of the apex, it must follow that, in measuring those rights, he is entitled to follow the dip to the farthest extent that he possesses any portion of the apex. But the question arises: to whom does the vein belong after the crossing point of the different rights has been passed? The court plainly intimates an intention not to restrict this dip right in any manner within common-law principles. But that, since the junior locator, the Last Chance, owns it all within its own end lines, except for the claim of the senior locator, the New York, when those rights have all been satisfied, it owns the vein beyond the uttermost plane of interruption, to endless depths. The justice of such a decision is manifest, but it is equally plain that it must be strictly confined to claims owning some portion of the apex, and can never be asserted to a segment of the vein to which the claimant has no apex right. To illustrate, take the following diagram:

Here A. and B. have extra-lateral rights by virtue of their apex, but C. has none because he has no apex. But he is entitled to all the ore on the dip of the vein within the vertical planes of his boundary lines not included within the extended end lines of A. and B. And this rule should

also measure the rights of any other locator on the dip of the vein south of C.'s south side line. Because the right of any person to follow the vein extra-laterally is confined to his owner hip of the top or apex, and if there is no ownership of the apex, the owners of any part of the vein on the dip must be relegated to their common-law rights – to all within their surface lines, all drawn vertically. The distinction between the case supposed and the Del Monte case is that here there is no crossing of apex rights. Of course in that case, as in the case suggested, there will be an ultimate wedge which can be claimed only upon common-law principles. But this rule should never be invoked except in this or similar cases, where there is no person owning the apex or any portion of the apex of the vein in dispute.

The New York was not a party to that litigation, and of course its rights were not determined, though they were incidentally referred to, such reference, however, not being necessary to a decision of the questions before the court. In discussing the possible rights of the Last Chance to pursue the vein on its dip at any point south of the projected line r s, the court speaks of the vein south of the line e h, projected beyond its intersection with r s, as the property of the New York, but there is no warrant in law for any such right north of point x, for want of an apex. Whether the court will adhere strictly to this dictum in the future, and hold that a location like the New York is entitled to all the vein north of the line f g w continued, and south of e h v, below the point u, where the latter intersects the line rs, remains to be seen. It would seem that up to the point where the judicial end line of the Last Chance, r s, crosses the west side line, g h, of the New York, there is strong reason for saying that the New York apex may be extended, but beyond there, its rights should cease for want of an apex, or anything that may be called an apex; and that the New York is entitled to all the vein between its end lines south of the line x y. Because, as to this, it possesses all the apex except the portion at the upper side judi

cially determined to belong to the Last Chance, whose dip rights are as if laid along the apex, leaving the unclaimed wedge of the vein to be considered as such. This suggests the further question as to the ownership of the vein on its dip between the lines x s and x z v continued. And since, as we have said, the rights of the junior claim (the Last Chance) were only curtailed to satisfy those of the older claim (the New York), when such rights are satisfied, we are unable to see why the rights of the Last Chance should not be resumed, and it be awarded all the dip within its end lines extended, not belonging to the New York by virtue of such surface priority. This upon the ground that the Last Chance is a perfect location with the apex crossing both end lines, and its rights can only be questioned by the New York location.

ARTICLE E.

In Which “Strike” and “ Dip” are Defined and Considered.

§ 810. Definition of "dip or downward course"- The statute. 811. Some definition of the word “dip.”

812. Other definitions.

813. Definition of "strike."

814. Conventional, or judicial dip and strike. 815. Hanging wall and foot-wall.

816. Country rock and debris.

§ 810. Definition of "dip or downward course" - The statute. In defining the terms employed to mark the miner's rights, the statute has departed from the beaten paths in some respects and employed new terms and definitions. The statute uses the words "throughout their entire depth," "exterior parts," and "downward course" to indicate the same meaning as that generally understood by the word "dip."1

1 R. S. U. S., § 2322: Eureka Cons. M. Co. v. Richmond M. Co., 4 Sawy. 302, 8 Fel. Cas. 819; Duggan v.

Davey, 4 Dak. 110, 26 N. W. Rep. 887.

§ 811. Some definitions of the word "dip."- Dip is a word long known in miners' parlance, and, as thus known, it means the angle of the vein made with the plane of the horizon; and as generally understood, it forms a right angle with the onward course or strike, as herein defined.' The statute uses the words "downward course 992 to impart the same meaning. It may be said to be the inclination from the horizon which the vein or stratum makes as it proceeds toward the center of the earth, or at least in its departure from the surface or horizon. As it is not always essential that it pursue a downward course, it is sufficient that there is a departure from the surface. As said by Judge Beatty: "The dip having an exact mathematical relation to the course of the vein is, of course, undetermined until the strike is determined; but, practically, the line of dip is closely approximated by taking the steepest, the (nearest a vertical) line by which a vein can be followed downward."

812. Other definitions. The dip in different veins sometimes varies from a perpendicular to the earth's surface to an angle perhaps only a few degrees below the horizon. As said by the supreme court of Montana in the case just cited: "The dip is again spoken of as the portions of the vein successively encountered in going down and away from the apex. The miner follows the dip when he works downward, leaving the apex farther from and above him at each advance." It is the angle which a lode makes with the

1 Definition by Judge W. H. Beatty, Report of Public Land Com., quoted in Duggan v. Davey, 4 Dak. 110, 26 N. W. Rep. 887; Lindl. Mines, § 318, p. 414.

2 R. S. U. S., § 2322; Eureka Cons. M. Co. v. Richmond M. Co., 4 Sawy. 302, 8 Fed. Cas. 819.

3 Justice Miller in Stevens v. Williams, 1 McCrary, 480, 23 Fed. Cas. 40; Beatty, C. J., Gilpin v.

Sierra Nevada M. Co., 2 Idaho, 662, 23 Pac. Rep. 547.

4 Gilpin v. Sierra Nevada Co. supra.

5 Testimony of Judge Beatty supra, note 1.

6 King v. Amy & Silversmit Cons. M. Co., 9 Mont. 543, 24 Pac. Rep. 200.

7Id., 24 Pac. Rep. 202.

plane of the horizon,' the departure of the vein from the perpendicular or the horizontal.2

§ 813. Definition of "strike." We have collected the judicial opinion as to the meaning of the word "strike" in a former part of this work to a considerable extent.' We shall therefore find it only necessary to give one general definition here. The "strike" is defined and understood to mean the onward course of the vein upon a horizontal plane or upon its apex, and sometimes upon its outcrop or surface exposure. But the outcrop is not always the strike, as that may be a dip exposure, or partly of the dip and partly of the strike.1

§ 814. Conventional, or judicial dip and strike.— The marking of surface boundaries is not always true to either dip or strike. And from this failure results what may be termed a "judicial" dip or strike, measured in accordance with the lines of the location, often differing from the true dip, and sometimes from the true strike."

§ 815. Hanging wall and foot-wall. The hanging wall and the foot-wall are the encasing rocks of the vein or lode, assuming it to have some inclination from a perpendicular. In all cases the upper wall is the hanging wall, and the lower the foot-wall, though it sometimes occurs that by a break in the formation a vein may be tipped over so that the posi

1 Von Cotta, Elements of Geology, North Star M. Co., 73 Fed. Rep. 597; affirmed (C. C. A.), 83 Fed. Rep. 658;

p. 26.

Ante, §§ 287, 290.

♦ Dugan v. Davey, 4 Dak. 110, 26 N. W. Rep. 887; Iron S. M. Co. v. Elgin M. Co., 118 U. S. 196.

2 Morr. Min. Rights (8th ed.), Gloss, Clark v. Fitzgerald, 171 U. S. 91: p. 426. Del Monte M. & M. Co. v. Last Chance M. & M. Co., 171 U. S. 55; Champion M. Co. v. Cons. Wyoming G. M. Co., 75 Cal. 78, 16 Pac. Rep. 513; Doe v. Sanger, 83 Fed. Rep. 203, 23 Pac. Rep. 365; Fitzgerald v. Clark, 17 Mont. 100, 42 Pac. Rep. 273.

5 Iron Silver M. Co. v. Elgin M. Co., 118 U. S. 196; Cons. Wyoming Co. v. Champion M. Co., 63 Fed. Rep. 540; Carson City G. & S. M. Co. v.