L. patent had included all the ground which its original survey encompassed. This would embrace the strip in dispute patented by the Anchor. In other words, suppose the Anchor was out of the case entirely, and we were required to ascertain the nature and extent of the rights of the Mattie L. to all the veins found within its surface lines. On the assumption that it has the apex of the vein, a-b, then the rights of the locator are defined by section 2322, Rev. St. [U. S. Comp. St. 1901, p. 1425]. The property rights conferred by a lode location thereunder are twofold (1 Lindley on Mines [2d Ed.] § 549), intraliminal, and extraliminal or extralateral. The first embraces all within its boundaries down to the center of the earth; the second, while depending for its existence upon something within such boundaries, may nevertheless be exercised, under certain conditions, beyond those boundaries. Now, the segment of the vein in dispute here is wholly within the surface lines of the Mattie L. as they were run upon the ground. The property rights of the owner thereto are therefore strictly intraliminal, and in no sense referable to the law governing property rights of the second class. There would seem to be no doubt of this conclusion in the hypothetical case. Instead of the supposed case, however, we have one where two locations cover the same ground, and where the strip common to both is expressly excepted from the Mattie L. patent because it had been previously segregated from the public domain and conveyed by the United States to the owner of the older Anchor location. Neither this exclusion from the Mattie L. patent of the disputed strip, nor the projection of the Anchor into its territory, nor both combined, operate to change the boundary lines of the Mattie L. location. They are still to be traced on the ground as they were first run, and the ground in controversy is just as much within the existing surface lines, both side lines and end lines, of the Mattie L. as when such lines were first laid. Manifestly, therefore, now, as always, whatever property rights, if any, which the owner of the Mattie L. has in the veins found in this particular area, are derived, and must spring, from section 2322 of the Revised Statutes [U. S. Comp. St. 1901, p. 1425], and that section confers no right whatever if such ground has been previously patented to another. It is not logical to hold that the extralateral rights with respect to this disputed strip are to be defined as though it was territory beyond the Mattie L. side lines, and within the planes of its end lines, when it so clearly appears that it is wholly within the surface lines of that claim, though covered by a senior conflicting location. The law does not require that the bounding lines of a location be laid wholly upon its own territory, and so as to include only the surface ground actually belonging to it, but they may be laid along or across other and senior locations belonging to another, though, of course, the prior rights of the latter may not thereby be injuriously affected. The courts cannot make a location or change the boundaries as made by the locator himself. But if the Mattie L. was permitted to draw in its boundaries so as to include therein only the ground actually belonging to that location, and so as to exclude all that belonging to the Anchor, the position of the appellant would not be strengthened. On the contrary, it would be left without the vestige of an extralateral right. For then the westerly legal end line (the located westerly side line) of the Mattie L. would be coincident with the northerly side line, the easterly end line, and the southerly side line of the Anchor claim for a certain distance, and thus would be not a straight, but a broken, line, and the westerly end line of the location, as thus laid, would not be parallel with its easterly legal end line, and from a claim thus irregularly located extralateral rights are withheld. The law is that it is the end lines alone, not they and some other lines, which define the extralateral right, and they must be straight lines, not broken or curved ones. Walrath v. Champion Co., 171 U. S. 293, 18 Sup. Ct. 909, 43 L. Ed. 170. To hold that the disputed strip is, legally speaking, outside the side lines of the Mattie L. location, would be not only contrary to the physical fact, but would be putting a premium on an unlawful act. It is clear that if the locators of the Mattie L. had observed the statute, and not attempted to include within their location previously located ground, and had so drawn its westerly legal end line as to take in only public domain, it would have acquired, by such compliance with the law, no right whatever to the ore bodies now claimed. And while, if the Anchor owner made no objection, the boundary lines of the Mattie L. might be laid on the surface of the Anchor, still the latter's superior right might not thereby be jeopardized. In neither of these cases could extralateral rights be asserted. Can it be said that, because the Mattie L. has so run its surface lines as to include therein property already located by another, that it thereby has enlarged its rights beyond what it would have secured had it obeyed the provisions of the statute under which its rights are obtained, and by which they are defined? In other words, may a locator of a mining claim acquire greater rights by disobeying, than by observing, the statutes of the United States, from which all his rights are derived? Until a higher authority so commands, we shall not so decide. Extralateral rights, as to the ore bodies in dispute, might be exercised if they are outside the side lines of the Mattie L. But this situation can exist only if its westerly legal end line be drawn in to exclude the conflicting territory. In that event, appellant may not go westerly beyond that boundary, for it could not, in pursuing its vein on the dip, pass beyond the planes drawn vertically through the end lines of its location. Such planes would constitute a barrier beyond which the owner of the Mattie L. could not go, and would exclude from the exercise of its extralateral right the easterly portion of the Anchor claim which is here in controversy. The doctrine of extralateral rights, therefore, does not apply; neither does it by analogy fit this case. The intraliminal rights of the respective parties govern, and since those rights of the junior Mattie L. claim conflict with, and are interrupted by, the senior intraliminal rights of the Anchor, the latter prevails, as we have hereinabove said in discussing another contention of appellant. Counsel rely chiefly upon Colo. Cent. M. Co. v. Turck, 54 Fed. 262, 4 C. C. A. 313, wherein it was said that, where the apex of a vein passes out of the side line of a claim into an adjoining claim, the latter, though junior in date, gives to its owner the right to follow the vein on its dip underneath the senior location. That is the case most nearly in point, but it does not, in our judgment, apply to the facts of this case. Here in the case at bar the segment of the vein claimed by appellant has not on its dip passed out of the side line of the Mattie L. claim, but is wholly within its surface boundaries. In the Turck Case the Circuit Court of Appeals did not deny to a senior location so much of the vein underground as it had the apex of. That decision, as we understand it, so far as it is analogous to this case, was that one who locates upon the apex of a lode may, within planes drawn through the end lines of the location, follow the vein outside of its side lines, and underneath the boundary lines of an adjoining proprietor, when the latter has no part of the apex, though he holds under a senior patent. But here, as we have said, the vein has not on its dip passed beyond the side lines of the junior Mattie L. location, but the ore body in question is wholly within the surface lines of the junior Mattie L., and also inside the surface lines of the senior Anchor, location. Necessarily, therefore, it seems to us that the senior claim has the right to it. A fundamental error of appellant consists in the attempts to apply the doctrine of extralateral rights to a case which is governed by the law of intraliminal rights; in seeking to apply the limitations which are applicable to outside parts of veins-that is, veins outside the side lines-to the parts of veins wholly within such lines. This we believe is contrary to section 2322, and opposed to the authorities hereinabove cited. Appellee is not here asserting extralateral rights to the secondary vein, but bases its claims thereto solely on the ground that it is the owner of the senior location, and for that reason owns the ore found within its surface boundaries. But if the doctrine of extralateral rights does govern, then by the decision in Walrath v. Champion Co., 72 Fed. 978, 19 C. C. A. 323, the end lines, and no other lines, of the Anchor location bound its extralateral rights in the vein, a-b; hence the owner of the Anchor would be entitled to all ores of such vein found within planes drawn downward through its end lines, PQ, and would not be limited, as is attempted to be done here by appellant, by planes drawn parallel to the end lines at the points x and h. This case was affirmed by the Supreme Court of the United States under the same title (171 U. S. 293, 18 Sup. Ct. 909, 43 L. Ed. 170), and as to this point was referred to with approval in Montana M. Co. v. St. Louis M. & M. Co., 102 Fed. 430, 42 C. C. A. 415. We are aware that considerable criticism has been made of this decision. In Ajax G. M. Co. v. Hiley (Colo. Sup.) 72 Pac. 447, 62 L. R. A. 555, we decided that planes drawn parallel with the end lines, and at points where the vein passed through the side lines of a location, bounded the extralateral rights. We so limited the rule because that was the extent of the claim made by the owner of the extralateral rights. But the Supreme Court of the United States has gone further, and said that these bounding planes must be coincident with the planes of the end lines, and if this case demanded the application of that rule it would be our duty to follow it if we believed the facts of this case are such as to bring it within the principle there announced, notwithstanding the adverse criticism of the decision by the learned author of Lindley on Mines. (2d Ed.) § 593 et seq. Its application would give the ore bodies in dispute here to the Anchor claim as the owner of the senior extralateral right. Our conclusion is that where there are two conflicting lode locations, each having a portion of the apex of the same vein, and there is a conflict, as here, with respect to the dip rights within the surface lines of the two locations, the senior location must prevail. To avoid, if possible, misunderstanding, we further observe that in this case a portion of the secondary vein, a-b, is within the surface boundaries of the senior Anchor lode, as the stipulated facts show. The owner of that claim, to say the least, certainly owns all the mineral of such vein within planes extended vertically downwards coincident with its end lines and side lines to the extent, at least, of the length of the apex found within its surface boundaries. The case has not been argued, certainly not exclusively, upon the proposition that each of these parties owns a definite portion of the ore found within the parallelogram, c, f, e, x, to each belonging such part of the vein as it has the apex of, but, if it had been, there is not sufficient data in the record to show what portion, or how much, each party is entitled to, even if we should hold that the Mattie L. owns such portion of the ores within that parallelogram as it has the apex of easterly of x. The case has been submitted rather upon the proposition that each party owns all the ores found within this parallelogram. In thus disposing of this action, we have not overlooked, though we do not pass upon, the contention of appellee that the Mattie L. can, in no circumstances, have any right, intraliminal or extralateral, to the secondary vein, a-b, because it is substantially parallel with the discovery vein, and more than 300 feet distant therefrom, and under section 2320 [U. S. Comp. St. 1901, p. 1424] such other vein is therefore excluded from the operation of the patent, though it may be within the surface lines of the claim as surveyed and located on the ground. There are other contentions by appellee which, in the view we have taken of the case, are not discussed. In addition to the authorities already cited, we refer to the following, among others, which in principle uphold the conclusions here. reached: Iron Silver Mining Co. v. Elgin M. & S. Co., 118 U. S. 196, 6 Sup. Ct. 1177, 30 L. Ed. 98; Del Monte M. &. M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72. The judgment of the district court being in accordance with our conclusion, it is affirmed. Affirmed.23 Section 5.-Cross Veins and Veins Uniting in the Dips. FEDERAL STATUTE. SEC. 2336. Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection; but the subsequent location shall have the right of way through the space of intersection for the purposes of the convenient working of the mine. And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection. Rev. St. U. S., § 2336. ROXANNA GOLD MINING & TUNNELING CO. v. CONE ET AL. 1899. CIRCUIT COURT, D. COLORADO. 100 Fed. 168. HALLETT, District Judge (orally).-This is a bill to restrain work upon a mine. The complainant charges that it owns the Mountain Monarch lode mining claim, in the Cripple Creek district, county of Teller, and that respondents are taking ore from within the surface lines at a considerable depth underground. Complainant's title to the Mountain Monarch claim is not disputed, nor is the charge denied that the respondents are removing ore from the claim. Without stating the pleadings at length, or the matters set forth in the affidavits in respect to the contentions of the parties, it appears that re 23 See an article on "Lode Locations" by Mr. Henry Newton Arnold in 22 Harv. Law Rev. 266, 339, where both the extralateral right and the intralimital right features of the principal case are discussed. a The map found here in the original report is inserted at the bottom of p. 544. |