tion of the claim as is the apex of the discovery vein. The statute does not say so. The decisions heretofore made certainly do not so require. The three propositions deduced from these decisions do not logically lead to that doctrine. While, as we have said, there is no decision upon the exact point, yet we think there are cases, in addition to those already cited, which necessarily lead to this conclusion, among which are Cons. Wyoming G. M. Co. vs. Champion M. Co., 63 Fed., 540, 546. While this court, in Catron vs. Old, 23 Colo., 433, criticized this case, it did not do so as to the point now under consideration. It was with reference to the doctrine of comparative direction of the lode, which left to the jury, as a question of fact, whether a vein extends more along, than across, the claim, that the criticism went; and we there said this introduced an element of uncertainty which, if possible, should be avoided. . . .

"Our conclusion is that for all veins, both discovery and secondary, of a patented claim, the owner has extralateral rights, at least for so much thereof as apex within the surface lines; that such rights as to secondary veins are not confined to such veins as apex within the same segment of the claim in which the apex of the discovery vein exists; and while the end lines of the location, as fixed and described in the patent, are the end lines of all veins apexing within the surface boundaries, and may constitute the bounding planes for such extralateral rights, and in no case can the locator pursue the vein on its dip outside the surface lines beyond such planes continued in their own direction until they intersect such veins, yet these bounding planes, which in all cases must be parallel to the end lines, need not be coincident.”

The reasoning of this decision is eminently sound and in accord with the general tendency of the interpretation of the mining statutes by the Supreme Court. Consequently, there is every reason to believe that if this situation ever comes before the Supreme Court, the doctrine of the Colorado case will be upheld.

Rule. A "secondary" vein is allowed extralateral rights within the entire area between the original end lines of a claim in which the "discovery" vein crosses one end line and one side line although the "discovery" vein may not extend the full length of the claim and as to it extralateral rights are bounded by a vertical plane through the end line it crosses and another parallel therewith through the point where the "discovery" vein leaves the claim across the side line.

VEIN OUTCROPPING ON BOTH SIDES OF A SIDE LINE

Another situation about which disputes have arisen is where a lode outcrops on both sides of a side line between two claims. Is the vein divided between the two claims, or does one get it

all? This is settled in the case of Argentine, etc., Co. vs. Terrible, etc., Co., 122 U. S., 478, in which the court says:

"Assuming that on the same vein there were surface outcroppings within the boundaries of both claims, the one first located necessarily carried the right to work the vein."8

One of the leading cases in the lower courts on this situation is Last Chance, etc., Co. vs. Bunker Hill, etc., Co., 131 Fed., 579. There is no diagram given in the report of this case, but one of the same properties is given in Empire, etc., Co. vs. Bunker Hill, etc., Co., 114 Fed., 417, which is reproduced herewith in Fig. 75. In the decision the court observes:

FIG. 75. Plat of the claims and vein in Empire, etc., Co. vs. Bunker Hill, etc., Co. 114 Fed., 417, from the decision.

"The findings and diagram annexed to the opinion of the court below show that the vein or lode, in question, is a very wide one, and crosses both end lines of each of the plaintiff in error's patented claims, Viola and San Carlos, the common side line of these two claims being entirely on the vein or lode. The Viola, being the older of the two locations, would, under the doctrine of the St. Louis, etc., Co. vs. Montana, etc., Co., 44 C. C. A., 120, 104 Fed., 664, and like decisions there cited, be entitled, in pursuit of its extra

8 St. Louis, etc., Co. vs. Mont., etc., Co. 104 Fed., 664; see also Bullion, etc., Co. vs. Eureka, etc., Co., 5 Utah, 3, 11 Pac., 515; Empire, etc., Co. vs. Bunker Hill, etc., Co., 131 Fed., 591; U. S., etc., Co. vs. Lawson, 134 Fed., 769; Last Chance, etc., Co. vs. Bunker Hill, etc., Co., 131 Fed., 579.

TYLER

lateral rights, to the entire width of the vein underground within its bounding planes."

Rule. The whole of the dip of a vein which outcrops on both sides of a side line between two claims belongs to the senior location.

The reason for this rule is well stated in United States Circuit Court of Appeals as follows:

9

"This is so because it has been the custom among miners, since before the enactment of the mining laws, to regard and treat the vein as a unit and indivisible, in point of width, as respects the right to pursue it extralaterally beneath the surface; because usually the width of the vein is so irregular, and its strike and dip depart so far from right lines, that altogether it is impracticable, if not impossible, to continue the longitudinal bisection at the apex throughout the vein on its dip or downward course; and because it conforms to the principle pervading the mining laws, that priority of discovery and location gives the better right.

BROAD VEIN CROSSING BOUNDARY AT AN ANGLE

A situation analogous to the one discussed above arises where a vein of considerable width crosses the side line between two claims at an angle. As we have seen, under the discussions of veins which cross one end line and pass out of the claim across a side line,10 a plane parallel to the end line is dropped through the intersection of the vein and side line to limit the extralateral rights on such vein. But what shall be the exact location of this line: at the point where the middle line of the vein crosses the side, or at some other point? This question has not been before the Supreme Court, but has been decided by the United States Circuit Court of Appeals for the ninth circuit in St. Louis, etc., Co. vs. McCoy, 104 Fed., 669. This is the same property that was in litigation in Montana, etc., Co. vs. St. Louis, etc., Co., 102 Fed., 430, and the dispute this time is over the rights to the Drum Lummon lode which, as shown in Fig. 71, p. 215, crosses the side E-C at an angle. The vein covers this line from F to G, a distance of 25 ft., and the question is, where should the end line for the Drum Lummon lode be placed: at G or at F? The opinion of the court is as follows:

"The defendant in error maintains that the words 'top or apex' cannot be construed to mean 'top or apex or any part thereof,' and that, under the United States M. Co. vs. Lawson, 134 Fed., 769.

10 Ante, p. 207 et sq.

strict construction necessary, extralateral rights would not follow when the whole of the apex was not within the surface lines. If this be the correct view of the language of the statute, manifestly neither party herein would be entitled to pursue the vein in depth between the 108-foot plane and the 133-foot plane, since the apex of the vein between those points, while crossing the side line, is not wholly within either claim. For the purposes of illustration, suppose the vein were regular and vertical for the 25 feet between the two planes mentioned, crossing the side line at the same angle. The boundary rights between the parties could not then be determined by the application of a vertical plane extending to the center of the earth along the side line, and 25 feet in horizontal width, since that would be constructing an end line to that extent, and there is no authority in the statute or in the decisions for any such actions. It might be said that the vein could be equitably cut by a plane parallel with and midway between the 108 and 133-foot planes, thus bisecting the portion of the vein in controversy, and giving half of the disputed ground to each claim. But neither is there any authority for such a determination by the court. It would seem, therefore, that by some rule the entire 25 feet should be construed to apex in one of the locations. And as, where the rights of two mining locators are apparently equal with respect to mining ground, the element of priority of location is controlling, preference being generally given to the senior locator (Argentine, etc., Co. vs. Terrible, etc., Co., 122 U. S., 478, 484, 7 Sup. Ct., 1356, 30 L. Ed., 1140), the entire vein would be given to the plaintiff in error. If this be the true doctrine when a vein is vertical, why should there be any change in its application when the vein dips? . . . therefore, the only deduction which can be made from the foregoing views is that inasmuch as neither statute nor authority permits a division of the crossing portion of the vein, and the weight of authority favors the senior locator, the entire vein must be considered as apexing upon the senior location until it has wholly passed beyond its side line."

This interpretation of the statute has been followed in other cases in which this situation has been present, so that it is a wellsettled principle of mining law.

Rule.

Where a vein crosses a boundary line between two claims at an angle, the senior location takes the whole of the vein on the dip for the entire length that such vein or any part thereof is contained within the boundary of such senior claim.11

VEINS UNITING ON THE DIP

The situation in which veins that are separate on the surface afterward unite as they pass downward into the earth, but the apexes of which are found in different claims, is met by section

11 Bunker Hill, etc., Co. vs. Idaho, etc., Co., 106 Fed., 471; Snyder on Mines, sec 308 et sq

2336 of the United States Revised Statutes, the provisions of which we may adopt for the following

Rule. Where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection.

Under this plain provision of the statute it is hardly possible that any litigation could arise, but the principle has been appled incidentally in the cases cited below.12

FIG. 76.

- Generalized structure of the Comstock lode.

An example of veins uniting on the dip.

From Stretch; Prospecting, Locating and Valuing Mines.

CROSS VEINS

The closely related question of cross veins is provided for by the same section, 2336, of the statutes, which is:

"Where two or more veins intersect or cross each other priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection; but the subsequent location shall have the right of way through the space of intersection for the purpose of the convenient working of the mine."

There are two possibilities under this section: (1) Where the veins cross or intersect each other on their strike, whether such intersection occurs at the surface or at some depth below the surface and the junior location overlaps the senior location;

12 Colorado, etc., Co. vs. Turck, 50 Fed., 888; Consol., etc., Co. vs. Champion Min. Co., 75 Calif., 78; Omar vs. Soper, 11 Colo., 380; Lee vs. Stohl, 13 Colo., 174; Roxanna G. M. Tunneling Co. vs. Cone, 100 Fed., 168.