CHAPTER III. THE EXTRALATERAL RIGHT. ARTICLE I. INTRODUCTORY. II. EXTRALATERAL RIGHTS ON THE ORIGINAL LODE UNDER III. EXTRALATERAL RIGHTS FLOWING FROM LOCATIONS MADE IV. EXTRALATERAL RIGHTS ON OTHER LODES, CONFERRED V. CONSTRUCTION OF PATENTS APPLIED FOR PRIOR, BUT VI. LEGAL OBSTACLES INTERRUPTING THE EXTRALATERAL 2564. Introductory. The extralimital rights of a lode locator, other than the right to pursue the vein on its downward course out of and beyond his vertical bounding planes, are few and comparatively unimportant. The right to locate and hold a millsite in connection with a located lode under the first clause of section twenty-three hundred and thirty-seven of the Revised Statutes, may be said 5% 9 S to be extralimital. It is wholly dependent upon lode ownership. A loss of the lode location by forfeiture or abandonment would undoubtedly destroy the right to the associated millsite, unless it had thereon a quartz mill or reduction works, when an entry might be made thereof under the second clause of that section. But the selection of a millsite is an independent act.1 It is a privilege which may or may not be exercised. The same may be said of the permission granted by the act of June 3, 1878, to cut timber for mining purposes upon public lands, which is a mere transitory privilege, not to be classified distinctively as a right. The principal right which may be exercised beyond the boundaries of a lode location is that which is now commonly designated by the term "extralateral." In determining the nature and extent of this right, it will be necessary to consider not only the provisions of the Revised Statutes, but also the act of July 26, 1866. As we have heretofore observed," to a considerable extent this act and the titles issued under it are brought into connection, and are at least partly blended with the later, or present, legislative system and the titles held thereunder. 2565. Origin and use of the term "extralateral." The word extralateral does not appear in any of the standard dictionaries. We are indebted to Dr. Raymond for its introduction into the mining literature of the period.1 Its etymological signification is obvious. Its application, to denote the right to pursue a vein on its downward course, outside of and beyond vertical planes drawn through the side lines of a lode location, into and underneath the surface of adjoining or contiguous land, affords us a simple and comprehensive term with which to express a somewhat 220 Stats. at Large, 88. Amended, Aug. 4, 1892, so as to apply to all public land states and territories. 3 See, ante, 60, p. 71. Law of the Apex, Trans. Am. Inst. Min. Eng., vol. xii., p. 387. complex idea. The phrase "right of lateral pursuit," employed by Mr. Willard Parker Butler,' is an equivalent. Either expression, when used in connection with the federal mining laws, is free from ambiguity and sufficiently explicit. 2 2 566. The "dip right" under local rules.-The "dip “right” of the early miner was the parent of the modern extralateral right. Whether, in framing their local regulations on this subject, the pioneers of the west drew their inspiration from the traditions of early German customs, which sanctioned the inclined location, received their suggestions from mining on "rake veins" in Derbyshire, or were induced to provide for following their vein on its dip indefinitely, on the consideration that the miner might obtain more that was valuable by this method than any other, is not at this late day necessary to inquire. The fact remains, that ever since the discovery of the auriferous quartz veins of California, the "dip right" in some form has been an all-important attribute of the ownership of lodes and lode locations. The local regulations which established and governed this right, as well as all others during that period, were not framed with serious regard to precision of expression. The locator was entitled to so many linear feet on the lode, in whatever direction it might be found to run, "together with all the dips, spurs, "angles, and variations of the vein." Sometimes additions were made to this vocabulary. For example: The miners of Reese River, Nevada, provided that, 66 "Each claimant shall be entitled to hold by location two hundred feet on any lead in the district, with all dips, spurs, and angles, offshoots, depths, widths, varia"tions, and all mineral and other valuables therein con"tained."4 RR J. Ross Browne's Mineral Resources, 1867, p. 247. These terms were supposed to be comprehensive enough to take laterally what the miner failed to obtain longitudinally. Much controversy arose in the early days over rights asserted under the claim to "spurs"; but generally speaking, the extent and character of the "dip right" was well understood and recognized. The exercise of the right was not hampered by bounding planes. As a rule, no surface lines were marked, and no surface occupant ever dreamed of contesting the privilege of a lode claimant of following his vein underneath such surface. Such privilege was sanctioned by the "American common law of mining for the precious metals."1 Where surface boundaries were established, as they sometimes were, they were not looked upon as controlling any rights upon the located lode, either in length or depth.2 If there were disputes as to the common bounding plane between two claimants on a lode, they were usually adjusted by common consent, or resulted in consolidation of interests and the establishment of a common system of development. The law reports covering this period are barren of cases touching this subject. To assert that end lines were inferred, and that these should be drawn across the lode at a right angle, or at any other angle, to the general course of the lode, is a matter of speculative theory. Lodes did not then, any more than now, pursue a uniform course. The first locator on a continuous vein might comply with this supposed theory, but a claimant locating a part of the same vein some distance removed from the original locator, at a point where the vein had changed its course, would be compelled to accommodate himself to local conditions, leaving intermediate locators with end lines either converging towards or diverging from those established by one or the other of the previous locators. Whatever may be said of the rule of implied end lines of locations made under the act of July 26, 1866, and their direction with reference to the course of the vein, it cannot 2 See, ante, 59. 1 King v. Edwards, 1 Mont. 235. be demonstrated that any definite rule ever actually prevailed during the period when local rules and customs held unquestioned sway. The nature and extent of the dip right, as established and recognized by the local customs and rules of miners during the period antedating legislation by congress, were substantially as above indicated. 567. The right to pursue the vein in depth, prior to patent, under the act of July 26, 1866.-Section four of the act of July 26, 1866, contained the following provision: "No location hereafter made shall exceed two hundred "feet in length along the vein for each locator, with an "additional claim for discovery to the discoverer of the "lode, with the right to follow such vein to any depth, "with all its dips, variations, and angles, together with a reasonable quantity of surface for the convenient work"ing of the same, as fixed by local rules. . . .” This act was but the crystallization of the miners' rules and customs.' It in no respect enlarged the right of the claimant beyond that which the rules of the mining district gave him. It restricted the locator to one lode, but made no provision for the establishment of surface boundaries as an act of location. We are instructed by Judge Field, that although not in terms mentioning end lines, such were necessarily implied.' Where surface land was appropriated in connection with a linear location on the ledge, it was intended solely for the convenient working of the mine, and did not measure the miner's right, either to the linear feet upon its course, or to follow the dips, angles, and variations of the vein." 1 Jennison v. Kirk, 98 U. S. 453; Broder v. Natoma Water Co., 101 U. S. 275; Blake v. Butte S. M. Co., 2 Utah, 355. 2 Eureka Case, 4 Saw. 323. 3 Id.; Eclipse G. & S. M. Co. v. Spring, 59 Cal. 304; Walrath v. Champion M. Co., 63 Fed. 552. Eureka Case, 4 Saw. 323. See, ante, 58. |