The theory of Figure No. 19 might well be adopted, if it were the only way to avoid the objectionable consequences of the just explained doctrine of Messrs. Morrison and De Soto; but, as their doctrine cannot be accepted, it seems to be sufficient to point out that the theory here being considered is believed not to be consistent with the various side lines as end lines cases, and in particular with the case of Del Monte Mining & Milling Co. v. Last Chance Mining & Milling Co. 83

A practical question should not be complicated by technical tests difficult of ascertainment. As the Supreme Court of the United States has pointed out: "With all the care possible, the end lines marked on the surface will often vary greatly from a right angle to the true course of the vein. But whatever inconvenience or hardship may thus happen, it is better that the boundary planes [for extralateral right purposes] should be definitely determined by the lines of the surface location than that they should be subject to perpetual readjustment according to subterranean developments made by mine workings. Such readjustment at every discovery of a change in the course of the vein would create great uncertainty in titles to mining claims." " The sole question should be which lines are crossed, and no attention should be paid to the angle at which they cross, except so far as may be necessary to prevent the locator from getting extralateral rights. on the strike as contrasted with the dip.

The extralateral rights for the claim in Figure No. 19 are therefore as represented in Figure No. 20. The shaded portion simply reminds the reader of the theory of Messrs. Morrison and De Soto explained in connection with Figure No. 18. Of course, where the side lines which serve as end lines are not parallel, there can be no extralateral rights for the vein crossing them, unless those side line end lines converge on the dip.85

101, citing Last Chance Min. Co. v. Tyler Min. Co., 61 Fed. 559, 9 C. C. A. 613, and Consolidated Wyoming Gold Min. Co. v. Champion Min. Co. (O. C.) 63 Fed. 540, but seemingly admitting in the next preceding note of the article that DEL MONTE MINING & MILLING CO. v. LAST CHANCE MINING & MILLING CO., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72, is contra.

83 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72.

84 IRON SILVER MIN. CO. v. ELGIN MINING & SMELTING CO., 118 U. S. 196, 207, 6 Sup. Ct. 1177, 1183, 30 L. Ed. 98.

85 2 Lindley on Mines (2d Ed.) § 590.

SAME-VEIN CROSSING ONE END LINE AND ONE SIDE LINE. 118c. Where the discovery (original or principal) vein crosses one end line and one side line, the extralateral right bounding planes are drawn along the crossed end line and parallel thereto through the point where the vein crosses the side line.

Because the locator miscalculates the course of a vein, it often happens that the discovery vein which has entered one end line goes out a side line. In such case it is settled that the end line crossed remains the end line of the location for all purposes, and that the extralateral right extends between parallel planes drawn along the end line crossed by the vein and through the point where the vein departs from the side line.8 86

FIGURE No. 21.

DISCOVERY VEIN

Figure No. 21 shows the method of calculation. The important feature is that the located end lines remain the end lines for extralateral right purposes, except so far as it is necessary to draw them in to meet the requirements of the located apex.

86 DEL MONTE MINING & MILLING CO. v. LAST CHANCE MINING & MILLING CO., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72; Clark v. Fitzgerald, 171 U. S. 92, 18 Sup. Ct. 941, 43 L. Ed. 87; Republican Min. Co. v. Tyler Min. Co., 79 Fed. 733, 25 C. C. A. 178; Tyler Min. Co. v. Last Chance Min. Co. (C. C.) 71 Fed. 848; TYLER MIN. CO. v. SWEENEY, 54 Fed. 284, 4 C. C. A. 329; Last Chance Min. Co. v. Tyler Min. Co., 61 Fed. 557, 9 C. C. A. 613; Consolidated Wyoming Gold Min. Co. v. Champion Min. Co. (C. C.) 63 Fed. 540; Fitzgerald v. Clark, 17 Mont. 100, 42 Pac. 273, 30 L. R. A. 803, 52 Am. St. Rep. 665. See Parrot Silver & Copper Co. v. Heinze, 25 Mont. 139, 64 Pac. 326, 53 L. R. A. 491, 87 Am. St. Rep. 386.

SAME-VEIN CROSSING ONE END LINE, BUT STOPPING BEFORE ANOTHER BOUNDARY LINE IS REACHED.

118d. Where the discovery (original or principal) vein crosses one end line and stops before another boundary line is reached, the extralateral right bounding planes are drawn along the crossed end line and parallel thereto through the end of the vein inside the claim.

In the Del Monte Case it is said: "Suppose a vein enters at an end line, but terminates half way across the length of the location, his [the locator's] right to follow that vein on its dip between the vertical side lines is as plainly given by the statute as though in its course it had extended to the farther end line. It is a vein 'the top or apex of which lies inside of such surface lines extended downward vertically.'" 87 The dictum just quoted seems perfectly sound.88 It is within the principle governing the case of a vein crossing one end line. and one side line.

FIGURE No. 22.

FIGURE No. 23.

DISCOVERY VEIN

DISCOVERY VEIN

87 DEL MONTE MINING & MILLING CO. v. LAST CHANCE MINING & MILLING CO., 171 U. S. 55, 89, 18 Sup. Ct. 895, 908, 43 L. Ed. 72.

88 CARSON CITY GOLD & SILVER CO. v. NORTH STAR MIN. CO.

The situation is pictured in Figures Nos. 22 and 23, except that in Figure No. 23 the shaded portion represents the only part of the vein which Messrs. Morrison and De Soto would allow the claim owner to take.

SAME-VEIN NOT REACHING ANY BOUNDARY LINE. 118e. Extralateral rights on discovery (original or principal) veins not touching any boundary line are fixed by drawing planes through the ends of the veins and parallel to the lines of the location which for extralateral right purposes are deemed its end lines.

The situation of a vein not reaching any boundary line, as pictured in Figures Nos. 24 and 25, seems to call for the same treatment as the one dealt with in Figures Nos. 22 and 23. In Figure No. 24, as in the case of Figures Nos. 21 and 22, the end lines located as such remain the end lines for extralateral right purposes, because there is no genuine reason for selecting other end lines to fix dip rights; but in Figure No. 25 as in the case of Figures Nos. 18, 20, and 23, the inability to award extralateral rights on the strike of the vein, and the evident intent of Congress to award extralateral rights, furnish sufficient

(C. C.) 73 Fed. 597; Id., 83 Fed. 658, 28 C. C. A. 333; Wakeman v. Norton, 24 Colo. 192, 49 Pac. 283. See Tyler Min. Co. v. Sweeney, 54 Fed. 284, 293, 4 C. C. A. 329.

reason for regarding for dip right purposes the side lines as end lines. Where the vein does not touch any side or end line, then the rule to be adopted should be to treat as end lines those lines which it would cross if it were extended on its strike.89 There seem to be no cases on the situation presented in Figures Nos. 24 and 25.

A real difficulty would be experienced, were the vein to lie in the claim at such an angle that it would be impossible to tell which lines should be regarded as end lines and which as side lines; but in such case, since the burden is on the owner of the apex to establish his. right to come into his neighbor's ground, extralateral rights should be denied pending further disclosures as to the course of the vein.

SAME-VEIN CROSSING TWO OPPOSITE PARALLEL BOUNDARY LINES, BUT IN ITS COURSE GOING OUT OF AND RETURNING THROUGH ANOTHER BOUNDARY LINE.

118f. Extralateral rights on discovery (original or principal) veins which cross the two opposite parallel end lines located as such, but which in their course go out of and return through one of the side lines located as such, are measured by drawing parallel planes through the opposite parallel end lines and through the point of departure of the vein from the side line; no extralateral right attaching to the space where the vein apexes outside the claim.

Extralateral rights on such veins, which cross the two opposite parallel side lines located as such, and which in their course go out of and return through one of the end lines located as such, also appear to be governed by planes drawn parallel to the end lines located as such and through the points of departure of the vein from the side lines located as such.

Certain difficulties are to be experienced with veins which cut three boundary lines of a location. Those difficulties are represented in Figures Nos. 26, 27, 28, and 29.

The situation in Figures Nos. 26 and 27 calls for the representation of more than two planes to show the dip rights. The spaces representing the dip rights on that part of the apex which lies outside the claim. are, or course, out of bounds for the claim owner."

89 "If the lode runs more nearly parallel with the end lines than with the side lines as marked on the ground as such, then the end lines of the location must be considered by the courts as the side lines meant by the statute. If the lode runs more nearly parallel with the side lines than the end lines, then the end lines as marked on the ground are considered by the court as the end lines of the location. In both cases the extralateral rights are preserved and maintained as defined in the statute." CONSOLIDATED WYOMING GOLD MIN. CO. v. CHAMPION MIN. CO. (C. C.) 63 Fed. 540, 549.

90 WATERLOO MIN. CO. v. DOE, 82 Fed. 45, 27 C. C. A. 50.