tion. It was located in 1857 before there was any mining statute, when the customs of miners were controlling and were recognized by the courts. The claim was patented under the law of 1866, which was the first mining statute. Under this patent the Providence obtained but the one lode, the Providence lode, which is the vein indicated by the line 2.3 The end lines of the Providence, gh and ap, which are the lines crossed by the Providence lode, are not parallel; one line runs north seventy-seven degrees west, the other north seventy-three degrees west. By the act of 1866, parallelism of end lines was not necessary to extra-lateral rights,* but such parallelism is required by the statute of 1872,5 before extra-lateral rights accrue. But under the act of 1872 the owner of the Providence gained rights in the Contact vein, for the section quoted from the statute gave to him all other veins, the top or apex of which lay within the patented area.

The New Year's Extension, outlined by 1, 2, 3, 4, g, was located under the act of 1872, which required parallel end lines as a prerequisite to extra-lateral rights,' but whether that claim was entitled to extra-lateral rights was immaterial.

The diagram indicates the ore bodies more particularly in dispute as lying between the 800 and 1000 foot levels run southerly from the Champion shaft. They are shown in the triangle formed by the line claimed by the Providence and the line claimed by the Champion. These ore bodies are outside the lines of both the plaintiff's and the defendant's ground. The pleadings also put in issue the ownership of the Contact vein at its apex in the New Year's Extension.

A fact most important to note is that the action was brought by Walrath as the owner of the Providence. His sole claim was based upon his ownership of that claim, and he was relying upon

1 Sparrow v. Strong, 3 Wall. 97; Jennison v. Kirk, 98 U. S. 453; Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 62.

2 14 Stat. 251.

8 The statute provided that but one lode could be obtained by the patent. See 171 U. S. 305.

Eureka M. Co. v. Richmond M. Co., 4 Sawy. 302; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478; Carson City M. Co. v. North Star M. Co., 83 Fed. Rep. 658; Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55.

5 Rev. Stat. sec. 2320.

Flagstaff M. Co. v. Tarbet, 98 U S. 463; Argentine M. Co. v. Terrible M. Co. 122 U. S. 478; King v. Amy M. Co., 152 U. S. 222.

Flagstaff M. Co. v. Tarbet, 98 U. S. 453; King v. Amy M. Co., 152 U. S. 222; and see all the cases cited in the last note but one.

his ownership of an apex, and upon the continuity of his vein from an apex in his Providence claim to the portion of the vein in dispute. The easterly portion of the vein where it was disputed, so far as ore is indicated, lay outside both defendant's and plaintiff's claims. Hence there was no question involved as to any common law presumption giving to the owner of the surface all vein beneath the surface, until an apex for that portion of the vein was shown outside the claim, whose lines include that portion of the vein.1 It is apparent that for Walrath to recover he must show that the dis puted portion of the vein lay within the vertical planes of the end lines, defining his extra-lateral rights on the Contact vein. It was conceded that the portion of vein in dispute was in the Contact vein, and there was no controversy as to the situation of the apex of that vein. It followed that unless Walrath could show the disputed portion of the vein to be within his end line planes, judgment must go for the defendant. This conclusion, however, would not affirm that the defendant owned the disputed portion of the vein, or that the subject of contention was covered by the extra-lateral rights of his New Year's Extension. The existence of extra-lateral rights upon the New Year's and New Year's Extension, and the extent thereof, were questions wholly immaterial to the issue. The sole question to be settled was the northerly end line plane of the Providence.

The Circuit Court announced the general principle that end lines of the claim must be the same for all veins apexing therein, but departed from its principle by projecting the northerly end line plane of the Providence vertically along the broken line ƒg h, being the end line and a side line of the Providence.2 In other words, that end line plane was not a plane, but two planes of varying directions. This decision gave all that portion of the Contact vein along the apex from the point v to the line gh extended westerly in its own direction down to the vertical plane through the line fg to the New Year's Extension. This amount according to the scale was more than 100 feet of apex.

The Circuit Court of Appeals affirmed the general principle, but fixed the northerly end line plane of the Providence along the line gh extended in its own direction both westerly and easterly. It

1 For the effect of the common law presumption, see Iron Silver M. Co. v. Elgin M. Co., 118 U. S. 196; Jones v. Prospect M. Co., 31 Pac. Rep. 642; Consolidated M. Co. v. Champion M. Co., 63 Fed. Rep. 540, 550.

* Walrath v. Champion M. Co., 63 Fed. Rep. 552, 558.

3 Walrath v. Champion M. Co., 72 Fed. Rep. 978.

gave that portion of the Contact vein along the apex from the point v to the line g h extended westerly in its own direction, to the Providence, and in consequence all that portion of the vein upon its dip went to the Providence.1 That portion of the apex just described lies outside the surface lines of the Providence. The Supreme Court concurred in the general principle and affirmed the ruling of the Circuit Court of Appeals. But since Walrath alone appealed the Supreme Court had no jurisdiction to reverse the decision as to the portion of the vein last mentioned.

Prior to these decisions, the only ruling upon this question was a dictum of Judge Field in Iron Silver M. Co. v. Elgin M. Co.3 And when the dictum is closely examined it simply says that the rights of the locator for all veins in his location cannot go beyond the planes of his end lines. It does not affirm, what Judge Hawley thought it did, namely, that the right of the locator upon every vein in his claim extended up to the end lines.

It will be useful to consider the law of apex as adjudicated in various other decisions in regard to single veins in a claim. Under the laws of 1866 and 1872, the locator obtains no extra-lateral or other rights upon any portion of the vein, whose apex is outside the surface lines of his clain.5 It was never before suggested that there could possibly be a case contrary to this rule. If the apex crossed both end lines and between those lines was, for any part

1 By a reference to the line claimed by the Providence, as shown in the diagram, it will be seen that the Providence made no claim to that portion of the apex. 2 Walrath v. Champion M. Co., 171 U. S. 293, 312.

3 118 U. S. 196, 209. It is apparent that the Justice was combating the doctrine contended for in the dissenting opinion of Chief Justice Waite and Justice Bradley, to the effect that the end lines of a mining location, regardless of the end lines marked by the locator, are to be fixed by the court by projecting parallel end lines crosswise the general course of the vein at the extreme points where the apex leaves the location as marked on the surface. However easy of application such a rule would be to a vein having a substantially straight onward course, it was a practical impossibility as applied to the vein in that particular case, for the course of the apex described a "horse-shoe." See 118 U. S. 203, for the diagram. It may be conceded that Judge Field amply demonstrated the weakness of the view of his dissenting brethren, but in the eagerness of argument he enunciated a general principle as controlling a most difficult question which was not being argued before the court and which it was not necessary to decide, for there was no question in the case involving more than one vein in a single claim.

4 See 63 Fed. Rep. 558, where the language of Judge Field is quoted.

5 Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 91, decided at the same time as the case of Walrath v. Champion; and singularly enough the Walrath case reaffirms the other case.

of it, continuously along its strike within the claim, the whole of the vein on its dip belonged to the claim within the end line planes. If, however, the apex departed over a side line and then returned to the claim, no extra-lateral or other right existed as to that part of the vein apexing wholly outside of the claim.2

The case just put is one of end lines fixed by the locator. But there are cases where one or both end lines must be projected by the courts according to the equity of the statute.

(a) If the apex crosses both side lines, those side lines become end lines, but in a case where the apex crossing both side lines courses or strikes more with the length of the claim than across it, i. e.. if the angles made with the side lines are less than forty-five degrees, it is said that end lines parallel to the located end lines are to be drawn at the points where the apex departs from the side lines of the claim. (b) If the apex crosses an end line and a side line, the end line crossed is one end line and the other end line is to be drawn parallel thereto at the extreme point of apex departure on the side line, and this rule is applied to every such case. (c) If the apex crosses an end line and is terminated in the claim, the crossed end line is one end line, and another end line parallel to it is drawn at the point of termination. (d) If the apex crosses in and out of the claim on the same side line, end lines parallel to the located end lines are drawn at the points of final departure. (e) If the apex crosses neither line of the claim, it is suggested that end lines be drawn parallel to the located end lines, giving the locator

1 There are cases of an apex split along the strike of the vein by a side line. In such cases the older location takes the whole vein. Bullion M. Co. v. Eureka M. Co., 5 Utah, 3; Empire State M. Co. v. Bunker Hill M. Co., 114 Fed. Rep. 417; 106 Feb. Rep. 471; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478 (dictum).

2 Waterloo M. Co. v. Doe, 82 Fed. Rep. 45.

3 Flagstaff M. Co. v. Tarbet, 98 U. S. 463; King v. Amy M. Co., 152 U. S. 222; Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55. The second case cited in this note is opposed to the cases cited in the next note.

4 Last Chance M. Co. v. Tyler M. Co., 61 Fed. Rep. 559; Consolidated M. Co. v. Champion M. Co., 63 Fed. Rep. 540. See the language of Brewer, J., 171 U. S. 90, 91, confirming this point.

Del Monte M. Co. v. Last Chance M. Co, 171 U. S. 55, 91, citing several decisions. 6 Brewer, J., 171 U. S. 89.

7 Carson City M. Co. v. North Star M. Co., 73 Fed. Rep. 597, affirmed 83 Fed. Rep. 658.

8 St. Louis M. Co. v. Montana M. Co., 104 Fed. Rep. 664, citing the former decision

in the same case, 102 Fed. Rep. 430. Catron v. Old, 23 Colo. 441, contra, no longer authority.