(209 P.)

The physical features of the case are fairly set forth in the opening brief of appellant, from which we quote, with some elision, as follows:

"It is conceded that the apex of the Tom Reed vein extends through the Grey Eagle claim from end line to end line, this portion of the Tom Reed vein being described as the Grey Eagle vein in the complaint, and is so labeled on certain of the exhibits. It was also conceded that the apex of the same vein was found crossing the common end line between the Grey and Bald Eagle claims, and that this apex continued on within the Bald Eagle claim for a distance sufficient to cover all the ore bodies in question in depth. In other words, there was sufficient length of apex of the Tom Reed vein conceded to exist within the Bald and Grey Eagle claims, so that, if extralateral rights attach to such apex, it would embrace all the ore bodies in controversy beneath the surface of the Big Jim claim.

"This situation will appear from the plat here inserted for illustrative purposes (Exhibit No. 20). The relative position of the Grey and Bald Eagle and Big Jim claims appears thereon. The apex of the Tom Reed vein is also shown in solid black. There is indicated in lighter hatched lines the position of the so-called Mallery fault where it comes to the surface, the significance of which constitutes one of the features of this case. The series of numbered parallel lines crossing the claims indicates the position of certain cross-section map exhibits introduced by the Tom Reed.

"The defendant did not seriously question any of these facts, except the width of the Tom Reed vein. The Tom Reed vein dips steeply in the direction of the Big Jim claim. The Mallery fault, on the other hand, dips steeply in the opposite direction, that is, toward the apex segment of the Tom Reed vein, and intersects and cuts off the Tom Reed vein in the vicinity of the 600 level of the Tom Reed workings. This fault is what is known as a normal fault; that is, the block of ground on the hanging wall side of the fault moved down with relation to the foot wall block, so that after the apex segment of the Tom Reed vein was dislocated at the 600 level one has to proceed upward along the fault for a little over 400 feet before finding the main downward continuation of the Tom Reed vein. It is this dislocation which has given rise to this lawsuit; the Tom Reed Company contending that it is entitled to the faulted segment of the Tom Reed vein, and the United Eastern Company claiming that this faulting has been so great that it has destroyed the right to follow the Tom Reed vein beyond the fault.

"The faulting was not a single and simple feature, but the movement took place along different planes of breaking, so that there exists between the two main segments of the Tom Reed vein quite a considerable portion of the vein which the Tom Reed referred to throughout the trial as the intermediate' or 'second' segment; the apex segment being referred to by them as the 'apex' or 'first' segment, while the large faulted segment existing beneath the Big Jim surface was described by them as the 'third' segment. On the other hand, the United Eastern referred to the apex segment as the

[Tom Reed vein, the intermediate segment as
the 'side line vein,' and the third segment as the
'Big Jim vein.' The existence of this interme-
diate segment between the other two segments
reduces the magnitude of the faulting, or rath-
er the distance which one has to follow along
the fault before reaching faulted portions of the
Tom Reed vein." This intermediate segment
is found on section 21 "practically in conjunc-
tion or juxtaposition with the third segment,
and continuing in a northerly direction along
these various sections this intermediate seg-
ment is found progressively to have broken fur-
ther and further away from the third segment,
until in the northernmost sections (Tom Reed
cross-sections 29-35), it is found to occupy an
intermediate position, or a position practically
halfway between the two main segments, so
that the dislocation between the apex seg-
ment and the intermediate segment on the one
hand, or the intermediate segment and the third
segment on the other, is approximately the
same distance, namely, about 200 feet, or one-
half the total amount of dislocation between
the two main segments."

Concerning the distances separating the veins, we may remark that according to one of appellant's witnesses the Big Jim and Grey Eagle veins are nowhere closer than 350 feet. On one cross-section, the distance along the fault from the bottom of the Grey Eagle vein to the top of the Big Jim vein is 400 feet, and horizontally from the top of the Grey Eagle to the top of the Big Jim 350 feet; on another section, it is 420 feet from the bottom of the Grey Eagle to the top of the Big Jim vein, and the shortest distance between these veins is 345 feet; on another, the distance from the bottom of the one to the top of the other is 430 feet, and the horizontal distance 420 feet.

On the issues made by the complaint and the answer of the defendant, which included a cross-complaint, the case was tried before the court without a jury, and the court of its own motion made findings of fact and gave judgment for the appellee, quieting its title to the Big Jim vein and to such portions of the side line vein as apexed under the surface of the Big Jim claim, and the whole of such portions of this vein where the apex is bisected by the common side line, with appurtenant extralateral rights, and adjudged to the appellant such parts of the side line vein only, with extralateral rights, as apexed wholly within the ground of appellant. From these findings we quote the following:

"The court finds that within the premises in question there exist at this time three separate and distinct veins or ore bodies, namely, the Tom Reed vein, the side line vein, and the Big Jim vein. These veins are permanently separated, have been so separated for many centuries, and each of them possesses an individuality of its own. The only physical connection that they ever had in the past ages was that each of these veins or ore bodies at some time in the distant past constituted a part of one

286

ant.

(Ariz.

From the evidence of the geologists the court below gave the following explanation of the formation of the veins in question:

At

"At some time in the past, when hot waters Were percolating and circulating through the openings of the rocks, the early fault fissures of the Oatman district were mineralized, and when these faults became mineralized they then become what are known as veins. some time later, when strain was developed in the rocks by other causes, there was a recurrence of faulting, and at this later time the movements dislocated and passed through the cause the faulting which created the Mallery older fault, which had become mineralized. Bewhen the temperature was not high, mineralizafault occurred at a later time and at a time tion did not take place, and, for that reason, Therefore we have what is known as the Mallery fault is simply a fault, instead of a vein. systems; the older system, which was minerestablished in the Oatman district two fissure alized, as exemplified by the Tom Reed vein, claims of the plaintiff, and the later system, which traverses the Grey Eagle and Bald Eagle which is not mineralized, as exemplified by the Mallery fault."

The court further said:

main fissure or vein system, which was dis- | possible to ascertain the extent of the horizonrupted by the Mallery fault. So far as the tes- tal movement at the time of the formation of timony in this case shows, it would be impossible the Mallery fault." for any geologist, either by positive knowledge or through the agency of geological projections, to locate the actual physical continuation of the Tom Reed vein. This same condition exists as to the Big Jim vein, with reference to the ore which at one time constituted the upward extension of this vein. The Tom Reed or Grey Eagle vein is wholly within the ground of the plaintiff, has its apex within the ground of the plaintiff, and is owned by the plaintiff. The Big Jim vein is wholly within the ground of the defendant, has its apex within the ground of the defendant, and is owned by the defendThe side line vein is partly within the ground of the plaintiff and partly within the ground of the defendant, and part of its apex is within the ground of the plaintiff, a part is in the ground of defendant, and a part of its apex is bisected by the common side line of plaintiff and defendant. This vein is secondary or accidental in character, and is of minor importance in comparison with the other two veins in question. As Mr. Hershey very aptly remarked during his testimony, this ore body 'lagged behind' when the Mallery fault was formed. A part of this side line vein is owned by plaintiff, and a part of this vein is the property of the defendant. That part of the vein which has its apex wholly within the ground of the plaintiff is the property of the plaintiff. That part of the vein which has its apex wholly within the ground of the defendant, and where the apex is bisected by the common side line is the property of the defendant. The ore beneath the surface of the Big Jim claim cannot be reached by following the Tom Reed vein from its apex in the manner outlined and limited by section 2322 of the Federal Statutes. This section of the Federal Statutes is the legal authority and criterion for the exercise of extralateral rights. Furthermore, commencing anywhere on the dip of the Big Jim vein, if said vein were extended upward to the surface, the apex of this vein would still be entirely within the surface lines of the Big Jim claim. There are no ore bodies within either the Grey Eagle or Bald Eagle claims that may be followed in the manner outlined and limited by section 2322 of the Federal Statutes which would lead into and connect with the ore bodies which constitute the Big Jim vein. * "The plaintiff introduced a great deal of Among convincing testimony as to identity. other things, it proved that the ore is abruptly cut off and exists on opposite sides of the Mallery fault, that the strike and dip of the various ore bodies are very similar, that the vein filling is virtually the same, that the wall rocks are similar, and that, on the hanging wall side of the Mallery fault the ore is bent upward while on the foot wall side of this fault The court held that the deposits constitutit is bent downward. But the plaintiff did not identify the ore which is located beneath the ed distinct, separate, and different veins at surface of the Big Jim claim as the continua- the present time, whatever their connection may have been as a part and parcel of the tion of its vein known as the Tom Reed vein, same general fissure and vein system in the which stops abruptly against the Mallery fault on the 600-foot level of the Grey Eagle and prehistoric past, and that therefore the exBald Eagle claims. This identity and continuity tralateral right claimed by the appellant beof the Tom Reed vein within the plaintiff's cause of its ownership of the surface ground, ground into the ground of the defendant was which included the apex of the Grey Eagle not proven, and could not be proven, if for no other reason than because it would be im-vein, to follow and mine the side line and

"The court is of the unqualified opinion that at some time in the dim and distant past the ore bodies beneath the Tom Reed property and the ore bodies beneath the United Eastern property were once connected as a part and parcel of the same general fissure and vein system, but this court has no information as to just how many thousands or how many millions of years have elapsed since that condition existed, but that it at some time in the past did exist seems to be the opinion of all the expert witnesses on both sides. But when the faulting occurred as the result of the formation of the Mallery fault there was not only a downward displacement of approximately 430 feet, but there was a horizontal movement, the extent of which is not known, and the best proof which could be introduced as to the size of the horizontal component would be nothing more than a wild guess. For instance, there is nothing before this court that any part of the vein along the 600 level within either the Grey Eagle or Bald Eagle claims was ever attached to any part of the top of the vein as found at the 200 level within the surface of the Big Jim claim. About the only testimony on this point was to the effect that the horizontal movement was greater than the downward displacement."

(209 P.)

Big Jim veins within the ground of
lee could not and did not exist. The follow-
ing propositions were enunciated:

appel- | ledges throughout their entire depth, the tops or apices of which lie inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side line planes of such locations, within the ground beneath the surface lying between the vertical end line planes extended in the direction of the dip of such veins.

soon.

upon the question are but few in number, same plane, they are found again; and there may there would seem to be no reason to doubt be spots or short spaces where the overhangthat the excerpts we have quoted state the ing wall and the under-floor rock exist while. true rule, which is that no extralateral right the mineral deposit is not present, but on folexists to a vein, lode, or ledge beyond the lowing the fissure or trend it reappears very point where in its course outside the claim of such instances by keeping in mind that the The jury will be sufficiently guided in apex it becomes flattened and extends from vein or lode must be continuous only in the thence horizontally in a departure from the sense that it can be traced by the miner through approximate general plane of the vein in its the surrounding rocks; that is, slight interrupdownward course, or for any considerable tions of the mineral-bearing rock are not alone distance takes an upward trend. Appellant sufficient to destroy the identity of a vein; nor does not, indeed, contend that the extralater would a short, partial closure of the fissure al right is not so conditioned, and gives lip vein, if, a little further on, it appeared or recurhave the effect to destroy the continuity of a service, at least, to the rule in the following red again, with mineral-bearing rock in it. language, which we quote from its brief: Where both mineral and fissure close, come to an end, and are not found again in that direction, or, if found at all, are so far off from its original trend or line, or appear under difthe tracing of the vein, or so diverted from ferent geological conditions and surroundings, the jury would be warranted in finding that the continuity was broken, and that the lode, therefore, was not the same; but, where well-defined form hanging wall and floor, and extending on boundaries, characterized by a generally unia like general plane or dip, exist, slight evidence of ore may establish the existence of a lode."

"There is nothing contained in this [the statutory language] which in any way militates against the right of an individual to follow up

ward along a fault or other barren material in order to reach a faulted edge of his vein so that he may continue mining on that vein in its course downward. In following these several faulted segments, nowhere is the miner mining upward on the vein. At every point he is following the vein as it exists on the various segments on its downward course."

It seems very plain that this contention perverts the language, meaning, and reason of the rule. It is not necessary, however, that we elaborate further here on the question. The contention so made is in fallacy intimately correlated with a much broader and even more untenable claim made by appellant, of which we shall speak later.

[3] (2) The vein to which the extralateral right is claimed must be the same vein, and in order to be such it must be practically continuous in its downward extension.

The best statements and expositions of this rule that can possibly be given are found in the language of the courts which have passed upon the question, which include the clear and preceptial utterances of juridical masters of our mining law. In Cheesman v. Shreeve (C. C.) 40 Fed. 787, at page 793, the following language is used by Judge Philips:

"In general, it may be said that a vein or lode is a body of mineral or of mineralized rock in place, within defined boundaries, in the general mass of the mountain. The vein which the miner pursues from its outcrop must, of course, be the same which he pursues outside of his side lines. Such vein need not, however, be a straight line, of uniform dip or thickness, or richness of mineral matter, throughout its course and length. Generally speaking, veins are found, when the mineral is extracted, in what constitutes clefts or fissures in surrounding walls, with a well-defined or traceable hanging wall, or roof above and foot wall below, of different kinds of rock. So long as the inclosing walls can be continually traced, and like mineral matter found therein, no doubt can exist that it is the same vein; but sometimes these clefts diminish so as to be scarcely perceptible, and, again, for a short distance, these fissures disappear to the eye and touch of the explorer, and then, a little further on, on the

In Iron Silver Mining Co. v. Cheesman, 116 U. S. 529, 6 Sup. Ct. 481, 29 L. Ed. 712, the court, speaking through Justice Miller, uses the following language:

"Certainly the lode or vein must be continuthe surrounding rocks, though slight interrupous in the sense that it can be traced through tions of the mineral-bearing rock would not be alone sufficient to destroy the identity of the vein. Nor would a short partial closure of the fissure have that effect if a little farther on it occurred again with mineral-bearing rock within it."

In Hyman v. Wheeler (C. C.) 29 Fed. 347, Judge Hallett instructed the jury that:

"A body of mineral or mineral-bearing rock, in the general mass of the mountain, so far as ruption, may be regarded as a lode, whatever it may continue unbroken, and without inter

the boundaries may be."

Further:

"In that view of the evidence, it may be important to consider and determine whether there is a fissure exposed in the several openings of the mine as asserted by the plaintiff; and, if you find that such fissure exists, whether it is practically continuous and unbroken between strata of blue and brown lime from an outcrop in the Durant claim to the Emma ground below. With such a fissure extending in that way, even if it be narrow, and carry ore only slight in quantity, and at considerable intervals, the case of the plaintiff may be regarded as established."

In Iron Silver M. Co. v. Murphy (D. C.) 3 Fed. 368, the same judge said:

"But I draw your attention to that theory, and say to you that if the vein or lode was formed in the way supposed, in connection

(209 P.)

with a much larger extent of the same matter, and this part, detached from another, was brought into its present position by some movement of the country, occurring after the lode was deposited, that circumstance will give it unity and individuality as distinguishing it from every part to the west of it. And, if that theory be correct, the occurrence of ore or gangue on the western face of the limestone is not material, for the uplifted part lying on the upper face or plane of the limestone to the eastward, having been detached from the mass of which it was originally a part, gains by that circumstance a new end or terminal point, by which it may be held. In that view the fissure, if any, on the western face of the limestone, occurring after the other in point of time, has a distinct character of its own, and if it carries ore may be taken and held as a distinct lode."