the lode is in place wherever the rock above is in place.

If

the principal part of the rock above the mineral is in its original position according to the present structure of the mountain, the lode is in place, although some masses of rock or boulders may be associated with the ore.' "987

Even though the misconception of the statute caused the holding that the vein must be in the mass of the mountain to be a vein, that holding is well established and certainly furnishes the only sound way in which to distinguish between veins and placers.88 It is also highly important in the working out of extralateral rights; for, because of the great interference of extralateral rights with commonlaw notions of ownership of land, only well-defined and continuous. veins are deemed within the statute awarding extralateral rights to the owner of an apex.89 Before we define "apex" and "extralateral rights," however, we must distinguish between "lodes" and "placers."

A PLACER.

34. A placer is any form of mineral deposit other than a vein or lode. Now what is a placer? Messrs. Morrison and De Soto have this to say about the matter: "As commonly and properly understood, a 'placer claim' means a location in which gold is found loose in sand or gravel, and not in the vein or in place. It includes gulch claims, old channels, cement, and drift diggings. But the United States Mining acts make an arbitrary division of all minerals into two classes, to wit, 'lodes' and 'placers.' All deposits of (metallic) minerals in place are called, when located, 'lode claims,' and all deposits of other minerals, in place or not in place, are 'placers.'" 90 Under the United States mining acts, therefore, a placer is any form of mineral deposit "excepting veins of quartz or other rock in place." 1 And by the

87 Leadville Min. Co. v. Fitzgerald, 4 Morr. Min. Rep. 386, Fed. Cas. No. 8,158. Compare Iron Silver Min. Co. v. Cheesman (C. C.) 8 Fed. 297, 2 McCrary, 191.

88 "A lode is a zone, belt, or body of quartz or other rock lodged in the earth's crust, and presenting two essential and inherent characteristics, namely: (1) It must be held in place' within or by the adjoining country rock; and (2) it must be impregnated with some of the minerals or valuable deposits mentioned in the statute." Meydenbauer v. Stevens (D. C.) 78 Fed. 787.

89 GRAND CENT. MIN. CO. v. MAMMOTH MIN. CO., 29 Utah, 490, 83 Pac. 648; Butte & B. Min. Co. v. Societe Anonyme des Mines de Lexington, 23 Mont. 117, 58 Pac. 111, 75 Am. St. Rep. 505.

90 Morrison's Mining Rights (13th Ed.) 210. The idea here expressed, that only metallic deposits in place are lodes, seems unsound. Webb v. American Asphaltum Min. Co., 157 Fed. 203, 84 C. C. A. 651.

91 Rev. St. U. S. § 2329 (U. S. Comp. St. 1901, p. 1432); Gregory v.

term "placer claim," as used in the section of the statutes in regard to patenting lodes in placer claims, "is meant ground within defined boundaries which contains mineral in its earth, sand, or gravel; ground that includes valuable deposits not in place-that is, not fixed in rock —but which are in a loose state, and may in most cases be collected by washing or amalgamation without milling." "3

Ordinarily there is little difficulty in discriminating veins from placer deposits,* yet the case of Gregory v. Pershbaker ** is an instance of a troublesome situation. This case had to deal with what are known in California as "deep placers," namely, the sandy or gravelly beds or bottoms of ancient streams long since covered over by lava. "These gravel beds," said Mr. Lindley, "lie upon a 'bed rock,' which at some period of geological history formed the bed of an ancient river. They are usually immediately overlain by a formation of clay gouge, and on this clay covering is a capping of lava, sometimes hundreds of feet in thickness. These subterranean deposits are reached by means of tunnels to the bed rock, and thence following the meanderings of the channel. These deposits certainly occupy a fixed position in the mass of the mountain, although they do not fall within the popular definition of lodes or veins. The land department at an early period classified them as 'placers,' and patents have uniformly been issued upon location of this class of deposits made under the placer laws." The California court, being called upon to deal with such a deposit, said that the definition of a lode in the Eureka Case (namely, that the term is applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from neighboring rock) would not include a bed of gravel from which particles of gold may be washed. "The words 'mineralized rock,'" said the court, "were evidently intended to qualify the sentence. That which in the Eureka Case was declared to be a 'lode' was a zone of limestone lying between a wall of quartz and a seam of clay or shale; the ore having a dip of

* * *

Pershbaker, 73 Cal. 109, 14 Pac. 401; Webb v. American Asphaltum Min. Co., 157 Fed. 203, 84 C. C. A. 673.

92 Rev. St. U. S. § 2333 (U. S. Comp. St. 1901, p. 1433).

93 United States v. Iron Silver Min. Co., 128 U. S. 673, 679, 9 Sup. Ct. 195, 32 L. Ed. 571.

Yet recently a United States court has had to decide that gilsonite and the harder forms of asphaltum in veins or lodes of rock in place may be located as lodes, and may not be located as placer deposits. Webb v. American Asphaltum Min. Co., 157 Fed. 203, 84 C. C. A. 651.

94 73 Cal. 109, 14 Pac. 401.

951 Lindley on Mines (2d Ed.) § 427.

96 4 Sawy. 302, Fed. Cas. No. 4,548.

45° and the other of 80°." 97 And the court therefore insisted that a bed of gravel from which particles of gold may be washed, even though that bed is between an underlying bed of slate rock and an overlying bed of lava rock, and even though the gravel is of a hard nature, and in mining and extracting the same has to be detached from its position by the use of picks and gads," is not a lode, because it is not mineralized rock in place, and is within the definition of placers in section 2329, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1432) which declares all forms of deposit, excepting veins of quartz or other rock in place, to be placers. The court added: "Referring to the common use of the word by miners, to the dictionaries, and to the adjudications of courts, the gravel bed with gold therein as described in the finding is a placer."

100

The deposit in Gregory v. Pershbaker was so hard as to require the use of a pick and gad to extract, so could properly be called mineralized rock, and it certainly occupied a fixed position in the mass of the mountain. But for the peculiar geological formation noted above, and which properly governed the California court, the deposit should have been held to be a lode. That is clear from Jones v. Prospect Mountain Tunnel Co. 101 In that case,102 a ledge, consisting of "broken limestone, boulders, low-grade ore, gravel, and sand, which appeared to have been subjected to the action of the water," and “found at a depth of several hundred feet, and where there seems to have been no question that it was within the original and unbroken mass of the mountain," was held by the court to be mineral matter "in place."

THE APEX OF A VEIN.

35. The apex of a vein is the width and length-i. e., the surface-of its upper edge.

In connection with veins it is important to define the apex of a vein, its dip, and its course or strike. Though there is a controversy as to whether the law of the apex was properly applied in Duggan v. Davey,103 there is no question that "apex" was clearly defined in that

97 GREGORY v. PERSHBAKER, 73 Cal. 109, 114, 14 Pac. 401. 98 73 Cal. 109, 111, 14 Pac. 401.

99 73 Cal. 113, 14 Pac. 401, 402.

100 73 Cal. 115, 14 Pac. 401, 403.

101 21 Nev. 339, 31 Pac. 642.

102 JONES v. PROSPECT MOUNTAIN TUNNEL CO., 21 Nev. 339, 351, 31 Pac. 642.

103 4 Dak. 110, 26 N. W. 887.

104

case. It need only be premised that under the federal statutes the owner of a claim which has the apex of a vein or lode inclosed within the parallel end lines of the claim has the right to follow the vein down in the earth as far as it goes, even if in going down it departs from his common-law boundaries and enters what at common law would be his neighbor's grounds, so long as he does not go beyond planes drawn through the extralateral right end lines and extended in their own direction. As the apex right is only to go outside one's side boundaries, it has come to be called the "extralateral right." The extralateral right depending on the ownership of the apex of the vein or lode, the question is: What is the apex of a vein or lode? Duggan v. Davey has this to say about it:

"Secondly. Is the top or apex of this vein or lode within the lines of the Sitting Bull location? The definition of the top or apex of a vein usually given is: The end or edge of a vein nearest the surface.' And to this definition the defendants insist we must adhere with absolute literal and exclusive strictness, so that wherever, under any circumstances, an edge of a vein can be found at any surface, regardless of all other circumstances, that is to be considered as the top or apex of the vein. The extent to which this view was carried by the defendants, and, I must confess, its logical results, were exhibited by Prof. Dickerman, their engineer, who, replying to an inquiry as to what would be the apex of a vein cropping out at an angle of one degree from the vertical on a perpendicular hillside, and cropping out also at a right angle with that along the level summit of the hill, stated that in his opinion the whole line of that outcrop from the bottom. clear over the hill, as far as it extended, would be the apex of the vein. Some other witnesses had a similar opinion. The definition given is no doubt correct under most circumstances, but, like many other definitions, is found to lack fullness and accuracy in special cases; and I do not think important questions of law are to be determined by a slavish adherence to this letter of an arbitrary definition. It is, indeed, difficult to see how any serious question could have arisen as to the practical meaning of the terms 'top' or 'apex'; but it seems in fact to have become somewhat clouded. I apprehend, if any intelligent person were asked to point out the top or apex of a house, a spire, a tree, or hill, he would have no difficulty in doing so; and I do not see why the same common sense should not be applied to a

104 Mr. Snyder says that in DUGGAN v. DAVEY, 4 Dak. 110, 26 N. W. 887, the court misapplied the law through faultless reasoning from false premises. 1 Snyder on Mines, § 802. Mr. Lindley, however, with what seems to the writer sound exposition and argument, approves the decision. 1 Lindley on Mines (2d Ed.) § 310.

vein or lode. Statutory words are to receive their ordinary meaning and interpretation, except where shown to have a special meaning; and, as I think the testimony shows that these terms were unknown to miners in their application to veins before the statute, the ordinary rule would seem to apply to them. Justice Goddard, a jurist of experience in mining law, in his charge to the jury in the case of Iron Silver v. Louisville, defines 'top' or 'apex' as the highest or terminal point of a vein, where it approaches nearest the surface of the earth, and 'where it is broken on its edge, so as to appear to be the beginning or end of the vein.' Chief Justice Beatty of Nevada, who is mentioned in the report of the Public Land Commission of 1878-80, as 'one of the ablest jurists who has administered the mining law,' in his letter to that commission says, after defining dip and course of strike: "The top or apex of any part of a vein is found by following the line. of its dip up to the highest point at which vein matter exists in the fissure.' According to this definition the top or apex of a vein is the highest part of a vein along its entire course. If the vein is supposed to be divided into sections by vertical planes at right angles to the strike, the top or apex of each section is the highest part of the vein between the planes that bound that section; but, if the dividing planes are not vertical or not at right angles to a vein which departs at all from the perpendicular in its downward course, then the highest part of the vein between such planes will not be the top or apex of the section which they include.'

"I am aware that in several adjudged cases 'top' or 'apex' and 'outcrop' have been treated as syonymous, but never, so far as I am aware, with reference to a case presenting the same features as the present. The word 'apex' ordinarily designates a point, and, so considered, the apex of the vein is the summit, the highest point in the vein in the ascent along the line of its dip or downward course, and beyond which the vein extends no further, so that it is the end, or, reversely, the beginning, of the vein. The word 'top,' while including 'apex,' may also include a succession of points-that is, a line-so that by the top of a vein would be meant the line connecting a succession of such highest points or apices, thus forming an edge."105 Conceiving a vein or lode to be an intrusive sheet of mineralized matter of varying thickness found in the mass of the mountain, the apex of a vein is thus seen to be that edge of the sheet which shows on the surface of the location, or is nearest to the surface. It is not a point, though apex naturally suggests point. It is not a line, though

105 DUGGAN v. DAVEY, 4 Dak. 110, 139-143, 26 N. W. 887.