ground; the northerly portion of the Mammoth 700 level, including the long connecting cross-cut, and the Grand Central 700 from its easterly face back to station 22; and the Tranter drift and northerly workings on the Mammoth 800 level-are all outside of any vein such as the law contemplates, but are in country rock, except instances where such workings run along or cross the dykes and are in dyke material. According to the decided preponderance of the evidence, therefore, even though whatever conflict therein exists be regarded as relating to the opinion of witnesses merely, the section. of country lying west of the west side line, or, rather, west of the east side line, of lot 38, and north of the ore bodies cut by the plane H-H, or lying along a plane drawn vertically down through the line U-T, or north of the plane E-E and east of the stopping along and in the direction of the line T-S, is practically barren of mineral, although the rock, in general, is much broken, shattered, and fractured, with fissures running in all directions. The same barren condition of that section of ground also appears from the assays of the samples taken from the surface and the workings at depth.

It is true, the appellant claims the open cuts and the workings at depth are substantially all in vein material; but, as we have seen, in the judgment of the appellant's witnesses, broken, shattered, and fissured limestone, or crushed and brecciated matter, no matter how barren, constitutes vein material, although such matter and conditions exist, without any defined boundaries, many hundreds of feet to the east and west of lot 38, in fact throughout that limestone area, so far as it was examined by witnesses, and with no more mineralization than is contained in the general mass of the mountain for more than 1,000 feet to the east and west, or through the limestone belt. Is it not difficult to perceive how such material, in the absence of both a hanging and foot wall, can be regarded as a vein? Are not the essential characteristics of a vein or lode absolutely wanting? In the absence of the very elements which constitute a vein, as defined by the highest court of our country, how can we hold a vein exists? There appears to be no mineralization in excess of that contained in the country rock; the existence of no body of mineral or mineral-bearing rock in any opening or fissure established. No witness, save Mr. Akers, attempted to locate the foot wall of the vein, and he, as we have noticed, at but one place, about 20 feet west of station 643 on the 600 level, in judgment only; for his evidence is not direct or satisfactory as to the fact. Several witnesses at a few points attempted to fix the hanging wall; but in each instance the testimony respecting it seems to point to an arbitrary location, for the fracturing, which they claim to be the limits of the vein, extends far to the west of the places pointed to as the hanging wall. We doubt if the most careful scrutiny of a scientific expert on mines. could, from the description of the material in evidence, locate what, in the judgment of those witnesses, is the hanging wall. It seems to

exist in opinion only. Nor does the fracturing stop at the Grand Central ore bodies. It is shown in evidence to extend, at least, as far west as the Grand Central shaft, more than 1,000 feet beyond where that wall was attempted to be located. No court would be justified in holding that, in such a formation as this, the limits of fracturing constitute the limits of the vein. Such a holding would be alike unreasonable and impracticable. It would convert practically all that whole limestone area into a vein-a vein thousands of feet wide, the like of which, we venture to say, no geologist or miner has ever known. Even if there be found an occasional vugg or fragment of ore, yet, where it is disconnected from any ore body, and so intermingled with and surrounded by country rock that it cannot be regarded as continuous, it does not mark the line of a vein or lode, within the meaning of the law. Bunker Hill & S. M. & C. Co. v. E. St. Ida. M. & D. Co. (C. C.) 134 Fed. 268; Cheesman v. Shreeve (C. C.) 40 Fed. 787; Iron & Silver Min. Co. v. Cheesman, 116 U. S. 529, 6 Sup. Ct. 481, 29 L. Ed. 712.

Upon very careful scrutiny of the evidence, we are of the opinion that the court did not err in rejecting the theory that the limits of fracturing constituted the limits of the vein, nor in holding that the vein existing in the south end of lot 38 did not continue in that lot north of the north end of the Cunningham stope. Where, then, and in what direction, does the vein proceed on its strike from that stope, and where are its boundaries or limits? That the Mammoth vein was formed by replacement-by replacing the limestone, molecule for molecule, with mineral through the thermal and chemical waters, or corroding vapors or solutions, ascending from the deep through the fissure or series of fissures constituting the lode-and that, where the ore appears, the fissure or opening was widened and large cavities created and filled with ore, through metasomatic action, appears manifest from the evidence. The acid and corrosive solutions acting upon the limestone corroded it or dissolved it, and the limestone thus precipitated the ore by depositing it out of the solutions. Thus, evidently, the ore bodies were built up particle by particle by dissolving the limestone and precipitating the ore, or by replacing the limestone with ore. It appears in evidence that great masses of ore are found in which the original bedding planes can yet be traced, these planes not having been obliterated by the metasomatic change. These things are not denied by the witnesses for the appellant, but, on the contrary, its leading witness admits that there are evidences of metasomatic change in the Mammoth vein, although he says he has heard or read of no mines in limestone where the process of replacement was so limited as in these mines. It also appears in evidence, as has been observed, that in running from an ore body into limestone anywhere barren rock will be encountered within a few inches or a few feet of the ore. In other words, the limit of the ore everywhere is practically barren rock or barren material. This clearly

appears from the testimony of Col. Wall and of Mr. Loose. According to the decided weight of the evidence, the mineralization practically ceases everywhere within a short distance from the ore bodies. The vein and ore bodies, going northerly from the Mammoth shaft, rarely reach a width of 100 feet. This condition of things exists all along the fissure northerly through the great ore bodies to the Cunningham stope, thence through the ore bodies in the direction of the lines U-T and T-S. It is the same on each side of where the vein passes through the dyke, and the country in the vicinity of the dykes, where the vein penetrates them, is very much crushed and shattered. The direction of the ore channel and ore bodies will readily be observed from the diagrams. It will be noticed that the ore channel, although irregular and changing its course at the Cunningham stope and at the Bradley Consort line, is continuous clear through from the Mammoth shaft to north of the Butterfly stope, a distance of more than 2,000 feet, and more than 1,400 feet, as we have seen before, in the northwesterly direction from the Cunningham stope, and doubtless the course of a vein longitudinally, as it passes through the country, is its strike. That the vein has well-defined boundaries and strike from the south end line of lot 38 to the north end of that stope, a distance of about 700 feet, is not controverted; but from there on in the northwesterly direction, although the same conditions continue to exist, the appellant insists that the ore bodies are on the dip, and not on the strike, of the vein. But why not on the strike? What facts are there established by the evidence that show the ore bodies on the dip and not on the strike? We must confess our inability, upon most careful scrutiny of the mass of evidence, to find anything to warrant us in sustaining the contention of the appellant. The character of the fissure, the processes that evidently controlled in the deposition of the ore, the characteristics of the vein where it is not in dispute and those where it is in dispute, including the continuity of the ore in the line of the channel, the barrenness of the rock as you recede from the ore, the dip of the vein and of the back fissure, yet to be adverted to, the similarity of the earth and rock throughout the limestone area outside of the ore bodies and dykes, some prominent geological features yet to be noticed, all militate against the contention and point unerringly, it seems, to the line marked by the ore channel as the location and strike of the vein, and to the limits of the deposition of ore as the limits of the vein.

Reverting to the geological features, just mentioned and before referred to, we will first notice the dip of the vein and back fissure, and here the appellant in its contention encounters a serious obstacle; for in vain will the record be searched for a degree of inclination that would carry a vein from lot 38 to the ore bodies in dispute. The vein and ore bodies, wherever explored, occupy almost a vertical position. As we have shown by a review of the evidence, at the Mammoth shaft the vein and ore go to the deep so nearly vertical

that on the 1,900 level, a distance of 1,800 feet, the westing is but 100 feet, and the dip over 86° from the horizontal. The dip of the back fissure is shown to be about the same from the Finn tunnel to the 800 level, a distance of 688 feet; the Finn tunnel being 92 feet, and the 800 level 135, west of the west side line of lot 38, making a westing of but 43 feet and a dip of 862°. So we have seen that, on the Grand Central side, from top of the winze on the 400 down to the 1,000 level, the dip is 82° from the horizontal, and that along the line U-T, where the ore bodies in dispute occur, the dip is 75° to 80° from the horizontal. Now, considering the dip of the veins, as thus shown in both mines, in connection with the long distance, apparent from the surface maps, intervening between the west side line of lot 38 and the ore bodies and vein on the Grand Central side, is it not clear, without further demonstration, that no dip is shown that could carry a vein from lot 38 to the controverted ore bodies and vein in the Grand Central mine? Such certainly seems to be the fact under the proof.

* * *

Not unmindful of the grave responsibility that attaches to the final decision of a case of such magnitude and importance, we have examined with commensurate caution the voluminous mass of evidence, in extended and deliberate discussion have announced our views upon the various questions involved, and have come to the inevitable conclusion that the appellant has shown no right of recovery under its counterclaim and no right to amend its pleadings.

The judgment must therefore be affirmed. It is affirmed, with

costs.

Section 2.-Placers.

FEDERAL STATUTE.

SEC. 2329. Claims usually called "placers," including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims; but where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands. Rev. St. U. S. § 2329.

GREGORY AND ANOTHER V. PERSHBAKER AND ANOTHER. 1887. SUPREME COURT OF CALIFORNIA. 73 Cal. 109, 14 Pac. 401.

PLAINTIFFS are grantees and successors in interest of Johnson and others, who, on December 14, 1882, located the Lucretia mining claim upon gold-bearing mineral land of the United States, in Butte county, California. Defendant, on December 22, 1882, filed his application for a patent to the Howard mining claim, which included a portion of the Lucretia location. Plaintiffs brought this action,

under sections 2325 and 2326, Rev. St. U. S., to have the question of right of possession of the claim determined. The Magalia Mining Company, by leave of the court, intervened, claiming an interest in the location through defendant. The court found that neither plaintiffs, defendant, nor intervenor had any title. Plaintiffs appealed. Other facts are sufficiently stated in the opinion.

MCKINSTRY, J.12 1. It is contended by the defendant and the intervenor (respondents) that the mineral, if any, found in the land claimed by the plaintiffs herein, constitutes a lode within the meaning of the acts of congress; that ledges or lodes can be located only in a manner entirely different from the mode adopted by plaintiffs' predecessors; and therefore, however regular their surface location might have been as a location of a placer claim, it is invalid because no placer exists within its limits.

Finding No. 51 of the court below is as follows: "That in the year 1856, John Barrett, and others associated with him, discovered on the westerly bank of Little Butte creek, on the south-east quarter of said section 13, a thin seam of gravel cropping out between an underlying bed of slate rock and an overlying bed of lava rock; and, finding that the said seam of gravel was gold-bearing, located the same as and for a mining claim under the name and designation of the 'Burch and Barrett Claim,' and thereupon commenced to work and develop their said claim by excavating a tunnel into the hill, following the course of the channel, and the said channel became thicker and better developed and more valuable as they pursued and explored the same into the hill, and showed that the said deposit was a well-developed channel, varying from a few inches to eight and ten feet in thickness, and from eight or ten to forty feet in breadth, with a well-defined bed and side walls of slate rock, and capped by a thin stratum of clay, with an overlying body of lava rock for hanging wall. Prior to the year 1879 the said John Barrett, by mesne conveyances from his associates in said location, became sole owner of the said Burch and Barrett location, and in that year sold and conveyed the same to the intervenor, the Magalia Gold Mining Company, a corporation duly formed and organized under the laws of the state of California, and the said intervenor thereupon entered into and took, and thence hitherto has kept and held, and still holds, the possession, and has ever since continued the work of exploring and pursuing and working and mining the said gravel deposit in and along the said channel or bed, and had, in the spring of the year 1882, pursued and opened and worked the said gravel channel or bed in said south-east quarter of said section 13, and in the direction of the said south-west quarter of said section, and had discovered. that the said gold-bearing channel extended towards and probably into the said south-west quarter, and that the said south-east quarter of section 13 contained deposits of gold-bearing gravel in quantity "Parts of the opinion are omitted.