order to secure extralateral rights by means of parallel end lines, is so closely connected with the apex law that it should be treated in connection therewith. It was first passed upon directly by the United States Supreme Court in Del Monte Min. Co. vs. Last Chance Min. Co., 171 U. S., 55. The court states the question as follows:

"May any of the lines of a junior lode location be laid within, upon or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extralateral rights not in conflict with any rights of the senior location?”

After quoting the various statutes that may be regarded as having some bearing, the court continues (p. 74):

"The stress of the argument in favor of a negative answer to this question lies in the contention that by the terms of the statute exclusive possessory rights are granted to the locator. . . . We are not disposed to undervalue the force of this argument and yet are constrained to hold that it is not controlling. . . . It may be said that the statute gives to the first locator the right of exclusive possession; that in entry upon that territory with a view of making a subsequent location and marking on the ground its end and side lines is a trespass, and that to justify such an entry is to sanction a forcible trespass, and thus precipitate a breach of the peace. But no such conclusion necessarily follows. . . . If the end lines are not parallel, then, following their planes downward his rights will be either converging and diminishing or diverging and increasing the farther he descends into the earth. In view of this purpose and effect of the parallel end lines it matters not to the prior locator where the end lines of the junior location are laid. No matter where they may be they do not disturb in the slightest his surface or underground rights.

"For these reasons, therefore, we are of opinion that the first question [The one stated in the preceding citation from this same case] must be answered in the affirmative." 10

However, such overlapping lines only give extralateral rights when the placing of such lines is not done against the consent of the owner or forcibly, surreptitiously, or otherwise fraudulently," or provided no "forcible entry" is made."

10 Bunker Hill, etc., Co. vs. Empire, elc., Co., 100 Fed., 538; Davis vs. Shepherd, 72 Pac., 57; 31 Colo., 141; Tonopah, etc., Co. vs. Tonopah, etc., Co., 125 Fed., 400; Empire, etc., Co. vs. Bunker Hill, etc., Co., 131 Fed., 591; Crown, etc., Co. vs. Buck, 97 Fed., 462; Bunker Hill, etc., Co. vs. Empire, etc., Co., 108 U. S., 194; Bunker Hill, etc., Co. vs. Empire, etc., Co., 134 Fed., 268.

11 Empire, etc., Co. vs. Bunker Hill, etc., Co., 131 Fed., 591 (600); ibid., 114 Fed., 417 (410); Cosmos, etc., Co. vs. Gray Eagle, etc., Co., 112 Fed., 4: Cowell vs. Lammers, 21 Fed., 200; Nevada, etc., Co. vs. Home, etc., Co., 98 Fed., 673; Hosmer vs. Wallace, 97 U. S., 575; Mower vs. Fletcher, 116 U. S., 380; Nickals vs. Wren, 17 Nevada, 188; McBrown vs. Moris, 59 Calif., 72.

12 Davis vs. Shepherd, 31 Colo., 141, 72 Pac., 57.

Rule.

The securing of extralateral rights by means of boundary lines laid so as to overlap older locations is legal, but can only be accomplished when there is no objection by the owner of such older location.

If he objects, the securing of extralateral rights by means of parallel end lines must be accomplished in the best manner the circumstances permit under the rules and principles relating to extralateral rights of veins.

A valid mining claim cannot be initiated by the commission of a trespass.13

If an area of well situated but unoccupied ground should be found containing enough mineral to make it locatable under the provisions of the law as explained herein, it may be worth while to locate such ground even though it does not contain the apex of any vein containing payable ore. For, under the common-law principle, it would have the right to all ore beneath its surface which was not contained in veins apexing in some other claim; and in a region of rich deposits this might give a valuable right to some rich body of ore.

If the owner of the senior location neglects to do his assessment work, this does not of itself operate to transfer the territory covered by a junior location to it; but, if the owner of the junior location wishes to claim the part of the senior claim that he overlaps, he must file an amended location certificate including it.14

LEGAL PRESUMPTION IS THAT OWNER OF MINING CLAIM OWNS ALL MINERAL BENEATH HIS SURFACE EXCEPT AS EXPRESSLY PROVIDED OTHERWISE BY STATUTE

The presumption is that the locator of a mining claim owns. all the mineral within his surface lines extended vertically downward, unless a paramount right is proved to exist in the owner of some other claim by reason of a vein apexing in such other claims. In Duggan vs. Davey, 26 Northwestern, 887, the court

says:

13 Traphaagen vs. West, 77 Pac., 58 (Mont.); Clipper M. Co. vs. Eli M. Co., 194 U. S., 220; 24 Sup. Ct., 632, 48 L. Ed., 944; Atherton vs. Fowler, 96 U. S., 513; Trenouth vs. San Francisco 100 U. S,. 251; Haws vs. Victoria, etc., M. Co., 160 U. S., 303; Cosmos, etc., Co. vs. Gray Eagle, etc., Co., 112 Fed., 4 (16).

14 Gurney vs. Brown, 77 Pac., 357; Johnson vs. Young, 18 Colo., 625; Morrison's "Mining Rights," pp. 97, 113; Contra, McPherson vs. Julius, 95 N. W., 428.

"Let us consider, therefore, the nature and incidents of the title acquired by possession, location, and patent of mineral lands.

'The common-law rule is familiar. The ownership and possession of the soil extended to the center of the earth, and usque ad cœlum, and included everything upon its surface and within its bosom. We find that the thing, the substance of which the United States Statutes treats, is 'lands valuable for minerals,' and that it is for the disposition of these 'lands' that provision is made in chapter 6 of the Revised Statutes. It is the 'lands' in which mineral deposits are found which are 'open to purchase.' It is 'land' claimed and located for valuable mineral deposits which is the subject of application for patent, and where patent of United States issues, it is for the 'land,' at so much per acre. The definition of 'land' given in our territorial statute is concise: 'The solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance.' In the absence of anything in the statute to the contrary, we think it might well be concluded that one becoming the owner or possessor of any of these lands would hold them with and subject to all the incidents of ownership and possession at common law. It should be borne in mind that before the enactment of any statute recognizing and regulating his possessory rights, the mining locator, as between himself and the United States, was technically a mere trespasser upon the public domain; and that even although he might have conformed in his location to the rules and customs adopted in the mining district in which his claim was situated, yet, so far as any legal right existed to hold his claim against a new-comer, that right rested upon possession merely; hence the statute. (Rev. St. U. S., sec., 910.)” 15

In the case of Doe vs. Waterloo Min. Co., 54 Fed., 935, the court says:

"It is entirely true that whoever takes a grant of a lode claim takes it subject to the provision of the statute reserving to locators of other mining claims the right to follow under its surface, for the purpose of extracting the ore therefrom, any vein, lode, or ledge, the top or apex of which lies within the surface lines of such other location. (Rev. St., sec. 2322.) But until some one comes clothed with that reserved right, the holder of a government patent or certificate has, I think, the just and legal right to say, 'Hands off of any and everything within my surface lines extending vertically downward.' The mere possessor of a mining claim under license from the Government would have that right; a fortiori, the holder of a conveyance from the Government . . .

"Except as modified by the statute, no reason is perceived why one who acquires the ownership or possession of such lands should not hold them with and subject to the incidents of ownership and possession at common law.”

Also in the case of Parrott, etc., Co. vs. Heinze, 64 Pac., 326, the court says:

15 See p. 91

"Under the provisions of the statute, as they have been construed by these and the other cases heretofore cited, it is only the locator, or his successor or a patentee, who has any right to follow a vein into the boundaries of an adjoining owner; and the latter, holding under a location or patent, is prima facie entitled to everything beneath his surface. He may assert this prima facie title to prevent intrusion by any one who cannot show that he comes with the right acquired by a compliance with the provisions of the statutes." 16

Consequently the owner of a valid mining claim has the right to all ore-bodies of whatever kind beneath his surface, except such as belong to a vein apexing in other claims or such blind veins as may accrue to a previously located tunnel. Such ore-bodies may be isolated masses or pockets not connected with any vein, or mineral disseminated in wash or débris in the nature of a placer deposit, or gash veins; but, unless some other person can establish a superior right by force of some statutory provision, all belongs to the owner of the surface by virtue of the commonlaw rule.

16 Wakeman vs. Norton, 49 Pac., 283 Colo.; Armstrong vs. Lower. 6 Colo., 393 and 581; Bunker Hill, etc., Co. vs. Empire, etc., Co., 109 Fed., 538; St. Louis, etc., Co. vs. Montana Min. Co., 113 Fed., 900; Leadville Co. vs. Fitzgerald, Fed. Cas., No. 8158, 4 Mor. M. R., 381; Ophir, etc., Co. vs. Superior Court, etc., 82 Pac., 70 (Calif ); Consolidated, etc., Co. vs. Champion, etc., Co., 63 Fed., 540.

XVI

Should the extralateral feature of the mining law be repealed? dip rights in early California quartz-mining districts; Harper's views; Purington's views and examples discussed; confusion would result from the introduction of a new rule; conclusion.

[The substance of this chapter was printed as a contribution by the writer to Economic Geology, vol. ii, p. 62].

SHOULD THE EXTRALATERAL FEATURE OF THE MINING LAW BE REPEALED?

A

S the extralateral feature of the mining law has provoked a great deal of discussion, which still continues intermittently, a brief résumé of the arguments pro and con will perhaps be not out of place in this treatise, which attempts to view the subject from both the scientific and the legal standpoint.

At the present time, the real question for discussion is, whether a change is now advisable, taking into account the facts that the law of extralateral rights has been in force as a United States statute over 40 years and also for many years previous as a part of the miners' rules and customs, that all metal mining (except iron) in the western States is carried on thereunder, and that no extralateral rights acquired during that period could be abrogated by any changes, but must continue to exist according to the law at the time of the initiation thereof.

The question as to whether, if a mining law were now proposed which was to go into effect in an early stage of mining development, the extralateral feature would be advisable, in the light of our present state of knowledge of ore deposits, and the further question, recently discussed in Economic Geology, "Do the geological relations of ore deposits justify the retention of the law of the apex?" are of theoretical and academic rather than practical interest; for such conditions have forever passed, and can never again occur, in the United States.