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but all others having their top or apex within the vertical planes of the surface lines of the claim located,' and expressly prohibits the invasion of the surface. If this statute is at all times borne in mind and all its provisions construed together, much of the difficulty which has arisen in one state will be avoided.
$ 882. The relation of this section to section 2336.- In a further part of this chapter it is our purpose to examine extensively the rights acquired to cross veins, and the meaning of section 2336. In the last preceding chapter we took occasion to note and outline, to some extent, the effect upon extra-lateral rights of veins encountering an older vein on their dip. Those cases had reference to such an occurrence proceeding from different apexes in different claims. In a future part of this work we shall attempt to reconcile the many conflicting decisions as to the true meaning of section 2336, and its relationship to the section under consideration; and in doing so it will be necessary to read both sections in pari materia, for the reason that they refer to the same subject-matter, and we are therefore not at liberty to ignore this well-known rule of statutory construction.
Surface Lines as Controlling Other Veins, and Rights Thereto Extra
886. Judge Hawley's view.
1 North Noonday M. Co. v. Orient Argonaut Cons. M. Co. v. Turner, M. Co., 6 Sawy. 299, 1 Fed. Rep. 23 Colo. 400, 48 Pac. Rep. 685; Arm522, 531; Freeland v. Hoffman, 13 strong v. Lower, 6 Colo. 393, 581; M. R. 269; Iron Silver M. Co. v. Pardee v. Murray, 4 Mont. 234, 2 Elgin M. Co., 118 U. S. 208; Crown Pac. Rep. 16; Jones v. Prospect Mt. Point M. Co. v. Buck, 97 Fed. Rep. 'Tunnel Co., 21 Nev. 339, 31 Pac. 463; Tombstone M. Co. v. Way Up Rep. 642. M. Co., 1 Ariz 426, 25 Pac. Rep. 794; 2 North Noonday M. Co. v. Orient
$ 885. Extra-lateral rights to spurs and offshoots.The question of extra-lateral rights, as applied to spurs and offshoots, is not well settled; some authorities holding that it is dependent upon and coterminous with the lines which control the vein located,' while other authorities hold that as to spurs and offshoots, each line crossed by any such vein is, as to it, an end line drawn vertically at the point of departure and extended in its own direction. Applied to different conditions, and referring to different veins, both are right, but it is well settled that there can be but two end lines to a mining claim, and such end lines are such for all purposes. This, then, may be safely said to be the general rule, to which, like all others, there are special distinctions and exceptions.
$ 886. Judge Hawley's view.- In a case cited in the last preceding section, Judge Hawley discusses this question at considerable length. In that case there were two nearly parallel veins in a claim located under the law of 1866, and hence of irregular shape;' these veins united, as found by the court, below the surface, partly on the dip and partly on the strike; the end lines of the different locations did not agree with each other, considered as an independent location, nor did they agree in any location with the lines of another location. He says: “The views already expressed are conclusive upon the point that complainant, by virtue of
M. Co., supra; Phenix M. Co. v. 2 Colorado Central M. Co. v. Turck, Lawrence, 55 Cal. 143; Erhardt v. 50 Fed. Rep. 888; Argentine M. Co. Boaro, 113 U. S. 527; Gleeson v. v. Terrible M. Co., 122 U. S. 478. See Martin White M. Co., 13 Nev. 442. also Tombstone M. Co. v. Way Up See also Crossman v. Pendery, 8 M. Co., 1 Ariz. 426, 25 Pac. Rep. 794. Fed. Rep. 693.
3 St. Louis M. & M. Co. v. Mon1 Iron Silver M. Co. v. Elgin M. tana M. Co., 104 Fed. Rep. 664, 667, Co., 118 U. S. 196; Cosmopolitan M. citing (q. v.) Iron Silver M. Co. v. Co. v. Foote, 101 Fed. Rep. 578; St. Elgin M. & S. Co., supra; Walrath Louis M. & M. Co. v. Montana M. & v. Champion M. Co., 171 U. S. 293: M. Co., 104 Fed. Rep. 664; Walrath S. C., 72 Fed. Rep. 978; ante, $ 842. v. Champion M. Co., 63 Fed. Rep. 4 See ante, SS 845, 843
its ownership of the slate vein in the Wyoming, is entitled to an injunction to prevent respondent from working northerly of a line drawn downward vertically with the southerly end line of the Wyoming claim. If no other portion of the ground was in controversy the decision of the case might be safely rested here without any discussion of the many other questions presented at the trial, because the laws of the United States provide that, where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection.' This provision is held not to be in conflict with the provisions of section 2322. Complainant would, therefore, take the ground to the full extent stated — that is, between the end line bounding-planes of the Wyoming claim extended in their downward course independent of any rights it may have by virtue of its patent to the Ural lode and surface location."
$ 887. An early and somewhat different view by Judge Thayer.-In a case in Colorado, similar to the Wyoming case to the extent that the vein united both on the strike and dip, thus forming practically spurs in their onward course, and the extra-lateral rights to one of the spurs being under discussion, as it affected the right of pursuit beyond the side line of the Colorado Central, where it crossed, Judge Thayer said: “If the vein on which the Colorado Central location rested became divided as it entered the disputed territory, and the outcrop of one fork crossed into the Atlantic territory, then it followed that the Colorado Central claim had been laid rather obliquely to the course of the outcrop, and in that event we are of the opinion that the defendant lost that fork of the vein which had passed
1R. S. U. S., & 2336.
pion M. Co., 63 Fed. Rep. 540. See 2 Wilhelm r. Sylvester, 101 Cal. also Cosmopolitan M. Co. v. Foote, 358, 35 Pac. Rep. 997; Watervale M. 101 Fed. Rep. 518; St. Louis M. & M. Co. v. Leach (Ariz.), 33 Pac. Rep. Co. v. Montana M. Co., 104 Fed. Rep. 418
664. * Cons. Wyoming M. Co. v. Cham
outside of its side lines. In other words, so far as that fork is concerned, the south end line of the defendant's Colorado Central claim must be regarded as a line drawn through the point where the outcrop passed through its south side line.” 1
§ 888. The cases harmonized – The true rule.- In the interest of harmony, then, the true rule would seem to be that as to all veins paralleling or nearly paralleling the one located, and which lie, as to their apex, in the direction of the dip of such vein, that is to say, lying in the hanging wall, paralleling the main vein or uniting on the dip therewith, the lines which control the extra-lateral rights of the main vein must also control the rights as to all other veins.? But where there is a lateral division of the main vein, in the direction of the foot-wall, or where there is a parallel vein in the direction of the foot-wall, dipping, let us say, in the opposite direction, the reasons which control the operation of other conditions would seem to cease, and as to any such, any line crossed by it must be either drawn vertically against it or conforming more nearly to the general doctrine in such cases, a line be projected there parallel with any other proper line crossed by it,' or parallel with the end lines of the located vein, which would seem be the better rule and one which will more nearly conform to the rule making these lines the end lines for all purposes.
$ 889. Relation to original date of location.- Manifestly all other veins, spurs and offshoots relate to the date of the location of the principal vein, and as to any conflict upon the dip they must be considered as located on that day.
1 Colorado Central M. Co. v. Turck, See s. C., 102 Fed. Rep. 430; Wal50 Fed. Rep. 888, 896. See also Ar- rath v. Champion M. Co., 171 U. S. gentine M. Co. v. Terrible M. Co., 293, 307. 122 U. S. 478; Flagstaff M. Co. v. 3 Colorado Central M. Co. v. Tarbet, 98 U. S. 463; Iron Silver M. Turck, 50 Fed. Rep. 888, 896. See Co. v. Elgin M. Co., 118 U. S. 196. also Del Monte M. Co. v. New York
2 St. Louis M. & M. Co. v. Mon- & L. C. M. Co., 171 U. S. 55. tana M. Co., 104 Fed. Rep. 664. 4 R. S. U. S., S 2322.
Placing Lines Upon Patented Ground, or Upon Ground Previously
$ 895. Preliminary – The position of the department on this question.
896. Rule inapplicable to locations made prior to May 10, 1872. 897. Correctness of department rules challenged and changed by the
courts. 898. As to making locations rigidly - Discovery on claimed ground —
Must be good when made - Lines differ from discovery.
$ 895. Preliminary — The position of the department on this question.— While the department has, of necessity, always permitted the survey of a claim to cross upon and overlap an adjoining unpatented claim, even though surveyed for a patent, where the party announced an intention to claim and contest for the conflicting ground, and bas also, for the same reason, permitted surveys to cross other claims whether patented or not, it has always made the objection in instructions to surveyors general, and to registers and receivers, against the encroachment by survey upon land previously surveyed whether patented or not. An example of this is found in the following excerpt from the latest code of regulations issued by the department: “The rights granted to locators under section twenty-three hundred and twenty-two, Revised Statutes, are restricted to such locations on veins, lodes, or ledges as may be situated on the public domain.' In applications for lode claims where the survey conflicts with the survey or location lines of a prior valid lode claim, and the ground within the conflicting surveys is excluded, the applicant not only has no right to the excluded ground, but he has no right to that portion of any vein or lode the top or apex of which lies within such excluded ground, unless his location was prior to May 10, 1872. His right to the lode claimed terminates where the lode, in its on ward course or strike, intersects the exterior boundary of such excluded ground and passes