"lar in detail, occupying or accompanying a fracture or "set of fractures in the inclosing rock; this mineral "mass has been formed later than the country rock and "the fracture, either through the filling of open spaces "along the latter, or through chemical alterations of the adjoining rock."1

289. Elements to be considered in the judicial application of definitions-Rules of Interpretation.— Dr. Raymond, one of the expert witnesses whose evidence is quoted and referred to in the Eureka case, thus states his views:

"The miners made the definition first. As used by "miners, before being defined by any authority, the "term 'lode' simply meant that formation by which the "miner could be led or guided. It is an alteration of "the verb 'lead,' and whatever the miner could follow, 66 expecting to find ore, was his lode. Some formation "within which he could find ore, and out of which he "could not expect to find ore, was his lode."' 2

At the time the act of July 26, 1866, was passed, the first congressional enactment wherein the words "lode" and "vein" were used, the center of activity in the mining industry was found in the auriferous quartz belt of California, and the Comstock lode, in Nevada. Up to that time there is but little doubt that the experience of the western miner in lode mining was, with rare exceptions, confined to a class of deposits that would readily fall within the narrowest definition of a "lode"; that is, "a fissure in the earth's crust filled with mineral mat"ter; an aggregation of mineral matter containing ore "in a fissure."

Dr. Raymond is of the opinion that the term was used by the miner in a more enlarged sense, because "cinna

Metasomatic Processes in Fissure Veins.-Trans. Am. Inst. M. E., vol. XXX, pp. 578, 580.

Eureka case, 4 Saw. 302, 311, Fed. Cas. No. 4548.

"bar" was included in the category of minerals specified in the statute, and "cinnabar" occurs not in fissure veins, but as "impregnations and masses of ore dis"tributed through zones of rock."1

This same illustration is employed by the supreme court of Utah as indicating that it was not the intention of the framers of the acts of congress that purely scientific definitions should be applied in giving them effect.2

When it is considered that up to the year 1866 the quicksilver product of the Pacific slope (and it was not known to occur elsewhere in the United States) was confined to three mines, two of which were then claimed under Mexican grants,—the New Almaden, in Santa Clara county, California, and the New Idria (Panoche Grande), in Fresno county, California,-and that active search for cinnabar deposits was not inaugurated until 1874,3 popular knowledge on the subject of the mode of occurrence was not particularly extended. It is not likely, therefore, that the inclusion of cinnabar with gold and silver in the act was based upon any very clear conception of its mode of occurrence. However, as we understand the matter now, the typical cinnabar deposits are in fact fissured, fractured, and mineralized zones, formed in a way somewhat similar to the more complex of the gold, silver, copper, and lead-bearing

1 Monograph in Eureka-Richmond case,-Trans. Am. Inst. M. E., vol. vi, 382. See, also, Dr. Raymond's testimony, quoted by the court in the Eureka case, 4 Saw. 302, 311, Fed. Cas. No. 4548.

2 Hayes v. Lavagnino, 17 Utah, 185, 53 Pac. 1029, 1033.

• Becker's Geology of the Quicksilver Deposits of the Pacific Slope, pp. 10, 11.

The ignorance of many of the early miners of California on geological subjects is thus quaintly suggested by Mr. J. Ross Browne ("Mineral "Resources of the West," 1867)::·

"Many believed that there must be some volcanic source from which "the gold had been thrown up and scattered over the hills; and they "thought that if they could only find that, place, that they would have "nothing to do but to shovel up the precious metal and load their mules "'with it.'

VEIN,"

lodes. They were probably regarded as lodes by the miner. There may be differences of opinion among scientists regarding the proper place for these deposits in a system of classification; but that is a matter of little moment here. They have become "lodes" in the eye of the law. Be that as it may, the miner first applied the terms "lode" and "vein," and they had with him a definite meaning. Whether it accorded with scientific theories and abstractions is, at this late day at least, of no serious moment.

Speaking of the essential differences between the miner and the scientist on the subject of definitions, Dr. Foster, in his contribution to the "Quarterly Journal of "the Geological Society," on the Great Flat lode in Cornwall, quoted by Dr. Raymond in his monograph on the Eureka-Richmond case,1 presents some suggestions on the subject of the definition of these terms which are worthy of repetition here:

"The terms 'lode,' or 'mineral vein,' commonly re"garded as synonymous, are usually taken to mean the "mineral contents of a fissure. I have endeavored to "show that the Great Flat lode is in the main a band of "altered rock. Much of the veinstone extracted from

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some of the largest Cornish mines, such as Dolcoath, "Cook's Kitchen, Tincroft, Carn Brea, and Phoenix, for "instance, closely resembles the contents of the Great "Flat lode, and was probably formed in a similar manner; indeed, I question very much whether at "least half the tin ore of the country is not obtained "from tabular masses of stanniferous altered granite. "If, then, many of the important lodes of such classic "ground as Cornwall do not satisfy the common defini

tion, one of two things ought to be done; either the "miner should give up the term 'lode' for these reposi"tories, or else the meaning attached to the word by "geologists should be extended. I need hardly say that "the first alternative is not likely to be adopted; nor do "I think it is one to be recommended-for I believe that

Trans. Am. Inst. M. E., vol. vi, pp. 371, 381.

one and the same fissure traversing killas and granite 66 may produce two kinds of lodes.. .. I should pro"" pose, therefore, that the term 'lode,' or 'mineral vein,' "should include not only the contents of fissures, but "also such tabular masses of metalliferous rock as "those I have been describing. . . . If, however, this "course should be thought on the whole undesirable, "the geologist and miner must agree to differ in their "language, and some of the lodes of the latter will have "to be designated as tabular stockworks by men of "science."

We do not conceive that from a judicial standpoint it is a matter of vital importance that the miner and the scientist should harmonize their differences on the subject of mere definition. The danger lies in accepting the definitions of either as broadly comprehensive or rigidly restrictive, and attempting to apply them to conditions not within the reasonable contemplation of the law, or in attempting to deprive a locator of the benefit of his discovery, if the thing discovered can not be forced into the mold of arbitrary definition, either popular or scientific.

If in the construction of the terms used in the mining laws there is one evil to be avoided as great as the servile adherence to arbitrary definition, it is the blind application of a rule announced in one case, where local conditions may justify it, to other cases, where a similar application of the rule, by reason of modified or totally different conditions, would produce absurd results.

"Many definitions of veins have been given, varying "according to the facts under consideration. The term "is not susceptible of arbitrary definition applicable to every case. It must be controlled, in a measure at "least, by conditions of locality and deposit."1

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As was said by Judge Hawley, sitting as circuit judge in the case of Book v. Justice M. Co.,

'Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 948, 953.

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"Various courts have at different times given a defini"tion of what constitutes a vein, or lode, within the meaning of the act of congress; but the definitions "that have been given, as a general rule, apply to the peculiar character and formation of the ore deposits, "or vein matter, and of the country rock, in the par"ticular district where the claims are located."'1

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And in a later case,

"The mining laws of the United States were drafted "for the purpose of protecting the bona fide locators of mining ground and at the same time to make necessary provision as to rights of agriculturists and claim"ants of townsite lands. The object of each section and "of the whole policy of the entire statute should not be "overlooked. The particular character of each case "necessarily determines the rights of the respective

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parties, and must be kept constantly in view, in order "to enable the court to arrive at a correct conclusion. "What is said in one character of cases may or may "not be applicable in the other. Whatever variance, "if any, may be found in the views expressed in the "different decisions touching these questions arises "from the difference in the facts and a difference in the "character of the cases and the advanced knowledge "which experience in the trial of the different kinds of cases brings to the court. . . . The definition of a lode "must always have special reference to the formation "and peculiar characteristics of the particular dis"trict."2

As was said by Judge Field, speaking of the act of July 26, 1866, –

The mining acts "were not drawn by geologists or "for geologists. They were not framed in the interest "of science, and consequently with scientific accuracy "in the use of terms. They were framed for the pro"tection of miners in the claims which they had located

158 Fed. 106, 121.

2 Migeon v. Montana Cent. Ry., 77 Fed. 249, 254.