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erence to the known, or "discovery" vein also side lines for all other veins?

This question was finally settled in Walrath vs. Champion Min. Co., 171 U. S., 293, in which the court quotes its decisions on the various situations previously stated and then says: "These propositions we affirm with the addition that the end lines for the original veins shall be the end lines of all the veins found within the surface boundaries." This settles the law of the

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FIG. 73. Map of claims, veins, etc., in Walrath vs. Champion Min. Co., from the decision.

situation in question, although it has been discussed again incidentally in some subsequent cases."

Figure 73 reproduced from the report of the case, shows the shape and situation of the respective locations and the veins.

6 Walrath vs. Champion Min. Co., 63 Fed., 552; Walrath vs. Champion Min. Co., 72 Fed., 978; Cosmopolitan Min. Co. vs. Foote, 101 Fed., 518; St. Louis Min. & Mill Co. vs. Montana Min. Co., 104 Fed., 664.

The Providence was a consolidation of 31 locations made in 1857 under the miners' rules and customs then in force. In 1871 a patent was obtained for the property under the law of 1866. By this patent, rights were granted only on the known or discovery lode which is called on the map "Granite or Providence" ledge; but upon the passage of the law of 1872 the right to all other veins apexing in said location became vested in the owner thereof by virtue of a special provision of said statute.

Afterward, the "Back or Contact" lode, as shown on the plat, was discovered. The dispute arose between the owners of the Providence property and the "New Year's Extension" as to the rights of the respective party on the dip of the "Contact" lode. The owners of the New Year's Extension claimed that their rights were bounded by a vertical plane through the line v-v which was a prolongation of their south end line. On the other hand, the Providence owners claimed that their rights on the vein extended to the vertical plane through the line f―g-g', on the theory that this line became an end line for the Contact vein because it was crossed by this vein.

But the Supreme Court refused to adopt the views of either party and decided that the line g-h-h' which was crossed by the "discovery" or Providence lode was the end line for the new or "secondary" lodes as well as for the original lode, so that the rights of the respective parties were bounded by a vertical plane dropped through this. This was a confirmation of the decision of the United States Circuit Court of Appeals. This decision has been criticized, as regards the location of the legal end line made by the court. It is certain that it is not in harmony with later decisions as to the location of the end line when a vein crosses a boundary line of a claim which is not an end line. These later decisions, however, were concerning locations made and patented under the law of 1872, so that perhaps on this ground they may be distinguished from the decision in the above case. All this, however, does not affect in the least the authority of the decision as to "secondary" veins and their rights.

Rule. The end lines for the original or discovery vein are also the end lines for all other or "secondary" veins apexing in

7 16 Harv. Law Rev., 94

the claim even though such secondary veins cross the side lines of the claim instead of its end lines.

This rule, that the end lines for the original or discovery lode are also end lines for all other or "secondary" lodes apexing in the claim, taken in connection with that regarding a vein crossing an end line and a side line, gives rise to the possibility of a dispute as to rights under a situation which arose in the case of the Ajax, etc., Co. vs. Hilkey, 31 Colo., 131, 72 Pac., 447. The decision states the case and conclusion reached so clearly, and the reasoning is such a fine example of what a legal discussion should be, that we cannot do better than reproduce the diagram Fig. No. 74 accompanying the case and give all of the decision

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FIG. 74. Plat of claims and veins in Ajax, etc., Co. vs. Hilkey, from the decision.

relating to the subject. The point before the court was one of the instructions given to the jury in the lower courts. The Supreme Court of Colorado says:

"Both parties agree that by it the jury were, in effect, told that if the discovery vein of a lode mining claim on its strike departs through a side line, no extralateral rights attach to any other vein apexing within the claim beyond the point of such departure. .

"The apex of the discovery vein of the Victor Consolidated is represented by b, b.' It enters the claim at the south end line, and its course in the main runs parallel with the claim as surveyed, but passes out through the east side line, about 1000 feet from the south end line. a, a' is the vein which, as contradistinguished from the discovery vein, we call the secondary vein, which the evidence tended to show passes diagonally across the location, entering it through the west, and leaving it through the east side line. The Triumph claim is correctly delineated on the map. If the ore taken from the underground workings of the Triumph was taken from any vein apexing

DISC

within the Victor Consolidated, as some of the evidence tended to show, it was from this so-called secondary vein. Stating the contention again, in a concrete form, the jury were told if the discovery vein of the Victor Consolidated crossed the east side line at c, then the rights of the plaintiff to ore outside of its surface boundaries in any vein having its apex therein is limited to two parallel bounding planes, one drawn through the south end line 1, 4 of the location, as originally established, and the other passing through the claim at the point where the discovery vein leaves the east end line and parallel to the south end line at c, c'. The north end line, or bounding plane, of this right is the dotted line c, c', and the south bounding plane the south end line of the location 1, 4. Plaintiff's extralateral rights as to all veins within the surface lines were, by this instruction, restricted to that part of the claim south of the line c, c', and in that part between this line and the north end line of the claim he was given none whatever, though about 500 ft. of the apex of the secondary vein was found in this latter segment.

"The three propositions of the law said to be established by the decisions, of which the fourth one stated by appellees is said to be a necessary corollary, are:

"1. There can be but one set of end lines or bounding planes for a single location, and these limit the extralateral right upon all lodes or veins apexing therein.

"2. These end lines or bounding planes are determined by the strike of the discovery vein with reference to the located side and end lines of the claim. "3. Where the apex of the discovery vein passes through one end and one side line the extralateral right upon such vein will be bounded by a vertical plane drawn downward through the crossed end line and another vertical plane parallel thereto, but operating at the point where the apex leaves the side line.

"The fourth proposition they thus express: "The necessary logical sequence of these propositions is, that where the discovery vein on its strike departs through a side line, no extralateral rights attach to any other vein apexing within the claim beyond the point of such departure.'

"Since appellant concedes the first three propositions, there is no necessity for discussing them or citing the authorities upon which they rest. But the alleged deduction therefrom appellant vigorously combats, and that presents the question for our decision. We first observe that that part of appellees' argument to the effect that where a location is laid across, instead of along, the discovery vein, the end lines become the side lines of the location, and the side lines become the end lines, is not pertinent to anything now before us, and in so far as the deduction depends on such proposition, it is without support. There is no dispute between counsel as to this doctrine of shifting of side and end lines, in the case supposed, but it is wholly inapplicable here, for the Victor Consolidated location is laid along the course of the discovery vein, and this vein enters the claim through the south end line, and passes out under the east side line. Besides this, the location is patented, and there is authority for saying that its end lines, as chosen by the locator and described by the patent, are, for all purposes and under all circumstances, to be taken as the fixed end lines.

"But conceding the correctness of all three propositions, as to which the counsel upon both sides are in accord, we cannot agree with learned counsel for appellees in their ingenious argument that the fourth proposition, which they must establish in order to sustain the instruction complained of, is a logical sequence of either, or all, of the others. It is quite true that there can be but one set of end lines for one location, and these must perform that function not only for the discovery vein, but for all other veins apexing within the surface lines. (Del Monte M. & M. Co. vs. Last Chance M. & M. Co., 171 U. S., 55; Walrath vs. Champion Mining Co., 171 U. S., 293, 297, 308.)

"This, however, does not mean that all such veins have exactly the same extralateral rights, nor can it be said that only so much of a secondary vein as apexes within that part of the claim where the apex of the discovery vein is found has such rights. In the Walrath case, supra, which was twice before the Circuit Court of Appeals (63 Fed., 552; 72 Fed., 978) and once before the Supreme Court of the United States, there are some expressions in the opinions of the Circuit Court of Appeals from which, taken alone, it might be inferred that under facts like those here present, the owner of a claim would have extralateral rights in the discovery vein even beyond the point where, on its strike, it leaves the side line, and that the bounding planes, within which such rights are to be exercised, must be drawn through the two end lines. But appellant makes no such contention here, and is content with extralateral rights in the discovery vein only up to the point of its departure from the east side line, so that, for our present argument, we assume that to be the true doctrine.

"The end lines constitute a barrier beyond which a locator cannot follow a vein on its strike, whether it be a discovery or secondary vein, and they also limit the bounding planes within which his extralateral rights are to be exercised in following such vein on its dip. In exercising such extralateral rights the locator cannot, in any case, pursue the vein on its dip beyond the bounding planes drawn through the end lines, but, as we have said, appellant is content to be restricted in the exercise of such rights in the secondary vein to planes drawn parallel to the end lines and passing, the one through the claim at the point where the vein enters, and the other where it departs from, the surface line of the location. The extent of the right depends upon the length of the apex, and the extralateral rights are measured not necessarily by the end lines and only so when the vein passes across both end lines but by bounding planes drawn parallel to the end lines passing through the claim at the points where it enters into, and departs from, the same.

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"It would seem, therefore, necessarily to follow that the extralateral right depends, inter alia, upon the extent of the apex within the surface lines, and while the end lines of the claim as fixed by the location are the end lines of all veins apexing within its exterior boundaries, the planes which bound such rights of different veins may be as different as the extent of their respective apices, though all such planes must be drawn vertically downwards parallel with the end lines. It makes no difference in what portion of the patented claim the apex is. Its extralateral rights under this rule can easily be ascertained. The apex of a secondary vein need not be in the same por

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