face. As was stated by Dr. Raymond in his comment on the Act

of 1872:

"The section giving absolute title to a certain surface and and all veins 'topping' within vertical lines drawn from the boundaries of that surface-claim, is necessary to prevent special litigation.”17

This surface provision of the Act of 1872 was but the adoption of a stereotyped form of surface measurement for lode claims that had been in existence for centuries in the Germanic and Derbyshire lode mining laws. Under these latter laws a specified surface width on each side of the vein at the surface was the prescribed mode of laying out lode claims.18 Whether these foreign laws served as a model in this respect is doubtful. There is nothing in the Congressional debates on the bill which gives us information on this point and the hearings of the Committee on Mines and Mining where the source of the provision might have been noted are not available. It has already been mentioned that many of the mining district regulations prescribed the maximum width of lode claims which should be measured "on each side of the center of the lead," and that in some of them as well as in the territorial legislation of Arizona a maximum total width of six hundred feet or two hundred yards for each claim had been prescribed. 19 It is probable that this provision of the Act of 1872 was patterned after these local laws.

A very interesting feature of Section 2 of the Act of 1872 was the concluding provision of that section providing that "The end lines of each claim shall be parallel to each other." The Act of 1866 was silent on the subject of end lines of lode locations and as a consequnce end lines of locations made under the Act were seldom parallel and often broken and of varying length. As Justice Field stated in the Eureka case,20 end lines or rather end line planes at right angles to the general course of the vein were implied under the Act of 1866.21 A careful search of local rules and state

17 Raymond, Mineral_Resources (1873), p. 453. 18 4 California Law Review, pp. 365-6, 375.

19 Id. pp. 448-450.

20 (1877), 4 Sawy. 302; Fed. Cas. 4548.

21 The Germanic and Derbyshire laws were equally silent on this subject of the manner of making end line measurements and yet each of these laws was interpreted to impliedly confer extralateral rights between end line planes at right angles to the general course of the vein. Even under the Spanish mining ordinances of 1783, the surface claim was a rectangle with end lines, theoretically, at least, at right angles to the course of the vein. See 4 California Law Review, pp. 366-7, 375-6, 383.

and territorial legislation fails to disclose any which provided that the end lines of locations should be either at right angles to the general course of the vein or that they should be parallel, except the territorial laws of Arizona which called for lode locations with a surface two hundred yards square and the right to follow the vein on its dip. Attention has been called to the fact that the bill introduced in Congress in 1871 and the similar bill as originally introduced in the next session, which eventually, as amended, became the Act of 1872, provided that the end lines should be parallel "and at right angles with the general course of the vein," thus adopting what had theretofore been commonly accepted as the legal longitudinal limitation of the segment of vein located. Why the right angle end line provision was eliminated from the bill as finally adopted and only the requirement of parallelism retained does not appear in the debates and was probably determined upon at the unreported hearings in Committee. Evidently the idea was to permit the locator to lay out his parallel end lines in any direction and thus enable him to follow down on a valuable ore shoot in the vein which might trend or rake away from the true dip or perpendicular. If this was the intention, it was "putting the cart before the horse," for it is rarely that the locator at the time of location has any idea where ore shoots exist in the piece of vein he locates and much more rarely that he knows their trend. End lines might after location be readjusted as to direction and in this manner the locator might be enabled to include within his extralateral sweep a valuable ore shoot subsequently discovered and to follow it down. In practice, however, by the time the facts are discovered, contiguous locations on the apex of the vein will usually prevent such readjustment. It would seem to have been preferable to have retained the right angle end line requirement, for under such a rule end lines of locations placed along the apex of a vein would be more nearly uniform in direction, and conflicting extralateral rights in depth much less frequent. Of course, a decided change in the direction or course of the vein at the surface would have produced underground conflicts if the requirement of end lines at right angles to the local course of the vein were strictly followed. But the language of the earlier mining bill called for right angle measurement to be made from "the general course of the vein." If this wording had been retained in the Act as finally passed it would certainly have materially lessened the litigation directly traceable to the extralateral right provision. By laying

out a base line on the surface representing the general course of the vein, as was done on the Comstock lode and also for a time in Australia, then projecting the end lines of the various claims taken up along the vein at right angles to this base line, and thus measuring the extent of each locator's right to follow the vein extralaterally down on its dip, there would have been afforded the most scientific and harmonious measure of this right possible to devise.22

Section 3 of the Act of 1872 is as follows:23

"That the locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists at the passage of this act, so long as they comply with the laws of the United States and the state, territorial, and local regulations, not in conflict with said laws of the United States, governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations and of all veins, lodes, and ledges, throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of said surface locations; provided, that their right of possession to such outside parts of said veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as aforesaid, through the end-lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of said veins or ledges. And provided further, that nothing in this section shall authorize the locator or possessor of a vein or lode which extends, in its downward course, beyond the vertical lines of his claim, to enter upon the surface of a claim owned or possessed by another." This section is identical with Section 3 of the bill which passed the Senate in 1871. It merely confirms in more elaborate and explicit language the right which had been created by the early miners, subsequently written into their local regulations and state and territorial legislation, and later recognized in the Act of 1866. The only point of material difference was the extension of this right under the Act of 1872 to "all veins" which were found to

22 See "The Law of Apex" (1914) by Kenney, a volume devoted to an expostion of this interesting principle. Also see 4 California Law Review, p. 385. 23 See U. S. Revised Stats., § 2322.

apex within the surface of each location. The Act of 1866 had confined the extralateral right to the one main vein. This had given rise to so much uncertainty and litigation that it was deemed best to extend the right to all veins occurring in the surface area located, thus removing the temptation to trespass on another's claim in the attempt to discover or locate a secondary vein which might exist therein.24

26

The use of the words "top" or "apex" with reference to the veins found in the surface location, appears to have been the first use of these terms in this relation.25 The miners' regulations the state and territorial legislation and the Act of 1866, all provided for the location of a specific "length along the vein." It was taken for granted that this meant that the location should include the outcrop or "top or apex" of the vein or that portion of its upper or terminal edge lying nearest the surface.2 With the appearance of these terms in the Act of 1872 came into existence the expression the "Law of the Apex," which has since been extensively used to describe the extralateral right feature of the Act. The use of these terms, however, did not change the character of the extralateral right one iota; they were merely descriptive of a portion of the vein which it had always been assumed must form the basis of the location.

This discussion is concerned only with those portions of the Act which have a direct bearing on the extralateral right. Section 4 granted a unique tunnel right which included the right to such veins or lodes as might be discovered in the tunnel.27 Aside from a provision contained in Section II applicable to veins found to exist in placer claims and Section 14 which provided that priority of title should govern where veins intersected or crossed each other and also where they united in depth, the Act was devoted to other subjects than the extralateral right.

24 "The law of 1866 was fatally deficient .. in failing to prohibit prospecting within the surface-lines of an already located claim" but the amendment of 1872 may be considered ample to remedy this defect. Raymond, Mineral Resources (1874), p. 513. See also Raymond, Mineral Resources (1870), pp. 433-436.

25 Stevens v. Williams (1879), Fed. Cas. No. 13,414. For a complete discussion of these terms, see Lindley on Mines, §§ 305-313.

26 The Derbyshire and Germanic laws only called for a certain length of vein and there was no attempt to define the portion of the vein to be located. It was assumed that this would be the top or upper edge of the vein.

27 This provision was included for the protection of certain Colorado miners. Senator Stewart in Congressional Globe (1872), pp. 978-9.

Looking at the Act of 1872 broadly we see that the fundamental principles created by the miners under their own laws and customs, later embodied in state and territorial legislation and eventually crystallized in the Act of 1866, were not materially altered by the Act of 1872.28 The basic right of free mining was retained unchanged and the extralateral right was again confirmed, though in more elaborate language. With the exception of the parallel end line provision which supplanted the implied right angle end line measurement under the previous law and the grant of all veins found apexing in the surface location, the extralateral right remained the same in substance. As already noted, the surface area obtainable under the new act was described with great detail. The adoption of the basic features of the miners' laws, and the elaborate provision contained in the Act governing acquisition of the surface claim rendered the local rules and regulations of the mining districts practically obsolete. Though the Act recognized such local laws and customs as did not conflict with the federal Act their value was largely a thing of the past. They had served their important purpose and they gradually died a natural death.

The Act of 1872 was generally considered a great improvement over the imperfect and incomplete Act of 1866.29

It was later codified and became a part of the federal Revised Statutes, 30 and is, with a few minor additions and modifications, the mining law in force today governing the acquisition of mineral lands on the public domain. The extralateral right feature of the Act has remained unchanged. It is not the purpose of this article to present the detailed interpretation of this extra

28 "It (the Act of 1872) recognized the essential principles found in the miners' regulations." Charles J. Hughes, Jr., Address on "The Evolution of Mining Law." XXIV, Reports of American Bar Association (1901), p. 344.

29 Judge Beatty said in the Gleeson v. Martin White M. Co. case, supra, n. 14, referring to the Act of 1872: "Nobody can pretend that it is perfect; but to our minds it is a great improvement on the system which it displaced."

Dr. Raymond in commenting on the Act, wrote: "It embodies much that I have advocated in former reports, and I think it will be approved by the large body of practical miners in the United States, who whatever criticisms they may make upon particular provisions, must agree in commending the tone which mining legislation has assumed, and the character of the protection offered to their property." After making some minor criticisms of features of the law, he added: "Nevertheless it is certain that the present law is a great advance on anything we have had." Raymond, Mineral Resources (1873), p. 454.

30 §§ 2319-2337.