tently performed as the annual labor. It has been generally stated that annual labor and patent work are the same, but there is liable to be considerable difference between the two. What will answer as patent work is satisfactory for annual labor, but not necessarily the reverse. As the Land Office does not determine possessory rights, it has nothing to do with annual labor, and consequently, what is annual labor must be obtained from the decisions of the courts, when such work has been questioned. What will answer as patent work must be judged from the regulations and decisions of the Land Office. While the Statutes undoubtedly contemplated that annual labor and patent work should be the same, there is an essential fairness in their differences. The miner and prospector, often a man of little means, who spends his time and money building a cabin, trails, etc., and making other preparatory steps which indirectly assist him in developing the mineral in his claim, is entitled to apply the same as annual labor, and the courts allow him to do so in the presence of bona fide intention and good faith. Nevertheless, the Land Office is right in requiring, when patent is asked for a claim, that the $500 expenditure shall directly, and not indirectly, tend to develop the mineral contents of the ground and facilitate its extraction therefrom. It should be work tending to open up the ground and leave some trace of itself, such as cuts, tunnels, shafts, or quarries; in short, actual development operations. About the only things that will be allowed in the line of buildings are shaft-houses and headframes, since they are directly required in extracting mineral. Blacksmith-shops are generally rejected, and other constructions still more certainly. Roads and trails upon the actual ground of the claims have been accepted where associated with actual excavations, but there is a probability of their being barred in the future. Expenditures for reduction. works, watchmen, pumping water, surveying where not a part of an improvement, etc., are not applicable. Caved works may be applied, if clear and convincing proof of their existence can be established.

Where and how the work must be done is answerable in the same way as in the case of annual labor. It must tend to develop the claims. Whether it does or not is a question of

fact. The work may be a common improvement for any number of contiguous claims, and also for claims that are not contiguous, if the common improvement will develop these claims and has right-of-way. A single exception is the case of oil claims, where, under the Statute, an improvement upon one claim cannot answer as annual labor on more than five contiguous claims having a common ownership. There is nothing to say how close a claim must be situated to a shaft or tunnel to entitle it to go to patent on that improvement. Whether the shaft or tunnel could be considered a development of that claim, would be a question in which the ideas of practical miners and engineers would prevail. A tunnel would not be an improvement of a claim located farther down the hill and below the tunnel portal. A tunnel is not an improvement of a claim which it could not reach through its bore or in case a drift from it in the direction of the claim would come to daylight before reaching the claim.

If a claim of a group has $500 worth of work done upon it in what is to be a common improvement for the group, it may go to patent; the fact that the $500 has been applied as annual labor to benefit all the claims is of no weight. After performing another $500 worth of work in the common improvement, the next claim can be patented, and so on. Where a claim is added to an existing and patented group by location or purchase, the newly added claim may be patented by doing $500 worth of work for it in the common improvement, if such improvement can be considered a development of the new claim. This is an important point, for it was formerly held that if it was desired to patent, on a common improvement, a claim added by the location, it would be necessary to perform in the common improvement, after adding the new claim, such an amount of work as, divided by the total number of claims purported to be developed by the common improvement, would give the $500 for the new claim.

The valuation of the work, like with annual labor, is what it is reasonably worth. What it actually cost, whether high or low, has little weight. The work must be performed by the applicant or his grantors. Work existing upon the claims when located cannot be entered, except by fraud; for the appli

cant must make oath that work entered was performed by himself or grantors. Where the claimant relocates his claim to prevent others from locating it through his failure to do the annual labor, it is believed, though there is no decision or ruling on that point, that he has lost all prior work for patent purpose. It may be said in favor of the claimant, when making his patent application, that he has actually performed the work he reports, and if there has been no intervening location, and his relocation being more a nominal location, his rights date back to the first location on the principle of resuming work. Against him is the $500 expenditure implying that the work must be done on the location entered for patent, and not under a former location; also, that he should be penalized for trying to avoid annual labor by losing for patent purposes the work which he relocated. If the forfeiting owner has the right to relocate his own ground just as a stranger would have, as the court held in one case reported, then he should have no patent rights to his old work, just as a stranger would not. At any rate, the claimant should resume work on his forfeitable location instead of relocating; he should make amended locations instead of relocations, whenever defects or changes of location are to be adjusted.

CHAPTER XXIII

Apex or Extralateral Right

R. S., Sec. 2322. The locators of all mining locations *** shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another.

The above is the Statute upon which the law of apex, extralateral or subsurface right is based. There is no other Statute and no other law upon the subject, except the decisions rendered in apex suits.

The apex of a vein may be defined as the top; the upper end, edge, or beginning; the outcrop of the vein on or nearest the surface. It is not a point, as a strict interpretation of the word apex might indicate, but a line, which, if it does not outcrop on the surface, would do so if the overlying earth and rock were sufficiently removed that is, a blind vein has a legal apex. The apex is the top or outcrop of the vein along the strike, and more or less at right angles to the dip; it is not the outcrop on the dip. It is the exposed or uppermost edge of the strike, not that of the dip.

The apex law or right to follow the vein indefinitely on its dip, was originated and put into practice by the miner, who believed that the discoverer of a vein on the surface, was entitled to all of the vein in depth as his reward; also, that if the right to follow the vein in depth was not granted him, he would of necessity have to appropriate a large amount of ground on each side of the outcrop or apex of the vein, in order to insure his possession of the vein in depth, which would work a hardship on him in trying to hold the ground and on others in preventing them from prospecting this additional area. At the time the law was originated, the 'true-fissure' type of quartz vein was the prominent and ruling type of orebody known. Such a vein occupies a fairly regular fissure in the earth, and is comparatively clear cut and well defined. It may be likened to a leaf within a book. If all veins or lodes were of this type, the wisdom of the apex law would be unquestioned. As mining progressed, it was found that ore deposits departed more and more from the theoretical idea of a vein or lode upon which the law was founded, especially in the case of base-metal veins and lodes, and impregnation and replacement deposits. The questions that arose regarding the apex law were of two classes. The first question was, who had the apex according to the geologic facts? The Statutes, it was soon evident, had made no provision for the varying conditions under which apexes and claim-lines were found. Having determined the geologic facts as to who had the apex, what decision should be handed down, became the second question. The second question, one of law, has been answered by the various court decisions covering most of the forms of apex and claimline occurrence, so that if the facts of the apex are established, the law can be applied. The first question, what are the conditions under which the vein or lode occurs and who has the apex, the question of fact, can only be determined by geologic investigation and engineering work, and is the more difficult point in all apex suits.

Both practical and technical men are divided in their opinion upon the apex law. Given an entirely new country, the majority, biased by the great amount of litigation caused by the apex