line at the point of departure, as was done with the Drum Lummon vein in the Montana case. Naming limits beyond which a vein may not be pursued on its strike is not the equivalent of saying that all veins, apexing in any part of the ground, may be mined on their strike to that line, regardless of the position of the apex, in or out of the ground. Besides,

Besides, the apex belonged to the New Year's Extension, passing over a line parallel with the end line of the Providence, and reaching to the point where the vein on its strike passed out of the Providence. Our position can be better illustrated by reference to the diagram (on page 742) in the Montana case mentioned above.

Here the Drum Lummon vein is the side vein and the St. Louis vein is the located or main vein. Both dip in the same direction, towards the east. The only distinction between this case and the Providence-Champion case is that here the side vein is in the hanging wall, and there in the foot-wall of the main vein; but it is a distinction without a difference where the veins are substantially parallel.

The same rule applied to the Drum Lummon vein as that applied by the supreme court and the circuit court of ap

[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small]

peals to the Providence contact vein would give the St. Louis the dip right upon that vein the entire length of the St. Louis claim, regardless of ownership of apex.

The further this question is pursued the more apparent does it become that the supreme court did not fully appreciate the question before it, and that it ought to modify this decision, and in such cases give to each the right on the dip coterminous with ownership of apex, the local lines always to be drawn parallel with the end lines which mark similar rights as to the located vein.

$ 844. Comments and criticisms of the Wyoming caseClassification the safer plan.- Nor can we agree with all that is said by the learned trial judge in the Wyoming case;

« PreviousContinue »