While, as heretofore observed, end-lines may have been inferred, for the simple reason that the miner's pursuit of the vein on its strike must cease at some point, the direction to be given to the lines and the angle at which they were to be drawn with reference to the course of the vein were not necessarily inferred. We have the highest authority for the statement that these end-lines were not required to be parallel.1 Judge Field said in the Eureka case that lines drawn vertically down through the ledge, or lode, at right angles with a line representing its general course at the ends of the claimant's line of location, will carve out, so to speak, a section of the ledge, or lode, within which he is permitted to work, and out of which he cannot pass. If the general course is to be considered as a straight line connecting the linear extremities of the location indicated thus, VEIN. X by the dotted line, x-x, the application of Judge Field's rule would necessarily result in a parallelism of endlines, which he says is not required. If each end-line of each location is to be drawn at right angles to the local trend, as indicated at the respective points where the linear measurement on the vein begins and ends, they never could be parallel, except in the case of ideal veins pursuing a uniform course. A practical illustration of this was exhibited during the trial in the United States circuit court, ninth circuit, 1 Eureka Case, 4 Saw. 323, Fed. Cas. No. 4548; Iron S. M. Co. v. Elgin M. Co., 118 U. S. 196, 208, 6 Sup. Ct. Rep. 1177; Walrath v. Champion M. Co., 63 Fed. 552, 556; Cons. Wyoming M. Co. v. Champion M. Co., 63 Fed. 540, 550; Carson City G. and S. M. Co. v. North Star M. Co, 73 Fed. 597, 599, S. C. on appeal, 83 Fed. 658, 669. northern district of California, of the case of the Carson City Gold and Silver Mining Company v. North Star Mining Company,1 The North Star mine was located prior to the passage of the act of 1866. It was a consolidation of a number of claims on the same vein, aggregating thirty-one hundred linear feet. A casual inspection of this composite shows that the extreme end-lines are practically at right angles to the local strike across which they are drawn, but are not parallel to each other. The vein dipping to the north made these lines convergent. Had it descended into the earth in an opposite direction, the end-lines would have been divergent. If lines were drawn at right angles to the local course at the extremities of each series of loca tions within the composite, a triangular underground segment, e. g. between the Independence and White 173 Fed. 597, S. C. on writ of error, 83 Fed. 658. Rock, would have occurred, owing to a change in the course of the vein. While we may concede, for the purpose of argument, that the theory of the law of 1866, which was but the expression in a higher form of the rules and customs of the miners, was to give to the miner only so much of the vein underneath as he had appropriated upon the surface, the act did not define in what manner the bounding planes were to be established. The method suggested by Judge Field, applied to the ideal lode, would accomplish this result, the lines being parallel. The same object would be gained by drawing parallel lines across the vein at any angle. The truth is manifest. The act is crude and imperfect. Congress never anticipated the numerous intricate questions which might possibly arise under it, and the courts were compelled to exhaust their ingenuity in construing it so as to prevent the destruction of the large property interests which had grown up under the system of local rules which congress intended to perpetuate through the medium of congressional law. What we have thus far said with regard to dip rights under the act of 1866 applies only to unpatented claims located under the act. The proceedings culminating in a patent gave greater precision to the location, and, as a rule, definitely fixed that which theretofore was more or less uncertain. There are but few instances at the present time of mining claims originating under this act which have been continuously perpetuated without applying for a patent. Our object in presenting a review of the law was simply to show the historical evolution of the present extralateral right. Lindley on M.-60 2568. Nature of estate in the vein created by grant of the dip or extralateral right. - Before proceeding to a detailed discussion of the nature and extent of the extralateral right as sanctioned by the legislation of congress, it is of considerable importance that we understand the underlying theory upon which the right is based. A proper conception of this theory will, in our judgment, materially aid us in reaching a correct solution of some of the complicated questions arising out of this element of the federal law. In discussing some of the incidents of the ownership of veins, or of land containing them, the courts frequently refer to the common-law rule of property, and in commenting upon that feature of the American mining law which awards under certain conditions the right to the pursuit of a vein outside of and beyond vertical planes drawn through the surface boundaries, draw the conclusion that this so-called extralateral right is in contravention of the common law. Strictly speaking, this is inaccurate. The grant of the right of lateral pursuit is, in legal effect, a severance of the estate in the vein from the ownership of the soil into which it penetrates after passing on its downward course beyond the vertical planes drawn through the surface boundaries of the location or patent.1 "The vein in its descent passing out of and beyond "vertical planes drawn through the surface boundaries "embracing the apex is as much a part of the location as if entirely within its surface lines." 2 66 "Third parties having no interest in an existing "valid location of a mining claim can predicate no "claim or right whatever to veins or lodes, the tops, "or apexes, of which lie within the lines of such exist'ing locations, either by discovery or location, for the 66 1 Waterloo M. Co. v. Doe, 82 Fed. 45, 50. 2 Tyler M. Co. v. Last Chance M. Co., 90 Fed. 15, 21. "all-sufficient reason that such veins or lodes are "already, whether previously explored or not, subject "to the claim of the owners of the existing prior loca"tion."1 It is quite true, as aptly said by Mr. Justice Brewer in the Del Monte case, that were it not for the provisions of the federal statutes patents for land containing minerals would be subject to the ordinary rules of the common law 2 But it does not follow that a grant of the vein in depth beyond the vertical boundaries is a grant which is repugnant to the common law. Every mining location carries with it the common-law attributes of ownership.3 The government being the owner of the fee may carve from it the ownership of the vein. It may grant the surface to one and the vein to another. There was nothing in the common law which prohibited this severance. In fact, it was expressly sanctioned, as we have heretofore shown. Nothing was more common than to sell or demise a piece of land, excepting the mines, and when the surface and underlying mines or the different strata of the subsoil were differently owned, they were separate tenements, with all the incidents of separate ownership-a distinct possession and distinct inheritance.* Therefore, when the government grants a vein. throughout its entire depth within certain end-line planes, the title to the vein between these planes is severed out of the adjoining land into which it penetrates, and the estate in the land overlying the dip is to that extent lessened. Instead of being in dero 'Golden Link M. L. and B. Co., 29 L. D. 384. 'Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 66, 18 Sup. Ct. Rep. 895. St. Louis M. and M. Co. v. Montana Co. Ltd., 113 Fed. 900, 902. |