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dotted line y y, leaving two exposures,-would these be apices? They would not be, according to the rule announced in the case of Gilpin v. Sierra Nevada Consolidated, heretofore referred to, unless, as suggested by Judge J. H. Beatty in that case, the course upward proved, on subsequent development, to be caused by a mere local fold or dislocation.1

It is hardly profitable to pursue this discussion further. Enough has been said to show the absurdity of the law, when applied to geological conditions which were not in contemplation of the law-makers when the laws were enacted. But it is nevertheless the law, if these deposits are "veins, or lodes, of rock in place," and the courts hold that they are.2

Geologists have always insisted that this character of deposits should be separately classified. There is no reason why the law-makers should not so classify them, or else abandon the entire element of lateral pursuit, and limit the locator to vertical planes drawn through surface boundaries. In considering the difficulties surrounding the application of the law to conditions similar to those existing at Leadville, we recall the almost prophetic language of Judge W. H. Beatty, then chief justice of Nevada:

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"We are willing to admit that cases may arise to "which it will be difficult to apply the law; but this only proves that such cases escaped the foresight of congress, or, that although they foresaw the possibility of "such cases occurring, they considered that possibility 66 so remote as not to afford a reason for departing from "the simplicity of the plan they chose to adopt."

1 Ante, § 310.

The views of the land department as to what constitutes a blanket vein and how side-lines are to be constructed when it is desired to locate on top of such deposit may be gleaned from the secretary's opinion in the case of the Homestake Mining Company, 29 L. D. 689.

Gleeson v. Martin White M. Co., 13 Nev. 442.

1

2 312a. Theoretical apex where the true apex is within prior patented agricultural claims, the vein passing on its downward course into public land.-Where the true apex of a vein lies within a prior placer or agricultural patent, thus possibly inhibiting a location covering such apex, and the vein on its downward course passes out of and beyond a vertical plane, drawn through the agricultural or placer boundary, into unappropriated public domain, how may that portion of the vein lying outside of and beyond such boundary be appropriated? Is it impossible to acquire it under the mining laws by reason of the fact that the true apex is within patented lands? Will the courts theorize an apex on the line of intersection of the vein on its dip with the vertical plane of the agricultural or placer patented boundary? If it may be located, could such a location confer any extralateral right?

These are questions that cannot under the present state of the law be answered categorically; nor is there enough precedent or authority to enable us to even discuss them other than tentatively. Some of them involve a consideration of extralateral right problems, a subject which must in the main be reserved for future discussion in another part of the work. We must rest content for the time being with a presentation of the views of

1We say possibly, having in mind the doctrine established by the supreme court of the United States in the case of Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. Rep. 895, to the effect that a junior location may be laid upon or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extralateral rights not in conflict with any rights of the senior location. This doctrine has been held by the land department to apply to prior patented lode mining claims (Hidee G. M. Co., 30 L. D.' 420, cited by the circuit court of appeals, ninth circuit, in Bunker Hill and Sullivan M. and C. Co., 109 Fed. 538, 542), and to be also applicable in cases of patented agricultural claims (Alice Lode Mining Claim, 30 L. D. 481). The supreme court of Montana, however, expresses grave doubts as to the soundness of these views. District Court, 25 Mont. 504, 517, 65 Pac. 1020, 1025.

State v.

OR

the only tribunal which has thus far ventured to any extent upon this delicate and somewhat dangerous ground. This venture, as we shall see, was simply upon the border-line of the subject, and was, we deferentially suggest, not altogether essential to a proper adjustment

North

↑ MARY

of the controversies arising in the case under consideration. We refer to the case of Woods v. Holden,' the facts of which may be illustrated by reference to figure 23, a plan exhibiting the boundaries of the

MABEL↑

LODE LINE

conflicting lode and

placer claim, and

R

MTROSA
PLACER

FIGURE 23.

We quote so much of

the secretary's opin

figure 24, a vertical cross-section drawn through the line

A-B on figure 23, showing the apex in the placer at X and passing out of the vertical placer boundary, at Y.

ion as suggests his ROSA PLACER MARY

views upon the subject under discussion:

"The undisputed evidence shows "that the Mary Mabel vein dips to "the north, that only the apex and a "small portion of the vein upon its "dip is located within the placer, and "that in dipping to the north the vein

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passes into that portion of the Mary

MABEL
LODE

ACLAIM

dip

North

FIGURE 24.

126 L. D. 198, S. C. on review, 27 L. D. 375.

"Mabel location lying between the northerly side-line "thereof and the placer. Along its course from west to "east the vein has an actual existence within the Mary "Mabel from one end-line to the other, so that the loca"tion of that claim does not involve or present a viola"tion of the statutory requirement that a lode mining "claim shall be located along the vein.' The vein "after dipping out of the Mt. Rosa placer, is either "lawfully included in the Mary Mabel claim, or a valid "location thereof cannot be made. This latter part of "this alternative proposition cannot be recognized, because it has no support in any statute and is incon"sistent with the express provision of section 2319, "Rev. Stats., which declares:

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"All valuable mineral deposits in lands belonging to "the United States, both surveyed and unsurveyed, "are hereby declared to be free and open to explora"❝tion and purchase, and the lands in which they are "found to occupation and purchase.'

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"There is no claim that the existence of this lode was "known at the time of the Mt. Rosa placer entry or patent, and therefore the portion thereof within the placer passed to the placer claimants under the pro"visions of section 2333, which reads:—

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66 . . 'but where the existence of a vein or lode in 'a placer claim is not known, a patent for the placer "'claim shall convey all valuable mineral and other "deposits within the boundaries thereof.'

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"It has been indisputably settled, and is admitted by protestants, that a placer claimant cannot follow a "vein or lode beyond the surface boundaries of his "claim extended vertically downward. The portion of "this vein lying outside of the placer is 'in lands be

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'longing to the United States,' and under section 2319 "is 'free and open to exploration and purchase.' While "the actual apex of the vein is within the placer, the "United States has dealt with and disposed of the "placer claim as non-lode ground, and for all purposes "of disposition by the United States under future ex"ploration and discovery any vein or lode in adjacent ground stops at the point of its intersection with the

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"boundary of the placer. Within the placer it is not 66 subject to exploration or purchase, except according "to the will of the private owner. For the purpose of "discovery and purchase under the mining laws, the "legal apex of a vein like the Mary Mabel, dipping out "of ground disposed of under the placer or non-mineral "laws, is that portion of the vein within the public lands "which would constitute its actual apex if the vein had "no actual existence in the ground so disposed of. Un"der this view the apex of the vein extends throughout "the entire length of the Mary Mabel claim, if that be necessary to the valid entry thereof. Protestant's "contention that the Mary Mabel vein or lode is segregated and divided into two non-contiguous parts by "the Mt. Rosa placer, and that the location and entry "of the easterly part is thereby rendered invalid, cannot "be sustained."

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If we are to accept the assertion contained in the foregoing extract from the opinion, that "For the purpose of discovery and purchase under the mining laws, the แ legal apex of a vein like the Mary Mabel, dipping out "of ground disposed of under the placer or non-mineral "laws, is that portion of the vein within the public lands "which would constitute its actual apex if the vein had

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no actual existence in the ground so disposed of," as a correct exposition of the law, we have to deal with a new element in the solution of extralateral right problems. There may be no question but that the locator of the vein, having made an underground discovery outside of the placer boundary, might acquire by location fifteen hundred feet in length and at least three hundred feet in width, and be entitled to everything within his

This decision of the secretary was rendered prior to the promulgation of the opinion by the supreme court of the United States in Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. Rep. 895. The application of the doctrine there announced to the case of the Mabel lode would have rendered the opinion of the secretary on this subject unnecessary.

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