faith, so as to protect him against damages for removing the ore beyond the value of the ore, less actual cost of breaking, hoisting and marketing. The application of such a rule would of course furnish an exception to the one usually applied by the courts, but we think such an exception at least should be recognized. In another section we attempt to limit the application. to the common-law rule to doubtful cases only. We believe that is the logic of the law when accurately considered. But that such is not now the law, according to the great weight of decisions, we are frank to admit; perhaps the present rule is too firmly rooted to be overturned, and that the most the courts will yield is the recognition of exceptions. The rule as it now stands, it will be observed, is more rigid, and by it the surface owner is presumed to own all beneath his surface. § 767. The policy of the law. Of the policy of this statute we have nothing to say. We must take the statute as we find it. Much could be said on both sides of the question. While litigation often grows out of it that, with vertical bounding planes, could be avoided, there is a principle of innate justice pervading this law, inasmuch as it bestows upon the discoverer of a vein at the surface the right to pursue that vein to an indefinite depth, provided only that he shall so lay his boundaries upon the surface as to render his claimed rights capable of ascertainment. This principle of law, as we shall see in the next section, once pervaded the mining jurisprudence of Germany. It is said by a writer qualified to know, that it was surrendered and obliterated because of the endless litigation it entailed. Be that as it may, in the enlightened and progressive spirit in an age when the brainiest men of the world were marking out their rights in a new country in their own way, with the previous 1 Post, § 793. 2 Dr. R. W. Raymond, Mineral Resources, 1869, p. 195; Klosterman, Treatise Prussian Mining Laws, knowledge of Germany, good or bad, staring them in the face, and with the customs of the High Peak of Derbyshire furnishing them a precedent, with the necessities of the times as a final and controlling factor, the miners of the Pacific coast engrafted this principle upon the district rules that controlled their mining operations in California prior to this statute, and it would have seemed like a denial of justice to them had the federal statute been framed in any other form. § 768. The origin of the law. It is impossible to demonstrate at this time, with absolute certainty, whether the miners of the Pacific coast were prompted by the experience of the miners of Derbyshire, the knowledge of Germans and the customs existing there for many centuries, although fallen into disuse, or whether it was innate Yankee ingenuity, guided by the necessities of the times and the principle of natural justice that the discoverer of a mine. should enjoy it to its ultimate depths, which prompted the insertion into the mining rules and regulations of nearly ever district of provisions in the form of statutory customs, that is to say, enactments of the mining district, by which the discoverer and owner of a vein was entitled to so much of it on its strike, with all its "dips, spurs, and angles, offshoots, depths, widths, variations, and all mineral and other valuables therein contained." But it is sufficient for the purpose of this work that such a custom obtained, and the right was universally recognized. 769. Same subject-Right recognized on the continent Natural justice of the dip right. It is quite apparent that the necessity of some such right or custom has been recognized as an abstract proposition, whether it ever had the sanction of law or not, in all cases where there was an actual surface exposure and discovery of a mineralbearing vein descending into the earth at such a slight angle from the horizontal as to carry it beyond the boundaries of 1 J. Ross Browne's Mineral Resources, 1867, p. 247; Lindl. Mines, § 566. the ordinary mining claim in such a manner as to give to the discoverer but little more of the vein than he had of the surface ground; in other words, to give him but a leaf out of a book, as it were, and instead of permitting him to reap the reward of his discovery, it was open to the next comer who might purchase or obtain a claim in the direction of the dip, thus working an injustice upon the discoverer. A similar right was recognized in the High Peak customs of Derbyshire, which gave to the miner acquiring a rake vein an increased extent measured in accordance with the inclination of the dip. It was recognized under the Mexican and Spanish law, which gave to the discoverer greater pertenencias according to the inclination of the vein to the horizon- the flatter the vein the greater the pertenencias. But neither of these rules, it is true, recognized the undefined right to pursue the vein endlessly to the depth on its downward course as it exists under our statute, but simply enlarged the common-law right. It was observed on the continent and noticed by many law writers, and De Fooz thus recognized the right in a quotation from another writer: "Mines," says Jousselyn, " can be worked with advantage only when they are treated en masse, or in sections of a certain extent, without reference to surface boundaries." And again: "It is, says Heron de Villefosse, a kind of property of which we deprive ourselves when we are unwilling or unable to use it in its ensemble." 770. The theory of the statute - Veins nearly verti cal Vein formation. We noted in the chapter wherein statutory tunnel claims were considered, that it was manifest, from the general nature of the statute and the extensiveness of the reservation acquired by a tunnel claimant 1 Bainbridge, Mines, p. 42; Yale, Min. Claims & Water Rights, p. 421; McSwinney, Mines, p. 509. 2 Gamboa's Com., chs. 9, 10; Rockwell, Mines, pp. 223–231. 3 Traite des Servitudes d'Utilite Publique; De Fooz, Mines, p. 12. • De Fooz, Mines, supra. properly pursuing the law, that the author of the mining law had in mind the idea (seldom realized) that mineral veins were always fissures nearly vertical. The force of that observation is of peculiar significance here. From the en tire law the conclusion is irresistible that congress had in mind single distinct fissures standing almost vertical, and generally thought to be distinct and separate from all neighboring veins, that is, independent of any theory or notion of zones, lodes or broad veins. Moreover, that these veins were susceptible of being easily traced upon the surface.1 At that date, too, geologists had variant ideas as to vein formation, and all different from those obtaining at the present time. While it was generally thought then that most veins were of plutonic origin, and that rule obtains now, the difference is this: that the idea largely prevailing then was that veins were formed by the metals coming up from the molten core of the earth in a molten form, and becoming disseminated by means of subsequent circulating surface waters, causing substitutions and replacements to occur; while the generally accepted theory now is that the hot waters holding the minerals in solution have been forced through fissures, the separated strata and bedding planes and along the lines of fault planes, under heavy pressures from very great depths; that these waters have eaten their way into the surrounding walls or strata, feeding upon matter capable of partial solution, until the identity of bounding planes, whether fissures or strata, is often obliterated. Following the lines of least resistance, too, the dynamic force which made the opening may create a fissure straight and clean for a long distance, cutting the bedding planes. and strata regardless of seams or breaks, and, approaching the surface, will often break out into the beds followed by the mineral solutions; whence is often found veins and ore deposits partly in fissures and partly in the bedding planes of the adjoining rock. The presence of ore in the strata and 1 Tyler M. Co. v. Sweeney, 54 Fed. Rep. 284, 4 C. C. A. 329. 2 Duggan v. Davey, 4 Dak. 110, 26N. W. Rep. 887. beds of adjoining rock is accountable in some cases by the erosion of the beds and their more soluble strata by the solutions in their ascent toward the surface. This eating and dissolving process also accounts for the existence of great broad zones in limestone regions where the solutions have dissolved and replaced large quantities of the limestone of a particular kind, generally magnesian or dolomite, thus making a vein which we have already had occasion to consider at some length, where the boundaries of the vein can only be determined by the line of demarkation indicating the contact of the mineralized matter with the absolutely barren country. If the author of the law had been fully informed as to the fact of vein formation as now understood, it is very doubtful whether the law would have been enacted in its present form, and more probable that vertical bounding planes would have been the requirement of the law. ARTICLE B. Of the Rights Arising under the Laws of 1866, and of Parallelism of End Lines. § 773. Preliminary observations eral construction. Nomenclature of the statute - Gen 774. Of the patent granted thereunder. 775. Of the parallelism of end lines under this statute. 776. End lines were implied-Parallelism essential. 777. Conclusions - Lode was the essential thing located, but parallelism of end lines was necessary to the adequate enjoyment of the right. 773. Preliminary observations-Nomenclature of the statute General construction. In the statute of 1866 the right under consideration was expressed in this language, which was spoken in connection with the rights granted by the patent, namely: "Whenever any person, or association of persons, claim a vein or lode of quartz, and in regard to whose possession there is no controversy or opposing claim, it shall and may be lawful |