to be marked, the ends not being marked at all. Inaccuracy in marking the lode was the pervading rule, and correct marking seemed only to result from accident.1 We have attempted to demonstrate that under this law end lines drawn parallel to each other and crosswise of the strike and through the dip of the lode were essentially implied. The purpose of this is not difficult of solution. It was the result of the experience of the miner restricting the limit of sub-surface ownership to the extent that he owned the apex of the vein. Under that law, and under the miners' rules existing prior thereto, dips, spurs and angles were claimed and allowed; the exercise of the right thus accorded could only be justly made by an observance of this principle and this rule.3 ARTICLE C. Of the Enlargement, Perpetuation or Restriction of Apex Rights under the Law of 1872. § 781. Of the estates in mining claims under the statutes - Extra-lateral rights. 782. Meaning of the term "extra-lateral rights." 783. Controlling value of surface lines. 784. Parallelism of end lines made essential by the statute of 1872. 785. Distinctions between such estate and the common law. 786. And first, the common-law estates. 787. Additional estate created by statute. 788. Limitations upon this grant. 789. No right to prospect in neighbor's ground. 790. Identity and not continuity the test of the right. 791. Guiding rules for interpreting the statute - Common-law rule ignored. 1 Walrath v. Champion M. Co., 63 Fed. Rep. 552; McCornick v. Varnes, 2 Utah, 355, 360; Iron Silver M. Co. v. Elgin M. Co., 118 U. S. 196; Eureka Cons. M. Co. v. Richmond M. Co., 4 Sawy. 323, Fed. Cas. No. 4,548; Eclipse G. & S. M. Co. v. Spring, 59 Cal. 304. 2 Ante, § 776. Cons. Wyoming G. M. Co. v. Champion M. Co., 63 Fed. Rep. 540; Walrath v. Champion M. Co., 63 Fed. Rep. 552; affirmed, s. c., 171 U. S. 293; Wilhelm v. Sylvester, 101 Cal. 358, 35 Pac. Rep. 997; McCornick v. Varnes, 2 Utah, 355. S781. Of the estates in mining claims under the statute-Extra-lateral rights.- Enough has already appeared herein to demonstrate that sub-surface and extra-lateral rights are controlled by surface boundaries; and as thus limited and controlled, the right to pursue the vein on its downward course is expressly fixed and defined by statute.2 That portion of the statute applicable to this branch of our inquiry reads as follows: "The locators of all mining locations shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and 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 of the vertical side lines of such surface locations." 3 The rights thus conferred by the statute are absolute, and when intelligently claimed are just as complete and capable of ascertainment and protection before or without a patent as they are under or by virtue of it. The patent confirms but does not create rights; the law is paramount, and all rights are creatures of it. The patent, when one is issued, neither adds to nor takes from any of the rights acquired under the statute. It establishes by its record permanency of lines and certainty as to boundaries. It terminates the duty of doing assessment work, and extinguishes the possibility of surface conflicts; it in no way enlarges the rights conferred by statute, but on the contrary necessarily subordinates itself to the statute. § 782. Meaning of the term "extra-lateral rights.”— The right to pursue the vein on its downward course, even 1 Ante, SS 765, 766, 776, 777. See also note 2, infra, and cases; also post, ch. II, this Part. 2 Cons. Wyoming G. M. Co. v. Champion M. Co., 63 Fed. Rep. 540; Doe v. Waterloo M. Co., 54 Fed. Rep. 937; Duggan v. Davey, 4 Dak. though it should so far depart from the perpendicular as to enter the land adjoining, is called the extra-lateral right. More accurately speaking, it is the dip right. It is the new estate severed from and carved out of the common-law right of an adjoining proprietor, whereby the owner of the apex of a vein, with lines properly marked on the surface, has the right to enter the adjoining lands of his neighbor and remove the ore therefrom, provided only that he is following his vein on its downward course, and that he can establish its identity with the apex which he owns, and is pursuing it within lines authorized by the law. For the term itself, by which we express this right, we are indebted to Mr. Raymond. Mr. Willard Parker Butler expresses the same right in the words "right of lateral pursuit." As said by Mr. Lindley: "Either expression, when used in connection with the federal mining laws, is free from ambiguity and sufficiently explicit.” 4 In one sense it is an enlarged right granted by the statute to the owner of a mining claim so located that the right is capable of being asserted. But more accurately it is a mining right or estate severed from the neighboring land, the estate in which is proportionately diminished in consequence thereof. § 783. Controlling value of surface lines.- In every attempt to exercise and make available the dip right, the controlling value of correctly laid surface lines is made apparent. Since the rule is, as we have attempted to show, that the surface owner is presumed to own all beneath his surface within the vertical plans of his boundaries, the apex owner must so lay his surface lines as to satisfy the statute. That is to say, his rights being confined to such outside parts of 1 Butte & B. M. Co. v. Societe Anonyme des Mines de Lexington, 23 Mont. 177, 58 Pac. Rep. 111. 2 Law of the Apex, Trans. Am. Inst. Min. Eng., vol. XII, p. 387; 3 School of Mines Quarterly, July 1886. 4 Lindl. Mines, supra. the vein as lie between the end lines of his claim, either the actual end lines or those which the law creates, extended in their own direction, it becomes essential that he so place his lines upon the surface as to cover the apex of his vein, and give him the right to follow the dip between his end lines, for he will be confined, in the pursuit of this right, to such outside portions as can be lawfully so reached. While, as we have seen, this extra estate is given to every locator of a mineral vein and confirmed by the patent, if he obtains one, it is strictly upon the condition that he so establish his lines upon the surface as to include whatever portion of his vein he desires to mine outside the vertical planes of his surface ground, for however, right or wrong, the law may be, and notwithstanding there is a severance of estate, as we have seen, the rule is firmly established that the common-law maxim applies, and that agreeably thereto, until a better right is shown, he who owns the surface is presumed to own all beneath.1 8 784. Parallelism of end lines made essential by the statute of 1872.- We have attempted to outline the pervading spirit of the mining law prior to the statute of 1872, and to demonstrate that the essential principle of that law required that end lines be parallel. Following this principle, and as an expression of this experience, the statute of 1872 expressly required that the end lines should be parallel. And while this statute is said by some courts to be directory merely,' a substantial departure from it cannot 1 Leadville M. Co. v. Fitzgerald, 4 M. R. 385, 15 Fed. Cas. 98, No. 8,158. See also Iron Silver M. Co. v. Elgin M. Co., 118 U. S. 208; Cheeseman v. Shreeve, 37 Fed. Rep. 36. 2 Flagstaff S. M. Co. v. Tarbet, 98 U. S. 463; Walrath v. Champion M. Co., 63 Fed. Rep. 552; Iron Silver M. Co. v. Elgin M. Co., 118 U. S. 208; King v. Amy & Silversmith M. Co., 152 U. S. 222; Argonaut Cons. M. Co. v. Turner, 23 Colo, 400, 48 Pac. Rep. 685; Del Monte M. Co. v. New York & L. C. M. Co., 66 Fed. Rep. 212; s. c., 171 U. S. 55, sub nom. Del Monte M. & M. Co. v. Last Chance M. Co. 3 Eureka Cons. M. Co. v. Richmond M. Co., 4 Sawy. 302. 8 Fed. Cas. 819, No. 4,548; Horswell v. Ruiz, 67 Cal. 111, 7 Pac. Rep. 197. be tolerated,' as such a course would result in a practical nullification of the statute, which was intended to give the miner the same length of the vein beneath the surface as he has of the apex-no more, no less. If this principle is followed, much of the difficulty will vanish. 8785. Distinctions between such estate and the common law. It will thus be seen at a glance that the law engrafts a new estate upon the ordinary grant, by the patent, unknown at the common law. This grant, following the language of the statute and the authority therein contained, is usually made in substantially the following words (mutatis mutandis): "That the grant hereby made is restricted to the land herein before described as Lot No. 298 with nine hundred and forty-two linear feet of the Aurora lode, vein, ledge or deposit for the length aforesaid throughout its entire depth as aforesaid, together with all other veins, lodes, ledges or deposits throughout their entire depths as aforesaid, the tops or apexes of which lie inside the exterior lines of said survey." And the limitation is usually expressed in substantially the following words: "That the premises hereby conveyed, with the exception of the surface, may be entered by the proprietor of any other vein, lode, ledge or deposit the top or apex of which lies outside the exterior limits of said survey, should the same in its downward course be found to penetrate, intersect, extend into or underlie the premises hereby granted, for the purpose of extracting and removing the ore from such other vein, lode, ledge or deposit." We shall enlarge upon this limitation and estate in the succeeding section. 1 Walrath v. Champion M. Co., 63 Fed. Rep. 552; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478; Del Monte M. Co. v. New York & L. C. M. Co., 66 Fed. Rep. 292; s. C., sub nom. Del Monte M. & M. Co. v. Last Chance M. Co., 171 U. S. 55; Fitz gerald v. Clark, 17 Mont. 100, 42 2 Cons. Wyoming G. M. Co. v Champion M. Co., 63 Fed. Rep. 540. |