feet, N. 70° 30′ E., and the angle of declination eight degrees, from west to east.

The "vein" consists of the underlying quartzite, impregnated with iron and silver in various forms, the width of the so-called vein material not being uniform. The richer ore deposits are usually found along the contact with the overlying limestone.

The entire line of outcrop on both slopes of Custer Hill appears to have been appropriated by different locations, but the controversies in the case under consideration arose out of claims located on the northern slope. We present in figure 17 a diagram showing the

surface boundaries of the claims, the "vein exposure, and the underground workings, in horizontal projection. From this figure it will appear that the Sitting Bull, belonging to the defendants, covers about thirteen hundred and eighty feet of the outcrop on the northern slope of the hill. Its end-lines are parallel, and if this outcrop or vein exposure is the "top," or "apex," of the vein, the location approximates the ideal shown in figure 11.1

1

1 Ante, § 309.

The plaintiffs owned the Silver Terra, some distance south and up the hill from the Sitting Bull. It does not appear upon what vein the Silver Terra location was based. It was not material for the purposes of the case that it should be shown. Both parties had lode patents for their respective claims. The Sitting Bull had, in following the vein southerly into the hill with its underground works, penetrated underneath the surface of the Silver Terra, whereupon the owners of that claim brought an action in equity to enjoin the owners of the Sitting Bull from trespassing within the boundaries of the Silver Terra.

The Sitting Bull justified its presence underneath the Silver Terra surface by asserting ownership of the apex of the vein, and its right to follow it between its endline planes to an indefinite depth.

The principal question involved was

"Is the top, or apex, of this vein, or lode, within the "lines of the Sitting Bull location ?"

The court below, in arriving at its conclusions, considered the relative angles of declination in determining which was the top, or apex, of the vein.

The strike and dip, so far as exposed in the underground workings, was testified to as follows: Witnesses for the Sitting Bull claimed the average strike to be N. 18 E. and the dip S. 72 E., seven and one half to eight degrees. Witnesses for the Silver Terra claimed the strike N. 8 W. and the dip N. 811 E., seven degrees. The court found the strike to be north and south, and the dip east, at an angle of seven and one half to eight degrees, as shown in figure 17. This dip-line shows that the outcrop in the Sitting Bull location is substantially on the side edge of the vein not forming an apex. To be sure, a small part of the outcrop at the westerly end of the location is apex, according to our definition, but this is not the controlling part involved in the case.

As to what constitutes the "top," or "apex,' vein, the court expressed its view as follows:

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" of a

"The definition of the top, or apex, of a vein usually given is the end or edge of a vein nearest the sur"face; and to this definition the defendants insist we "must adhere with absolute, literal, and exclusive "strictness, so that wherever, under any circumstances, an edge of a vein can be found at any surface, regard"less of all other circumstances, that is to be considered "as the top, or apex, of the vein. The extent to which "this view was carried by the defendants-and I must "confess its logical results were exhibited by Pro"fessor Dickerman, their engineer, who, replying to "an inquiry as to what would be the apex of a vein "cropping out at an angle of one degree from the "vertical, on a perpendicular hillside, and crop"ping out also at a right angle with that along the "level summit of the hill, stated that, in his opinion, "the whole line of that outcrop, from the bottom clear "over the hill, so far as it extended, would be the apex "of the vein. Some other witnesses had similar opin"ions. The definition given is no doubt correct, under "most circumstances, but, like many other definitions, "is found to lack fullness and accuracy in special cases, "and I do not think important questions of law are to be "determined by a slavish adherence to this letter of an "arbitrary definition.

"It is indeed difficult to see how any serious question "could have arisen as to the practical meaning of the "terms top, or apex, but it seems, in fact, to have "become somewhat clouded. .

"Justice Goddard, a jurist of experience in mining "law, in his charge to the jury in the case of Iron S. "M. Co. v. Louisville, defines 'top,' or 'apex,' as the "highest or terminal point of a vein, where it approaches nearest the surface of the earth, and where "it is broken on its edge so as to appear to be the begin"ning or end of the vein."

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After quoting Judge Beatty's definition given to the public land commission, referred to in a preceding section, the court continues:

"I am aware that in several adjudged cases 'top,' 66 or 'apex,' and 'outcrop' have been treated as synony"mous, but never, so far as I am aware, with reference "to a case presenting the same features as the present. "The word 'apex' ordinarily designates a point, and so "considered the apex of a vein is the summit; the high"est point in a vein is the ascent along the line of its "dip, or downward course, and beyond which the vein "extends no farther; so that it is the end, or, reversely, "the beginning, of the vein. The word 'top,' while "including 'apex,' may also include a succession of "points, that is, a line,-so that by the top of a vein "would be meant the line connecting a succession of "such highest points or apices, thus forming an edge.”

Applying these definitions to the facts of the case under consideration, the court below held that the Sitting Bull location did not cover the top, or apex, of the vein. That the outcrop shown on the northern slope of Custer Hill was merely an exposure of the edge of the vein on the line of its dip, just as the exposure of the side edge of the ideal fissure veins represented in figures 10 and 15.1

Judgment passed for the plaintiff. The supreme court of Dakota adopting the views of the trial court, affirmed the judgment. It was not in terms decided that the outcrop on the west slope of the hill was the top, or apex, of the vein. It was not necessary to do so in order to defeat the extralateral right claimed by the Sitting Bull. But if the owner of a location covering the outcrop on the western slope should pursue his vein easterly with his underground works so as to intersect the workings of the Sitting Bull, showing identity and continuity, and establishing that the angles of declination disclosed in such workings were the same as in the case proved, the conclusion is irresistible that the western outcrop would be the true apex of the vein, and this 1 Ante, § 309.

1

is in consonance with the rule applied to veins of steeper inclination.

The Idaho case of Gilpin v. Sierra Nevada Cons. M. Co.,1 shows a state of facts similar to that appearing in the South Dakota case, and is illustrated on figure 18.

The location of the defendant's claim, the Sierra Nevada, was upon the outcropping side edge of the vein following the dip, the line of exposure or outcrop being shown on figure 18 by the zigzag line within the Sierra Nevada claim. The defendant's works, following the vein on the strike by tunnels driven at right angles to the outcrop, extended underneath the surface of plaintiff's claims, the Apex and the Rambler.

An injunction was sought and denied by the lower court. The supreme court of Idaho reversed the order and directed an injunction principally on the ground that the location of the Sierra Nevada did not cover the

12 Idaho, 662, 23 Pac. 547, 1014.