are allowed to base a right upon the same part of the apex. Because the Last Chance was allowed to throw its end line over on the New York to perfect its extralateral rights, it had for extralateral right purposes all the apex within the lines so thrown, and all the dip that went with it, subject only to the prior dip right of the New York. The Del Monte Case does not so decide, because the question was not involved there; " but it seems to be a logical extension of the principles announced in that decision," and is sustained by the decision on a sim

98 171 U. S. 85, 18 Sup. Ct. 895, 43 L. Ed. 72.

99 Bunker Hill & Sullivan Mining & Concentrating Co. v. Empire State-Idaho Mining & Developing Co., 109 Fed. 538, 547, 48 C. C. A. 665; Empire StateIdaho Mining & Developing Co. v. Bunker Hill & Sullivan Mining & Concentrat

ilar situation found in the broad vein cases discussed in the next section. The ultimate justification of the "judicial apex" doctrine must, of course, rest on the foundation furnished by the case of Lavagnino v. Uhlig.t

Analogous to the questions just considered is the question raised in Figure No. 36.

One case has suggested that the dip, X, is owned by the two claims together,100 but that seems illogical Either the true solution is to be found in the doctrine of "theoretical apex," hereafter explained,101 or else the dip can be acquired only by locations which, because on the dip, have no extralateral rights.

ing Co., 131 Fed. 591, 66 C. C. A. 99. See Id., 114 Fed. 417, 52 C. O. A. 219. But see Jefferson Min. Co. v. Anchoria-Leland Min. & Mill. Co., 32 Colo. 176, 75 Pac. 1070, 64 L. R. A. 925; State v. District Court, 25 Mont. 504, 65 Pac. 1020.

† 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119.

100 CHAMPION MIN. CO. v. CONSOLIDATED WYOMING GOLD MIN. CO., 75 Cal. 78, 16 Pac. 513. This case takes the view that extralateral rights may be taken beyond the end line planes extended if no third persons are thereby injured, and that they are not injured if the claims concerned own the whole of the apex above the dip taken. But query?

101 See § 118m, infra.

SAME-BROAD VEIN BISECTED ON ITS STRIKE BY THE COMMON SIDE LINE OF TWO ADJOINING LOCATIONS.

1181. Extralateral rights on a broad discovery (original or principal) vein, bisected on its strike by the common side line of two adjoining locations, belong to the senior claim, subject only to the qualification noted in 118h.

A question analogous to the last is presented by a broad vein bisected by the common side line of two locations which have end lines of different slant. Before taking up that case, though, a word must be said about the case where the end lines of the two adjoining locations are in the same direction.

FIGURE No. 37.

SENIOR

BROAD DISCOVERY VEIN

JUNIOR

In Figure No. 37 it is now settled that the senior location takes all the extralateral rights on the broad vein, though, of course, it gets no rights on the surface of the junior location.102 In determining seniority, priority of discovery may be shown by testimony other than the entries and patents, and it is settled that acceptance by the government of location proceedings had before the statute of 1866, and issuance of a patent thereon, is evidence that those location proceedings were in accordance with the rules and customs of the local mining district.108

102 ST. LOUIS MIN. & MILL. CO. OF MONTANA v. MONTANA MIN. CO., 104 Fed. 664, 44 C. C. A. 120, 56 L. R. A. 725; Empire State-Idaho Mining & Developing Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., 114 Fed. 417, 52 C. C. A. 219; Id., 131 Fed. 591, 66 C. C. A. 99; Last Chance Min. Co. v. Bunker Hill & S. Mining & Concentrating Co., 131 Fed. 579, 66 C. C. A. 299; UNITED STATES MIN. CO. v. LAWSON, 134 Fed. 769, 67 C. C. A. 587. The last case overruled Hall v. Equator Mining & Smelting Co. (U. S.) Fed. Cas. No. 5,931, an earlier decision by Judge Hallett, and has been affirmed in LAWSON v. UNITED STATES MIN. CO., 207 U. S. 1, 28 Sup. Ct. 15, 52 L. Ed. 65. See, also, ARGENTINE MIN. CO. v. TERRIBLE MIN. CO., 122 U. S. 478, 7 Sup. Ct. 1356, 30 L. Ed. 1140.

103 LAWSON v. UNITED STATES MIN. CO., 207 U. S. 1, 28 Sup. Ct. 15, 52 L. Ed. 65.

FIGURE NO.38.

SENIOR

BROAD DISCOVERY VEIN

JUNIOR

In Figure No. 38 we have the question presented: Shall the junior location have all the dip of the broad vein not taken by the senior location, and yet included within the junior's end lines extended? One federal case answers the question in the affirmative,10,though the reasoning of a Utah case seems to support the negative.105 The affirmative answer would seem to be sound, because the senior locator is protected fully. Moreover, the affirmative answer is supported by the case just discussed of a vein covered by conflicting surface locations.

104 EMPIRE STATE-IDAHO MINING & DEVELOPING CO. v. BUNKER HILL & S. MINING & CONCENTRATING CO., 114 Fed. 417, 52 C. C. A. 219. 105 BULLION BECK & CHAMPION MIN. CO. v. EUREKA HILL MIN. CO., 5 Utah, 3, 11 Pac. 515.

SAME-VEIN SPLITTING ON ITS STRIKE.

118j. Where a discovery (original or principal) vein splits within the claim, so as to form two separate veins, extralateral rights on each split portion seem to be determined as if each remains the principal vein.

FIGURE NO. 39.

DISCOVERY VEIN

Where a vein splits on its strike, so as to make two veins from that point, it seems that extralateral rights are measured on each part as if it were the main vein.106 Instead of one split part being regarded as the principal vein and the other as the secondary, both seem to be regarded as principal veins. The situation is represented in Figure No. 39. But it should be remembered that broken-off bodies of ore may be so connected with the fissure vein as not to form a separate vein entitled to extralateral rights.107 Where one of the split ends. entitled to extralateral rights passes on its strike into another location, the dip rights of the first location are measured from the point of departure, while the second location may follow the part of the fork within its lines on the dip of that part under the first location.108

106 See HICKEY v. ANACONDA COPPER MIN. CO., 33 Mont. 46, 81 Pac. 806. Compare Doe v. Waterloo Min. Co. (C. C.) 54 Fed. 935.

107 TOMBSTONE MILL. & MIN. CO. v. WAY UP MIN. CO., 1 Ariz. 426, 25 Pac. 794.

108 COLORADO CENT. CONSOL. MIN. CO v. TURCK, 50 Fed. 888, 2 C. C. A. 67. But see WALRATH v. CHAMPION MIN. CO., 171 U. S. 293, 18 Sup. Ct. 909, 43 L. Ed. 170; JEFFERSON MIN. CO. v. ANCHORIA-LELAND MIN. & MILL. CO., 32 Colo. 176, 75 Pac. 1070, 64 L. R. A. 925.