decision of the supreme court of the United States on certiorari proceedings, in the case noted on preceding page.

While the question now under consideration was ultimately eliminated from the case by the decision of that court, the present state of the law, so far as it has been

adjudicated, has been evolved out of this controversy and the reasoning found in the numerous decisions rendered at different stages of its progress through the courts.

In the discussion of other classes of cases which involved no surface conflict, we have, as a rule, avoided injecting into them the question of priority as affecting the extralateral right. We have intended to deal with this subject when treating of the legal obstacles which interrupt the right of lateral pursuit. Where both parties have each a part of the apex of the same vein, conflicts between underground planes frequently occur, which must be

settled by priority of apex appropriation, a subject to be fully discussed in a succeeding article.'

To obtain the latitude required for the purpose of properly presenting the question, we will assume priority in favor of the Tyler, placing the Last Chance in the position of a junior appropriator owning the surface overlying the ore bodies in dispute. We shall also deal with the question regardless of the subsequent readjustment of the Tyler end line, 5 6; in other words, assuming the location. to be in the form described by the original boundaries. We have, therefore, a vein, x x, entering the claim across the end line, 12, and passing out of the side line, 2 3.

Has the Tyler, under the assumed state of facts, any extralateral right? If so, how is it to be defined?

The dip, in the illustrated case, is to the south, although it makes no difference in the application of principles in which of the two possible directions, north or south, the vein descends into the earth.

Judge J. H. Beatty, district judge of Idaho, before whom the Tyler case was tried, decided the case on questions of priority in favor of the Last Chance, as established by a former judgment between the same parties.

The circuit court of appeals, ninth circuit, held this to be error, reversed the case, remanded the cause for a new trial, and expressed its views as to the extent of the extralateral right of the Tyler. The opinion was written by Judge Hawley and concurred in by Judges McKenna and Gilbert. The court reviewed the opinions in the Flagstaff, Elgin, and Argentine cases, and reached the conclusion, that the theory adopted by Judge DeWitt, speaking for the supreme court of Montana in the King-Amy case, while not applicable to the facts shown in that case, as the lode crossed neither end line, afforded a clear, logical, and consistent solution of the question under consideration, when applied to a case where the lode in fact crossed one of the lines which the locator had selected as an end line.

1See, post, art. vi. of this chapter.

"Tyler M. Co. v. Sweeney, 54 Fed. 284.

In commenting upon the Elgin-Horseshoe case, Judge Hawley, speaking for the court, said:

"The learned justice who wrote the opinion in the "Horseshoe case, when he said that the parallelism of the "end lines is essential to the existence of any right in "the locator or patentee to follow his vein outside of the "vertical planes drawn through the side lines,' did not "mean that it was essential to such a right that the lode "should extend in its length from one end line to the "other of the location. If the lode in question, instead of "extending into the Last Chance location, had abruptly "broken off within the surface lines of the Tyler, near the "point where in fact it crossed the line, there could certainly be no question as to the right of the Tyler to "follow the lode, or vein, in its downward course for its "entire depth, outside of the vertical planes drawn through "the side lines. The fact that it continued its course and "crossed the side line does not in any manner change this principle. In either case the locator is entitled to the "same rights. In such cases the end lines are not necessarily those which are marked on the ground as such. "An end line may be drawn at the point where the lode "abruptly terminates within the surface lines, or at the "point where the apex of the lode crosses the side line of "the surface location. This, upon principle, justice, and "authority, it seems to us, is the only reasonable construc"tion that can be given to the statute."

The court then draws attention to the decision by the supreme court of Montana in the King-Amy case, quoting' the following from the opinion of Judge De Witt:

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"The law intends that the plane of the end line shall operate as a boundary to the dip, and so operate at the "point where the strike is ended. If the strike reached "the original end line, as in a regular location, the bounding plane would there operate upon the dip. If the strike, by reason of its going out of a side line, falls short "of reaching the original end-line plane, that plane must "take effect where the strike in fact ends, that is, at a point "on the side line, . . . and if it takes effect there, its "parallelism must not be destroyed. We therefore have "the bounding plane operating at the point where the apex leaves the north side line, and operating parallel "to the east end line, and retaining its parallelism as

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originally marked on the ground. It is not a new line or "plane, or one judicially constructed. It is determined by "the location lines on the surface. There is never any "readjustment according to subsequent developments. "The parallelism of the end-line planes is fixed by loca"tion, and never varies. The point of departure of the "strike from the surface lines fixes the point where the "end-line plane is to perform its functions, whether that departure be at an end line, as contemplated by the "statute, or whether accident has fixed it at a point on a "side line.”

The manifest distinction between the King-Amy and the Tyler-Last Chance cases is found in the fact, that in the former the end-line plane applied by Judge De Witt was not based upon any line actually crossed by the lode, while in the latter case one of the originally located end lines was so crossed.

The Tyler case was retried by Judge Beatty, resulting in judgment for the Tyler, which was affirmed on writ of error. The case was then presented to the supreme court of the United States upon certiorari proceedings, wherein the previous ruling of the circuit court of appeals upon the end line question was fully argued. But the reviewing court did not feel called upon to determine it, as its ruling upon the effect of the former judgment between the parties established a priority which necessarily gave the segment of the vein in dispute to the Last Chance.

Said the court:

"Our conclusions in this respect obviate the necessity "of considering another very interesting and somewhat "difficult question presented by counsel. It will be seen "from the diagram, that according to the original location "of the Tyler claim, the vein enters through an end and "passes out through a side line, while by the amended "location it passes in and out through end lines. Of course, if the latter is a valid location, the owner of the "claim would unquestionably have the right to follow the "vein on its dip, beyond the vertical plane of the side line. "But if it were not, and the original location was the only

Last Chance M. Co. v. Tyler M. Co., 61 Fed. 557.

"valid one, has the owner the right.to follow the vein out"side any boundaries of the claim extended downward? "It has been held by this court in the cases heretofore 66 cited, that where the course of a vein is across, instead of "lengthwise of the location, the side lines become the end "lines, and the end the side lines; but there has been no "decision as to what extraterritorial rights exist if a vein "enters at an end and passes out of a side line. Is that "a case for which no provision has been made by statute? Are the parties left to the old rule of the common law, "that the owner of real estate owns all above and below "the surface, and no more? Or may the court rely upon some equitable doctrine and give to the owner of the "vein the right to pursue it on its dip in whatever direc"tion it may go, within the limits of some equitably crea"ted end lines?

"If the common law rule as to real estate obtains in "such a case, then, of course, on the original location the owners of the Tyler claim would have no right to follow "the dip of their vein outside of the vertical planes of any "of its boundary lines; and even if the amended applica"tion was perfectly valid, the question would arise, whether "the rights acquired under it related back to the date of "the original location, or arose simply at the time of the "amendment, in which case there would be no doubt of "the fact that the owners of the Last Chance had, by years, a prior location. However, in the view we have taken "of the other question, it is unnecessary to consider this."1

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It may therefore be said, that the important question remains yet to be determined by the court of last resort, with at least a suggestion that its solution does not necessarily depend on the strict application of rules announced by that court in the previous end-line cases. It has unquestionably paved the way to the ultimate adoption of Judge De Witt's and Judge Hawley's views, and the courts in different State and federal jurisdictions have, with practical unanimity, taken advantage of the opportunity thus afforded to emphasize and apply the Tyler-Last Chance doctrine to cases of a kindred nature.

Judge Hallett, a few weeks prior to the announcement of the opinion by the supreme court of the United States Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683, 694.