workings of the mines, testified, in general, that the fractured, stained, and brecciated conditions appeared to such an extent upon the surface and in the open cuts of Lot 38, as to furnish unmistakable evidence of the apex of a vein; that the vein was so clearly defined upon the surface, and so distinctly differentiated from the adjacent country, that its boundaries could readily be traced throughout the length of that lot, and be recognized by mere observation; and that the indications showed the apex to be so wide that it overlapped the side-lines of that claim." . . . The court then reviews the testimony of a number of witnesses for the defense. Next it observes that the witnesses for the plaintiff "say, with at least equal emphasis, that no such differentiation exists; that there are no indications of a vein or apex on Lot 38, north of the point where the Cunningham stope crosses its west side-line, which is about 90 ft. south of the Silveropolis south end-line extended; that apart, from the dike material, the limestone, north of that point, within Lot 38, is not any more broken and brecciated than in the adjoining country to the east and west; that neither the calcite, the calcspar, the iron seams, the iron stains nor the fracturing or fissuring is any more abundant within the limits of that lot north of that point, than for a long distance to the eastward and westward; that wherever, in that belt, the surface of the rock is exposed, by erosion or otherwise, there appear innumerable seams, cracks, small fractures, or fissures, running in every conceivable direction, filled with calcite, stained more or less with iron, in instances containing some manganese; and that in many places the surface material is brecciated and re-cemented. . . . "In determining whether the finding of the court was warranted by the evidence, it is important to consider what constitutes a vein or lode. It will hardly be contended that, merely because rock is broken, crushed, shattered, and even fissured, it constitutes a vein within the meaning of the laws of Congress. All miners of any experience, as well as men of scientific research, know that such occurrences may be found in the most barren country. Something more is necessary to dignify that kind of material with the character of a vein or lode. The material, whatever else may be its condition, must be metalliferous- must contain some kind of mineral of value, so as to distinguish it from the country rock; and especially is this true where there are no well-defined walls. "Fissure veins have many characteristics. They are the fillings of fissures or openings of the country rock; they contain different kinds of material, in some respects corresponding with, in others differing from, the country rock; the most common material being quartz. The fissures have selvages and slickensides, and the gangue material is generally easily distinguished from the country rock. . . . erals. "Fissure veins are simple or banded according to structure as to minSome continue in the same direction; others are irregular and change their courses. Some have a continuity of ore, while others are barren in places, and still others are faulted. The appellant, as we have seen from the testimony, claims the vein in dispute is continuous in the same direction; the respondent that it changes its course and is faulted. The books tell us that vein-making fissures have been formed, by contraction on drying, as in an argillaceous stratum, or on cooling from fusion, or from heat attending metamorphism; by subterranean movements, pre-eminently those that have attended mountain making, by the disruptive or expansive action of vapors resulting from volcanic action; and by corroding vapors, or by solutions from the deep which sometimes enlarge the fissure, especially where the rock is limestone. Fissures formed through volcanic action, and enlarged by corroding solutions and vapors, are deep-seated and frequently contain large cavities. That the vein in question was so formed by such action and solutions or vapors appears from the testimony, as we have already observed. It will be perceived that to define the word 'vein,' that represents a thing of so many and varied characteristics, is a matter attended with difficulty. Especially is this true if such definition, in view of the statutes which deal with mineral-bearing veins only, is to convey an accurate idea of the thing itself. . . "We do not thus interpret the law. What may constitute a sufficient discovery toward a location of a claim may be wholly inadequate to justify the locator in claiming or exercising any rights reserved by the statutes. What constitutes a discovery that will validate a location is a very different thing from what constitutes an apex to which attaches the statutory right to invade the possession of, appropriate the property which is presumed to belong to an adjoining owner. The question of a sufficient discovery of a vein, or the validity of a notice of location upon which the cases, cited by the appellant on this point, are authority is substantially different from the one relating to the continuity of a vein on its depths from the apex, and which tests the rights of the undisputed owner of the surface to what lies underneath and within his own boundaries. "It is the object and policy of the law to encourage the prospector and miner in their efforts to discover the hidden treasures of the mountains, and therefore, as between conflicting lode claimants, the law is liberally construed in favor of the senior location, but where one claims what, prima facie, belongs to his neighbor, because of an apex in the claim and its location, a more rigid rule of construction against the claim prevails, and, as we have already observed, he has the burden to show not merely the vein on its dip may include the ore-bodies in adjoining ground, but that in fact it does so include them. Until he establishes such fact beyond reasonable controversy, he has no rights outside his side lines in another's ground. . . . "Reverting to the characteristic of a vein or lode, it appearing from the definitions above quoted that its filling must consist of a body of mineralbearing rock, what value such material should contain is a matter not devoid of difficulty, and no standard of value applicable to all such cases has yet, and probably never will be, devised. It must necessarily depend upon the characteristics of the district or country in which the vein or lode, in particular instance claimed to exist, is located, and upon the character, as to boundaries, of the vein itself. If the country rock, or the general mass of the mountain, outside of the limits of the vein, is wholly barren, slight values of the vein material, as before stated, would seem to satisfy the law; but if, on the other hand, the rock of the district generally carries values, then undoubtedly, the values, in the vein material, where the boundaries of the vein are not well, or not at all, defined, either on the surface or at depth, should be in excess of those of the country rock; else there can be no line of demarcation, nor, where the rock is generally broken, shattered and fissured, anything to separate it from the adjacent country. Values, therefore, of the filling of a vein, must be considered with especial reference to the district where the vein is found. It is likewise as to a definition of a vein or lode. . . . "It is true, the appellant claims the open-cuts and the working at depth are substantially all in vein material; but, as we have seen in the judgment of the appellant's witnesses, broken, shattered, and fissured limestone, or crushed and brecciated matter, no matter how barren, constitutes vein material, although such matter and conditions exist, without any defined boundaries, many hundreds of feet to the east and west of Lot 38, in fact throughout that limestone area, so far as it was examined by witnesses, and with no more mineralization than is contained in the general mass of the mountain for more than a thousand feet to the east and west, or through the limestone belt. Is it not difficult to perceive how such material, in the absence of both a hanging- and foot-wall, can be regarded as a vein? Are not the essential characteristics of a vein or lode absolutely wanting? In the absence of the very elements which constitute a vein, as defined by the highest court of our country, how can we hold a vein exists? There appears to be no mineralization in excess of that contained in the country rock; the existence of no body of mineral or mineral-bearing rock in any opening or fissure established. . . . "It will be observed that the only place where ore, in any considerable quantity, and unmistakable vein matter are found in connection with the dikes is in the immediate vicinity of the ore-channel where it passes through them. Yet, if the appellants' theory that the vein passes through the Finn dike on its dip were well founded, we would expect to find evidences of it passing through it at other points along its strike. "It seems perfectly intelligible that, when the mineral-bearing solutions ascended from the deep and circulated through the main fissure or series of fissures, they were, by pressure or other of nature's processes, forced through the crushed and shattered rock and loose brecciated material, and that by the metasomatic action of the solutions, the mineral was deposited as far as the rock or material was thus physically prepared for the passage of those solutions. The evidence shows that the rock, at the junction of the dikes and where the vein passed through them, was so prepared, and this accounts for the strong mineralization in that vicinity, and for large ore-bodies, in places like those of the Betsy and the Klondike stopes, leading out from the main fissure or ore-channel. . . . "Upon careful review and extended discussion of the testimony relating to the underground workings and explorations, and upon deliberate consideration of the main geological features disclosed by the evidence, it seems clear that this great ore-channel was formed by the mineral solutions from the deep coursing through a fissure or series of fissures deflected from a northerly course at the Cunningham stope to a northwesterly course, and then again, near the Bradley-Consort line, to a more northerly course; that the channel and deposition of ore along its entire length resulted from the same causes and the same processes of nature; that the vein passed through the dikes on its strike and was faulted; and that the ore-bodies in controversy are on its strike and not on its dip, and belong to the owners of the Silveropolis and Consort mining claims. "It is insisted for the appellant, however, that a 'lode, within the meaning of the statute, is whatever the miner can follow with a reasonable expectation of finding ore'; that, though he sees no ore, yet, if he sees gangue and vein-matter, he discovers the lode; and that whatever material would be sufficient to render valid the location thereon would be sufficient evidence of apex to justify one in following therefrom downward, beyond the sidelines of the location, in the same kind of material and beneath the surface of his neighbor's property." This decision has received very favorable comment in mining periodicals; and its conclusions seem to be sound. The distinction noted in the latter part between the amount of mineral that is sufficient to validate a claim as a "discovery" and the greater amount required when one owner claims mineral beneath the surface of another's property by reason of extralateral rights is worthy of attention. INSTANCES OF ORE-BODIES CONSIDERED BY THE COURTS AS NOT BEING VEINS IN THE LEGAL SENSE 9 It is of as much practical importance in mining litigation to know what is not a vein, within the meaning of the statute, as to know what is. Consequently I give below some citations from the leading cases in which what is not a vein is discussed. In a California case the deposit in dispute was, "a thin seam of gravel cropping out between an underlying bed of slate rock and an overlying bed of lava rock," and on pursuing the same into the hill "the said deposit was a well-developed channel varying from a few inches to 8 and 10 ft. in thickness, and from 8 or 10 to 40 ft. in breadth, with a well-defined bed and side-walls of slate rock, and capped by a thin stratum of clay with an overlying body of lava rock for hanging-wall." The deposit was inclined about 8 deg. from the horizontal. This deposit the California court decides was not a vein or lode in the legal sense but a placer deposit. Gregory et al. vs. Pershbaker, 73 Calif., 109. In a New Mexico case 10 the court says: "There may be a contact, and yet no contact vein. The mineral may be exposed at a point upon one claim and followed continuously under the surface from this point to another property, through an undisputed vein between clearly defined hanging- and foot-walls, and still the point at which the mineral is exposed not be the apex of the vein which may have an apex 10 miles distant, or may have no apex at all. It would be the height of foolishness for a court in New Mexico, with our mineral-bearing lime formation extending with the different mountain ranges from Colorado to Old Mexico, to say that mineral cannot be found in lime at a thousand feet depth, or on the surface with a cap of slate or a contact of porphyry.” After the above not very clear discussion the court proceeds to deny to the deposit the apex rights of a vein. The decision is certainly in conflict with some of the decisions cited above, which define affirmatively what a vein is. The court was struggling with the inherent difficulty of applying the Statute of 1872 to the replacement and contact deposits which are so often found in the Southwest. In an Idaho case the court negatively defines a vein as follows: "It must be remembered that every seam or crevice in the rock, even though filled with clay, earth or rock, does not constitute a vein, nor every ridge of stained rocks, its cropping. Nor, on the contrary, is it required that well-defined walls shall be developed or paying ore found within them. But something must be found in place, as rock, clay, or earth so colored, stained, changed, and decomposed by the mineral elements as to mark and distinguish it from the inclosing country. In a California case the court says: "It is not enough to discover detached pieces of quartz, or mere bunches of quartz not in place." 12 In another case 13 the court says, in relation to the ore deposits: "Looking, then, at this metalliferous zone as a whole, at the point where the claims in question lie, it is impossible to find clearly defined boundaries. There is, however, such a zone there, and there is, no doubt, a limit beyond which the rocks are not impregnated with silver, which limit is at present not clearly ascertained. Having such a zone or district, when we find within it 10 Illinois Silver and Min. Co. vs. Raff, 7 N. M., 336. 11 Burke vs. McDonald, 2 Idaho, 646. 12 Jupiter Min. Co. vs. Bodie Consolidated Min. Co., 11 Fed., 666. |