single anticline may be regarded as the top or apex of the vein, and extralateral rights exist upon such vein in opposite directions. The answer to these questions must be found in an interpretation of that portion of the mining act which contains the grant of extralateral rights, and which reads as follows: confusing mass of conflicting boundaries. In locating a claim the locator may lay his lines upon or across portions of prior existing claims in order to secure parallelism of end lines, and thus secure to himself extralateral rights. Del Monte Case, 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72. "The locators of all mining locations ** While a locator, prior to patent as well as shall have the exclusive right of possession and after patent, may have no greater extent of enjoyment of all the surface included within the extralateral rights than the extent of the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the vein within the boundaries of his surface top or apex of which lies inside of such sur- rights (2 Lindley, § 574), he may, prior to face lines extended downward vertically, al- patent, have his extralateral rights determinthough such veins, lodes, or ledges may so far ed by planes parallel to planes passing depart from a perpendicular in their course downward as to extend outside the vertical side through his located end lines, even though lines of such surface locations. But their right one or both of such located end lines are of possession to such outside parts of such veins or ledges shall be confined to such por- upon the surface ground of contiguous prior tions thereof as lie between vertical planes claims owned by other parties. This is the drawn downward as above described, through rule of the Del Monte and other cases. the end lines of their locations, so continued in What reason, then, can exist in support of a their own direction that such planes will intersect such exterior parts of such veins or ledges. proposition that because such owner obtained And nothing in this section shall authorize the a patent for his claim he must forfeit extralocator or possessor of a vein or lode which ex- lateral rights because in his application for tends in its downward course beyond the vertical lines of his claim to enter upon the surface patent he excludes areas in conflict with of a claim owned or possessed by another." Sec- prior claims, resulting in patented surface tion 2322, U. S. Rev. Stats (U. S. Comp. St. boundaries of irregular shape. There is, it 1913, § 4618). seems to us, no reason why such a thing should be. Certainly the securing of a patent to a location ought not to leave a locator with less rights than he had before. That the mining laws are to be liberally construed in favor of the locator is a proposition now too well settled to need a citation of authorities. To hold that, simply because the boundaries of the surface of a patented claim are so irregular in shape as not to present parallel end lines, due to exclusions of conflicts, extralateral rights are lost is to place upon the statute a construction contrary to its purpose, as that purpose has frequently been enunciated. Lawson v. U. S. M. Co., 207 U. S. 1, 28 Sup. Ct. 15, 52 L. Ed. 65; 2 Lindley, 584. The following diagram shows the relative position of the surface boundaries of the patented West End location: MENAMARA WEST END JIM BUTLER Even if this is a more liberal construction of the statute than is warranted, which we think it is not, nevertheless, so far as this particular case is concerned, it cannot, we think, be said that the patented surface area of the West End claim does not present parallel end lines. The end lines 1, 8, and 4, 5, are each part of the original located end [1] The location would embrace a full lines. They should, we think, still be considclaim 1,500 feet by 600 feet, excepting for the ered end lines, and the true end lines of the excluded area embraced within the two tri- patented claim. To so hold requires that the angles 3, 3a, 4, and 7, 7a, 8. The lines 4, 5, line 3, 4, be regarded as a side line rather and 1, 8, are parallel. While the plat and than as a part of a so-called broken end field notes, accompanying application for the line. We think it should be so regarded. patent, are not in the record, it is probable Side lines are not required to be parallel. that they would disclose that the surface No rule can well be applied governing coursboundaries of the claim as located would in- es and distances of side lines other than clude the two triangular pieces of ground that they shall not be so laid as to increase above mentioned, and that the same were ex- the statutory width or length of a claim. cluded from the patent application because The line 1, 8, is conceded to be an end line. in conflict with prior existing locations. In But if the line 4, 5, is not also an end line, every great mining district locations are but rather a part of a broken end line, it is made from time to time in every direction, drawing a rather fine distinction to say that be said to have an apex. The vein is in the form of a single anticlinal fold, and the precise question presented by a vein in such form appears never, heretofore, to have been determined. Counsel for appellant, in their brief, say: end line, and that the lines 7, 8, and 8, 1, are not. The difference is only in the degree of the angle and the length of the lines-a difference which has no reasonable basis upon which to support a distinction. We think the ruling that the line 4, 5, is the westerly end line of the West End claim finds support in both reason and authority. Walrath v. Champion M. Co., 171 U. S. 293, 18 Sup. Ct. of terminal edge of a vein and downward 909, 43 L. Ed. 170. [2] We come now to a consideration of the question whether extralateral rights exist upon a vein in the form of a single anticlinal fold. It is the contention of counsel for appellant that such rights do not exist, for the reason, among others alleged, that the federal statute does not contemplate extralateral rights in opposite directions. It is the contention that only veins dipping in the same direction as the discovery vein may be followed extralaterally; that where within the same location a secondary vein is found dipping in the opposite direction as that of the discovery vein, extralateral rights thereon cannot be enjoyed. We think the statute is not susceptible of this construction. The statute gives to the locators"the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines * * although such veins, lodes, or ledges may so far depart from the perpendicular in their course as to extend outside the vertical Iside lines of such surface locations." Congress manifestly contemplated that the locator of a mining claim might discover more than one vein within his surface boundaries, and provided that he should have "all veins, lodes and ledges, throughout their entire depth." But it is contended that the concluding portion of the section, limiting extralateral rights between "vertical planes drawn downward through the end lines so continued in their own direction" negatives an intent to permit extralateral rights in opposite directions, because the words "in their own direction" relate to but one direction, that of the dip of the discovery vein. We are unable to see the force of this contention. The direction of an end line depends upon which end of the line it is viewed from. The courses given in a patent of the two end lines of a claim usual ly, and doubtless invariably, are in opposite directions. It would be a strained construction, and one, we think, not within the letter or spirit of the statute, to hold that end lines may be considered as having but one direction. If a vein in the form of a single anticlinal fold may be said to have an apex, we think there is nothing in the statute which militates against extralateral rights upon such vein in opposite directions, the same as though it were two veins with separate apices, instead of one vein. [3] The most serious question presented in this case is whether the vein in question may "The definition of the term 'apex' as employed in the mining statute involves the elements course extending therefrom. According to this definition, the horizontal sheet 'a' on figure 3 here inserted and the anticlinal fold 'b' have no apices, while the synclinal fold 'c' has two apices. " It is apparent that no extralateral rights could attach to a horizontal vein, as represented in sheet "a," because such vein has no "course downward" as prescribed in the statute. Such a vein has a top, if not an apex, in the strict sense of that word, and will support a valid location. Why a synclinal fold should be said to have two apices and an anticlinal fold have none is not so easy to find a reason for, unless we accept as conclusive appellant's contention that a terminal edge is essential to a true definition of the word "apex" as used in the statute. The words "terminal edge" are not used in the statute, nor have they been of universal use in defining an apex. The great majority of veins have terminal edges, and in all such cases the apex of the vein is its terminal edge. If veins in the form of a single anticlinal roll were the rule rather than the rare exception, we are of the opinion that a contention that a terminal edge was essential to an apex would be as rare as the char "In the light of the rules announced in the previous articles, if a given mineral deposit is the lode has a top, or apex, and provides for the in place, it is a lode. The law assumes that A lode without an apex is not contemplated, It and no provision is made for locating it. cannot be located under the placer laws, because these laws apply only to deposits not in place, and before it can be legally located as a lode, the apex, or top, must be found. If a location is made on the side or on the dip, whoever discovers and properly locates the apex will be entitled to enjoy the full rights accorded to regular valid lode locations, and the rights of those who have located on the side edge, or dip, must yield. The arisen in connection with certain flat, or 'blanmost serious difficulty in defining the apex has ket' deposits, which have been judicially determined to be lodes within the meaning of the statutes. It is often quite impracticable to fix properly constitutes the apex. It is true that upon any exposure of such a deposit which after a lode patent is issued, the existence of an apex within the patented ground will be conof the vein in dispute. Nor will it be conclusiveclusively presumed, but not necessarily the apex ly presumed that any particular exposure of the vein is that apex. It must still remain a question of proof." Lindley on Mines, vol. 1 (3d Ed.) § 305. acter of the vein now in question. It has, the terminal edge of the latter, should be been repeatedly said by courts and text- held to constitute an apex. The distinguishwriters that the words "top" and "apex” | ed counsel for appellant in his great work on were not a part of the miner's terminology Mines, says: prior to the adoption of the federal mining statutes. They were words used by legislators to convey the intent of the framers of the statute. There is no controversy regard-acquisition of title by location upon this apex. ing the general purpose and intent of the mining statutes. The government as a matter of public policy was interested in the development of the mining resources of the nation. It offered to the prospector and miner the most liberal reward for his enterprise in discovering and developing the hidden treasures of the earth. It gave him the exclusive possession of the surface of every valid location made, placed no limit upon the number of such locations; gave him all veins, lodes, and ledges throughout their entire depth, the top or apex of which were within his surface lines. It exacted no price for the land as a condition precedent to mining operations, and placed no restrictions upon him that were not consistent with the public purpose, such as requiring a minimum of annual labor as an evidence of good faith. To say that a miner fortunate enough to discover a valuable vein in the Can it be said with reason that a vein in form of a single anticline shall not have extralateral rights upon each limb of his the form of a single anticlinal fold was not vein because, forsooth, the summit or crest intended to be the subject of a location withof the anticlinal fold does not present a in the meaning of the mining statutes beterminal edge, as is the case of the ordinary cause it does not possess a terminal edge? form of a fissure vein, in our opinion would It is conceded that it is a vein or lode, and "All valuado violence to the spirit, if not the very let- it is well settled that it is one. ter, of the statute. The well-settled policy ble mineral deposits of the courts is to construe the statutes lib-free and open to exploration and purchase" erally in the interest of the miner. It has is the language of the statute. Rev. St. U. S. been determined that if the locator by in- § 2319 (U. S. Comp. St. 1913, § 4614). The advertence places his location crosswise in- federal statutes clearly contemplated that stead of lengthwise of his vein, he does not the vein in question was subject to location, lose his extralateral rights, but his side lines for it made no exclusions of veins of any parwill be regarded as end lines, and vice versa. ticular character. If a vein without an apex So, too, if his vein crosses an end and a is not contemplated, and no provisions made side line, he will be given a new side line for for locating it, as the distinguished author purposes of determining the extent of his ex- says, then it follows as a necessary conclutralateral rights. So, too, in the matter of sion that the vein in controversy has an apex. discovery, the first essential to a valid loca- If it has an apex, there is no other possible tion, the extreme liberality of the courts, has place for it to be than at the crest of the been manifested in hundreds of cases. anticlinal fold. If a locator finds his surface boundaries embrace the apices of two or more valuable veins, he is simply fortunate the same as the locator whose single ledge is more valuable than the one of his neighbor. The statute makes no distinction between rights of locators based upon the value of the discoveries. Such distinctions are not within the policy of the statute. The only difference between a vein in the form of a single anticlinal fold and the ordinary fissure vein is that the former has a crest, the limbs of which dip in opposite directions, while the latter has a terminal edge and a dip in but one direction. But this distinction presents no difference such as would violate the purpose of the statute if the crest of the former, like * * are It is contended, however, that the Supreme Court of the United States is committed to the view that a terminal edge is essential to an apex of a vein or lode, and the recent case of Stewart Mining Company v. Ontario Mining Company, 237 U. S. 350, 35 Sup. Ct. 610, 59 L. Ed. 989, is cited in support of this contention. In that case, Mr. Justice McKenna, speaking for the court, said: "An apex is, on cited authority, defined to be 'all that portion of the terminal edge of a vein from which the vein has extension downward in the direction of the dip.' And it is further said that the definition has been approved in Lindley on Mines, because, as therein expressed, it involves the elements of terminal edge, and downward course therefrom.' We may accept the definition. In its application, however, it immediately encounters a question of fact-the locality of the terminal edge; and in this case the state courts did not find it to be where plaintiff asserted it to be." The court in the Stewart-Ontario Case did "accept the definition" of apex to be the terminal edge of the vein. The vein in controversy in that case had a terminal edge, and there was no occasion to consider whether the definition given was comprehensive. The Idaho court, from which the case was reviewed, on error, had determined that that which the Stewart Company claimed was an apex was only the side of the vein where the vein on its strike was cut off by a fault. The Idaho court was sustained. See same case, 23 Idaho, 724, 132 Pac. 787, and Stewart M. Co. v. Bourne, 218 Fed. 327, 134 C. C. A. 123. As said by Chief Justice Marshall, in the celebrated case of Cohens v. Virginia, 6 Wheat. at page 399, 5 L. Ed. 257: "It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." This maxim has been reiterated times almost without number. It is applicable to the Stewart-Ontario decision. The definition was sufficient for the question involved in that case; otherwise we may assume the question would have been given more consideration than the laconic sentence, "We may accept the definition." Judge Hawley, in Book v. Justice Mining Co., 58 Fed. (C. C.) at page 121, in reference to the definition of a vein or lode, said: "Various courts have at different times given a definition of what constitutes a vein, or lode, within the meaning of the act of Congress; but the definitions that have been given, as a general rule, apply to the peculiar character and formation of the ore deposits, or vein matter," etc. The Idaho court, in the Stewart-Ontario Case, supra, at page 737 of 23 Idaho, page 792 of 132 Pac., speaks of the definition of the word "apex" as follows: the apex of the house, and not the chimney or flagstaff. Again, an apex is a point from which the vein has a dip, as well as strike, or course, else it confers no extralateral right." Where a vein has a terminal edge its apex is a point from which, or a line along which, is its strike, and from which it has a dip, but this is equally true of the crest of a vein in the form of a single anticlinal fold. Counsel for appellant quote the following definitions from text-writers in support of the terminal edge theory: "Conceiving a vein or lode to be an intrusive found in the mass of the mountain, the apex sheet of mineralized matter of varying thickness of a vein is thus seen to be that edge of the sheet which shows on the surface of the location, though apex naturally suggests point. It is or is nearest to the surface. It is not a point, not a line, though it has the full extension of the upper edge of the lode. It is the whole surface of the upper edge of the vein, with all the width and length which that edge has." Costigan on Mining Law, 139, 140. insufficient to establish the apex without the "The mere fact of proximity to the surface is evidence that it is the upper edge or end of the vein." Mines and Mining, p. 442. Barringer and Adams, The Law of "In the mathematical sense, an apex means the highest point; but it is not used in this sense in the statute. As used therein, it means the edge or termination of the vein which comes to the surface of the earth, forming an outcrop, earth when the vein terminates before it reaches It may not be the highest point of a vein, as such highest point may be found in a swell of the vein." Shamel-Mining, Mineral & Geological Law, 193, 197, or which comes nearest to the surface of the the surface. * * "The top or apex of a vein or lode is the highest point thereof, and may be at the surface of the ground or at any point below the surface; the end or edge of a vein nearest the surface.' Mines and Minerals, 27 Cyc. 537. face." Raymond, Glossary of Mining and Metal"The end or edge of a vein nearest the surlurgical Terms. Trans. Am. Inst. M. E. vol. 9, p. 102. It is quite manifest, we think, that all the definitions quoted are considering the ordinary form of vein. Definitions given by text-writers are uually based on court decisions, and like such decisions are to be considered with reference to the facts upon which they are based. From section 306 of Lindley on Mines, we quote: "Webster defines an apex to be 'the top, point, or summit of anything." Compilers of dictionaries which have made their appearance since the act under consideration was passed have "The definitions of the word 'apex' as used in not been particularly lucid in their definitions. the statute (section 2322, U. S. Rev. Stats.) all For instance: Standard Dictionary: (1) The reach the one inevitable conclusion that it is pointed or angular end, or highest point, as of a the highest point in the vein (Flagstaff Silver pyramid, spire, or mountain; extreme point; Min. Co. v. Tarbet, 98 U. S. 469, 25 L. Ed. tip; top. (2) The vertex of a plane or solid 253; 9 Morr. Min. Rep. 607; Lindley on Mines angle. (3) The highest point of a stratum; as 12d Ed.] §§ 305, 309; Costigan on Mining Laws, a coal seam.' Century Dictionary: (1) The 137, § 35; Duggan v. Davey, 4 Dak. 110, 26 tip, point, or summit of anything. In geometry, N. W. 887; 17 Morr. Min. Rep. 59; Del Monte the angular point of a cone or conic section. Min. Co. v. Last Chance Min. Co., 171 U. S. The angular point of a triangle opposite the 55, 18 Sup. Ct. 895, 43 L. Ed. 72; 19 Morr. base. (2) In geology, the top of an anticlinal Min. Rep. 370), but this is only a general defini- fold of strata. This term, as used in United tion, and its application to any particular vein States Revised Statutes, has been the occasion or peculiar location may, and often will, call of much litigation. It is supposed to mean for further particularity of description. It something nearly equivalent to outcrop; but must be the top or terminal edge of the vein on precisely in what it differs from outcrop has the surface or the nearest point to the surface, not been, neither does it seem capable of being, and it must be the top of the vein proper rather distinctly made out.' Evidently the courts even than of a spur or feeder, just as the highest now can receive but little assistance from the point in the roof of a house would be taken to be lexicographers." 158 P.-56 It appears, however, that the Century Dictionary, in an effort to give a comprehensive definition, regards "the top of an anticlinal fold of strata" as an apex. Counsel for appellant, in their brief, say: some localities, with no hanging wall or even cap, in others covered with shale, the lime body extending throughout the Illinois, the Calamity, the Andy Johnson, Brush Heap, and locations west and south of the Illinois, as well as possibly other mines. That this body or mass, zone, "Probably the most interesting and instructive or lode of lime was broken or cut up into fisof all the adjudicated cases is the pioneer case sures, gashes, pockets, veins, etc., and these * in fact, we of Duggan v. Davey, 4 Dak. 110, 26 N. W. 887. spaces filled with mineral The decision of the Supreme Court of Dakota might accept either of the theories advanced by follows, in the main, the opinion given by the geologists and mineralogists as to the formation trial court. It is a lucid and masterly presen- of the rock or deposit of mineral, and there tation of the law; and, while an anticlinal roll would yet be nothing to prevent our reconciling was not there involved, several expressions of that theory with the verdict of the jury in this the court are well worth quoting in support of cause, that there was neither a vein nor an apex our contention that a terminal end or edge of upon the Illinois mine, or at least such a vein as a vein is an essential element of apex definition. could be followed beyond the side lines of that "The definition of the top or apex of a vein usualThere may be a contact, and yet no ly given is "the end, or edge, of a vein nearest The mineral may be exposed at the surface." * Justice Goddard, a jur- a point upon one claim and followed continuousist of experience in mining law, in his charge ly under the surface from this point to another to the jury in the case of Iron Silver v. Louis-property, though an undisputed vein between ville, defines "top" or "apex" as the highest, clearly defined hanging and footwalls, and still or terminal, point of a vein "where it approach the point at which the mineral is exposed not es nearest the surface of the earth, and where be the apex of the vein which may have an it is broken on its edge, so as to appear to be apex 10 miles distant, or may have no apex at the beginning or end of the vein." Some expressions of the court used just prior to the language last quoted are instructive: * "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 whereever, 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 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 vein or lode." In the Duggan v. Davey Case, the question was whether an exposed side of a vein, caused by erosion or some other agency, upon which locations were made, constituted the apex of the vein. The question was substantially the same as that involved in the Stewart-Ontario Case, supra. The same contention appears to have been made in this case, based upon the fact that the westerly portion of the vein within the West End claim, by some titanic eruption of the earth's surface, had been cut off, leaving a sharply defined, but irregular, broken edge. The case of Illinois S. M. Co. v. Raff, 7 N. M. 336, 34 Pac. 544, is cited by counsel for appellant as "a case possessing many points of similarity to the case at bar." In that case the court said: "We can recognize the definition of a vein as given by Judge Hallett in Hyman v. Wheeler, 15 Mor. 519, and still see that the jury in this cause might from the evidence have determined that here was a vast bed, lode, zone, or mass of mineral-bearing lime, with no footwall and, in claim. contact vein. all. * The facts before the New Mexico court were so different from those of the case at bar that we think the case affords little aid in determining the question here. Our attention has been directed to definitions of the word "apex," given in instructions to juries by Judge Hallett in the case of Iron Silver M. Co. v. Murphy (D. C.) 3 Fed. 368, and by Justice Miller in the case of Stevens v. Williams, Fed. Cas. No. 13,413, both cases growing out of the peculiarities of the Leadville ore deposits. Referring to the character of these ore deposits, Lindley, at section 300, says: "The blanket deposits at and in the vicinity of Leadville, Colo., have given rise to most of the controverted questions on the subject of 'lodes,' 'veins,' 'inplace,' 'top,' and 'apex'; and the the first instance fell to the lot of Judge Halburden of solving many of these difficulties in lett. His decisions have furnished the text for other courts, in other jurisdictions, where analogous conditions have been, to a limited extent, encountered." Again, in section 311, the author says: law, the flat deposits of Leadville have produced "As in almost all other phases of the "mining their full quota of adjudicated law on the subject of 'tops' and 'apices.' As these deposits are legally held to be veins, or lodes, of rock in place, subject to mineral location, the law contemplated that they should have apices." illustrative of the Leadville formation, none The section includes a number of figures of which present any similarity to the vein in controversy here. Justice Miller instructed the jury relative to the facts in the Stevens Case, supra, among other matters, as follows: "The top or the apex of a vein, within the meaning of the act of Congress, is the highest point of that vein where it approaches nearest to the surface of the earth, and where it is broken |
