the land department,1 as well as the courts,2 treats them as deposits of rock not "in place," and requires them to be located under the laws applicable to placers.

a question of fact.

305. The "top," or "apex," of a vein as a controlling factor in lode locations. The importance of a correct definition of the terms "top," or "apex," or at least a proper application of their definitions to the varying geological conditions encountered in the administration of the mining laws, cannot be overestimated. The top, or apex, of the vein which is the subject of appropriation, is the prime factor in determining the extent of the rights acquired by a lode location. This is apparent when we consider the following requirements of the law:

(1) No lode location is valid unless it includes, to some extent at least, within vertical planes drawn through the surface boundaries, the top, or apex, of a

'Copp's Min. Dec. 78.

Gregory v. Pershbaker, 73 Cal. 109, 14 Pac. 401.

discovered vein, at least as against a subsequent locator properly inclosing such apex within his surface boundaries.1

(2) The right to pursue the vein on its strike ceases at the point where the apex of the vein passes beyond the surface boundaries or vertical planes drawn through them;

(3) The right to pursue the vein on its downward course out of and beyond a vertical plane drawn through the side-line, into and underneath the lands adjoining, when this right exists to any degree, can only be exercised to the extent that the top, or apex, of the located vein is found within the surface boundaries of the location, or within vertical planes drawn through them.2

It is not our purpose to here discuss these elements. They will be fully considered under appropriate heads in other portions of this treatise. We enumerate them simply to demonstrate the necessity of an accurate understanding of what is meant by the terms "top," or "apex," and the care with which principles announced in one case are to be applied to another.

In the light of the rules announced in the previous articles, if a given mineral deposit is in place, it is a lode. The law assumes that the lode has a top, or apex, and provides for the acquisition of title by location upon this apex. A lode without an apex is not contemplated and no provision is made for locating it. It can

It is possible that under some circumstances a location overlying the dip of a vein may be valid to the extent of whatever may be found within the vertical bounding planes. The statement in the text should be read in the light of the discussion found in a subsequent section, (post, § 364).

The grant is as to lodes having their apex in the ground patented. "The fact that a part of the apex might be in the ground granted would "not give any right to that part of the apex which is not therein, "although the apex might be cut by both end-lines of the granted "premises." Waterloo M. Co. v. Doe, 82 Fed. 45, 55.

not be located under the placer laws, because these laws apply only to deposits not in place, and before it can be legally located as a lode, the apex, or top, must be found. If a location is made on the side or on the dip, whoever discovers and properly locates the apex will be entitled to enjoy the full rights accorded to regular valid lode locations, and the rights of those who have located on the side edge, or dip, must yield.

The most serious difficulty in defining the apex has arisen in connection with certain flat, or "blanket," deposits, which have been judicially determined to be lodes within the meaning of the statutes. It is often quite impracticable to fix upon any exposure of such a deposit which properly constitutes the apex. It is true that after a lode patent is issued, the existence of an apex within the patented ground will be conclusively presumed,1 but not necessarily the apex of the vein in dispute. Nor will it be presumed that any particular exposure of the vein is that apex. It must still remain a question of proof.

306. The terms "top," or "apex," not found in the miner's vocabulary-Definitions of the lexicographers. Prior to the passage of the act of July 26, 1866, the terms "vein" and "lode" formed a part of the miner's vocabulary. They were incorporated into local rules, and their signification was fairly understood throughout the mining regions. The first congressional law on the subject of mining on the public domain was but a crystallization of these rules; 2 and it was no more than natural that when the courts came to construe the terms which had thus found their way into legislative

1

Iron S. M. Co. v. Campbell, 17 Colo. 267, 29 Pac. 513.

2 Jennison v. Kirk, 98 U. S. 453; Broder v. Natoma W. Co., 101 U. S. 274; Chambers v. Harrington, 111 U. S. 350, 4 Sup. Ct. Rep. 428; N. P. R. R. v. Sanders, 166 U. S. 620, 17 Sup. Ct. Rep. 671. See, ante, § 56.

enactments, they should be interpreted according to the understanding of those who first made the definitions and applied them. In addition to this, the terms "vein" and "lode" had a recognized scientific meaning which did not differ from the popular one, except as applied to novel and peculiar conditions.

But neither "top" nor "apex" found a place in the miner's glossary at any period in the history of the mining industry, either in the mining regions of the west or elsewhere; nor had they ever been recognized or applied by scientists for the purpose of designating any part of a vein, lode, or mineral deposit of any kind. Neither miner nor geologist is entitled to the credit for their appearance in the public statutes; nor are they to be held responsible for the perplexities and embarrassments surrounding their proper interpretation. Thus left without custom, precedent, or scientific definition to guide them, the courts were forced to take the statute by its "four corners" and evolve a definition which would, measurably at least, effectuate the object and end of the law. The rule that words employed in a statutory enactment are to be given their ordinary meaning unless a contrary intention appear was not necessarily violated. The courts simply were forced to the conclusion that the ordinary acceptation of the terms was not what congress intended.

Webster defines an apex to be "the top, point, or sum"mit of anything."

Compilers of dictionaries which have made their appearance since the act under consideration was passed have not been particularly lucid in their definitions. For instance:

Standard Dictionary:

"(1) The pointed or angular end, or highest point, "as of a pyramid, spire, or mountain; extreme point; "tip; top.

66

'(2) The vertex of a plane or solid angle.

"(3) The highest point of a stratum; as a coal

seam.

Century Dictionary:

"(1) The tip, point, or summit of anything. In geometry, the angular point of a cone or conic section. "The angular point of a triangle opposite the base.

"(2) In geology, the top of an anticlinal fold of "strata. This term, as used in United States Revised "Statutes, has been the occasion of much litigation. It "is supposed to mean something nearly equivalent to "outcrop; but precisely in what it differs from out66 crop has not been, neither does it seem capable of "being, distinctly made out."

Evidently the courts even now can receive but little assistance from the lexicographers.

8 307. Definitions given in response to circulars issued by the public land commission.-Under an act of congress passed March 3, 1879, a public land commission was appointed for the purpose of codifying the then existing laws relating to the survey and disposition of the public domain, and to make such recommendations as it might deem wise in relation to the best methods of disposing of the public lands. This commission consisted of J. A. Williamson, commissioner of the general land office; Clarence King, director of the geological survey; A. T. Britton, Thomas Donaldson, and J. W. Powell. For the purpose of informing themselves generally on conditions existing in the west, the commissioners issued a circular containing a series of questions, to which answers were received. These circulars were sent to mining engineers, surveyors, lawyers, judges, and practical miners. Under the head of "Lode "Claims," the fourth question was:

"What do you understand to be the top, or apex, of a "vein or lode ?"