The further we pursue this subject the more clearly it appears that to deny extra-lateral rights, under such circumstances, would be a denial of justice. This may always go as a characterless child of the imagination without legitimate adoption or sponsorship by a court, but it seems to us the courts must sooner or later come to this view of the law.

§ 853. The doctrine of this article summarized.-We have attempted to outline in the preceding sections of this article what seems to be the pervading and controlling principles of the law, from which we are justified in extracting the following general conclusions:

(a) Congress was evidently concerned, in enacting the apex doctrine, with an equal and equitable system or means of disposing of the vein on its downward course, and to this end was enacted the principle of parallelism of end lines. It being the purpose, meaning and intent thereby that the miner should have the same length of the strike of his vein, to its uttermost depths, between the vertical planes of his surface boundaries produced in their own direction through the dip, as he owns of the apex. Or, as said by Judge Hawley: "One general principle should pervade and control the various conditions found to exist in different locations, and its guiding star should be to preserve in all cases the essential right given by the statute to follow the lode upon its dip, as well as upon the strike, to so much thereof as its apex is found within the surface lines of the location." 1

(b) Whether the claim be a single location or a group, the extra-lateral right should be measured by any line crossed by the vein on its strike which most nearly conforms to the dip of the vein, and another line drawn parallel therewith at the point where the apex of the vein departs from the claim.

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

ARTICLE C.

Crossing Same Line Twice, or Crossing No Line.

§ 858. Preliminary rights.

Growth of the thought denying extra-lateral

859. Apex crossing the same side line of the claim twice - The Fulton claim and the Drum Lummon compared.

860. Vein beginning and ending wholly within the claim - Crossing no line at all.

§ 858. Preliminary - Growth of the thought denying extra-lateral rights.- Ever since the Horseshoe case was decided, courts and lawyers have taxed their ingenuity and their imagination, in nearly all cases involving the apex question, to find a case where there was a shadow of justification to deny extra-lateral rights altogether, as if they understood it to be the meaning of congress to escape, under all possible circumstances, the granting of extra-lateral rights wherever possible; or, as said by Dickens, when speaking of the Circumlocution office, "to strive how not to do it."

We have attempted to outline in this branch of our work the controlling and general principles of the law upon this question, and we think we are justified in concluding therefrom that the general policy of the law, as now understood and enunciated by the courts, is to grant extra-lateral rights in every case where there exists any certain line from which. to measure the right. The common-law rule should only apply in cases where there is doubt as to what apex an underground body of ore belongs.1

§ 859. Apex crossing the same side line of the claim twice - The Fulton claim and the Drum Lummon compared. We have found but one case where this question was squarely decided, and that arose in Colorado, although there is one other case in Montana where substantially the

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1 Bunker Hill & S. M. Co. v. Empire State Idaho M. Co., 106 Fed. Rep. 471, 474.

2 Catron v. Old, 23 Colo. 433, 48 Pac. Rep. 687.

same question was involved, or, rather, the same condition. existed. We will take up the Colorado case first, which will be best understood by reference to the following diagram taken from the report of the case:

Defendants are the owners of the Fulton and Mendota mining claims. All the claims are patented, and the dotted line on the map shows the apex of the vein through the claims. This vein, which has been explored extensively in workings in both the Mendota and Fulton claims, dips to the south beneath the surface of the Smuggler claim. In following the vein upon its dip, the defendants passed beyond the side line of the Fulton claim, and are working beneath the surface boundaries of the Smuggler claim at a point marked "A" upon the map. The question presented is as to whether the vein at "A" belongs to the owners of the Fulton by virtue of the ownership of the apex, or to the owners of the Smuggler in virtue of their common-law right. In the trial court verdict and judgment passed for the defendant, the owner of the Fulton and Mendota claims. The case was reversed in the appellate court by an opinion by Mr. Chief Justice Hayt, in which all the quotations from other cases were accurately made, and perhaps that is all that ought to be said about the opinion, the effect of which was to deny extra-lateral rights entirely. About the conclusion itself, however, there is much to be said. The injustice of denying extra-lateral rights, where they can be

accorded, would be a result not intended by the law-making power, and which ought to be avoided.

It may be admitted with reference to this case that there is no rule by which the owner of the Fulton can get just what the locator thereof intended to secure at the time of making the location, namely, fifteen hundred feet of the strike of the vein, with the right to pursue the same indefinitely on its downward course between the produced end lines of the claim. It does not follow, however, that he should be denied extra-lateral rights altogether. He may have been unfortunate in not laying his lines so as to place an end line across the strike of the vein. But such rights as he has should not therefore be sacrificed on the altar of strict or unreasonable construction. The language of Justice Brewer1 is particularly applicable here.

"Every vein whose apex is within the vertical limits of his surface lines passes to him by virtue of his location. He is not limited to only those veins which extend from one end line to another, or from one side line to another, or from one line of any kind to another, but he is entitled to every vein the top or apex of which lies within his surface lines." 2

In view of this controlling construction of the law, what becomes of any such nonsensical and unjust conclusion as that reached by the Colorado court, by which extra-lateral rights are denied altogether? Manifestly it must be relegated to the scrap-heap of judicial absurdities. If it is attempted to be answered that the court cannot make a location for the miner, the observation may be made that no such thing is necessary.

There are two theories, both clearly within the letter and spirit of the law, by which extra-lateral rights can and should be accorded to the owner of the Fulton. The southerly side line thereof forms an obtuse angle, one portion

1 Del Monte M. Co. v. Last Chance M. & M. Co., 171 U. S. 55, 89, quoted in § 837, ante, p. 731, note 1.

2 Id.,

p.

88.

thereof varying from the other approximately about thirty degrees.

Defendant also owned the Mendota, and had the right to elect, where they conflicted, upon which title he would rest his rights. Independent of this, he had the right to place his Fulton lines upon the Mendota for the purpose of fixing his extra-lateral rights. It is settled law, as we have seen, that the statute grants to him as much of the strike of the vein at its uttermost depth as he possesses thereof at the apex,2 always to be taken, of course, between the same lines. It will be observed that the vein crosses the southeasterly side line of the Fulton at an angle of about twentyfive degrees. Another line drawn parallel with that at the other point of departure would not only accord him what the law gives him, namely, extra-lateral rights, but would have given him the ore in dispute, and changed the result of the suit. Again, lines drawn parallel with the end lines at both points of departure will give him what both the letter and the spirit of the law say he shall have.

In the Montana case, precisely this thing was done. This can be best illustrated by a reproduction of a diagram on page 763, a portion of which we have given elsewhere.

It will be observed that the Drum Lummon vein enters and departs from the St. Louis claim in a manner not essentially different from that of the Fulton vein. Yet this vein, and the right to follow it between new lines parallel with the end lines of the claim, and projected into the dip where the vein departed from the side line, was accorded to the owner of the St. Louis. This is equitable and just, and we believe the only conclusion which finds its full warrant in the law.

There may be cases, as we shall see in a subsequent part. of this work, where it will be impossible to accord extra1 Del Monte M. & M. Co. v. Last Chance M. & M. Co., 171 U. S. 55, 85. 2 Ante, § 852, note 1, p. 753, and

cases.

3 St. Louis M. & M. Co. v. Montana M. Co., 104 Fed. Rep. 664.