which are peculiar to one or the other. In order to treat the subject analytically, we are compelled to deal with the two classes separately, first considering the subject of lodes, or veins.

549. Classification of rights with reference to boundaries.-Property rights conferred by lode locations may be subdivided for the purpose of convenience into two classes:

(1) Those which are confined to things embraced within the boundaries of the location. By the term "boundaries," as we here employ it, we include not only the surface lines, but the vertical planes drawn downward through them. If we may be excused for introducing into the mining vocabulary coined and eccentric words, we would classify these rights as intralimital;

(2) Those which, while depending for their existence upon the ownership of things within the boundaries, may be exercised under certain conditions and restrictions out of, and beyond, those boundaries. These rights may be classified as extralimital.

Whether these terms will ever come into general use or not, they will at least enable the author to formulate his views, express them according to his conception of the law, and group the different elements under distinctive and homogeneous titles. For the purpose of classification, therefore, we may say that property rights flowing from a valid lode location are either intralimital or extralimital. We will examine the nature and extent of these rights in the order named.

550. Extent of the grant as defined by the statute. -Section twenty-three hundred and twenty-two of the Revised Statutes provides, that,

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"Locators shall have the exclusive right of posses"sion and enjoyment of all the surface included within "the lines of their locations, and of all veins, lodes, or ledges, throughout their entire depth, the top, or 66 apex, of which lies inside of such surface lines ex"tended downward vertically, although such veins, "lodes, or ledges may so far depart from a perpendicu"lar in their course downward as to extend outside the "vertical side-lines of such surface locations."

This section is replete with what Judge Lewis, in considering another portion of mining law, characterizes as "grammatical solecisms."'1

In the language of Dr. Raymond,

"This phraseology has the merit of clearly convey"ing the meaning intended, though descriptive geom"etry and the English language suffer somewhat in the operation. . . . But the goal is reached, though the "vehicle is damaged."2

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The section clearly grants the following intralimital rights:

(1) Exclusive dominion over the surface; 3

(2) The right to certain parts of all veins whose tops, or apices, are found within vertical planes drawn downward through the surface boundaries. The extent to

'Hobart v. Ford, 6 Nev. 77.

'Law of the Apex, Trans. Am. Inst. M. E., vol. xii, pp. 387, 392.

Mullins v. Butte Hardware Co., 25 Mont. 525, 65 Pac. 1004, 1007. There is one limitation upon the locator's right to the surface which should be noted,-i. e. his right to timber growing thereon. The owner of a mining claim prior to patent may fell and use so much of the timber as may be necessary in the development and working of the claim, but he has no right to cut the timber on such claim with intent to export or remove the same. Such cutting with intent to remove would render the mineral claimant or his licensee amenable to the provisions of § 2461 of the Revised Statutes. Teller v. United States, 113 Fed. 273.

4 Del Monte M. and M. Co. v. Last Chance M. etc. Co., 171 U. S. 55, 88, 18 Sup. Ct. Rep. 895; Calhoun Gold M. Co. v. Ajax Gold M. Co., 182 U. S. 499, 508, 21 Sup. Ct. Rep. 885; S. C. 27 Colo. 1, 83 Am. St. Rep. 17,

which the locator is entitled to such veins within his surface boundaries will depend upon a number of circumstances, to be fully considered in connection with the subject of extralateral right.

It is quite manifest from a reading of the section that no title passes by virtue of the location to any part of any vein which has its top, or apex, wholly outside of the boundaries of such location.

551. The right to the surface and presumptions flowing therefrom. - Whatever may be reserved out of the grant created by the perfection of a valid lode location, one thing is quite manifest. The right of a senior locator to the exclusive possession of the surface cannot be invaded, assuming, of course, that at the time to which the location relates no rights of way or servitudes were imposed upon the land. While, as we shall hereafter see, outside apex proprietors may penetrate underneath the surface in the lawful pursuit of their veins, the law expressly preserves the surface from invasion.

The only qualification to this rule is the privilege accorded under certain circumstances to junior locators to place the lines of their locations upon or across the senior claim, discussed in previous sections.2 The use of such privilege is not to be considered an invasion, as no rights can be asserted thereby in hostility to the senior title.

What are the presumptions, if any, flowing from the ownership of the surface?

59 Pac. 607; Campbell v. Ellet, 167 U. S. 116, 119, 17 Sup. Ct. Rep. 765; Crown Point M. Co. v. Buck, 97 Fed. 462, 465; Mt. Rosa M. and M. Co. v. Palmer, 26 Colo. 56, 77 Am. St. Rep. 245, 56 Pac. 176; Judge Hallet's charge in Matoa G. M. Co. v. Chicago-Cripple Creek G. M. Co., Mining and Scientific Press, vol. 78, p. 374.

1 Ante, § 531.

'Ante, §§ 363, 363a.

Prima facie, everything within the vertical bounding planes belongs to the locator.

In the language of Judge Hallett,

"We may say, that there is a presumption of owner"ship in every locator as to the territory covered by his "location, and within his own boundaries he is regard"ed as the owner of all valuable deposits until some one "shall show a higher right."

While the courts do not altogether agree as to the weight of testimony necessary to overthrow this presumption, there is an undoubted consensus of opinion in support of the above rule.1

We may safely base our discussion of the more important elements of the law applicable to lode locations upon this presumption, and, as we progress, endeavor to show the circumstances under which, and extent to which, it may be overcome, reaching ultimate conclusions by such gradations as the nature of the subject will permit.

552. Intralimital rights not affected by the form of surface location. We have heretofore suggested that the ideal location, the one which confers the greatest property rights susceptible of being conveyed under the mining laws, contemplates a surface regular in form along the course of the vein, with end-lines crossing it, substantially presenting the form of a parallelogram.2

'St. Louis M. and M. Co. v. Montana M. Co., 113 Fed. 900, 902; Parrot Silver and Copper Co. v. Heinze, 25 Mont. 139, 87 Am. St. Rep. 386, 64 Pac. 329; Maloney v. King, 25 Mont. 188, 64 Pac. 351; Leadville M. Co. v. Fitzgerald, 4 Morr. Min. Rep. 380, 385, Fed. Cas. No. 8158; Doe v. Waterloo M. Co., 54 Fed. 935; Cons. Wyoming M. Co. v. Champion M. Co., 63 Fed. 540; Duggan v. Davey, 4 Dak. 110, 26 N. W. 887; Iron S. M. Co. v. Campbell, 17 Colo. 267, 29 Pac. 513; Cheesman v. Shreve, 37 Fed. 36; Montana Co., Limited, v. Clark, 42 Fed. 626; Cheesman v. Hart, 42 Fed. 98; Bell v. Skillicorn, 6 N. Mex. 399, 28 Pac. 768; Jones v. Prospect Mt. T. Co., 21 Nev. 339, 31 Pac. 642. See, also, post, § 866.

Ante, § 360.

A departure from the ideal, however, if the statutory limit is not exceeded as to area, does not destroy or impair the intralimital rights of a locator. The requirement as to non-parallelism of end-lines affects only the extralimital or, strictly speaking, the extralateral rights.1

It frequently happens that locations originally made to approximate the ideal are reduced to irregularly shaped surfaces by reason of conflicts with prior appropriators. In such cases the right to pursue the vein on its downward course outside of the locator's vertical bounding planes may not exist; but in other respects the locator's right to whatever may be found within such planes is the same as in the case of a location of the highest type. It is unquestionably true that neither the form of the surface location nor the position of the vein as to its course controls or restricts the intralimital rights.

According to Judge Ross, this is the logical deduction flowing from the decision of the supreme court of the United States in the Elgin case.3

? 553. Pursuit of the vein on its course beyond bounding planes of the location not permitted.-Subject to the extralateral right of outside apex proprietors, a locator may be said to own all those parts of such veins having their tops, or apices, within the boundaries as are found within such boundaries. Wherever a vein on its course, or strike, passes out of and beyond any one of these boundaries, the right of the locator to it ceases. Whatever may be his privilege with reference to the pursuit of his vein in depth, longitudinally it cannot be followed beyond any of the boundaries. We have fully 1 Ante, § 365.

Doe v. Waterloo M. Co., 54 Fed. 935, 938.

3 Iron S. M. Co. v. Elgin M. etc. Co., 118 U. S. 193, 6 Sup. Ct. Rep. 1177.