located end-lines were parallel. The planes thus constructed, applied to secondary veins, would not necessarily be at right angles to the course of such secondary veins. This would rarely if ever result in applying the rule under the act of 1872.

Once conceding the correctness of the rectangular theory as applied to the original lode within a location having non-parallel end-lines under the act of 1866, it would seem logical to apply the same planes-i. e. those at right angles to the original lode-to the secondary veins. We would then have, as we now have under the act of 1872, as construed by the courts, but one set of end-line planes which should govern the extralateral rights upon all lodes found within the location, the essential requirements of the rule clearly enunciated and established by the courts.1

We are not aware that the question has been considered by the courts.

2596. Extralateral right where the apex is found in surface conflict between junior and senior lode locations -Practical application of the Del Monte case. - With the announcement of the rule that a junior lode locator may place his lines upon or across the lines of a senior claim for the purpose of acquiring rights not in conflict with those previously granted, and the extension of that rule by the land department to patented claims, both mineral and agricultural, there has arisen the necessity of considering the result of the doctrine as applied to the determination of the extent of the rights of the junior locator. For the purpose of this discussion we present a diagram of the Del Monte case, as that case was presented to the supreme court of the United States, placing thereon dotted lines representing the

1 Ante, § 593.

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

extension of extralateral-right planes, to which we may have occasion to refer.

We have already observed that, by Judge Hallett's decision in Del Monte Mining and Milling Co. v. New

LAST CHANCE 7263A

APEX

APEX

NEW YORK

7406

FIGURE 86.

York and Last Chance Mining Co.1 the extralateral right of the New York on the vein was defined by the plane r-z-z', parallel to the end-line plane f-g-g'. What

166 Fed. 212; ante, § 591.

དུ-

ever rights were acquired by the Last Chance, by virtue of its overlapping location conflicting with the New York, must necessarily be limited to that part of the vein which was not embraced within the prior grant.

The practical application of the rule that where a vein crosses an end-line and a side-line extralateral rights are to be defined by the crossed end-line plane, and a plane parallel to it drawn at the point where the vein departs from the side-line, could only be applied to the Last Chance upon the theory that the line e-i, the northeasterly line of the prior conflicting claim, the New York, constituted a side-line of the Last Chance claim within the meaning of the law. It was not a side-line of the location, as we observe that the apex crosses both end-lines of the claim, although the south end-line is for the greater part of its length on the New York, a prior claim. The line e-i was determined by the court not to be an end-line of the Last Chance. As to whether it performed the function of a side-line, the court did not determine. Treating it for argumentative purposes as a side-line, the extralateral plane r-s-s' may be hypothetically constructed. As between the New York and the Last Chance, in the light of the facts developed in the trial before Judge Hallett, involving only the extralateral rights of the New York as against the Del Monte, this plane, r-s-s', was a compromise line between the New York and Last Chance,1 and the question did not arise in either case as to whether the Last Chance company would, in the absence of such compromise line, be entitled to any other segment of the vein which was not covered by the extralateral planes of the New York.

If the Last Chance were prior, its extralateral right would be defined by vertical planes drawn through a-d-t-t' and b-c-z'-c'. The placing of its lines over the

New York, being held to be lawful and proper, how much of the vein did the Last Chance lose when priority was determined in favor of the New York?

It being understood that all that was in issue in the case submitted to the supreme court of the United States was the right of the Last Chance company to follow the vein north of the plane r-s-s', there was no opportunity for the court to consider the full extent of the junior locator's rights. So the court declined to define them, but reserved the question for "further consideration." Said the court in this connection:

"It may be observed in passing that the answer to "this question does not involve a decision as to the full "extent of the rights beneath the surface which the

66

junior locator acquires. In other words, referring to "the first diagram" (figure 86), "the inquiry is not "whether the owners of the Last Chance have a right "to pursue the vein as it descends into the ground south "of the dotted line r-s, even though they should reach a point in the descent in which the rights of the own"ers of the New York, the prior location, have ceased. "It is obvious that the line e-h, the end-line of the New "York claim, extended downward into the earth, will, "at a certain distance, pass to the south of the line r-s, "and a triangle of the vein will be formed between the "two lines, which does not pass to the owners of the "New York. The question is not distinctly presented "whether that triangular portion of the vein up to the "limits of the south end-line of the Last Chance, b-c, "extended vertically into the earth, belongs to the own"ers of the Last Chance or not, and therefore we do "not pass upon it. Perhaps the rights of the junior "locator below the surface are limited to the length of "the vein within the surface of the territory patented "to him, but it is unnecessary now to consider that "matter. All that comes fairly within the scope of "the question before us is the right of the owners of the "Last Chance to pursue the vein as it dips into the "earth westwardly between the line a-d-t and the line r-s, and to appropriate so much of it as is not held by

66

"the prior location of the New York, and to that extent "only is the question answered. The junior locator is "entitled to have the benefit of making a location with 66 parallel end-lines. The extent of that benefit is for further consideration."'1

The court refers to the line e-h as an end-line of the New York, and speaks of a triangle of the vein being formed between the line e-h extended across r-s, which

triangle did not pass to the owners of the New York. Strictly speaking, the true north end-line of the New York would be the line e-h applied at r, where the vein 1171 U. S. 85, 18 Sup. Ct. Rep. 895. Lindley on M.-67