opolis south end line through stations 9 to 17, and on through stations 109 and 22, across the 1,100-foot line, is in the back fissure through the Betsy stope, and that such back fissure is 10 or 15 feet west of where the drift crosses that end line, the witness at the same time stating that the Betsy stope was extended to the 800 level since this suit was commenced, but was extended down to the 400 "a good many years ago, and below the 400 level"; that on the Plummer tunnel level, the drift, extending northerly across that same end line through the O'Brien winze near the 1,100-foot line and across that line, is "in what is called the 'back fissure' below, and it is in ore all the way" between those lines, some of it being "low grade ore, some good ore"; and that, on the Finn tunnel level, the drift running northerly from station 03 across the same end line through stations 05 to 09, and the O'Brien winze to the 1,100-foot line, is in "what is called the 'back fissure,' ," and is in "low grade ore practically all the way." The witness also testified that on each of the last two levels mentioned the distance from the point where the back fissure crossed the Silveropolis south end line extended to the west side line of lot 38 is 90 feet. The witness Earnshaw indicates the location and dip of the back fissure from the Finn to the 800 level, and corroborates the testimony of the previous witness. Likewise as to other testimony for the defendant on this subject.

Speaking of the dip of the back fissure, the witness Akers said that from the workings in the mine he found the dip from the surface to the 300 level, to be "slightly to the west, approximately between 80° and vertical"; that from the 300 to the 600 level the dip of the foot wall is about 50° from the horizontal; and that from the 600 to the 800 level it had a dip of about 85° from the horizontal. The witness Earnshaw testified that the difference in elevation between the 800 and the Finn level is 688 feet; that where the back fissure crosses the Silveropolis south end line extended on the 800 level it is 135 feet westerly of the west side line of lot 38; and that on the Finn level, where the back fissure crosses the same end line, it is 92 feet west of that side line, the fissure being thus 43 feet further west on the 800 than on the Finn level, and consequently, as he says, in descending a vertical distance of 688 feet, the distance between the two levels, the angle of dip was 86° 30' from the horizontal. The testimony relating to the various levels and workings of the mines thus referred to is not materially different in character and import from the mass of testimony of numerous other witnesses for the defendant on the same subjects.

In turning to the testimony on the part of the plaintiff, to ascertain therefrom what facts and conditions are revealed by the underground workings, it will not be necessary to refer in the same detail to the

tunnels, drifts, and other workings on the various levels, since much of the evidence already referred to is not controverted. Reference to the plaintiff's evidence, therefore, will be more general. Prof. Jenny, testifying for the plaintiff, says the vein or lode, "both in its outcrop at the surface and in depth, passes wholly on its strike out of lot 38," at a point on the west side line of that lot, about 87 feet southerly from the Silveropolis south end line extended, and that the ore situated beneath the Silveropolis and Consort mining claims does not lie in any vein or lode having its apex in lot 38 north of that end line, but forms a part of a vein or lode having its apex within the surface boundaries of the Silveropolis and Consort claims. He also says the Betsy stope on the 300 level is not a part of the Mammoth vein, but "is in the back vein." Respecting the territory north of that end line extended and easterly of the line of stoping in direction of the line T-S, his testimony is to the effect that the developments on the different levels, from the Finn tunnel down to the 900 and below, show that the workings are in barren material, except the back vein or fissure, which appears to fade out before it reaches the 1,100-foot line; that the various levels are driven mostly through broken, fissured, and shattered lime rocks, in places through brecciated and stained material, and the dykes; that on the Grand Central side the sedimentary beds are as much shattered and broken as on the side of the Mammoth, except where the breaks or dykes occur; and that the vein consists of a series of fissures, having its general course in the direction of the lines W-U, U-T, and T-S, and passes through the dykes northwesterly along the line U-T on its strike, passing through the Coates dyke between the 600 and 700 levels, and through the Finn dyke at the Bench stope. Speaking of the dykes between the 600 and the 700 levels the witness said: "The two dykes are just a short distance apart on these different levels, the junction being, as I explained, just at a point slightly south, never more than 100 feet south at any point, I think of the Silveropolis end line. The junction is almost vertical. On all the levels it is inclined, going to the west. It lies under the Silveropolis south end line practically, sometimes 100 feet to the south; then on the next level they will widen out, join under the line. It goes up to the roof of lime, with very little clay material arching it over." He also states that the "inclination of the vein is 75° in that northwesterly direction" along the line U-T, from the horizontal.

Dr. Talmage, testifying for plaintiff, corroborated the testimony of Prof. Jenny, and speaking of the Finn tunnel, from station 03 north, he says: "As you go through that tunnel from its mouth to its face there are absolutely no indications of mineralization." And the witness also says that the country

through which the 200 and 400 levels of the Grand Central are driven, from the shaft easterly to where ore is encountered, consists of broken, fissured, and fractured limestone, shattered as much as in any of the workings in either of the mines, except where such workings penetrate the dykes. He speaks likewise of the Grand Central 700 level from the shaft easterly; and according to his testimony the material is much the same in the long cross-cut at station 643 and the northern workings on the Mammoth 600 level, except where the dyke material is encountered. The witness, after testifying that the strike of the vein, from the south end line of lot 38, proceeding north, is in the direction of line W-U, about N 7° W., true, to the point U, thence along the line U-T, N. 51° W., true, to the point T, thence in the direction of the line T-S, and that the boundaries of the vein "would be determined by the nature of the mineralized matter, and therefore by the limits of the ore bodies themselves, both on the sides and upward, and doubtless downward, if you went to the bottom of them," gave his reasons as follows: "My reasons are based upon the positions of the ore bodies. I followed them for great distances, from the south northerly, and have followed them on some of the levels from the northern part southerly, and I find them to be virtually as indicated here on the map. Coming from the Grand Central workings in the southerly direction, I find the ore bodies following a line which is approximately north and south. When I reach the point, or when I project the point indicated here as connection, near the letter T, as a designation of the line-of the line T-U-I find the ore bodies turning to the east and pursuing a southeasterly course until we reach the ore in the neighborhood or in the Cunningham stope, when another turn is observable and plainly apparent. The ore bodies then follow a course represented by the line W-U. Now, along | that belt from the north to the south I find those ore bodies confined within a limited area, not more than a hundred feet wide in general. In examining the several workings, running northerly-I mean to say from the line T-U-I fail to find any continuation of the great ore bodies. I make this answer independent of the consideration of outcrop, having already stated that after diligent search for an outcrop on lot 38 I have failed to find it; and beneath the ground I fail to find any vein to apex or to strike, and therefore I fail to find any apex or strike of a vein."

The witness Wilson says the 200, 400, 700, 900, and 1,100 levels of the Grand Central, from the shaft easterly, are driven through broken, shattered, and fissured limestone, and that, with the exception of the dykes, "there is a correspondence in what we see in passing through the drifts," on the Mammoth 300 level, "from station 36 out to their faces." He further testified: "Q. Have you been up

the Condon winze through the works branching therefrom, and through the Condon tunnel, or what is marked on our map as Accident tunnel, to its easterly face? A. Yes, sir; I have been up in through those workings. From the easterly face westerly it is in limestone. This limestone is standing quite vertical." He also says the cross-cut on the 700 level, from station 739 to 72, in which connection is made between the mines, "is entirely unmineralized in its total length.” The witness Tyler said that the limestone, through which the 200, 400, and 700 levels of the Grand Central are run from its shaft easterly, is as much broken and fractured as is the limestone in any of the northern workings in either of the mines, excepting the dykes, and that "the only portion of the Mammoth ground, o. the cross-cuts in the Mammoth ground, that compare with the openings and fissured condition of the Grand Central 200 cross-cut, is a portion of the east 600 cross-cut of the Mammoth in the neighborhood of station 643, from that west to station 641. That is the triangle of ground between the two dykes and is very much fissured and broken." He also testified: “Q. Now, taking the vein in sections, subdividing it, what would you give as the strike of the various divisions? A. The average strike of the southerly portion would be in the direction of the line W-U; of the middle portion of that crossing through the Bradley fraction would be in the direction of the line U-T; that from T northerly through the Butterfly stope would be in the line, I should judge, about N. 10° or 12° W." The testimony of other witnesses for plaintiff respecting the underground workings is of similar import.

Respecting the boundaries of the vein Col. Wall testified: "As shown by the excavations, the work had extended to the limit of the ore and into the rock at various points along, showing definite and easily understood boundaries; and these boundaries could be none other, or no better described, than the limit of the ore. Wherever replacement had ceased there it was simply limestone, within a few inches, and this seemed to be true everywhere. The stopes had been extended as far as profitable, and then here and there cuts driven out until barren limestone was encountered, and all this within a distance of a very few feet from a point at which stoping had ceased; that is, from which the ores had been removed. Q. Within a very few feet you come into barren lime? A. Everywhere." And he says the width of the ore through the Grand Central is irregular, 10 to 40 feet, "in places as much as 100 feet, or even a little more." Prof. Jenny says: "I consider the limit of the vein to be the limit of the mineralization." Dr. Talmage testified: "The boundaries of this ore body or vein throughout its entire extent, in my opinion and judgment, would be determined by the nature of the mineralized matter, and therefore by the limits of the ore bodies

themselves, both on the sides and upward, and doubtless downward, if you went to the bottom. I would consider the rock there mineralized in the sense in which we are using the term, as indicating ore matter when it carries valuable metals to an amount in excess of the valuable metals carried by the country rock. Q. I will ask you if, in your examination of the works of both mines, you are enabled to find else than the limit of mineralization that could be assumed as the boundary; in other words, if we were to cut loose from the mineralization, whether you could find anything as you traveled easterly or westerly which could be taken as a limit of demarkation between the vein and the country rock? A. I know of no other boundary or limit that could possibly be set." The witness Loose testified: "Nowhere have I seen that [the ore] more than 50 feet or 100 feet wide." A number of other witnesses for the plaintiff testified to the same effect as to the limits of the vein.

The witness Jenny, speaking of the deposition of the ore in these mines by replacement, says: "In the heart of the ore bodies, where the ore was deposited at the very height of the ore-making period, where the solution and the action were most intense, we find chemically pure galena, fine grained in its structure as a piece of steel, exactly replacing the shape and form and size of the original limestone fragments; and if the stope be dusted over by the force of the explosion of shots in mining, so that it has a little dimmed the appearance of the ore, it is impossible by the eye to distinguish fragments of limestone which weigh only a few pounds from fragments of galena that you cannot lift. The rock has been converted without a change of form directly into the ore itself." There is much other testimony showing indications that the vein was formed by replacement.

The witness Brooks, after explaining the projections of the ore bodies of the Mammoth mine on the plane U-T. testified: "Q. Mr. Brooks, have you ascertained the vertical distance from the surface to the 1,900 level? A. Yes, sir; the vertical distance is 1,800 feet. Q. Have you taken the horizontal distance from the most easterly ore to the surface, and most westerly at 1,900, in the vicinity of the Mammoth shaft? A. Yes, sir; it is 100 feet from the most easterly point on the surface to the most westerly point of ore, as I surveyed it, on the 1.900. Q. Now, what is the angle. of the dip? A. 86.45° from the horizontal." The witness Tyler says that, from the top of the winze on the 400 level of the Grand Central, where ore appears, to the ore cut by the plane K-K, on the 1,000 level, the westing of 95 feet is made, and that gives angle of dip, for the whole distance, of 82° from the horizontal. He also says that the vertical distance from the top of the ore above the 600 level, just

north of the 1,100-foot line, down to the ore on the 800, is 270 feet, and that the westing is 80 feet, giving, through that depth, an angle of 78° 30′ from the horizontal. Prof. Jenny says in the section along the line U-T the beds course N. 70° W., magnetic, exactly with the strike of the fissures, but that the dip of the fissure is 75° to 80° from the horizontal. Numerous other witnesses for the plaintiff gave similar testimony respecting the underground workings of these mines.

Respecting the faulting along the Finn dyke, the witness Akers stated that he should expect the faulting or interruption of the vein on its downward course was considerably over 50 feet, and possibly several hundred feet, and then said: "That is only an approximation, since the real truth as to the question of throw can never be determined. Q. If the hanging wall of the fault had gone upward, it would have been what kind of a fault? A. It would have been a reversed fault. Q. If the hanging wall had gone downward, it would have been- A. Normal fault, sir; and I don't know which it did. I know it did one or the other. It either rose or sunk; but in either case that condition of affairs would be produced. We would have a dislocation either above or below." He also testified: "Q. If the dyke fault had taken place after the vein was formed, what would you have expected of the vein in the way of faulting? A. I would have expected that vein to have been cut off, and the two ends of the vein removed from each other, so that there would be no connection whatever between them." The witness Earnshaw, speaking of the dyke, said: "It could be called vain material," that it "was crushed and fissured before the vein was formed, and that "by the secondary movements on the fissuring it has been further crushed and ground up." The witness Jenny, speaking of the Finn break, said: "First in the movement the rocks were shattered and broken up into large pieces, many feet in dimensions, and lines of sheeting or fissuring parallel with the dyke made through the rocks and the material there adjacent to the fissure. Then, as the movement continued, these masses of rock were pulverized more and more more and more broken. It is very irregular in width, in some places only 15 feet wide, in other places it would expand to 30, 40, or 50 feet in width. Then, where it united with the Coates dyke on the south, it is possibly 120 to 125 feet wide. The dyke appears to have grown from its eastern side towards its. western. On the eastern side, which would be its foot wall, we find a heavy, tough stratum of clay. That is [due to] the grinding movement of one wall moving upon the other." He also testified: "Q. Did you find any place else, excepting at the point along the line T-U, to the north, where the ore body goes through

these dykes? A. I did not. To the south we find the great fault, which has aided in making the apex stope 100 to 150 feet wide."

Mr. Tyler, referring to faulting, testified: "I think that there has been movement, along the line of the foot wall of the Finn break and on different parallel slips included within the Coates dyke, which has resulted in the dislocation of the ore body, in a dropping of the ore bodies lying west of the dykes, to a position anywhere up to 400 feet or so lower than that formerly occupied before the faulting took place.". Speaking of the ore, slight in quantity, found in broken and shattered material near the southerly end of the drift running south along the dyke on the 400 level, at station 401i, and in explanation of the occurrence of ore there, the witness said: "I should judge it is merely another occurrence, on a very small scale, of what we find farther to the north in the stopes about the 500 and the little stoping about the 400 just north of this in the dyke; that is, in the part carried down from the ore bodies above." Speaking of ore found on the 500 level between stations 622 and 622b, the witness says: "This was a thin, comparatively thin, body or sheet of ore material, as far as I could find by passing up and down through the stopes, which lay within the fault or within the dyke, and to the west of the foot wall of the dyke; a sheet of ore in a tabular form, which lay along the dyke, partly as if it had been dragged there, and partly as if it was a mass of ore that had been carried down with the faulting and left there." Dr. Talmage, describing the occurrence of ore and condition of the dyke there, said: "I found evidence of lowgrade ore. This occurs on the surface of fractured pieces of limestone. The foot wall of the dyke at station 4011 is beautifully polished, giving evidence of movement producing typical slickensides. Further evidence of fault is in the brecciated condition extending westerly from the polished foot wall" of the dyke.

The foregoing statement, and extracts of the testimony, show the character of the evidence introduced at the trial in this case. The case was thus submitted to the court and jury with evidence relating to all parts of the properties, surface and underground, in the greatest detail, and, the jury returning a verdict upon the special issues in favor of the plaintiff, the court adopted the verdict, and found, agreeably with it, that the top or apex of the vein continued, from the southerly end line of the first northern extension of the Mammoth, lot 38, to the place where the Cunningham stope at its northerly edge or end crossed in its northwesterly course the west side line of that lot, such point or place being, as found, 690 feet north of such southerly end line, and 90 feet south of the southerly end line of the Silveropolis mining claim, extended easterly in its own direction across lot 38; that at that point the vein on its strike and at its apex wholly departs from lot 38,

and does not continue within that lot between the planes drawn through the Silveropolis southerly end line so extended and the 1,100foot line; that such apex does not continue north of such end line within the limits of lot 38; that between such planes, on that end line so extended and on the 1,100-foot line, there is no apex or part of an apex of any vein, lode, or ledge, which vein, lode, or ledge on its dip extends to and includes the ore bodies known to exist beneath the surface of the Silveropolis and Consort Mining claims, between those planes; and that the apex of the vein or lode which is in the south end of lot 38 does not continue in that lot north of the Silveropolis south end line extended. The decree is in harmony with these findings, and directs that the defendant's counterclaim be dismissed.

Notwithstanding this decision, which was substantially the same as that at the previous trial, the judge filed, separate and apart from the findings and decree, a written opinion, in which he concluded that there are two veins in the Mammoth ground; the one running from the shaft north at least to the 1,700-foot line, and the other lying to the east. In this opinion he argued that the ore bodies in controversy belonged to a vein which had its apex in the Golden King and Bradley mining claims, and could be recovered by the defendant in a proper proceeding. Thereafter the defendant asked leave to amend its counterclaim, and later to file an original counterclaim, in accordance with the expressed views of the court. These requests being refused, the defendant prosecuted its appeal.

This record presents two principal questions for determination: First. Whether the court erred in finding that the vein mentioned in the counterclaim upon which the trial was had, at its apex and on its strike, leaves lot 38 at a point 690 feet north of the south end line of that lot. Second. Whether the court erred in refusing to permit the defendant to file the amendment to its counterclaim, and in refusing to permit the filing of its proposed original counterclaim, in each of which it was alleged that the vein found at the south end of lot 38 did, at its apex and on its strike, wholly depart from that lot at the point found by the court, and that its apex beyond that point was in the Golden King and Bradley mining claims. All other questions presented are subordinate to and in support of one or the other of these two.

C. S. Zane, John M. Zane, J. W. Stringfellow, and H. L. Pickett, for appellant. Dickson, Ellis, Ellis & Schulder and Brown & Henderson, for respondent.

BARTCH, C. J., after stating the case as above, delivered the opinion of the court. The main question, which resulted from the issues raised by the pleadings that formed the basis of inquiry and submission at the trial and which we will consider in the first instance, is whether the court erred in

finding that the vein or lode mentioned in those pleadings, at its apex and on its northwesterly course or strike, crosses the western side line of lot 38 and wholly departs from that lot at a point 690 feet north of its south end line, and north of that point does not continue, either at its apex or on its strike to or beyond the 1,100-foot line within the limits of lot 38, and that there is no vein or lode having an apex or any part thereof within the limits of lot 38 north of the southerly end line of the Silveropolis mining claim extended eastward in its own direction, and south of the 1,100-foot line, which on its dip extends to and includes any of the ore bodies existing underneath the surface of the Silveropolis and Consort mining claims south of the 1,100-foot line. This is principally a question of fact, and must be considered in view of the law of Congress respecting extralateral rights. It includes various incidental questions of importance. For its solution and determination we have volumes of testimony of men of science, of engineers, and of practical miners, concerning the location and workings of both mines, surface and underground. Men distinguished for their scientific attainments have testified not only as to the existing physical facts, but have explained how, in their opinions, by the processes of nature, the mineral was deposited where it is found, making reference in detail to the facts and physical appearances which controlled their judgments. Upon careful study of the geological facts in evidence, involving so many and such varied features, one cannot marvel that these witnesses differ in their conclusions. Aside from some statements of a few witnesses whose judgments were either faulty through want of comprehension, or warped by interest, the testimony is such as inspires confidence and warrants serious consideration. The case was prepared with a commendable degree of care and tried by eminent counsel on both sides. The maps and glass model, the researches made in the mines by witnesses for the purpose of unfolding the intricacies of nature respecting the formation and character of veins and deposition of ore, all bespeak a degree of professional skill and ingenuity commensurate with the magnitude of the interests involved. The premises are of very great value. It would be idle to say that upon the result of the case made by the counterclaim and answer depends but the ownership of the ore bodies in the Silveropolis and Consort mining claims south of the 1,100-foot line. It is plain to be seen, without demonstration, that, if the ore bodies in dispute herein are embraced in a vein having its apex in lot 38 north of the Silveropolis south end line extended, the ore bodies north of the 1,100-foot line in the same claims are parts of and belong to the same vein. The ultimate question involved is therefore not

merely the ownership of a few ore bodies of the alleged value of $300,000, but of the ownership of ore bodies or of a vein of ore doubtless worth several millions of dollars. That such inevitable results would follow in the wake of this trial and decision was, without doubt, fully understood by both sides, as is evidenced by the exhaustive manner in which the case was tried. It will be thus observed that the question here under consideration is one of vast importance and susceptible of grave consequences to the litigants, and is entitled to receive our closest scrutiny and most careful and deliberate judgment.

In determining this question the surface of lot 38, the extralateral rights of that lot, the dip and strike of the vein, and the underground workings of the mines are important factors. The extralateral rights, upon which the appellant has founded its claim to the ore bodies in dispute, accrued to it as owner of lot 38 by virtue of the provisions of section 2322 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 1425], whereby the owner of a mining claim has a right to follow, between vertical planes drawn downward through the end lines of the location, a vein having its apex within the limits of such claim on its dip to the deep, although such vein may so far depart from a perpendicular in its course downward as to extend outside of the vertical side lines of the surface location. The ore bodies in controversy, however, being located without the limits of lot 38, and underneath the surface of the Silveropolis and Consort mining claims, the appellant, notwithstanding the law of Congress, is met at the very threshold with the presumption that they belong to the respondent, the owner of those claims. Where a person, natural or artificial, owns a patented mining claim, although the statute reserves the right to locators of other mining claims to follow their veins under its surface and extract ore, he is presumed to own all the ore within planes drawn vertically downward to the deep-through the boundary lines of such claim, as well as the surface and everything else appurtenant to the claim; and such presumption continues until some other locator or owner establishes the fact that he is entitled to exercise the reserved rights by virtue of the statute. "Within the lines of each location the owner shall be regarded as having full right to all that may be found, until some one can show a clear title to it as a part of some lode or vein having its top and apex in other territory. To state the proposition in other words, we may say that there is a presumption of ownership in every locator as to the territory covered by his location, and within his own lines he shall be regarded as the owner of all valuable deposits, until some one shall show by preponderance of testimony that such deposits belong to another lode