§ 852. Claims patented separately and consolidated, grouped and operated as one mine after patent.— The question as to whether the lines circumscribing the individual claims as patented may be practically obliterated, for the purpose of asserting extra-lateral rights, has never been directly decided in any of the cases reaching the courts of last resort. It is settled law that the miner owns as much of the vein to its uttermost depths, between the extended vertical planes of his surface lines, as he owns of the apex. Why then is it important whether he owns it in one claim or in a dozen? Is it not sufficient that he owns it and that his neighbor does not? That is, providing of course that he has one line correctly laid upon the surface across the dip, between which and another line drawn parallel with it on his own ground, and extending thence into the dip of the vein, his rights can be ascertained and defined. In the unreported case of Crown Point Mining Co. v. Ontario Silver Mining Co.,2 where, upon plaintiff's theory of the case (see Fig. 26, page 754), the vein departed from the side line of the Ontario and both sides of the Banner and Henrietta, parallel claims, and further to the southwest was supposed to cross the end lines of another claim, near the compromise line between the Ontario and Daly. Under the pleadings the ownership of all these claims, and others, was set up and the claim made that they were operated as one mine. Justification for extracting ore from beneath the surface ground of the Munadore, the property of plaintiff, a claim lying to the north of the westerly end line of the Ontario and extending about half westerly and half easterly from said point, was claimed by virtue of the own

1 Del Monte M. & M. Co. v. Last Chance M. & M. Co., 171 U. S. 55, 91; Tyler M. Co. v. Last Chance M. Co., 71 Fed. Rep. 848; Cons. Wyo. ming G. M. Co. v. Champion M. Co., 63 Fed. Rep. 540; Carson City G. & S. M. Co. v. North Star M. Co., 73

Fed. Rep. 597; Republican M. Co.

v. Tyler M. Co., 79 Fed. Rep. 733; Fitzgerald v. Clark, 17 Mont. 100, 42 Pac. Rep. 273: affirmed, Clark v. Fitzgerald, 171 U. S. 91.

2 Crown Point M. Co. v. Ontario S. M. Co., Circuit Ct. Dist. of Utah, 1900, unreported.

ership of such apex, which in one paragraph of the answer was claimed to extend across the westerly end line of the Ontario, and in another paragraph thereof was claimed to extend through the Ontario, Banner and Henrietta, the property of the Ontario company.

Judge Hallett refused to submit the question arising upon the latter contention to the jury, as requested by the defendant, but submitted only the question presented by the justification claimed in virtue of the vein passing over the westerly end line of the Ontario claim, and the jury by their verdict necessarily found that the vein did not cross the west end line of the Ontario.

In the article on mines and mining written for the Encyclopædia of Law, we refrained from criticising the decision of Judge Hallett in his submission of this case to the jury, for the reason that we were of counsel in that case, and for the further reason that it was then pending on appeal in the circuit court of appeals. It has since been settled, and while one reason remains for refraining from criticism the other does not.

With becoming deference to the learned judge who tried

the case, we desire simply to say that it is difficult to observe any sound distinction between a case such as the North Star case, where claims were consolidated prior to patent, and patented by a description covering exterior boundaries, which every lawyer knows must have been composed of many locations, and the case under consideration, where patented claims are so grouped, held and operated after patent, unless it can be said that in purchasing from the government internal lines may be obliterated, while in purchasing from the individual locators, or making separate locations, they may not.

It seems to us that the principle involved was correctly elucidated by Judge Beatty in the North Star case, and that it applies as well to claims consolidated and grouped after patent as to those grouped by a patent, for the reason, in addition to what we have already said, that the same controlling purpose applies in both cases. Judge Beatty said: "Moreover, the defendant, owning the several claims which now compose the North Star, might have procured separate patents for each claim, and in doing so might have so changed the end lines as to make them parallel, just as is always done now in application for patent; and, if the several claims jointly included the entire apex, all the claims could have been so surveyed as to make all the end lines parallel to each other, and thus give it what it now substantially claims by its North Star patent. The defendant has only done by one act, at less expense, what it lawfully might have done by several acts at greater expense. The North Star patent is of greater superficial area than any law has ever authorized for a single ledge location; but it has been held by the supreme court that, while the law prescribes the limitation to the size of a single location, there is no limitation to the number of claims one. person may hold by purchase, or that may be included in a single patent, and, as I understand, that may be included in a single survey, showing only the exterior boundaries, and omitting all interior lines of the several smaller claims.

Such was the holding as to agricultural lands,' . . and as to placer claims [in another case].2 There appears no reason why the same rule should not apply to quartz claims.”3

Of course it will be urged that in purchasing an individual location adjoining that of the purchaser, no greater rights could be acquired than that possessed by the individual claim. And, in the abstract, this would be true. But it must be borne in mind that rights are only relative after all, and while an individual title standing alone might not be perfect, yet, by adding another outstanding title to it, it might be made good. And so with the mining claim — one may not accurately cover the apex properly, so as to give extra-lateral rights in a given direction, while two adjoining claims would completely cover the question. It is believed that the law is sufficiently elastic in principle to permit a strengthening of an apex title in this way. This principle can be illustrated by the diagram on page 757.

Suppose that A. owns the claim marked "A," and B. and C., respectively, own the others. All are patented separately before the real strike of the vein is known, and surface disputes settled either by proper exclusions or by deeding back certain of the conflicting area. The ore in dispute, let us say, is at "D," the dip being in that direction. A., in mining, ascertains this fact, and after the claims are patented buys the claims "B" and "C." Neither claim alone is sufficient upon which to maintain the right to remove the ore, but all together are. The ore does not belong to D. By apex right he has no ore. Why may not A. justify his entry and removal of ore by virtue of having purchased all the claims, his rights being confined finally within parallel planes properly extended instead of the planes as located. That is to say, the line 1-2 produced and the dotted line 3-4.

1 Polk's Lessee v. Wendell, 9 North Star M. Co., 73 Fed. Rep. 597, Cranch, 87. 600.

2 St. Louis S. & R. Co. v. Kemp, 104 U. S. 636.

3 Carson City G. & S. M. Co. v.

4 Stinchfield v. Gillis, 107 Cal. 84, 40 Pac. Rep. 98.

In the case under consideration the Ontario company held undisputed ownership to a group of claims which, beyond dispute or question, contained the apex of the vein for nearly a mile on its strike. The vein was a true fissure,

and never lost its identity or continuity as it proceeded into the earth. The apex, as owned by the Ontario, extended six hundred feet to the east of the most easterly end line of the Munadore, and to the west it continued for over two thousand feet beyond the most westerly line of the Munadore. Yet the learned judge, who made famous the words "if there be magic in the word 'line' it will be better not to use it," permitted himself to be misled by the supposed presence of imaginary lines, and thus to allow an adjacent claim owner to take, upon common-law principles, the dip of the vein within the side lines of the Munadore, the apex of which belonged to the Ontario.

1 Del Monte M. & M. Co. v. New York & L. C. M. Co., 66 Fed. Rep. 212-215.