considerably from a straight line, and it is often easy at first to mistake their course, which is such as to pass beyond the side lines of a claim. We would then not have to look far for complications.

SOME PROBLEMS OF LAW OF APEX.

Chief Justice W. H. Beatty, than whom no one in the United States is more entitled to be listened to with the highest respect in questions of this kind, early suggested a number of such difficulties, many of which were not long in coming. Writing upon this point in his testimony before the public lands commission, November 21, 1879, while still Chief Justice of Nevada, he said (Report, page 402):

"Mining locators are granted the exclusive rights of possession of their surface claims, and all veins, etc., the tops or apexes of which lie inside of their surface lines extended downward vertically, although such veins in their downward course may extend beyond the side lines of the surface claim. No locator, however, has the right to go outside of vertical planes conforming to his end lines, notwithstanding the true dip of his lode would carry him beyond. In every patent of mining ground a right is reserved to other locators to follow their lodes on their downward course into the ground so conveyed. (Revised Statutes, section 2322.)

"This being the law, the annexed diagram illustrates a few of the numberless difficulties that will occur in applying it to surface locations that have not been made in exact conformity to the true and ultimately ascertained course of the lode. The line O P represents the course of a lode extending due north and south, and is supposed to be drawn between its extremities at the depth of a thousand feet from the surface. The dip of the lode is to the west, and the outcrop appears at two points, r and y. The top of the apex of the lode where it does not reach the surface is indicated by the dotted line connecting x and y and extending beyond in either direction. Long before any better means exist of ascertaining the true course of the lode than is furnished by

its outcrop, A makes a location at a marked a a a a, and B makes a location at y marked b b b b. In due time their claims are patented. Then C discovers the lode at ≈ and makes his location c c c c, and later still D and E make locations as indicated, north of A and south of B, respectively. The straight dotted lines A a A 'm Bb and B ’b indicate the sections of the lode the tops or apexes of which are inside of the surface lines of A, B and C, respectively. The dotted lines d a and e a and f b and g b show the sections of the lode which are included by vertical planes conforming to the end lines of A and B respectively.

"Now come the difficulties. According to my definition of top or apex of a lode, and under what appears to me the only admissible construction of the law, C, although he locates after the patent to A and B, is nevertheless the owner of all that section of the lode included by the lines A 'm and B b, indefinitely prolonged, notwithstanding it is mainly included from the very top in the prolongation of the end lines of A and B. C is the owner because he has located the top or apex, and A and B are not owners for the reason that their claims do not include the top or apex of this section. Supposing the lode to be valuable, it can readily be seen what controversies will arise as the progress of development begins to show the true course of the vein, and enlightens the parties as to their boundary rights. Even without the intervention of C, A and B would come in conflict at h in regard to the widening section f h e. But in the case supposed, C would restrict A to the line A'm as his southern boundary, and B to the line B b as his northern boundary. By this means A and B, being restricted by their end lines from mining on the widening section A a d and g b B', would be completely cut off-A at 2000 and B at 3000 feet from the surface. Then this further difficulty would arise, that the entire top or apex of the lode being included in the various surface locations of A, B, C, D and E, there would be no means under the law by which the widening sections A ad and g b B' could be located or granted. The only rem

edy would be to cancel the patents of A and B, and allow them to readjust their surface lines. Before this, however, another controversy would have arisen between B and C, and still another between B and D, in regard to the excessive claim of B on the course of the lode, which it will be seen extends to a length of about 1600 feet, whereas the law allows him at the utmost but 1500 feet. These hints will suffice to indicate the nature of the task which the commission have before them; and having no plan to suggest for meeting the difficulties in their way, I take my leave of the subject."

REASONABLE TIME NEEDED FOR MARKING.

In the provision for the marking of exterior boundaries upon the ground, under the present provisions of the law of 1872, the rights of the discoverer of a vein are not fully protected. Unless he be given a reasonable time to mark his boundaries upon the ground, either under a State statute, or a local rule, or the decision of the Supreme Court of the United States, he may make many mistakes vital to his interests. As a matter of fact, the trend of the California decisions on this point is against him, though at the same time against the trend of the decisions of almost all the other States and territories except Oregon (Lindley, sections 339, 371, 372), and of the Supreme Court of the United States (Erhardt vs. Boaro, 113 U. S., 527). What is a reasonable time? Even the decision of the United States Supreme Court favoring a reasonable grant of time is for but a short grace at best. A statute of this State was passed in 1897, the best point in which was that the discoverer was granted sixty days after his preliminary location in which to mark his boundaries, but it contained other provisions, which were considered cumbersome in practical working, and under pressure of the sentiment in the mining counties, was repealed in the session of 1899. As the marking of his boundaries is a part of the act of location, without which the act of location is not complete, can the discoverer afford to wait, lest some one else effect a complete location before him? It has been shown

that unless he is given a reasonable time he may mistake the position of his apex and the course of his vein. But how much would be a reasonable time to ascertain the rake of his pay shoots, in order that he might slant his end lines so as to save as much of them as possible? Many a mine has developed a pay-shoot near either end, and that was all there was of the mine, and unless the discoverer had a chance to draw his end lines properly, he might lose the whole of it in a few hundred feet. Whatever is wanting in the law in this respect can be cured by amendment of the statute itself.

ABOLITION OF RULES, REGULATIONS AND CUSTOMS ADVOCATED.

"The principal, the vital defect in the existing law," says Chief Justice Beatty (Report, page 396), "is this permission to make local rules. There are, I have reason to believe, other important defects in the law, but as to most of these there are more competent judges, and I leave it to them to point out the evil and suggest a remedy. But as to the practical workings of the local rules and customs of miners, when allowed the force of law, I have very decided opinions, which I feel that my means of knowledge justify me in stating with some confidence in their correctness. I believe that the whole subject of mining locations is an extremely simple one, which may easily, and certainly therefore ought to be, regulated by one general law, the terms and existence of which shall be established by public and authentic records, and not left to be proved in every case by the oral testimony of witnesses, or by writing contained in loose papers or memorandum-books, such as are often dignified by the name of 'mining records.' I am convinced, moreover, that the tainting of every mining title in the land at its very inception with the uncertainty which results from the actual or possible evistence of rules affecting its validity, perfectly authentic evidence of which is nowhere to be found, is a stupendous evil. Experience has demonstrated that such an uncertain state of the law is a prolific source of litigation, and no experience is required to convince any man of ordinary intelligence that