how it could be seriously contended that such outcrop, under the circumstances, constituted the top or apex of this stratum of quartzite. Such a conclusion could only be reached, it seems to me, by shutting one's eyes to every feature of the case, except the one fact that there was an edge at or near the surface, which was therefore the top or apex of the vein. This I cannot do without such a violation of the ordinary use of words, and, with all the respect and deference which I feel for the opinions of the learned counsel for the defense, I must say without such a transgression of the dictates of a sound common-sense view of the situation, as, in my judgment, the statute does not contemplate. Nor can I see that there would be any difference whatever in the principle were this outcrop to be found at an angle of 45 deg., or, as it is, at an angle of about 8 deg. from the horizontal. I am compelled, therefore, to hold that this outcrop found in the Sitting Bull location is not the top or apex of this vein, lode, or ledge, and that such top or apex is not within that location. I must regard that outcrop as merely an exposure of the edge of the vein on the line of its dip.

"But, thirdly, if this is not the top or apex of the vein, then neither is it its longitudinal course. That by the use of the term 'along the vein' the statute requires a location to be made along its longitudinal course or strike I shall not stop to argue. Such, again, was the opinion of the court in the Eureka-Richmond Case. But by the term 'strike,' in this connection, I do not mean the technical true strike of the engineer; the line which would be cut by a horizontal plane. Such a requirement would be in many cases impracticable. The supreme court of the United States has said in the Flagstaff case, [Mining Co. v. Tarbet, 98 U. S. 463,] that 'the most practicable rule is to regard the course of the vein as that which is indicated by surface outcrop, or surface explorations and workings;' and I have no disposition, as I should not be at liberty, to disregard the doctrine of that case, so far as it is applicable to the circumstances. In that case a line of outcrop ran up a hill nearly in a westerly direction. A level line run somewhere beneath the surface showed the 'strike' to be north 50 deg. west. The line of the Titus location was not far from midway between these two, and the court held, as against the Flagstaff, which was laid across these lines, that the location of the Titus was a good one, using the language above quoted. There, moreover, the dip of the vein was north-eastward, and no such question arose as that involved in this case. In view of the principles already laid down, I think that the longitudinal course of this zone of quartzite is indicated by the croppings on the west face of the hill, and not by those on the northerly slope.

"After what has been said, it would seem unnecessary to consider whether this vein so far departs from a perpendicular in its course downward as to extend outside the vertically extended side lines of defendants' location, and through the intervening ground to the

ground in controversy,-such could not be the case consistently with the facts already ascertained. It may be conceded as, indeed, a mathematical conclusion from the facts, that by extending drifts from the Sitting Bull location through its vertically extended south side line, in any direction upon the vein east of south, a downward inclination would be found, and that such is the fact with regard to the main working tunnel, which extends to the ground in controversy; but, clearly, this is not what the statute contemplated, and, if I am right in my other conclusions, probably this proposition would not be contested."

We concur in the views thus expressed.

It was unnecessary for the court to determine affirmatively the precise location of the top or apex of the vein in question. The court did find "that the outcrop on the westerly slope of the hill above described was the summit, top, or apex of said zone, ledge, or stratum of quartzite," but did not determine whether or not it was technically the top or apex of the vein. Possibly that might have involved an inquiry as to the continuity of its mineralization to the summit. The question the district court had to determine was whether the top or apex of this vein was or was not within the Sitting Bull location. It determined that it was not, and, as we think, correctly.

The judgment and orders appealed from are affirmed, and the findings and conclusions of the district court are adopted by this court.1o

TABOR ET AL. V. DEXLER ET AL.

"NEW DISCOVERY" LODE v. “LITTLE CHIEF" LODE.

1878. CIRCUIT COURT, D. COLORADO.

23 Fed. 615, 9 Morr. Min. Rep. 614, Carp. Min. Code, 71.

HALLETT, DISTRICT JUDGE.-This is a bill for an injunction by parties owning the New Discovery lode, in California mining district, against the owners of an adjoining claim called the "Little Chief." It is not alleged that the defendants have entered upon or into the New Discovery ground, or that they have in any way interfered with plaintiffs' possession within the limits of the New Discovery location. The charge is that plaintiffs' lode descends into the Little Chief's ground on its dip, and that defendants are there mining and exhausting the ore. In other words, plaintiffs contend that the top of the lode is in their ground, and that they have the right to follow upon its downward course and through adjoining territory. To maintain this position, it is necessary to show that the lode is in

10 For diagram and explanation of the case see 1 Lindley on Mines (2 ed.) § 310.

place, within the meaning of section 2320, Rev. St. U. S. And this depends upon the position of the ore or vein matter in the earth, as whether the inclosing mass is fixed and immovable, more than upon the character of the ore itself. Whether the ore is loose and friable, or very hard, if the inclosing walls are country rock, it may be located as a vein or lode. But if the ore is on top of the ground, or has no other covering than the superficial deposit, which is called alluvium, diluvium, drift, or debris, it is not a lode or vein within the meaning of the act, which may be followed beyond the lines of the location. In this bill it is alleged that the overlying material is boulders and gravel, which cannot be in place as required by the act. Not much is known to the court of the deposits on Fryer Hill, but it would seem from the allegations in this bill that they differ materially from the Iron mine, which has a hanging wall as well as a foot wall. For the decision of this motion it is enough to say, that where the mass overlying the ore is a mere drift, or a loose deposit, the ore is not "in place," within the meaning of the act. Upon principles recently explained, a location on such a deposit of ore may be sufficient to hold all that lies within the lines; but it can not give a right to ore in other territory, although the ore body may extend beyond the lines. The motion will be denied.

GRAND CENTRAL MIN. CO. v. MAMMOTH MIN. CO.

1905. SUPREME COURT OF UTAH. 29 Utah 490, 83 Pac. 648.

ACTION by the Grand Central Mining Company against the Mammoth Mining Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The plaintiff commenced this action on the 9th day of September, 1899, by filing a complaint in trespass, in the first count of which it alleged that the defendant had unlawfully mined, extracted, and removed from beneath the surface of the Silveropolis mining claim ores in quantity exceeding 6,000 tons, of the value of $300,000, and demanded judgment for that sum; and in the second count, after having made similar allegations as to the extraction and value of ores, it asked that the defendant be restrained from further mining operations underneath the surface of that claim, pending the trial of the cause. On October 16, 1899, the defendant filed an answer and counterclaim, alleging affirmatively, inter alia, that the ore bodies in controversy were in a vein which had its apex in the first northern extension of the Mammoth lode, designated as "U. S. Lot No. 38." * **

On November 20, 1901, the defendant filed its third amended answer and counterclaim. * * * The contention of the defendant

throughout the trial was that the ore bodies in dispute lie in a vein which has its apex in lot 38, and which, on its strike and at its apex crosses the southerly end line of that lot, and continues within its limits to a point at least 1,100 feet north from such end line; while on the part of the plaintiff it was insisted that the vein, which at its apex and on its course crosses the southerly end line of lot 38, wholly departs from the lot at a point 695 feet north from the southwest corner thereof, where it crosses the westerly side line.

Diagram No. I.

* *

Diagram No. 1, given below, is in part a copy of Defendant's Exhibits A and K and Plaintiff's Exhibit 12, surface maps.

On this diagram are shown, so far as material here, the surface boundaries of the properties owned by the parties. The first northern extension of the Mammoth claim (U. S. lot No. 38), the Jenkins (U. S. lot No. 93), the Golden King (U. S. lot No. 92), the Bradley (U. S. lot No. 158), the Young Mammoth (U. S. lot No. 94), and the Schey mining claims are owned by the defendant; and the Silveropolis (U. S. lot 135), the Consort (U. S. lot No. 272), and the King William mining claims are owned by the plaintiff. The ground in dispute is that part of the Silveropolis and Consort mining claims lying south of the 1,100-foot line. The stipple shading on lot 38, which overlaps the claim, shows the width of the apex and course of the vein as claimed by the defendant. The lines W-U, U-T, and T-S represent the course or strike of the vein as claimed by the plaintiff, and indicate the line of stopping in the mines along the vein, claimed by the defendant to be on its dip, by the plaintiff on its strike. The point U is 695 feet from the southwest corner of lot 38, and is where the plaintiff claims the vein changes from a course N. 15° E. to a course N. 51° 30′ W., true, and departs wholly from the limits of lot 38, continuing in that course to the point T, when it again changes, and thence continues N. about 10° to 15° W. in the direction of the point S. The line K-K indicates a section through the Peterson winze in the Grand Central mine, H-H a section through southern end of Silveropolis claim, E-E a plane about 150 feet north of the south end line of that claim, and F-F a longitudinal projection. Numerous open cuts, made by the defendant for the purposes of this case and claimed by it to expose the apex of the vein, are indicated on lot 38. Tunnels, Mammoth and Grand Central shafts, and other points of more or less importance are also located on the diagram. The 1,100 and 1,700 foot lines and the southerly end line of the Silveropolis mining claim extended likewise appear thereon. Some of the principal stopes are indicated thereon, including the Cunningham of the Mammoth, where the plaintiff insists the vein. wholly departs from lot 38, and the Butterfly of the Grand Central. The dykes also appear.