"In other words, under the old law he located the lode. Under the new, he must locate a piece of land containing the top, or apex, of the lode. While the vein is still the principal thing, in that it is for the sake of the vein that the location is made, the location must be of a piece of land including the top, or apex of the vein." And in vol. 2 (§ 780): "Prima facie, such a patent confers the right to everything found within vertical planes drawn through the surface boundaries; but these boundaries may be invaded by an outside lode locator holding the apex of a vein under a regular valid location, in the pursuit of his vein on its downward course underneath the patented surface." See also Calhoun Gold Min. Co. v. Ajax Gold Min. Co. 182 U. S. 499, 508, 45 L. ed. 1200, 1206, 21 Sup. Ct. Rep. 885. The decisions of the courts in the mining regions are referred to in the opinion of the court of appeals in this case, from which we quote : "This view is in accord with the trend of all the decisions to which our attention has been directed. In Parrot Silver & Copper Co. v. Heinze, 25 Mont. 139, 53 L. R. A. 491, 87 Am. St. Rep. 386, 64 Pac. 326, the supreme court of Montana held in substance that the owner of a mining claim is prima facie the owner of a vein or lode found at a depth of 1,300 feet within the vertical planes of the lines of his own claim, and that that presumption would prevail until it was shown that the vein had its outcrop in the surface of some other located claim in such a way as to give to the owners of the latter the right to pursue it on its downward course. The court said: 'Upon a valid location of a definite portion of land is founded the right of possession. The patent grants the fee, not to the surface and ledge only, but to the land containing the apex of the ledge. The right to follow the ledge upon its dip between the vertical planes of the parallel end lines extending in their own direction when it departs beyond the vertical planes of the side lines is an expansion of the rights which would be conferred by a common-law grant.' Of similar import is State ex rel. Anaconda Copper Min. Co. v. District Court, 25 Mont. 504, 65 Pac. 1020. In Doe v. Waterloo Min. Co. 54 Fed. 935, Judge Ross said: 'Except as modified by the statute, no reason is perceived why one who acquires the ownership or possession of such lands should not hold them with and subject to the incidents of ownership and possession at common law.' In Consolidated Wyoming Gold Min. Co. v. Champion Min. Co. 63 Fed. 540, Judge Hawley said: 'Hands off of any and everything within my surface lines extending vertically downward, until you prove that you are working upon and following a vein which has its apex within your surface claim." The judgment of the Court of Appeals is affirmed. JEFFERSON MINING CO. v. ANCHORIA LELAND MIN. & MILL. CO. (See post, p. 533, for a report of the case.) ROXANNA GOLD MINING & TUNNELING CO. v. (See post, p. 543, for a report of the case.) COLORADO CENT. CONSOLIDATED MIN. CO. v. TURCK. COURT OF 1892. CIRCUIT Court of AppeaLS. 2 C. C. A. 67, 50 Fed. 888. IN error to the Circuit Court of the United States for the District of Colorado. Affirmed. Before CALDWELL, Circuit Judge, and SHIRAS and THAYER, District Judges. THAYER, DISTRICT JUDGE.2* * * The instruction tendered by the defendant company in effect asked the circuit court to declare that section 2322 does not permit one who locates upon the apex of a lode or vein to follow the vein outside of his side lines and underneath the boundary lines of an adjoining proprietor if the latter holds under a senior patent. As the proposition was stated in the instruction it excluded all consideration of the question whether the Colorado Central Company had or had not first discovered and located the same vein on the dip which the owner of the Aliunde was following underneath its territory. In other words, it asserted that the right given by section 2322 to the holder of the apex to follow his vein on its dip outside of the side lines of his claim is merely a right that can be asserted against an adjoining claimant holding under a junior patent or certificate. We are of the opinion that the instruction, as asked, was properly refused. It rested upon an interpretation of the statute that cannot be sustained in view of the language employed, and, so far as we are aware, has never, as yet, been adopted. In two cases (Milling Co. v. Spargo, 16 Fed. Rep. 348, and Amador Medean Gold Min. Co. v. South Spring Hill Gold Min. Co., 36 Fed. Rep. 668) it was held that a patent for agricultural lands, issued under the pre-emption laws of the United States, carries the right to all mines underneath the surface to which no right has attached at the time the certificate of purchase or the patent issues, and that a reservation in such patent, saving the rights of proprietors of mining veins or lodes, related solely to those proprietors whose rights had attached before the lands were purchased for agricultural purposes. We think that the same effect cannot be given to a patent for a mining claim which appears to have been given in the cases cited to patents for agricultural land. The title acquired by a patent of the former deThe statement of facts and parts of the opinion are omitted. scription bears little resemblance to a title conferred by the latter, because it is acquired and held under the provisions of statutes differing widely both in their language and purpose. The statute conferring the right to follow a lode outside the side lines of a location, when the top or apex of the lode lies within the boundaries of the location, does not, in terms or by necessary implication, limit the exercise of that right, especially where mining claims are involved, to cases where the adjoining claims are held under junior locations or patents, and we think we would not be justified in placing such a limitation upon the right by construction. The practice of the general land office for many years also appears to have been opposed to the existence of any such limitation. * * * Upon the whole, therefore, we find no material error in the record, and the judgment of the circuit court is accordingly affirmed.3 Section 3.-Extralateral Rights Under the Act of 1866. FLAGSTAFF SILVER MINING COMPANY v. TARBET. (See post, p. 431, for a report of the case.) ARGONAUT MIN. CO. v. KENNEDY MIN. & MILL. CO. 1900. SUPREME COURT OF CALIFORNIA. 131 Cal. 15, 63 Pac. 148. ACTION by the Argonaut Mining Company against the Kennedy Mining & Milling Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed. TEMPLE, J.-This is an action for damages for the value of ore alleged to have been taken by defendant from plaintiff's mine, situate in Amador county. The defendant denies taking any ore or goldbearing rock from plaintiff's mine, and avers that defendant is the owner of the mine from which the rock was taken. The cause was submitted in the trial court upon an agreed statement of facts, each party having the right to object to the relevancy, competency, and materiality of any part of it. Certain objections to evidence were made by the appellant, which were overruled by the court, and the Even in the case of agricultural land patents, the same rule should be applied. As Mr. Lindley points out (2 Lindley on Mines, 2 ed., § 612) all the federal laws providing for the sale and disposal of the public lands "are essentially in pari materia.” Opposed to Amador Medean Gold Min. Co. v. South Spring Hill Gold Min. Co., 36 Fed. 668, is the decision of the trial judge in Wedekind v. Bell, 26 Nev. 395, 69 Pac. 612, which the upper court did not pass on because of a settlement pending the appeal. In the briefs of counsel as summarized in the official report is disclosed the trial court's ruling. main argument here has been in regard to these rulings. Much of the evidence was objected to simply upon the ground of immateriality. All that I deem it necessary to say in regard to such rulings is that, admitting that the trial court erred, as I am inclined to think it did, defendant has suffered no harm. The question of law upon which the case must turn is not changed or affected by receiving this immaterial evidence. The controversy is indicated by the following diagram: The plaintiff owns the Pioneer quartz mine, and the defendant owns the Kennedy mine and the Silva mine. All three mines had passed to patent before the ore was taken out by defendant. The ore was taken under the Silva location, and within its exterior limits carried vertically down. It was taken from the discovery lode of the Pioneer location, which is the only lode which has its apex within that location. It enters that location near the middle point of the southern end line, and runs northerly through the location in a direction practically parallel to the side lines, through the center of the northern end line. In fact, save that the end lines are not parallel, the location and the lode are the ideals upon which the rules and regulations of miners and the laws of congress seem to have been based. The defendant does not assert any right to the ore in dispute by virtue of its ownership of the Kennedy mine, and nothing further need be said about it. Defendant asserts title to the ore by reason of its ownership of the Silva ground, under what counsel call the common-law right to everything beneath the surface. It admits plaintiff's ownership of the Pioneer mine, and that the lode has its apex, as stated, within its surface location, but denies that the quartz taken by it from that lode is within that location. This is asserted, as I understand the contention, upon two grounds: First, defendant contends that, because of nonparallelism of the end lines of the Pioneer, it carries no extralateral rights; and, second, if the court can as matter of law construct for it parallel end lines, the southerly end line being the base line from which the location was projected, the parallel will be made by extending the northern end line in a direction parallel to the direction of the southerly end line. The dip of the lode is easterly at an angle of about 60° from the plane of horizon, and the end lines of the Pioneer diverge in that direction to the extent of about 14° 45'. The ore was taken out directly beneath the Silva surface location at depths varying from 1,400 to 2,000 feet beneath the surface. The Silva location is more than 900 feet easterly from the easterly line of the Pioneer location. The Pioneer was located, as the patent shows, under the law of 1866. The application for a patent was filed January 13, 1871. On the 23d day of February, 1872, the Pioneer entered and paid for its mine, and the patent is dated August 12, 1872. The act to promote the development of the mining resources of the United States was passed May 10, 1872. For reasons, which will appear as this opinion proceeds, I think plaintiff is entitled to all the rights which would attach to such a location under the law of 1866, and to any additional rights which inured to such locations under the act of 1872. Among the contentions of the respondent is this: "Although the end lines were not required to be parallel under the act of 1866, yet if, by any process of reasoning, any limitation upon the extralateral right was imposed upon the locators' title by reason of the divergence of end lines, such limitation was removed by the act of May 10, 1872, which granted to owners of locations theretofore made the right to pursue the vein on its downward course, between the end-line plane of such location as it existed." This proposition is based upon the language of the first proviso in section 3 of the law of 1872. After stating that the locators shall have certain lodes throughout their entire depth, although they may so far depart from a perpendicular in their downward course as to extend outside the vertical side lines, it proceeds: "Provided, that their right of possession to such outside |