the underground workings in the vicinity of the triangle, K J H, but the controversy necessarily involved all excavations of the vein lying easterly of the east side line of the Flagstaff and south of the Titus south boundary. Neither party claimed the surface overlying this segment of the vein.

FIGURE 39.

The decision of the supreme court of the United States established two important basic principles:

(1) A vein cannot be pursued on its course beyond the lines which it actually crosses. The patentee takes only so much of the vein as his location actually covers. Where such vein crosses two opposite side lines, these lines become, in law, the true end lines of the location;

(2) The right to follow the dip of the vein is bounded by the end lines, properly so called, which lines are those which are crosswise of the general course of the vein on the surface.1

The segment of the vein in dispute was not within planes drawn through these side-end lines. It pertained to the overlying apex within the Titus ground. The judgment against the Flagstaff was affirmed.

The same doctrine had been previously announced by the supreme court of Colorado,' and by the supreme court of Utah, in the Flagstaff case, and in another case involving the Flagstaff patent.*

Argentine

ings

N

587. Same-The Argentine-Terrible case.—The case of the Argentine Mining Company v.Terrible Mining Company seems to present a case on parallel lines with that of the Flagstaff case, so far as the physical facts are concerned. We herewith present a diagram (figure 40) of the properties involved, reduced from the atlas of Mr. Emmons, accompanying his great monograph, "Geology and Mining Industry of Leadville."

CHARLESTOWN

BIRD

ADELAIDE

CAMP

PINE

FIGURE 40.

1 Flagstaff M. Co. v. Tarbet, 98 U. S. 463.

Reading the opinion of the supreme court of the United States in the Argentine-Terrible case, in connection with this figure, justifies the con

'Wolfley v. Lebanon M. Co., 4 Colo. 112, April, 1878.

3 June, 1878, unreported.

McCormick v. Varnes, 2 Utah, 355, Feb. 1879.

5122 U. S. 478.

clusion that the conditions shown upon Mr. Emmons' maps existed at the time of the trial of the case, and upon the state of facts thus illustrated the decision was based. Assuming that the course of the apex is correctly delineated by the line xx, we have, as in the Flagstaff case, the lode crossing parallel lines, which the locator supposed were side lines, but which in law were end lines. The locations were all made under the act of 1872. The Adelaide was the prior location. The Argentine Company, owning the Pine and Camp Bird claims, extended its workings beyond its side-end-line planes, underneath the surface of the Adelaide, asserting its right to do so by reason of ownership of the apex within the boundaries of the Pine. A patent had been issued to the Pine, out of which there was excepted so much of the surface as conflicted with the Adelaide boundaries.

At the trial of the case, Judge Hallett, in his charge to the jury, does not seem to have presented the questions upon which the appellate tribunal based its decision affirming the judgment. The trial judge took the position, that a prior location on the dip cut off the extralateral right of the junior apex locator, and the priority being with the Adelaide, the validity of its location having been established, verdict and judgment passed in favor of the owners of that claim.2

The Supreme Court of the United States, after quoting the doctrine of the Flagstaff case, said:—

"Such being the law, the lines which separate the loca"tion of the plaintiff below from the locations of the "defendant are end lines, across which, as they are "extended downward vertically, the defendant cannot "follow a vein, even if its apex or outcropping is within "its surface boundaries, and as a consequence, could not

1 Van Zandt v. Argentine M. Co., 8 Fed. 725.

2 We have discussed this charge of Judge Hallett in a previous section (2 364) when dealing with the necessity for including the apex within the boundaries of a location. With regard to the junior apex locator's right to pursue his vein underneath a senior's, see, post, art. vi., of this chapter.

"touch the premises in dispute, which are conceded to be "outside of those lines and outside of vertical planes "drawn downward through them."

Manifestly, the Flagstaff and Argentine cases were identical as to the facts. The supreme court of the United States having in the former case emphasized the controlling force of surface lines as fixed by the patent, and established the rule, that when the lode crossed a line which the locator called a side line, such line became in law an end line, to the extent, at least, that the lode could not be followed beyond it, the application of the same principle to locations made under a law which required, as a condition precedent to a valid appropriation, the defining of a surface and marking of boundaries including the discovered lode, was logical and consistent.

2588. Same - The King-Amy case.-Three years after the decision in the Argentine-Terrible controversy, what is familiarly know as the King-Amy or Silversmith case, came before the supreme court of Montana. The facts were precisely the same as in the Flagstaff and Argentine

cases; that is to say, the location was regular in form, and instead of being laid along the lode it was placed across it, so that the vein entered through one side line and departed through the other, as shown in figure 41. The only variation observable is, that in the Flagstaff and Argentine cases the lode crossed the two side lines, substantially at right angles, while in the King-Amy case the lode, xx, crossed the claim diagonally, the dip being in the direction indicated by the arrow.

There were three contentions presented for the consideration of the court:

(1) That the Amy could not pass to the north of a vertical bounding plane drawn through the north side line, N J, invoking the doctrine of the Flagstaff and Argentine

cases;

(2) That a plane should be drawn at right angles to the course of the vein, through the point E, where the vein crossed the north side line, N J, producing the imaginary bounding plane, E F;

(3) The application, through the same point, of a plane parallel to the located west end line, M N, producing the imaginary plane, A A.

The trial court adopted, on its own motion, the second, or right-angle theory.

The supreme court of Montana, speaking through Judge De Witt, admitted that neither one of the three suggested solutions was absolutely free from possible criticism, but in a very interesting and ingenious opinion adopted the third theory, of applying a plane parallel to the one drawn through the line which the locator called an end line, but which was not, in fact, crossed by the lode. The court saw a marked difference between the facts of this case and the Flagstaff and Argentine cases. This difference is in the angle at which the vein crossed the side lines. The court did not clearly demonstrate where it would draw the east

1 King v. Amy & Silversmith Cons. M. Co., 9 Mont. 543.