lateral rights permitted under such conditions has been the subject of serious discussion.

Dr. Raymond, in his "Law of the Apex," assumes a case for illustrative purposes, where the apex was bisected by a side line, and as the principle involved in such a case is the same as in the instance of a lode wider than the lateral surface limits, we take the liberty of utilizing the diagrams employed by him as an aid to discussion.

A

2

B

Let figure 35 represent two contiguous locations, A. and B., with a common side line, 2 5, bisecting the apex of the vein, the dip being in the direction of the arrow. Without intimating that the rights upon the located vein are to be determined by priority of appropriation, we may assume such priority in favor of A., the footwall claimant. Both locations are regular in form. Both have included within their respective boundaries some portion of the apex. Unquestionably, A.'s intralimital rights are not affected by the subsequent.location of B.

FIGURE 35.

What, if any, are the extralateral rights of the respective parties? For the purpose of discussion, we assume both locations to have been made under the act of 1872.

When we consider the reported cases upon the subject, we find that two opposite views have received judicial sanction-one denying the extralateral right to either claimant, the other awarding it to the location senior in point of time.

We have heretofore called attention to the case of Hall v. Equator Mining Company in connection with the subject of cross lodes,' presenting a diagram of the property in controversy," and noted, that on the trial of the case upon its merits, it presented an instance of one lode with part of its width in one location and part in the other.

'See, ante, 558.

Fig. 25, p. 660.

See, ante, p. 663.

In addition to the decision of Judge Hallett, upon the motion for a preliminary injunction, which suggested, but did not deal with the aspect of the case now under consideration, the case was tried three times the first time. before that judge, whose decision is not found in any of the reports.

Carpenter's "Mining Code" contains some excerpts from it, and Dr. Raymond gives us full quotations in his "Law of the Apex," from which we quote so much as will illustrate Judge Hallett's views:

"As to all the disputed ground, the principal question "affecting the whole lode is, whether by locating a part of "the width of outcrop the whole may be taken. Of several "collateral locations on the course of a lode, where the top "or outcrop is of sufficient breadth to admit of more than "one, are not all of equal dignity? This question will "admit of but one answer, with such modifications as "may be hereafter suggested. The act of 1872 certainly "requires a location to be along the course of the vein and "to include the top of it, and it is believed that the act of "1866 is of the same effect. Defendants' location was "made under the act of 1866, and probably some discus"sion of that view of the act would be appropriate in this "connection. But it may be enough to say, that defend"ants assumed to take the whole lode into their location, "and if they failed to get the whole, either by their own "omission or because of some restrictive provision of the "local law, the result is the same. In either case they cannot now claim more than was taken by the location. "The same rule is applicable to plaintiffs' location, and as "to both of them, it is no answer to say, that the law "would not admit a location of sufficient width to take "the whole lode. If the law is illiberal, it is not for that reason the less controlling. If, however, a right to the "entire lode cannot be asserted under a location covering a part only of its width, as seems to be obvious, the loca"tion may be valid for the part described in it. If it is "on the top of the lode, it is within the act, and so it ought "to be good for the part within the lines extended down"ward vertically, if for no more. . . . And thus it may "be true, that each of several locators on the same vein,

13d ed., p. 65.

or lode, will own all within his lines without being able "to go beyond them. For, as to his right to go into other territory, he can only do so in pursuit of a lode, or vein, "that has its top and apex wholly in his own ground, and "having but a part of the lode in his territory he cannot "comply with that condition. This appears to be a clear "inference from the language of the act. The right given "relates to veins, lodes, and ledges, the tops of which are "inside the surface lines, which obviously means the whole, "and not a part. If, then, two or more collateral locations "be made on one and the same vein, and the vein appear "to be homogeneous throughout its width, we are author"ized to say, that each shall be confined within his own "lines drawn down vertically.

Dr. Raymond illustrates the effect of this rule by a simple geological cross-section, as shown in figure 36, drawn

66

A B

FIGURE 36.

through the end lines, 1 2 and 23. Dropping a vertical plane through the common side line, 2 5, leaves but a small triangular segment of the vein to A., and a similar plane drawn through the side line, 34, shows the extent of B.'s rights between the two planes.

At the next trial of the case, Justice Miller charged the jury as follows:

"There is introduced, both 'by plaintiffs and defendants, evidence tending to prove "that the claims of both parties are located on the same vein, or lode, of mineral-bearing rock in place, "the general apex, or upper surface, of which is about "one hundred feet wide. If the jury believe this to "be true, then I instruct you, as the law of this case, that "plaintiffs, having the prior title from the United States "to that portion of this lode within the lines of their "patent, extended vertically downward to the earth's cen"ter, and the defendant having contested plaintiffs' right "to receive a patent for the parts of the lode in controversy,

1 The claims were each fifty feet wide.

"in the court of the territory, according to the act of congress on that subject, and failed in that contest, and having accepted and read in evidence a patent for their "own claim, which expressly excepts out of its granting clause the interfering parts in plaintiffs' said patent, "the law of the case is for the plaintiffs, and they are "entitled to all the mineral found within the side lines of "their patent, extended downward vertically."

66

When we consider that the defendants' location of the Equator was prior in point of time to the plaintiffs' Grand Central, if the defendants could lawfully base an extralateral right upon the part of the apex within the Equator, they could not be deprived of it by patenting to another the surface overlying the dip. Asserted underground rights are not the subject of adverse claims. troversies are confined to surface conflicts. views are in practical accord with Judge Hallett's.

Such conJustice Miller's

A case somewhat similar to the Grand Central-Equator controversy came before the supreme court of Utah territory. The facts found by the trial court, which finding was accepted by the appellate tribunal, presented a case where the first locator had the apex of a vein entirely within the surface lines of his claim for a portion of its length, and the remaining portion partly within and partly without, the excluded portion being embraced within the boundaries of a coterminous junior location.

The majority of the appellate court held, that under the act of 1872,

"The discoverer of any part of the apex gets the right "to its entire width, despite the fact that a portion of the "width may be outside of the surface side lines of his "claim, extended downwards vertically. While he has no "right to the extralateral surface, he has a right to the "extralateral lode beneath the surface."

Judge Boreman dissented, practically accepting the doctrine of Judge Hallett in the Equator case.

1 See note, 11 Fed. cases, No. 5931, p. 225.

2Champion M. Co. v. Cons. Wyoming M. Co., 75 Cal. 78, 82.

3 Bullion, Beck & Champion M. Co. v. Eureka Hill M. Co., 5 Utah, 3.

TT

The case of Rose v. Richmond Mining Company' was decided by the supreme court of Nevada upon the assumption that the first locator took the whole lode to its entire width. No issue was raised as to this point. It was conceded by both parties to the litigation. The supreme court of the United States, in its opinion affirming the judgment, gave no consideration whatever to the subject."

Mr. Morrison, in his "Mining Rights," says, that in Colorado the rule announced by Judge Hallett in the Equator case is uniformly followed by the trial courts in that state. Dr. Raymond refers to the rulings by Judges Rising and Rives, district judges in Nevada, as supporting the broad lode theory. He undoubtedly had in mind the Rose-Richmond case, heretofore referred to.

Without doubt, in Nevada, prior to the act of 1866, and in fact after that act had been passed, locations were made of the vein without any attempt to draw side lines. The entire Comstock lode was located in this way, it being popularly conceded that the locus of the east wall of that remarkable zone could not be determined.

But the act of 1872 revolutionized this method, and ever since, the supreme court of the United States has uniformly emphasized the necessity for regarding surface boundaries as the prime factors in determining controverted questions arising out of the mining laws. In our judgment, the reasoning of Judge Hallett and the doctrine announced by him is in full accord with the spirit of the decisions since rendered by the supreme court of the United States, particularly in the Elgin and Amy-Silversmith cases. While the application of the rule may seem inequitable in individual instances, "the rule, whatever hardship it may work, should be settled, and thus pre"vent, as far as practicable, such uncertainty."

66

If the law possessed elastic properties, and the courts.

'17 Nev. 25.

2 Richmond M. Co. v. Rose, 114 U. S. 576.

38 ed., p. 112.

4 Iron S. M. Co. v. Elgin M. & S. Co., 118 U. S. 196, 207.