1 structing broken end-lines. "They must be straight "lines, not broken or curved." A survey for patent made in the form indicated in figure 38 would be rejected.2 Where the location as originally marked upon the ground has non-parallel endlines, it may be rectified at any time, if such rectification does not interfere with intervening rights.3 FIGURE 38. A locator of a mining claim may abandon a portion of his original location without forfeiting any rights he may have to the remainder of the claim.1 There is no necessity for the two end-lines being of the same length. If they both cross the lode and are parallel to each other, the fact that one may be six hundred feet long and the other shorter is entirely immaterial. In previous sections 5 we have fully explained the state of the law regarding the privileges granted to junior locators of placing lines over senior locations, as well as over patented lands, both mining and agricultural. It is unnecessary to repeat what was there said. The difference between the former rulings of the land department and those now governing that tribunal in the administration of the mining laws may be illustrated by the use of a diagram (figure 39). Formerly A, the junior locator, would have been compelled to draw his end-line at X where the apex of the vein entered the side-line of the senior claim, making a reconstructed end-line, b-a. Under the present rulings the 3 1 Walrath v. Champion M. Co., 171 U. S. 293, 311, 18 Sup. Ct. Rep. 909. 2 Instructions to surveyor-general, 10 Copp's L. O. 86. Doe v. Sanger, 83 Cal. 203, 23 Pac. 365; Doe v. Waterloo M. Co., 54 Fed. 935. Tyler M. Co. v. Sweeney, 54 Fed. 284; Last Chance M. Co. v. Tyler M. Co., 61 Fed. 557; Tyler M. Co. v. Last Chance M. Co., 71 Fed. 848; Carrie S. G. M. Co., 29 L. D. 287; In re Connell, Id. 574. §§ 363, 363A. f b a e junior may place his end-line entirely within the senior claim, as indicated in the diaN gram, or he may extend his side-lines entirely across the senior claim, placing the endline on unappropriated ground; and this may be done whether the senior claim has passed to patent or not. The author, in the first edition of this treatise, contended that the junior locator was compelled, if he desired to secure extralateral rights, to reform his north end-line, d-f, so as to parallel the crossed side-line of the senior location, creating the new end-line, d-e. As we have heretofore seen, this view of the author failed to receive the sanction of either the department or the courts. B FIGURE 39. 2 366. The side-lines. The primary function of the side-lines is, to connect the opposite extremities of the end-lines, and to complete the inclosure of a surface within which is found the apex of the discovered lode. As the width of a location is fixed with reference to the middle of the vein, the law contemplates that this must be ascertained by actual exploration and development, and cannot be assumed to be in an unexplored position.1 Where the vein outcrops at the surface, there can be no question as to the point from which the lateral measurement must begin. When the discovery shaft develops the vein at some distance below the surface, and the locator does not determine by any further develop1 In re Albert Johnson, 7 Copp's L. O. 35. Lindley on M.-43 ment that the nearest actual surface point is elsewhere, and the fact does not otherwise appear, the land department has ruled that, for executive purposes, the middle of the vein as disclosed in the shaft will be assumed to be the point from which lateral measurements are to be calculated.1 According to the regulations of the department, lateral measurements cannot extend more than three hundred feet on either side. Four hundred feet cannot be taken on one side and two hundred on the other; but if, by reason of prior claims, the full width allowed cannot be taken on one side, the locator will not be restricted to less than three hundred feet on the other.2 It must be presumed for executive purposes that the lode proceeds in a straight line in the center of the plat of patent survey, unless evidence be submitted showing a different direction. If the course of the vein (at the surface) diverges from a straight line, the applicant for patent should indicate the direction and adjust his survey accordingly." The ingenuity of the law officers of the land department has been severely taxed in an effort to determine the position of the "middle of the vein" in the case of bedded or blanket deposits, for the purpose of establishing the side-lines of a claim located thereon. The department was admonished by the supreme court of the United States that this class of deposits fell within the legal definition of a lode, and was subject to location under the lode laws.* The admonition of Judge Hallett to the miner, that Taylor v. Parenteau, 23 Colo. 368, 48 Pac. 505, 507; In re Hope M. Co., 5 Copp's L. O. 116; par. 5, Circ. Instructions, July 26, 1901, (see Appendix. 2 Par. 5, Circ. Instructions, July 26, 1901, (see Appendix), 4 Iron S. M. Co. v. Mike & Starr G. and S. M. Co., 143 U. S. 394, 12 Sup. Ct. Rep. 543. he "must find where this top, or apex, is, and make his "location with reference to that," possesses but little persuasive force, when considered with reference to a horizontal, or blanket, vein, which has no apex. The land department pointed a way out of the dilemma by establishing the following rule: "The only reasonable solution of the problem seems "to be to hold that the apex of the lode is coextensive "with the distance between the side-lines of the location, " and that every part or point of such apex within those "limits is as much the middle of the vein within the "intent and meaning of section 2320 of the Revised "Statutes as any other part."1 In other words, the entire upper surface of the "blanket" is apex, and the middle of the apex is anywhere one chooses to establish an arbitrary line. While the result reached by the secretary is a rational one, the reasoning is not altogether faultless; but considering the embarrassments surrounding cases of this character, any rational or equitable result should be exempt from adverse criticism. After a patent issues for a claim of this character an apex would be conclusively presumed to exist within the limits of the claim,2 and the same presumption would be indulged as to the regularity of the form of the surface. The patentee or locator on this class of deposits would hold everything within his vertical boundaries, without serious danger from outside apex proprietors on the same vein. Side-lines, properly drawn, run on each side of the course of the vein, distant not more than three hundred feet from the middle of such vein; but there is no command that they should be parallel. So long as 1 Homestake M. Co., 29 L. D. 689, 691. 4 Iron S. M. Co. v. Campbell, 17 Colo. 267, 272, 29 Pac. 513. * Post, § 778. King v. Amy & Silversmith M. Co., 152 U. S. 222, 14 Sup. Ct. Rep. 510. Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 84, 18 Sup. Ct. Rep. 895; Woods v. Holden, 26 L. D. 198, 206; Stevens v. Williams, 1 Morr. Min. Rep. 566, 1 McCrary, 480, Fed. Cas. No. 13,413. they keep within the statutory width they may have angles and elbows, as in figure 40, or converge toward each other, as in figure 41, without jeopardizing any rights, so far as the located lode is concerned, if the end-lines are properly constructed with reference to such lode. A locator, whose surface lines are constructed as in figure 41, of course obtains less area than is embraced in the ideal location, but otherwise he FIGURE 40. FIGURE 41. suffers no diminution of rights from those acquired by the ideal. The parallelism or non-parallelism of the side-lines may, however, become an important factor if the locator makes a mistake, as he frequently does, as to the course of his vein, and locates crosswise instead of along the vein. The validity of a location is not impaired by the later determination that the apex of the vein runs out of a line located as a side-line.1 The extent of the rights conferred by the location, under such conditions, would necessarily be abridged. Where a location is of excessive width, the excess should be cast off, so that the middle of the vein will be in the center of the location.2 ? 367. Side-end lines. -End-lines are not always those which are designated as such by the locator. If the vein does not cross the line called by him an endline, it is not in law an end-line. In such case it performs the mere function of a side-line. In all cases where a vein crosses a side-line, the side-line performs the function of an end-line, to the extent, at least, that 'Beik v. Nickerson, 29 L. D. 662. Lakin v. Dolly, 53 Fed. 333; Taylor v. Parenteau, 23 Colo. 368, 48 Pac. 505, 507; Bonner v. Meikle, 82 Fed. 697, 705. |