§ 791. Guiding rules for interpreting the statute Common-law rule iguored. It is but fair to state that in all decisions of the courts where the apex rule has been drawn in question - apex cases so called-there has been uniformly a conscientious attempt to seek out and express the legislative will without reference to the common-law rule that statutes in derogation thereof should be strictly construed. Indeed, it is a moot question whether it can be said that this statute really is in derogation of the common law. It impresses a new estate upon the mining claim and in favor of the mining proprietor, it is true, but, as we said in the beginning of this part of our work, it is more in the pature of a statutory severance than it is in the nature of creating and imposing a new and independent servitude.

8792. The common-law right as applied to extralateral right. Regarding the right of the common law itself, as the same is persistently insisted upon by some courts when there is difficulty in finding any other way to turn, it is not inapt to say that it often becomes the pons asinorum of the courts. Whenever a case is found which is difficult of solution by reason of being different from all the adjudged cases, some courts resolutely close their eyes to new paths, sought to be marked upon lines recognizing the controlling thought that congress intended to give to the locator as much of the vein throughout its entire depth as he has of the apex; turn their faces from the other potent factor that congress undoubtedly intended to make and did make a severance of the mineral vein, with its incidental and expressed rights, from the rest of the estate, and have insisted, in the teeth of this last expressed statutory right, that the common law, which had nothing to do with creating the estate in the first instance, this having been granted solely by statute, had, in some mysterious manner, so impressed itself upon the grant, not as given by the patent, but in direct opposition to it, that ownership of the surface creates

almost a conclusive presumption of ownership of all beneath.

The fallacy of this reasoning is shown, not only by the statute, but by the terms of the patent, as elsewhere shown in this work. The truer presumption ought to be that if a vein of ore is found beneath the surface of a claim which is conclusively shown to apex outside of such claim, it affords proof equally conclusive, that, whoever else may own it, the owner of the particular surface not containing its apex does not own it, at least until it is shown that, within the rules controlling the right to follow the vein on its dip, no other person can claim it, or that the right is at best doubtful. Nor is this the assertion of a principle that will annihilate or even work hardship on the mining industry. On the contrary, it will ultimately preserve it. Since a location cannot be lawfully made until a discovery is made that will satisfy the law, as elsewhere laid down in this work, and since the discovery must be upon the apex, the enforcement of these rules will only entail upon the miner the necessity of beginning at the apex and working down, instead of beginning somewhere else upon the vein and working in every direction. The common-law right, then, should be applied only when no other right can be asserted, or when all others are at best doubtful.

Speaking of the principle which ought to control under circumstances of this kind, Judge Beatty, in the circuit court for the district of Idaho, recently said: "This I consider applicable only when there is doubt as to what apex an underground body of ore may belong." Enlarged applications of this principle have been frequently denied by the courts, but the quotation above referred to indicates the true reason and the better trend of judicial thought.

1 See ante, § 785.

3 State v. District Court (Mont.),

2 Bunker Hill M. Co. v. Empire 65 Pac. Rep. 1020.

State Idaho M. D. Co., 106 Fed. Rep.

471. 474.

ARTICLE D.

In Which "Apex" is Defined and Considered.

§ 795. Of the general meaning of vein or lode.

796. Preliminary observations as to the use of the word "apex" in the statute.

797. Some general definitions of “apex "— Outcrop nor highest point not necessarily apex.

798. Definition by Judge Hallett.

799. Definition of "apex" as applied to broad vein or zone theory. 800. Same subject - Discussions by the courts and law writersSome thought of denial as to extra-lateral right — Oldest claim takes all.

801. Early thought as to vertical boundary on divided vein - Time considered.

802. Of the apex of a blanket or flat vein - The Duggan-Davey, Sierra Nevada and Leadville cases.

803. Question decided by priority of ownership-St. Louis-Montana

case.

804. Another reason for the rule - Prevents assertion of right between diverging lines.

805. Comments and conclusions - Controlling force of the principle, "First in time strongest in right."

806. Controlling value of apex ownership-Question raised in trover case (note).

795. Of the general meaning of vein or lode.- We have already elaborated at considerable length in the chapter relating to discovery, upon the meaning and definition of lode or vein, therefore we do not purpose any unnecessary repetition at this time. In the former part we spoke of the definitions which the courts have bestowed upon the different aggregations of mineral in situ, or in place, usually comprehended by the generic term "lode." The statute uses the words "vein or lode," and they are sufficiently broad and comprehensive to include any aggregation of mineral in situ. At the same time one cannot read the statute in its entirety and so consider it without being impressed with the idea that the framer of the law had in mind, by the use of the words "vein and lode," a fissure in the earth's crust more or less vertical, filled with mineral vein stuff carrying

But we

more or less of the metals named in the statute. have seen that the courts have wisely interpreted the statute in a broad sense so as to include within the meaning all forms of mineral aggregations in place, and that it is quite immaterial to the question whether they are in well defined fissures or beds or between plainly discernible contacts of different kinds of rock, or whether, again, they are in a series of deposits, vugs or displacements and replacements common to limestone regions, and only connected by the similarity of the limestone, dolomite or other country rock in which they are found; because in the latter cases the ore deposits will be found as true to the particular kind of stone, which the solutions carrying the metals have eaten out and displaced, as if found within a true fissure or between beds of different stone. It is likewise immaterial to the purposes and objects of the statute, what, if any, inclination the vein or deposit has from the horizontal. It is sufficient, we think, that it departs from the surface of the earth, and has clear, inclosing rocks on either side.

796. Preliminary observations as to the use of the word "apex" in the statute. The word "apex " has, in mining, a peculiar and technical meaning. It has been defined as the highest point of anything -the top.1 It was evidently used in the statute with reference to an enlarged and technical meaning, as the statute contains the words "top or apex." It was certainly unnecessary to use it in this form to indicate the mere top, for that would be understood just as well if used alone. The courts have applied many definitions, some differing from others, but generally they reach the conclusion that the apex means the beginning or edge of the vein or lode; that portion which approaches nearest the surface of the earth. It is sometimes synonymous with the word "outcrop," and where the edge or beginning of a vein comes to the surface on the strike thereof, it is correctly so used; but if the exposure is one of the dip or partially of the

1 Cheesman v. Shreve, 37 Fed. Rep. 36.

dip and strike it would be technically incorrect. We understand it to mean that part of the strike of the vein which forms its outer edge the edge nearest the surface of the earth,— whether it be in fact its highest point or not.

§ 797. Some general definitions of "apex "-Outcrop nor highest point not necessarily apex.- Thus it is that the apex of a vein, as understood in mining parlance, generally means that portion of it which constitutes the beginning, or, conversely, the end; and generally approaches nearest the surface of the ground. It is not necessarily the highest point of the vein, which might be accomplished by a swell in the hanging wall. Nor is it necessarily the outcrop, because that may be a dip exposure.3

In the former pages of this work we have discussed at length the definitions of a vein or lode, of rock in place, and of the strike of the vein. This discussion makes it unnecessary to repeat here, at this time, at great length, the language of the courts in defining the meaning of the word "apex." We shall therefore content ourselves with statements from a few leading cases and leading works.

§ 798. Definition by Judge Hallett. In an early case the meaning of the word "apex" was defined by Judge Hallett as follows: "The words used (speaking of the statute) are 'top' and 'apex,' as if the writer were somewhat doubtful as to which word would best describe or best convey the idea which he had in mind. It was with reference to that part of the lode which comes nearest the surface that this description was used. Probably the words were not before

1 Iron Silver M. Co. v. Murphy, Iron Mine v. Luella Mine, 3 Fed. Rep. 368, 373; Duggan v. Davey, 4 Dak. 110, 26 N. W. Rep. 887; Stevens & Liter v. Williams, 1 McCrary, 480, 23 Fed. Cas. 40, Nos. 13,413, 13,414.

2 Gilpin v. Sierra Nevada M. Co., 2 Idaho, 662, 23 Pac. Rep. 547; Dug

gan v. Davey, 4 Dak. 110, 26 N. W. Rep. 887; Colorado Central M. Co. v. Turck, 70 Fed. Rep. 301; Illinois S. M. Co. v. Raff, 7 N. M. 336, 34 Pac. Rep. 544.

3 Iron Silver M. Co. v. Elgin M. Co., 118 U. S. 196; Duggan v. Davey, 4 Dak. 110, 26 N. W. Rep. 887. * Ante, §§ 285, 289.