"the surfaces of contact with the underlying quartzite "and the overlying shale.

"There are other forms that need not be enumerated "here. Suffice it to say, that the mineralization of "rock in place is an essential element in the definition; "the nature of the material, the form of the deposit, the "character of the boundaries are widely variant."

291. Classification of cases in which the terms "lode" and "vein" are to be construed.-Judge Hawley, speaking for the circuit court of appeals in the case of Migeon v. Montana Cent. Ry.,' says:

"There are four classes of cases where the courts have "been called upon to determine what constitutes a lode 66 or vein, within the intent and meaning of different "sections of the Revised Statutes:

"(1) Between miners who have located claims on the "same lode, under the provisions of section twenty"three hundred and twenty;

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"(2) Between placer and lode claimants, under the provisions of section twenty-three hundred and thirty"three;

"(3) Between mineral claimants and parties holding "townsite patents to the same ground;

"(4) Between mineral and agricultural claimants to "the same land."

To these we may add another:

(5) Controversies between a lode miner, who has penetrated into and underneath lands adjoining in the development of what he has located under the law applicable to lode claims, and the adjoining or neighboring surface proprietor, whose claim to the underlying mineral deposits rests solely upon presumptions flowing from surface ownership.

In interpreting these terms the nature of the controversy is an undoubted element to be considered. In

177 Fed. 249, 254.

some classes of cases a more liberal rule is followed than would be justified in others. It is useless, in our judgment, to search for a judicial definition which would be absolutely applicable under every conceivable state of facts and in all classes of controversies.

2 292. Judicial definitions and their applicationThe Eureka case.-It may be safely asserted that as to the terms "lode" and "vein," when applied to geological conditions existing in most mining localities, there is no essential difference between their definition as given by the scientist and that applied by the practical miner. But it is when we encounter certain classes of deposits, and meet with new and unique conditions, the existence of which was neither known nor contemplated when the "miners made the definitions," nor when congress enacted the mining laws, that the courts have been forced to admit that "what constitutes a lode, or vein, "of mineral matter has been no easy thing to define."1

The first reported case in which a judicial definition of any of these terms was attempted is the case of the Eureka M. Co. v. Richmond M. Co.,2 one of the most famous of the mining cases ever considered by the courts. It was tried before three of the most eminent mining judges,-Field, Sawyer, and Hillyer,—who had the benefit of the testimony of some of the most distinguished scientists of the period.

It was a case involving rights accruing under the act of 1866, and the following is the definition formulated:

"We are of the opinion that the term (lode) as used "in the acts of congress is applicable to any zone or belt "of mineralized rock lying within boundaries clearly

1 Iron S. M. Co. v. Cheesman, 116 U. S. 529, 6 Sup. Ct. Rep. 481. 24 Saw. 302, Fed. Cas. No. 4548; Judge Field, in Iron S. M. Co. v. Mike & Starr G. and S. M. Co., 143 U. S. 394, 12 Sup. Ct. Rep. 543. Lindley on M.-33

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"separating it from the neighboring rock. It includes .. all deposits of mineral matter found through a "mineralized zone, or belt, coming from the same source, impressed with the same forms, and appear"ing to have been created by the same processes."

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The zone to which this definition was applied was of dolomitic limestone, a sedimentary deposit, broken, crushed, and fissured, resting on a foot-wall of quartzite, and having a hanging-wall of clay shale.1 The width of the zone varied from a few inches to four hundred and fifty feet. Its mean width was about two hundred and fifty feet. The hanging-wall had a dip of eighty to eighty-five degrees, while the foot-wall had an average inclination of forty-five degrees. Throughout this body of limestone, vugs, chambers, and large caverns were encountered, in the bottoms of which ore-lead carbonates, carrying gold and silver-was invariably found. Overlying the hanging-wall was another zone of limestone, which differed from that lying on the quartzite, being plainly stratified, and contained neither ores nor

caverns.

No one connected with the case contended that this mineral-bearing zone was the filling of a fissure.2

While we are not concerned with the genesis of these ore deposits, it is a matter of common knowledge that the inclosing rock (limestone) being soluble and fissured, the caves, vugs, and chambers resulted from the chemical action of percolating waters, creating the larger spaces for the subsequent deposit of the ores. Professor Le Conte, in his "Elements of Geology,' gives a cross-section, exhibiting a homely illustration of

'A cross-section of this lode is shown in figure 9, ante, § 290a, forming one of Mr. Browne's illustrations.

2 See monographs of W. S. Keyes and R. W. Raymond, Trans. Am. Inst. M. E., vol. vi, pp. 344, 393.

3d ed., p. 76.

the result of the erosive action of the water in rocks of this character, and cites the Mammoth Cave, in Kentucky, Wier's Cave, in Virginia, and Nicojack Cave, in Tennessee, as examples. The Eureka ore-chambers were all presumed to be interconnected by fissures, but the irregularity of distribution was such as to make the continuous tracing of persistent fissure-veins impracticable. Our apology for introducing these elements into the discussion is found in the admonition of the courts, referred to in a preceding section, that in applying a definition we must look to the facts, circumstances, and conditions of structural geology which justified its creation before we can intelligently determine whether it should be applied to other cases.

We do not complain that the law was incorrectly applied in the Eureka case. But there is hardly a mining case of any considerable importance involving the broad lode question in which one side or the other does not attempt to apply the zone theory announced in this case to conditions materially different from those encountered on Ruby Hill.

The Eureka case stands as a judicial classic; but its force as a precedent ought to be limited to cases where the conditions are parallel, or at least analogous.

The passage of the act of May 10, 1872, introduced new terms, and created new complications, which must be considered when dealing with the present state of the law.

293. The Leadville cases.1-We shall have occasion to analyze the group of cases arising out of the unique geological conditions existing at and in the vicinity of Leadville, Colorado, when we discuss the subject of “apex” in the succeeding article, presenting a crosssection which gives a fair illustration of the mode in

For a full presentation and discussion of these cases, see Dr. Raymond's "Law of the Apex."

which these so-called "veins" occur. As we shall there fully explain our understanding of these local conditions to which definitions have been applied, we confine ourselves presently to quotations from these various cases, most of which refer to and apply the Eureka case:

In general, it may be said that a lode, or vein, "is a "body of mineral, or mineral-bearing rock, within de"fined boundaries in the general mass of the moun"tain."'1

"In this definition the elements are the body of min"eral or mineral-bearing rock and the boundaries. "With either of these things established, very slight " evidence may be accepted as to the existence of the "other. A body of mineral or mineral-bearing rock "in the general mass of the mountain, so far as it may "continue unbroken and without interruption, may be

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regarded as a lode, whatever the boundaries may be. "In the existence of such body, and to the extent of it, "boundaries are implied. On the other hand, with "well-defined boundaries, very slight evidence of ore "within such boundaries will prove the existence of a "lode." 2

"Such boundaries constitute a fissure; and if in such "fissure ore is found, although at considerable inter"vals, and in small quantities, it is called a lode, or "vein. . . .

"A continuous body of mineral or mineral-bearing "rock extending through loose, disjointed rocks, is a "lode as fully and certainly as that which is found in more regular formation." 3

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Judge Hallett, in Iron S. M. Co. v. Cheesman, 8 Fed. 299, 301, quoted by Justice Miller in Stevens & Leiter v. Williams, 1 McCrary, 480, 488, Fed. Cas. No. 13,413; Buffalo Zinc and Copper Co. v. Crump (Ark.), 69 S. W. 572, 575.

Quoted in Cheesman v. Shreeve, 40 Fed. 787, 795.

Judge Hallett, as quoted and approved in Iron S. M. Co. v. Cheesman, 116 U. S. 529, 6 Sup. Ct. Rep. 481; United States v. Iron S. M. Co., 128 U. S. 673, 9 Sup. Ct. Rep. 195. See, also, Hyman v. Wheeler, 29 Fed. 347, 353; Illinois S. M. Co. v. Raff, 7 N. Mex. 336, 34 Pac. 544; Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 948; Buffalo Zinc and Copper Co. v. Crump (Ark.), 69 S. W. 572, 575.