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this belief, prevalent among the miners, that such ore bodies did not constitute veins as generally understood, it became unwritten law that extra-lateral rights ought to be denied in all those cases. As an evidence of this fact we invite at tention to an apex case arising in Leadville and tried in the circuit court for Colorado, in which Judge Hallett charged the jury, inter alia, as follows: “The principal question for your consideration is whether or not the plaintiff has the top or apex of the lode in its location;

and first, we may say by way of definition, that the top or apex is the end or edge or terminal point of the lode nearest the surface of the earth. To establish this proposition the plaintiff has given much evidence tending to prove that the ore body terminates at or near the first level north, or the water level spoken of by the witnesses.

In that view, if you find that it is sustained by the evidence, the plaintiffs have the top and apex of the lode in their location, and I do not discover any other point which should give you difficulty in arriving at a verdict for the plaintiffs."1 The jury found a verdict for the defendant.

$ 874. Extra-lateral rights denied for lack of inclination of dip and because claim not laid upon the strike.One court at least, of undoubted ability, has felt constrained to deny extra-lateral rights on account of the lack of inclination of the vein from a surface exposure, characterized in one view of the case as the apex, and in the other view of the case as a dip exposure. The case itself was ably tried by Judge Moody, and the supreme court in affirming the judgment did so largely, indeed mainly, from the opinion of the trial court. We are indebted to Mr. Lindley for a diagram (on page 779) showing the surface conflicts, as well as a cut showing the northern exposure of Custer Mountain.?

It must be remembered that this was an action to quiet title to certain ore bodies; that the Silver Terra did not own any part of the apex or dip exposure, but stood squarely upon its common-law rights. While the language of Judge Church, quoting from Judge Moody, would seem scarcely to warrant the statement that extra-lateral rights were de

2 Lindl Mines, pp. 395, 397.

1 Iron Silver M. Co. v. Murphy, 3 Fed. Rep. 368.

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nied here because of lack of inclination of the dip, yet, when the entire opinion, masterly in research though it be, is carefully considered and analyzed, it is respectfully submitted that it has very narrow if any other ground to rest upon. The facts showed, as illustrated by maps, that Custer Mountain had a western and northern slope exposure, the one nearly at right angles with the other; the north west corner, so to speak, being slightly tilted, there was a vein exposure along both sides of the mountain; there was a slight inclination of the vein from this point, and a general inclination thereof towards the east, averaging eight degrees from the horizon; the Sitting Bull lode was located along this north exposure of the vein, and it was sharply contested as to whether this or the western exposure was the true strike; the Silver Terra was located up the hill south of the Sitting Bull and parallel therewith, but its end lines did not reach far enough west to cover any part of the western exposure. By shafts sunk down into the mountain, the owners of the Silver Terra removed ore from the vein thus exposed, on two sides of the mountain; the action was brought to quiet title to this vein, and to enjoin further working upon it. The trial court refused the injunction, and the supreme court affirmed this decision, speaking through Mr. Justice Church; the material part of the decision applying here being as follows: “Bearing in mind the descriptions heretofore given of the two lines of outcrop on Custer hill, if we might suppose that the outcrop along the northerly face were nearly vertical, I do not see how it could be seriously contended that such outcrop, under the circumstances, constituted the top or apex of this stratum of quartzite. Such a conclusion would only be reached, it seems to me, by shutting one's eyes to every feature of the case, except the one fact that there was an edge at or near the surface, which was therefore the top or apex of the vein. This I cannot do without such a violation of the ordinary use of words, and, with all the respect and deference which I feel for the opinions of the learned counsel for the defense, I must say without such a transgression of the dictates of a sound common sense view of the situation, as in my judgment the statute does not contemplate. Nor can I see that there would be any difference whatever in the principle were this outcrop to be found at an angle of 45 deg. or, as it is, at an angle of about 8 deg. from the horizontal. I am compelled, therefore, to hold that this outcrop found in the Sitting Bull location is not the top or apex of this

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vein, lode or ledge, and that such top or apex is not within that location. I must regard that outcrop as merely an exposure of the edge of the vein on the line of its dip. After what has been said, it would seem unnecessary to consider whether this vein so far departs from a perpendicular in its course downward as to extend outside the vertically extended side lines of defendant's location, and through the intervening ground to the ground in controversy,-- such could not be the case consistently with the facts already ascertained. It may be conceded as, indeed, a mathematical conclusion from the facts, that by extending drifts from the Sitting Bull location through its vertically extended south side line, in any direction upon the vein east of south, a downward inclination would be found, and that such is the fact with regard to the main working tunnel, which extends to the ground in controversy; but, clearly, this is not what the statute contemplated, and, if I am right in my other conclusions, probably this proposition would not be contested.” It will thus be seen that it was sharply contested as to whether the west or north exposure was the apex. And against the actual physical location, as such of the outcrop on the north side, with no location on the west line of exposure, the court permitted itself to be led, as matter of fact, by the subtleties of expert opinion, and that against the physical condition of the country, the porphyry dyke on the northwest which was the producing cause of the vein. The strike of the dyke was not given.

1 Duggan v. Davey, 4 Dak. 110, 26 N. W. Rep. 887.

CHAPTER III.

RIGHT TO VEINS, SPURS AND OFFSHOOTS OTHER THAN THE

ONE LOCATED.

ARTICLE A.

The Laws of 1866 and 1872 Compared - The Statutory Grant of 1872.

8 880. Preliminary – The law of 1866.

881. The law of 1872 changed this.
882. The relation of this section to section 2336.

$ 880. Preliminary — The law of 1866.- It is acknowledged by courts everywhere that under the law of 1866 the lode was the principal thing located and patented, and the surface ground was a mere incident. And an illustration of the truthfulness of this, and that it was so understood by miners and lawyers alike, is evidenced by the many peculiarly shaped patents that were procured in pụrsuance of that law.

$ 881. The law of 1872 changed this.— The uncertainty, both in respect to what was acquired by the patent in the way of surface ground, and appurtenant rights upon the lode, furnished at least one of the reasons for the amendment or change of the law in 1872. This statute reads: “The locators of all mining locations

shall have the exclusive right of possession and enjoyment of all the surface included within the limits of their locations, and all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically.” It will thus be observed that the statute is clear, plain and unambiguous, and gives to the locator all lodes or veins, not only the one located,

1 R. S. U. S., § 2322; 17 Stat. at L., p. 91.

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