the occurrence of the vein and vein exposure were similar to those found in the Lime-Smuggler case. The question of apex in the Iron-Grandview case received full consideration in two trials, at the first of which Judge Hallett presided, and at the second Justice Miller. Although the case was never passed upon by the supreme court of the United States, the charges to the two juries given by the presiding judges are considered to be a full exposition of the law on the subject. We are justified in quoting them fully. Judge Hallett's charge is as follows: 66 66 - "We have now to consider the question which was "so much discussed by counsel as to the location with "reference to the top and apex of a vein; and upon that "point it is clear, from an examination of the act, that "it was framed upon the hypothesis that all lodes and "veins occupy a position more or less vertical in the earth, that is, that they stand upon their edge in the body of the mountain,-and these words 'top' and "'apex' refer to the part which comes nearest to the "surface. The words used are 'top,' or 'apex,' as if "the writer was somewhat doubtful as to which word "would best describe or best convey the idea which he "had in his mind. It was with reference to that part "of the lode which comes nearest to the surface that this description was used; probably the words were not "before known in mining industry; at least, they are "not met with elsewhere, so far as I am informed. "Perhaps, they were not the best that could have been "used to describe the manner in which the lode should "be taken and located. But whether that be true or not, "they are in the act of congress, and there seems to be "little doubt as to their meaning; they are not at all "ambiguous. In some instances, they may perhaps. "refer to the floe of the lode; that is, a part of the lode "which has been detached from the body of mineral "in the crevice and flowed down on the surface. In "others, where there is no such outcrop, they may mean "that part which stands in the solid rock, although "below a considerable body of the superficial mass, "which I have attempted to describe to you. We are "all agreed, however, the courts and counsel, every one, "that that is the meaning of the words; that they are to "be taken in some such sense as that, as being the part "of the lode which comes nearest the surface; and the "act requires that the location shall be along the line of "this top, or apex. Supposing the lode to have a some"what vertical position in the earth, with this line of "outcrop, or of appearance on the surface, or nearest "to the surface, it shall be taken up and occupied by the "claimant as his location; and he must find where this top, or apex, is and make his location with reference "to that."1 66 On the second trial, Justice Miller charged the jury, as follows: 66 "I think that you will agree with me, as all counsel agree, and all the witnesses agree substantially, con"ceding that there is a vein, that the top, or the apex, "of a vein, within the meaning of the act of congress, "is the highest point of that vein where it approaches "nearest to the surface of the earth, and where it is "broken on its edge so as to appear to be the beginning "or end of the vein. The word 'outcrop' has been used in connection with it, and in the true definition of the "word 'outcrop,' as it concerns a vein, is probably an "essential part of the definition of its apex, or top; but "that does not mean the strict use of the word 'out"crop.' That would not, perhaps, imply the presen"tation of the mineral to the naked eye on the surface "of the earth; but it means that it comes so near to the "surface of the earth that it is found easily by digging "for it, or it is the point at which the vein is nearest "to the surface of the earth; it means the nearest point 66 at which it is found towards the surface of the earth. "And where it ceases to continue in the direction of the "surface, is the top, or apex, of that vein. It is said in "this case that the point claimed to be the top, or apex, "is not such, because at the points where plaintiff shows 1 Stevens & Leiter v. Williams, 1 Morr. Min. Rep. 557, 561, Fed. Cas. No. 13,414. 66 66 or attempts to prove an interruption of that vein in its ascent toward the surface, and what he calls the begin"ning of it, the defendant says that it is only a wave or "roll in the general shoot of the metal, and that from "that point it turns over and pursues its course down"ward as a part of the same vein in a westerly or south"westerly direction. It is proper, I should say to you, "if the defendant's hypothesis be true, if at that point "which the plaintiff calls the highest point, the apex, "is merely a swell in the mineral matter, and that it "turns over and goes on down in a declination to the "west, that it is not a true apex within the statute. It "does not mean merely the highest point in a contin66 uous succession of rolls or waves in the elevation and depression of the mineral nearly horizontal."1 66 Iron Silver Mining Company v. Murphy.2— This involved a controversy between the Iron and Loella claims. Judge Hallett charged the jury as follows: 66 "The top, or apex, is the end, or edge, or terminal "point of the lode nearest to the surface of the earth. "It is not required that it shall be on or near or within any given distance of the surface. If found at any "depth, and the locator can define on the surface the "area which will inclose it, the lode may be held by "such location." 8 312. Hypothetical illustrations, based upon the mode of occurrence of the Leadville and similar deposits. It is not our purpose in this article to deal with the subject of extralateral rights or treat of the apex, as affecting those rights. We reserve this important element of the mining law for individual treatment in a later portion of this work. We are now interested in determining what is or is not a "top," or "apex." In 1 Stevens & Leiter v. Williams, 1 Morr. Min. Rep. 566, 574, Fed. Cas. No. 13,413. 21 Morr. Min. Rep. 548. the course of investigation, however, reference to the extralateral right is incidentally involved, to the end that the conclusions reached may be rationally explained and applied to cases within reasonable probabilities. We have heretofore considered two classes of deposits: those whose position in the earth approximates the perpendicular, and those approaching the horizontal. The geological conditions at Leadville suggest additional complications, by reason of the fact that the veins do not always occupy the same plane, but are frequently found in alternating anticlinal and synclinal folds, which are best expressed by the use of the term "undulating." For purposes of illustration, we present in figure 22 a cross-section. In the figure the stratum d d represents the overlying white porphyry; b b, the vein material; cc, the underlying blue limestone. The lines A x and B B represent the crests of the ridges formed by the anticlinal folds. If the overlying porphyry on the crests of the anticlinal folds were removed, leaving the vein material there exposed, and assuming that in this uncovered position the deposit would still fall within the definition of a vein or lode,' neither A x nor B B would be apices. Judge Hallett inclines to the view that such a deposit would not be in place. Stevens v. Gill, 1 Morr. Min. Rep. 576, 580, Fed. Cas. No. 13,398. Ante, § 301. They are tops, or crests, of the folds, but not apices of the deposit. The exposed surface would be part of the top of the deposit, contradistinguished from the bottom lying on the limestone. With the vein in position, as shown on figure 22, it might be said that its highest part, or the part approaching nearest to the surface (assuming that there was no surface exposure elsewhere), would be along the crest of the fold. But this would not be the top, or apex, of the vein. It would be the top, or apex, of a fold in the vein. If this line were the apex of the vein, a location with side-lines along the crest would give the locator the right to follow the vein in both directions, east and west, "up hill and down dale," indefinitely, so far as the vein preserved its continuity and identity. The only exposures of the vein in position as shown in figure 22 that can possibly answer to the definitions given by the courts are those indicated by the abrupt terminations at the east and west. As to which of these two exposures would be considered the true apex, is a difficult question, and might have to be determined mathematically, by ascertaining which occupied the higher elevation above a given datum plane. Eliminating from consideration the inquiry as to which of the two exposures is the higher above a given datum plane, a location on the east or west would cover an apex; and if it covers an apex, the right of extralateral pursuit would inure to the locator, to the extent that the identity and continuity of the vein could be established up and down the undulations or folds. If we can assume that the crest of the anticlinal fold has been eroded, as represented by the dotted line xx, we would have then two distinct veins, with their attributes of apices, strike, and dip. But suppose the erosion occurred in the synclinal fold, as illustrated by the Lindley on M.-36 |