It appears that the line marked "apex " in figure 34 represents a vein exposure caused by the erosion of California gulch, the only exposure found in that neigborhood. The vein on its downward course had a slight inclination from the horizon in the direction of the Gilt Edge. The form assumed by the line of vein exposure may be illustrated in a homely way by a bite taken out of a sandwich. In another portion of this treatise,' we have presented geological cross sections illustrating the position in the earth of this form of deposit, showing the difficulties of determining which is the strike and which is the dip of 1 See, ante, pp. 404, 405. the vein. Assuming the vein exposure to be an apex, the predecessor in title of the Iron Silver Mining Company laid his location along what he supposed to be the course of the vein, producing the fantastic results shown in the figure, being unable to draw a line at the southwestern terminus of the so-called apex, which would be across the apex and at the same time be parallel to the north west end. line, xy. The so-called apex crossed the line, v i, which was not parallel to x y, the two lines diverging at an obtuse angle in the direction of the dip. Therefore, the right to pursue the vein underneath the Gilt Edge claim was denied. A strenuous plea was made in the case for the judicial readjustment of the boundaries, so as to give to the Iron Company a segment of the vein in depth, but the court held, as we have heretofore observed, that it had no power to make locations, but that the miner must stand or fall upon the one he makes himself. While the local conditions out of which this case arose were peculiar, there is no reasonable expectation that the doctrine of the case, as herein before quoted, will be disturbed where the lines crossing the lode diverge in the direction of the dip. It has been applied by Judge Knowles to a location having the form of a triangle,' and will undoubtedly control all forms of locations, varying from a square to a crescent, where the production of the end lines would. create exaggerated inequalities in length as the vein is followed in depth. Where, however, the two lines crossing the lode converge in the direction of the dip, intersecting as they are produced, at some point beyond the side lines, we cannot see upon what principle the doctrine can be maintained. Where the reason of the rule ceases, the rule itself should cease. It is absurd for the courts to say to a claimant with converging end lines: "The law permits you to take as "much of the vein in its downward course, beyond the 1 Montana Co., Limited, v. Clark, 42 Fed. 626. "side lines, as you may include within parallel surface end "lines. You have taken less than you might have acquired, "therefore you shall have nothing." What we have heretofore said upon this subject of converging end lines under the act of 1866,' applies with equal force to locations made under the later laws. With this qualification, there can be no question as to the scope and meaning of the rule announced in the Elgin case. We have heretofore noted, that the supreme court of California, following the dictum of Judge Field in the Eureka case, has stated that the provisions of the act of 1872, requiring the end lines of each claim to be parallel, is merely directory, and no consequence is attached to a deviation from its direction." In the case wherein this was announced, the controversy was over the possession of the surface. It involved only intralimital rights, and as fully explained in preceding sections, this class of rights is not affected by the form of the location, so long as the area included is within the statutory limit. The requirement of the statute as to parallelism does not necessarily imply that the lines should be drawn on the surface with absolute mathematical precision. A reasonable compliance with the law is all that is required. A substantial parallelism should satisfy the law. The statute, in defining the extent of the extralateral right, refers to locations only, and does not in terms mention patents; but, of course, a patent is but the evidence of a perfected location. A right conferred by patent cannot be defeated by showing a want of parallelism of the end. lines of the claim as originally located. The location will be conclusively presumed to have been made in the form described in the patent." Conversely, if the form of the surface boundaries as described in that instrument, taken in connection with the physical facts shown, is of such a character as to prevent the exercise of the extralateral right, the patentee cannot be permitted to appeal to his location as originally marked to control, vary, or modify the terms of the patent. The term "location," therefore, as found in this section. of the statutes, is intended to apply to the status of the location as to form as it appears at the time rights asserted under it are brought into question. The production of the patent simply dispenses with the necessity of proving the antecedent facts culminating in its issuance-facts that, in the absence of such an instrument, would have to be proved independently, such as discovery, marking of the boundaries, and performance of such other acts as may be required under local or state regulations as conditions precedent to the completion of a valid location. The term "survey" is sometimes found in the decisions when referring to the exterior form of a location. This refers, of course, to the patent survey, the field notes of which are embodied in the patent as ultimately issued. It may not be out of place to call attention to the fact, that in the absence of a patent, the extent of the extralateral right is not necessarily to be determined by the lines of the location as they were originally established in the field. If a locator has any apprehension as to the sufficiency of his original location, there is no reason why he should not be permitted to modify or amend it, if it can be accomplished without prejudice to the rights of others." For the purpose of obtaining parallelism, the lines may be at least drawn in, so that, as finally surveyed for patent, the location will be perfected in strict compliance with the law. We have fully discussed the circumstances justifying 1 See, ante, 397. 2 Doe v. Sanger, 83 Cal. 203, 214; Doe v. Waterloo M. Co., 54 Fed. 935, 940; Tyler v. Sweeney, Id. 284; Last Chance M. Co. v. Tyler, 61 Fed. 557; Philadelphia M. Claim v. Pride of the West, 3 Copp's L. O. 82. a change of boundaries, in a preceding article,' and the manner in which such changes may be effected. 2583. Entire width of apex to be included in the location-"Broad lodes."-A location may be regular in form, with its side lines constructed along the course of the vein, and the end lines crossing it, and yet physical conditions may exist which will prevent the exercise of the extralateral right. We refer to a case where the apex of the lode is either broader than the location, or where the locator mistakes the position of his vein; and instead of drawing his lateral boundaries with regard to its center, it is bisected by one of the side lines. We have already observed, that if any portion of the apex is included within the lines of a location, such location is valid." The failure of the first discoverer and locator to include the entire width of the apex would not impair any of the intralimital rights. But the extralateral right may be affected by the absence of such physical conditions as the law contemplates must exist in connection with the location, such as the course of the vein through the ground, and the extent of apex in both length and width, which may be found therein. The extent of the rights of the junior locator, who appropriates that portion of the apex excluded from the senior location, depends altogether on the nature and extent of the right flowing from the senior appropriation. We have heretofore defined an apex to be necessarily and always a surface. Owing to the liberal definitions applied by the courts to the terms vein, or lode,' this apex surface may be wider than the maximum lateral limits of a claim allowed under the law. Cases of this character are not likely to occur, except in those localities where local legislation only permits narrow surfaces. Instances of this class are found in the books, and the extent of the 1Tit. v., ch. ii., art. x., 22 396-398. 3 See, ante, 309. |