The line of the location, the number of linear feet claimed along the course of the vein, measured his right as to length. While the act clearly granted the privilege of pursuing the vein in its downward course, there was no attempt at defining the bounding planes which limited the right. While, as heretofore observed, end lines may have been inferred, for the simple reason that the miner's pursuit of the vein on its strike must cease at some point, the direction to be given to the lines and the angle at which they were to be drawn with reference to the course of the vein were not necessarily inferred. We have the highest authority for the statement that these end lines were not required to be parallel.1 Judge Field has said in the Eureka case, that lines drawn vertically down through the ledge, or lode, at right angles with a line representing its general course at the ends of the claimant's line of location, will carve out, so to speak, a section of the ledge, or lode, within which he is permitted to work, and out of which he cannot pass. If the general course is to be considered as a straight line connecting the linear extremities of the location indicated thus, VEIN. x by the dotted line, x x, the application of Judge Field's rule would necessarily result in a parallelism of end lines, which he says is not required. If each end line is to be drawn at right angles to the local trend, as indicated at the respective points where the linear measurement on the vein begins and ends, they never could be parallel, except in the case of ideal veins pursuing a uniform course. While we may concede, for the purpose of argument, that the theory of the law of 1866 was to give to the miner only 1 Eureka Case, 4 Saw. 323; Iron S. M. Co. v. Elgin M. Co., 118 U. S. 196-208. so much of the vein underneath as he had appropriated upon the surface, the act did not define in what manner the bounding planes were to be established. The method suggested by Judge Field, applied to the ideal lode, would accomplish this result, the lines being parallel. The same object would be gained by drawing parallel lines across the vein at any angle. The truth is manifest. The act is crude. and imperfect. Congress never anticipated the numerous intricate questions which might possibly arise under it, and the courts were compelled to exhaust their ingenuity in construing it so as to prevent the destruction of the large property interests which had grown up under the system of local rules which congress intended to perpetuate through the medium of congressional law. What we have thus far said with regard to dip rights under the act of 1866 applies only to unpatented claims located under the act. The proceedings culminating in a patent gave greater precision to the location, and as a rule, definitely fixed that which theretofore was more or less uncertain. There are but few instances, at the present time, of mining claims originating under this act which have been continuously perpetuated without applying for a patent. Our object in presenting a review of the law was simply to show the historical evolution of the present extralateral right. 568. Nature of estate in the vein, created by grant of the dip or extralateral right.-Before proceeding to a detailed discussion of the nature and extent of the dip or extralateral right as sanctioned by the legislation of congress, it is of considerable importance that we understand the underlying theory upon which the right is based. A proper conception of this theory will, in our judgment, materially aid us in reaching a correct solution of some of the complicated questions arising out of this element of the federal law. In discussing some of the incidents of the ownership of veins, or of land containing them, the courts frequently refer to the common law rule of property, and in commenting upon that feature of the American mining law which awards under certain conditions the right to the pursuit of a vein outside of and beyond vertical planes drawn through the surface boundaries, draw the conclusion that this socalled dip or extralateral right is in contravention of the common law. Strictly speaking, this is inaccurate. The grant of the right of lateral pursuit is, in legal effect, a severance of the estate in the vein from the ownership of the soil into which it penetrates after passing beyond the vertical planes drawn through the surface boundaries of the location or patent. The government being the owner of the fee may carve from it the ownership of the vein. It may grant the surface to one and the vein to another. There was nothing in the common law which prohibited this severance. In fact, it was expressly sanctioned, as we have heretofore shown. Nothing was more common than to sell or demise a piece of land, excepting the mines, and when the surface "and underlying mines or the different strata of the sub"soil were differently owned, they were separate tenements, "with all the incidents of separate ownership-a distinct "possession and distinct inheritance."1 Therefore, when the government grants a vein with the right to pursue it in depth indefinitely, the title to the vein is severed out of the adjoining land into which it penetrates, and the estate in the land overlying the dip is to that extent lessened. Instead of being in derogation of the common law, this class of grants is in absolute harmony with it. It is not true, therefore, that the statute should be strictly construed because it contravenes the common law. This dip or extralateral right is not a mere easement. The estate thus granted in the vein is of the same dignity as that of a title in fee. It is a title in fee as to the vein granted. This grant of the fee in the vein may 1 See, ante, 9, and authorities cited in notes. be accompanied by certain easements. To illustrate: The right to follow the vein into adjoining lands frequently cannot be exercised without disturbing some portion of the inclosing rocks. The grant of the vein necessarily carries with it whatever is reasonably required for its enjoyment and without which the grant would be ineffectual. But the estate in the vein is a fee simple estate. It may be said that these are elementary rules. This is quite true, but they are frequently either overlooked or ignored. The act of 1866 was, in effect, a proclamation severing veins and lodes of the character specified from the body of the public domain. It was the announcement of a governmental policy, whereby ledges within the earth were to be considered as distinct entities, and to be dealt with as such in administering the public land system. This policy has never been changed. It is as much a part of the existing system as it was of the one which it succeeded. ARTICLE II. EXTRALATERAL RIGHTS ON THE ORIGINAL LODE UNDER PATENTS ISSUED PRIOR TO MAY 10, 1872. 572. The right to patent under the act of 1866, and its restric lines converge in the direction of the dip. tion to one lode. 573. The functions of the diagram and the surface lines de- 2574. Rights of patentee under the act of 1866, where the end 575. Rights where the end lines diverge in the direction of the dip. 576. Under the act of 1866, parallelism of end lines not re required Doctrine of the Eureka case. 2577. Conclusions. 572. The right to patent under the act of 1866, and its restriction to one lode.-The act of July 26, 1866, contained the following provision: "Whenever any person or association of persons claim "a vein, or lode, of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper, having previously occupied and improved the same according to the local cus"toms or rules of miners in the district where the same is "situated, and having expended in actual labor and improvements thereon an amount of not less than one thou"sand dollars, and in regard to whose possession there is "no controversy or opposing claim, it shall and may be "lawful for said claimant or association of claimants to file "in the local land office a diagram of the same, so ex"tended laterally or otherwise as to conform to the local "laws, customs, and rules of miners, and to enter such "tract and receive a patent therefor, granting such miné, "together with the right to follow such vein, or lode, with "its dips, angles, and variations, to any depth, although it may enter the land adjoining, which land adjoining shall "be sold subject to this condition." In another portion of this work we have commented upon the construction given to this section by the land department, and have there illustrated some of the results flowing from the earlier attempts to administer the law.' While the method of location sanctioned by this act has long since passed into history, and we are not necessarily called upon to speculate upon the subject of dip rights as applied to individual claims prior to patent, beyond the historical summary outlined in a preceding section, there is left us a legacy of numerous patents issued under the provisions of the repealed law, which, to some extent at least, demands serious attention. We shall always have these patents with us. While for many years they have existed unobtrusively, in recent times, particularly in the older quartz camps of California, a revival of the mining industry has brought them to light, and the attention of the courts is directed to the adjustment of controversies arising out of rights asserted under them. They are entitled to more than a passing consideration. It is not to be expected that we should anticipate every possible question that may arise out of the peculiar form of some of 1 See, ante, 59, figs. 1 and 2. |