them the right to laterally pursue the vein underneath the surface of the claim overlying the dip. We are now considering the general rule as announced by the courts, whose opinions do not necessarily deal with all conceivable exceptions. A discussion of possible exceptions involves a consideration of extralateral-right problems which must be reserved for future consideration.

This general rule may be thus concisely stated: A location cannot be made on the middle of a vein or otherwise than on the top, or apex.1

As was said by Judge Hallett in one of the early Leadville cases, "It is a part of the statute law of the "United States that locations shall be upon the top and 66 apex of the vein; . . . .. that being done, gives the "miner the whole vein,2 and that the locator must find "where the top or apex is and make his location with "reference to that."'

It is true, he subsequently charged a jury that a junior location along the line of the top, or apex, could not prevail against a senior location on the dip; but this last ruling is not in accord with the decisions of the supreme court of the United States, as we shall have occasion to point out in a subsequent section.

The question of priority is an important and material inquiry only where there are overlapping surfaces, or where the contending parties have some portion of the apex of the same vein and a conflict arises between them involving extralateral bounding planes under

'Iron S. M. Co. v. Murphy, 2 McCrary, 121, 3 Fed. 368, 1 Morr. Min. Rep. 548; Stevens v. Williams, 1 Morr. Min. Rep. 557, Fed. Cas. No. 13,414; Leadville M. Co. v. Fitzgerald, 4 Morr. Min. Rep. 380, Fed. Cas. No. 8158; Larkin v. Upton, 144 U. S. 19, 12 Sup. Ct. Rep. 614; Colorado Central C. M. Co. v. Turck, 50 Fed. 888, S. C. on rehearing, 54 Fed. 267. Iron S. M. Co. v. Murphy, 2 McCrary, 121, 3 Fed. 368, 1 Morr. Min. Rep. 548, 550, 551.

3 Stevens v. Williams, 1 Morr. Min. Rep. 557, 562, Fed. Cas. No. 13,414. Van Zandt v. Argentine M. Co., 8 Fed. 725, 728.

Post, § 611.

neath the surface, such as are found in the Del Monte case,' in the Tyler-Last Chance litigation,2 in the Stemwinder-Emma-Last Chance litigation, and other cases to be noted under the topic of extralateral rights.

3

Any portion of the apex on its course will be sufficient to support the location, but upon the extent and course of this apex within the location depends the extent of rights acquired."

As was said by the supreme court of Montana,

"On principle the identity of the apex of a vein with "its spurs and extensions must be the crucial test by "which are to be fixed the proprietary rights to that "vein and the mineral therein."

Sometimes it happens that a prior locator fails to include the entire width of the apex of the vein within his boundaries, and that such apex is bisected along its course by a side-line common to two locations. While in such cases some of the courts have held that both locations are valid to the extent of everything within their vertical boundaries, but that neither claim has any extralateral right,' others award the extralateral right to the prior location. Still others award an extra

1171 U. S. 55, 18 Sup. Ct. Rep. 895.

'54 Fed. 284; 71 Fed. 848; 61 Fed. 557; 157 U. S. 683, 15 Sup. Ct. Rep. 733.

114 Fed. 417.

Larkin v. Upton, 144 U. S. 19, 12 Sup. Ct. Rep. 644.

'Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 66, 67, 18 Sup. Ct. Rep. 895; Stevens v. Williams, 1 McCrary, 480, 1 Morr. Min. Rep. 566, Fed. Cas. No. 13,413; Cosmopolitan M. Co. v. Foote, 101 Fed. 518, and cases there cited.

Butte and Boston M. Co. v. Société Anonyme des Mines, 23 Mont. 177, 75 Am. St. Rep. 505, 58 Pac. 111; 113.

'Hall v. Equator, Carpenter's Mining Code, 3 ed., p. 65; Raymond's "Law of the Apex." The case is not reported elsewhere. See quotations from this case under the Broad lode discussion, post, § 583.

"Bullion Beck and Champion M. Co. v. Eureka Hill M. Co., 5 Utah, 3, 11 Pac. 515; St. Louis M. and M. Co. v. Montana Limited, 104 Fed. 664;. Bunker Hill and Sullivan M. and C. Co. v. Empire State-Idaho M. and D. Co., 106 Fed. 471.

lateral right to both, that of the junior taking effect within the plane of his extended end-lines after they pass beyond the conflict with those of the one having priority. But all courts agree that such a location covering a part of the width of the apex is valid, to some extent at least. They differ only as to the extent of the rights conferred on the respective locators. We shall necessarily elaborate the discussion of the "broad lode" question when dealing with the subject of extralateral rights. Questions of this character are so intimately associated with other problems as to render it impossible to consider them without anticipating, to some degree at least, their application in connection with the subjects with which they are blended.

It has been strenuously urged that a location, in order to enjoy any extralateral privileges, should be so laid on the surface as to cover the true course of the vein on a level,-i. e. the engineer's strike, as explained in a previous section,3-regardless of the course of the apex at or near the surface; that the locator must before perfecting his location ascertain the strike, or course, of the vein on a level, and so lay his end-lines that in following the vein in its downward course he would not follow it more along the course than upon the true dip. This contention, however, has thus far received no encouragement from the courts.

It was said by the supreme court of the United States in the Flagstaff case (italics are ours) :

"We do not mean to say that a vein must necessa"rily 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 "ascertained by sinking shafts at different points, such

1 Empire State-Idaho M. and D. Co. v. Bunker Hill and Sullivan M. and C. Co., 114 Fed. 417, reversing 106 Fed. 471, supra.

Post, § 583.

§ 319.

66

66

"shafts may be adopted as indicating the position and course of the vein, and locations may be properly "made on the surface above it so as to secure a right "to the vein beneath. But where the vein does crop "out along the surface, or is so slightly covered by foreign matter that the course of its apex can be ascer"tained by ordinary surface exploration, we think that "the act of congress requires that this course should "be substantially followed in laying claims and loca"tions upon it. 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 "inclined."'1

66

The contention that surface location lines should be placed with regard to the course of the vein on a level rather than the course of the apex was urged before Judge Beatty in another case,2 and before the circuit court of appeals, but it was practically ignored.

That such a contention cannot be reconciled with the adjudicated cases on the subject may be easily demonstrated by the illustration of a hypothetical case. Figure 34 represents two locations-A and B. The outcropping vein is exposed on a steep hillside, so that the course of the outcropping apex is widely divergent from that of the true course of the vein on a level,i. e. the strike-line. This is not an uncommon occurrence. It is plain that the course of the apex, x-y-z,

1 Flagstaff v. Tarbet, 98 U. S. 463, 469.

'Bunker Hill and Sullivan M. and C. Co. v. Empire State-Idaho M. and D. Co., 108 Fed. 189, 195.

'Id., on writ of error, 114 Fed. 420.

is the "true course of the vein upon the surface.” Let x represent the point of discovery, and let the strike be determined by means of a short discovery tunnel, x-w. The question suggested is, Should the discoverer on making his location follow the line of strike as in location A, ignoring the segment of the apex, y-z, or should he follow the apex as in location B?

LOCATION B
Apex

LOCATION A

STRIKE

If he selected A, he would lose all rights on the vein after it departed out of the side-line at y. This has been conclusively determined by the courts.1

Sufficient has been said to demonstrate that in making locations on the surface regard should be had to the position of the apex, outcropping or blind, as it actually, exists in the ground located, if the locator desires to secure the maximum rights on the vein at and underneath the surface as contemplated by the mining laws. His rights will suffer diminution in proportion to his disregard of this requirement.

FIGURE 34.

"Whenever a party has acquired the title to ground "within whose surface area is the apex of a vein with a few or many feet along its" (the apex's) "course or "strike, a right to follow the vein on its dip for the same length ought to be awarded to him if it can be

66

1 Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. Rep. 895; Clark v. Fitzgerald, 171 U. S. 92, 18 Sup. Ct. Rep. 941; Parrot Silver and Copper Co. v. Heinze, 25 Mont. 139, 87 Am. St. Rep. 386, 64 Pac. 326, 328.