APEX QUESTION OF FACT. § 313 vertical planes drawn through his surface boundaries, there being no apex proprietor with extralateral privileges to challenge his rights. But whether or not such locator could himself predicate an extralateral right upon this so-called "legal apex," is a question we cannot see our way clear to answer without further light from an inspired source. We shall have occasion to recur to this again when dealing with the manner of making lode locations, and also in connection with the extralateral right problems.

313. The existence and situs of the "top,' "apex," a question of fact.-When we consider that most, if not all, of the definitions of "top," or "apex,' found in this article are contained in charges to juries, it is hardly necessary to cite authorities to show that the existence and situs of the "top," or "apex," questions of fact. What constitutes an apex, is a question of law to be determined by the court; but whether a given portion of a lode, or vein, is its "top," or "apex," and what is its course through the ground of contending parties, is a question for the jury.1

are

This accounts for the presence in the literature of the law of so many able and logical statements as to what constitutes a "top," or "apex," and the absence of recorded cases establishing the existence of any such tops, or apices, within the Leadville belt. It would seem that among the muniments of a lode locator's title in this section of the country is the unwritten law of the neighborhood, that no extralateral rights should be permitted.

Illinois S. M. Co. v. Raff, 7 N. Mex. 336, 34 Pac. 544; Bluebird M. Co. v. Largey, 49 Fed. 289. See, also, cases cited in § 311, ante.

ARTICLE V. "STRIKE," "DIP," OR "DOWNWARD

"COURSE."

$317. Terms "strike" and "dip" not found in the Revised Statutes Popular use of the terms.

317. Terms "strike" and "dip" not found in the Revised Statutes-Popular use of the terms. — The act of July 26, 1866, granted the right to follow the located vein, "with its dips, angles, and variations, to any "depth." The Revised Statutes, in defining the extralateral right, use the terms "entire depth" and "course downward," as a substitute for the terms "dips, "angles, and variations." The term "dip" is the one in common use. "Dip" and "depth" are of the same origin, and, colloquially speaking, "dip" and "course "downward" are synonymous. In a popular sense, "dip" is the "downward course," the direction, or inclination, towards the "depth.”1

"Strike" does not appear in any of the mining laws. It is a term used to designate the longitudinal or horizontal course of the vein.

318. "Strike" and "dip" as judicially defined.— Judge W. H. Beatty, in his testimony before the public land commission, thus defined these terms:

"The strike, or course, of a vein is determined by a "horizontal line drawn between its extremities at that "depth at which it attains its greatest longitudinal "extent. The dip of a vein, its 'course downward' (Rev. Stats., § 2322), is at right angles to its strike; or, in other words, if a vein is cut by a vertical plane "at right angles to its course, the line of section will be "the line of its dip...

1

1 Duggan v. Davey, 4 Dak. 110, 141, 26 N. W. 887.

66

"The strike, or course, of a vein can never be exactly "determined until it has been explored to its greatest extent; but a comparatively slight development near "the surface will generally show its course with suf"ficient accuracy for the purposes of a location. The "dip having an exact mathematical relation to the "course of the vein is, of course, undetermined until "the strike is determined; but, practically, the line of "dip is closely approximated by taking the steepest (the nearest a vertical) line by which a vein can be "followed downward."1

66

The miner in locating his claim, although he is called upon to locate it "along the vein," has but little opportunity to explore the ground and determine prior to location what is its course, or strike. He is compelled to exercise his best judgment from surface indications and such primitive development as the limited time allowed him to perfect his location will permit. A vein does not always outcrop to any considerable distance, so as to present to the miner's observation its longitudinal direction. His location usually precedes any extended exploration, and, in most cases, is made without accurate knowledge of the course or direction of the vein.2

3

Mathematically speaking, the true course (strike) of a vein (underground) is never demonstrated until after extensive investigation and the expenditure of time and money. In a case decided by Judge Hawley, sitting as circuit judge in the ninth circuit, one of the veins in controversy had been located for forty years, and at different times during that period the mine was in active operation. At the trial the course of this vein was a disputed and closely contested question, although there were extensive underground workings.

'Report of Public Land Commission, p. 399.

Iron S. M. Co. v. Elgin M. Co., 118 U. S. 196, 204, 6 Sup. Ct. Rep.

1177.

Cons. Wyoming G. M. Co. v. Champion M. Co., 63 Fed. 540, 548.

In addition to this, the lower levels of a mine frequently show a different direction from that which guided the miner in making his location, and are at variance with conditions shown in openings nearest to the surface. This was the case in the famous Flagstaff mine in Utah,1 where the croppings showed that the direction, or course, of the apex of the vein at or near the surface, was nearly east and west. By following a level beneath the surface, the strike of the vein ran in a northwesterly direction, so that if, by a process of natural abrasion, the mountain had been ground down, the course of the apex would have been northwest instead of west.

Upon this state of facts the supreme court of the United States thus expressed its views:

"We do not mean to say that a vein must necessarily crop out upon the surface in order that locations may "be properly laid upon it. If it lies entirely beneath "the surface, and the course of its apex can be ascer"tained by sinking shafts at different points, such "shafts may be adopted as indicating the position of the

66

66

vein, and locations may be properly made on the "surface above it, so as to secure a right to the vein “beneath. . . . Perhaps the law is not so perfect in "this regard as it might be; perhaps the true course of a vein should correspond with its strike, or the line of a level run through it; but this can rarely be ascer"tained until considerable work has been done, and "after claims and locations have become fixed. The "most practicable rule is to regard the course of the "vein as that which is indicated by surface outcrop or surface explorations and workings. It is on this "line that claims will naturally be laid, whatever be "the character of the surface, whether level or in"clined."

An interesting and important case involving this question is that of the Carson City Gold and Silver Mining Company v. North Star Mining Company, tried before

'Flagstaff S. M. Co. v. Tarbet, 98 U. S. 463, 469.

Judge James H. Beatty, United States district judge of Idaho, sitting as circuit judge. Figure 25 represents the properties in controversy and the underground workings of the North Star mine in horizontal projection.

The line C D traversing the center of the North Star surface was the line connecting the collar of the main working shaft, the mouth of the Larimer incline, the N.

East Star shaft, all sunk on the vein, and a shallow vertical shaft at D. The course of the vein to the west was interrupted at the point C by the occurrence of a "crossing," or a zone of fractured country rock, into which the vein, as far as developed, was not shown to have penetrated. The vein was located in 1851, and had

NORTH STAR