as will be noted on the diagram. Between the dates of the original and amended locations of the Stemwinder some of the claims of the Empire State-Idaho, notably the Viola, San Carlos, and Skookum, intervened.

The case was submitted to the trial court, presided over by Judge James H. Beatty, sitting as circuit judge for the district of Idaho. The issue was practically limited to the determination of the ownership of the underground segment of the vein north of the Last Chance north end-line plane produced (x-y-J on figure 90) between the end-line planes of the Stemwinder.

It was earnestly contended by the Empire State company, among other things, that as the Last Chance extralateral-right bounding planes cut the vein between the Stemwinder extended planes in two, the Stemwinder could not follow it from its apex at the surface through the Last Chance extralateral right, and therefore such rights as the Stemwinder had to the vein on its downward course terminated along the plane of Last Chance south side-end line produced (K-L).

The court held that as against all the claims owned by the Empire State company located subsequent to the making of the Stemwinder amended location, the Bunker Hill company was the owner of all that part of the vein in dispute lying between the amended end-line planes of the Stemwinder. As against the claims intervening between the original and amended locations, the rights of the Bunker Hill company were limited to the south amended line and the north line of the original location.

The court expressed the opinion that this doctrine was not according to its interpretation of the Del Monte case as decided by the supreme court of the United States, but was impressed with the belief that it was supported by the decision of the circuit court of appeals in the case heretofore alluded to, involving the Last

Chance and Stemwinder extralateral rights. Such being the case, it held that it was its plain duty to follow the rule stated by the appellate court.1

In the meanwhile, and prior to this decision, an injunction pendente lite had been granted by the trial judge, enjoining the Empire State company from working the segment of the vein north of the Last Chance side-end-line plane and between the planes as claimed by the Stemwinder. From the order granting the injunction, the Empire State company appealed to the circuit court of appeals, and on this proceeding many of the questions involved were settled by that court in ad

vance of a hearing by it on the merits. Among them was the important one urged in the trial court, that the Stemwinder should be denied all extralateral right beyond the Last Chance south side-end-line plane by reason of the intervention of the prior Last Chance extralateral right. The appellate court decided the injunction appeal shortly after the decision of the trial court on the merits. We herewith reproduce the diagram (figure 90A) accompanying its opinion, which presents the question in a simplified form.

1 This case has not as yet been reported.

As to the contention referred to, the circuit court of appeals, speaking through Judge Gilbert, thus expressed its views:

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"A new and important question, however, arises in "the present case from the fact that the extralateral " right claimed by the appellee is cut in twain by those "of the Emma and Last Chance claims, and that thereby that part of the lode which is in controversy in the present suit is detached from that part which apexes within the appellee's claim. It is contended by the appellant that by the intervention of the extralateral "rights belonging to the Emma and Last Chance claims, the extralateral right of the appellee is cut off " and the appellant asserts the right to mine the ledge

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in question by reason of other claims located to the "northwestward of the Last Chance, but subsequent in "time to the Stemwinder location. We know of no case "in which this precise question has been presented. "In Empire State-Idaho Mining and Developing Company v. Bunker Hill and Sullivan Mining Company, "114 Fed. 417,1 this court recognized the extralateral right of the San Carlos claim beyond the point where "the prior extralateral right of the Viola claim ended, "but in that case the Viola extralateral right did not wholly intervene at any point to cut off the ore body "to which the San Carlos had the extralateral right; "in other words, there was in that claim upon the out

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crop of the ledge in the surface location, a point from "which the owners of the San Carlos could, without "interruption and continuously, proceed on the ledge " on its downward course to the full extent of the extra"lateral right awarded by the court. By section 2236 "of the Revised Statutes, it is provided that where two "or more veins intersect or cross each other, the prior "locator shall be entitled to all the mineral contained "within the space of intersection, and that the subse"quent locator shall have the right of way through "the space of intersection for the purpose of the con"venient working of his mine. The case so provided "for by statute is not the precise case of two conflicting "extralateral rights upon the same ledge, which is

1 For illustration of this case, see figure 61, ante, p. 992.

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If

"here presented, but in principle it is the same. "the vein upon which the Stemwinder is located were "in fact a separate vein from that on which the Last "Chance is located, but passed through the latter in the same direction in which extralateral rights are "claimed in the present suit, there could be no doubt "of the right of the owner of the Stemwinder to pursue "the vein beyond the point of intersection and to main"tain a right of way through the vein of the Last "Chance at the point of intersection. We see no reason "why that right, which is so recognized by the statute, "and which would probably be recognized in the ab"sence of a statute, shall be denied when the point of "intersection of extralateral rights is not upon separate veins, but the same vein."

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B.

991

Assume a case

of two locations,

each covering a

part of the apex of the same vein, without surface conflict. Figure 91 represents such a case. A is the senior, and B the junior. Each has a grant from the government to their respective claims, the terms terms of which are precisely alike. Each has been granted the surface of his respective claim, to-. gether with all veins which have their tops,

or apices, within such surface, throughout their entire depth, although they may in their downward course enter the land adjoining. There is no limitation on the face of either grant. There has been conveyed to

1 Empire State-Idaho M. and D. Co. v. Bunker Hill and Sullivan M. and C. Co., C. C. A., 9th circuit, (opinion filed February 16, 1903).

A the vein with its extralateral extension a-c-c, d-e-f, and to B g-h-i and k-l-m. The fact that there is an underground conflict between the two is not disclosed on the face of their respective titles. B's rights would, in the absence of an underground conflict with A's endline planes, take the segment g-h-i and k-l-m. But as the government cannot grant the same thing twice, B's rights must yield to the extent that they conflict with A's.

Again: If D grant Black Acre to C, having previously granted to E a surface parallelogram passing through the center of it, the grant to C is effective as to all that part of Black Acre not previously alienated. This is an elementary rule of real property.

Take another illustration. Figure 92 is a cross-section through White Acre, belonging to A, his ownership extending from the surface downward usque

COAL

Oil and Gas

Sandstone

FIGURE 92.

ad orcum. Underneath the surface there is first a horizontal stratum of coal, then a zone containing oil and gas resting upon a bed of sandstone.

That A may sever the title to any one or more of the different deposits from the title to the surface without affecting his right to the remainder, and without reciting in the conveyance any terms of reservation, is elementary.1

1 Chartiers Block Coal Co. v. Mellon, 152 Pa. St. 286, 295, 34 Am. St. Rep. 645, 25 Atl. 597; Lillibridge v. Lackawanna Coal Co., 143 Pa. St. 293, 24 Am. St. Rep. 544, 22 Atl. 1035; Smith v. Jones, 21 Utah, 270, 60 Pac. 1104, and numerous cases cited.