2575. Rights of patentee under the act of 1866 where the end-lines diverge in the direction of the dip.-The reports do not, so far as we have been able to discover, present any adjudicated case where a patent had been issued under the act of 1866, defining a surface location with end-lines diverging in the direction of the dip of the patented vein. The only cases which afford any light upon the subject, and which may be used as a basis of discussion, involved in a greater or less degree the application of the act of 1872, as the patents were issued subsequent to the passage of that act, upon either entries or locations made under the earlier act. It is manifest that under any location or patent purporting to grant a claim with end-lines diverging in the direction of the dip, such grant, if valid, will convey to the patentee more of the vein in length beyond the side-lines than the locator has within the surface boundaries. It is conceded that such a grant, where the divergence is substantial, would, as to locations made under the act of 1872, be limited in its operation to the vertical boundaries of the claim. Our purpose is to ascertain, if possible, what rule should be applied to patents issued under the prior law, which was entirely silent upon the subject of both end-lines and side-lines, the form of the surface having been a matter under the exclusive control of the local districts. As the courts cannot convey to a patentee more than his patent lawfully covers, they cannot deprive him of anything legally embraced within it. The sole question involved is, What passes by such a patent? We are not particularly concerned with the phraseology of that instrument. The land department is but an agent of the government, and its powers can only be exercised within the limits fixed by the act. The patent cannot be broader than the law. It may be assumed that the instrument of conveyance describes the surface boundaries, and grants the tract thus described, together with the vein or lode to the distance expressed in linear feet, which may be assumed to represent the length at the surface between the two end-lines, and throughout its entire depth between the end-line planes extended in their own direction. There are three possible solutions of the problem :(1) The patentee is entitled to so much of the vein throughout its entire depth as is found within vertical planes drawn through the end-lines extended in their own direction, regardless of the fact of their divergence in the direction of the dip; or (2) As, by the direction given to the end-lines, the claimant has asserted a right to more linear feet of the vein in depth than he has included within the surface boundaries, therefore he shall have none of the vein beyond the vertical planes drawn through the surface boundaries; in other words, the patentee's rights are exclusively intralimital, as in the case of irregular locations under the act of 1872;1 or (3) As the theory of the act was that the patentee should have only the number of linear feet claimed and patented throughout its entire depth, the grant is effectual for all that part of the vein found between the extended vertical end-line planes which also lies between vertical planes established at the two extremities of the linear distance on the vein measured at the surface at right angles to the general course of the vein at the surface within the location. The task of the courts in the solution of this problem is undoubtedly surrounded by many embarrassments, arising out of the meagerness of the statute itself, and the difficulty of ascertaining what, if any, was the rule and guide of the miner as established by custom. These district customs were by no means entirely uniform in all the districts upon any particular question, and we fail to find in any of the regulations or customary laws anything which specifically defines the underground rights as between coterminous mining proprietors on the same vein. The courts have been compelled, so far as they have thus far attempted to solve the question, to read between the lines of the statute and ascertain the intent as a matter of implication, and in doing this to determine, if possible, what was the spirit and intent of the local customs. To arrive at the net judicial result thus far reached, it is essential to consider what principles cognate to the question under consideration have been practically settled and how far an application of these principles may aid in the solution of the problem. However plausible may be the reasoning in support of one or the other of the suggested methods, no solution will be accepted that is not in consonance with principles which have received the highest judicial sanction or that does violence to the settled rules of interpretation. 8 576. Under the act of 1866, parallelism of end-lines not required-Doctrine of the Eureka case.-There is probably no single case found in the books which is more familiar to the mining practitioner than the one generally known as the "Eureka case," tried before Justice Field and Judges Sawyer and Hillyer, three of the most eminent mining judges of the west. The opinion written by Justice Field has always been regarded as a judicial classic. Therein was announced 14 Saw. 302; 9 Morr. Min. Rep. 578; Fed. Cas. No. 4548. 66 the first judicial definition of the words "lode" and vein," subsequently adopted by the supreme court of the United States, and reannounced by the courts of last resort in all the mining states and territories. We are presently concerned with so much of the opinion only as affects the subject of the dip or extralateral right as applied to mining claims acquired under the act of July 26, 1866. The facts and issues in controversy may be illustrated by a diagram (figure 54) accompanying the opinion, to which has been added some details obtained from the maps used at the trial. For illustrative purposes, we have produced the easterly end-lines of the At Last and Margaret claims in the direction of the dip, as indicated by the dotted line 2-2. A cross-section showing the structural conditions of this lode is shown in figure 9 (page 511). The vein, or zone, was very wide in some places. The surface outcrop appeared in the Champion, At Last, and Margaret, or Lupita, showing the existence at the surface of a broad vein with part of the apex in each location. The Eureka company, plaintiff in the case, asserted the right to so much of the "Potts Chamber" as lay to the east of a vertical plane drawn through the west endlines of the Champion, At Last, and Margaret claims, produced,- that is, the line W-X-C. Objection was taken by defendant to the validity of the patents to the two claims last named, because the end-lines of the surface locations as patented were not parallel, as required by the act of 1872, both patents having been issued subsequent to the passage of the act. When the locations were made upon which the patents were based does not appear in the opinion of Judge Lindley on M.-61 |