In determining the rights of the parties to the ore bodies in dispute, lot 38 is of principal importance. That lot or claim was patented May 16, 1873, and all the other claims herein referred to are junior to it as to location and patent. Lot 38 is 200 feet wide and 3,000 feet long, and from its southerly end line its side lines run N. 18° 55′ E., which direction indicates the general course of the apex of the vein, as claimed by the defendant.

Diagram No. 2.

Diagram No. 2 is produced from Defendant's Exhibits B, C, D, F. G. H, and I, and Plaintiff's Exhibits Nos. 1, 2, 3, 6, 7, 8, and 16, maps representing portions of the mines of the parties.

On this diagram each one of the principal stopes, shown by the evidence and material to this decision, is represented and marked with a figure corresponding with the number of the level on which the stope is located. They show where, in the various tunnels and parts of both mines, merchantable ore was found. Those of most importance, in the consideration of the questions before the court, are the Gillespie, Apex, Gulf, Flanders, Burleigh, Naylor, Cunningham, Caved, Klondyke, Betsy, and Butterfly stopes. There are also designated on the diagram tunnels and drifts where no ore was found and no stoping done, being driven into barren ground in search for ore. The Mammoth and Grand Central shafts, the Tranter drift, the drift to the north end line Golden King claim 800 level, the drift connections between the Mammoth and Grand Central mines, east and west cross-cuts, Turner raise, Dago raise, O'Brien winze, Bush winze, the Condon and Golden King tunnels, and other objects, to which reference is made herein, are designated on the diagram, to show, as near as may be, their location and character, and to enable one to judge the more readily of the indications they furnish, as bearing upon the reasonableness or unreasonableness of the theories of either of the parties respecting the strike of the vein or lode, the location of the apex, its width, the dip of the vein westerly, and its continuity and persistency on its dip downward to the ore bodies in controversy.

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Diagram No. 5.

Diagram No. 5 is produced from Plaintiff's Exhibits 17 and 26, maps of projections on line of stoping in both Mammoth and Grand Central mines.

This diagram represents projections of the mines of both parties. The contour of the surface along the line of projection, the different levels of the Mammoth mine down to the 1,900 and of the Grand Central to the 1,100, the different stopes, and line of stoping showing the line of greatest mineralization, are all indicated on this diagram. It presents a comprehensive view of the development and explorations of these vast properties. The plane W-U, extends from the southerly end line of lot 38, on a course N. 7° 15' E., true, and the projection presents a longitudinal section of the vein, on its strike

and dip, within the limits of lot 38 to the point U, to which point the defendant is admittedly the owner of the vein. This section shows the "east or back fissure," on its dip to the deep to be almost vertical. Here the apex of the vein is also admittedly within the limits of lot 38. The plane U-T extends from the point U, near the west side line of lot 38, where the plaintiff claims the vein departs from that lot, on a course N. 51° 30' W., true, to the point T. The plaintiff insists that the projection on this plane exposes the vein on its strike and dip, while the defendant contends that its dip only is exposed, and that the apex is still within lot 38, and its strike parallel with the side lines of that lot. The contentions of the parties are the same as to the projection on the plane T-S, the course of which plane is N. 2° 15′ E., true. The dispute as to these two projections is as to whether they expose the ore bodies on the strike or on the dip of the vein.

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The case was thus submitted to the court and jury with evidence relating to all parts of the properties, surface and underground, in the greatest detail, and, the jury returning a verdict upon the special issues in favor of the plaintiff, the court adopted the verdict, and found, agreeably with it, that the top or apex of the vein continued, from the southerly end line of the first northern extension of the Mammoth, lot 38, to the place where the Cunningham stope at its northerly edge or end crossed in its northwesterly course the west side line of that lot, such point or place being, as found, 690 feet north of such southerly end line, and 90 feet south of the southerly end line of the Silveropolis mining claim, extended easterly in its own direction across lot 38; that at that point the vein on its strike and at its apex wholly departs from lot 38, and does not continue within that lot between the planes drawn through the Silveropolis southerly end line so extended and the 1,100-foot line; that such apex does not continue north of such end line within the limits of lot 38; that between such planes, on that end line so extended and on the 1,100-foot line, there is no apex or part of an apex of any vein, lode, or ledge, which vein, lode, or ledge on its dip extends to and includes the ore bodies known to exist beneath the surface of the Silveropolis and Consort Mining claims, between those planes; and that the apex of the vein or lode which is in the south end of lot 38 does not continue in that lot north of the Silveropolis south end line extended. The decree is in harmony with these findings, and directs that the defendant's counterclaim be dismissed.

Notwithstanding this decision, which was substantially the same as that at the previous trial, the judge filed, separate and apart from the findings and decree, a written opinion, in which he concluded that there are two veins in the Mammoth ground; the one running from the shaft north at least to the 1,700-foot line, and the other lying to the east. In this opinion he argued that the ore bodies in controversy belonged to a vein which had its apex in the Golden

King and Bradley mining claims, and could be recovered by the defendant in a proper proceeding. Thereafter the defendant asked leave to amend its counterclaim, and later to file an original counterclaim, in accordance with the expressed views of the court. These requests being refused, the defendant prosecuted its appeal.

This record presents two principal questions for determination: First. Whether the court erred in finding that the vein mentioned in the counterclaim upon which the trial was had, at its apex and on its strike, leaves lot 38 at a point 690 feet north of the south end line of that lot. Second. Whether the court erred in refusing to permit the defendant to file the amendment to its counterclaim, and in refusing to permit the filing of its proposed original counterclaim, in each of which it was alleged that the vein found at the south end of lot 38 did, at its apex and on its strike, wholly depart from that lot at the point found by the court, and that its apex beyond that point was in the Golden King and Bradley mining claims. All other questions presented are subordinate to and in support of one or the other of these two.

BARTCH, C. J.11-The main question, which resulted from the issues raised by the pleadings that formed the basis of inquiry and submission at the trial and which we will consider in the first instance, is whether the court erred in finding that the vein or lode mentioned in those pleadings, at its apex and on its north-westerly course or strike, crosses the western side line of lot 38 and wholly departs from that lot at a point 690 feet north of its south end line, and north of that point does not continue, either at its apex or on its strike to or beyond the 1,100-foot line within the limits of lot 38, and that there is no vein or lode having an apex or any part thereof within the limits of lot 38 north of the southerly end line of the Silveropolis mining claim extended eastward in its own direction, and south of the 1,100-foot line, which on its dip extends to and includes any of the ore bodies existing underneath the surface of the Silveropolis and Consort mining claims south of the 1,100-foot line. This is principally a question of fact, and must be considered in view of the law of Congress respecting extralateral rights. * The premises are of very great value. It would be idle to say that upon the result of the case made by the counterclaim and answer depends but the ownership of the ore bodies in the Silveropolis and Consort mining claims south of the 1,100-foot line. It is plain to be seen, without demonstration, that, if the ore bodies in dispute herein are embraced in a vein having its apex in lot 38 north of the Silveropolis south end line extended, the ore bodies north of the 1,100-foot line in the same claims are parts of and belong to the same vein. The ultimate question involved is therefore not merely the ownership of a few ore bodies of the alleged value of $300,000, but of the owner

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"Parts of the statement of facts and of the opinion are omitted.