of anything legally embraced within it. The sole question involved is, What passes by such an instrument? We are not particularly concerned with the phraseology of the patent. The land department is but an agent of the government, and its powers can only be exercised within the limits fixed by the act. The patent cannot be broader than the law.

It may be assumed, that the instrument of conveyance describes the surface boundaries, and grants the tract thus described, together with the right to follow the vein, or lode, to the distance expressed in linear feet, which may be assumed to represent the length between the two end lines, "with its dips, angles, and variations to any depth," as specified in the statute.

The question presented by the hypothetical case under consideration suggests several methods of solution, out of which the true one is to be selected.

(1) As by the direction given to the end lines the claimant has asserted a right to more linear feet of the vein in depth than he has included within the surface boundaries, therefore he shall have none of the vein beyond the vertical planes drawn through the surface boundaries. In other words, the patentee's rights are exclusively intralimital, as in the case of irregular locations under the act of 1872.1

(2) As the theory of the act was, that the patentee should only have so much of the length of the vein throughout its entire depth as he has linear feet within his surface boundaries, the courts must whet the judicial carving-knife and lop off, at one end or the other, such a segment of the vein as will rectify the inequalities of length.

(3) The patentee is entitled to so much of the vein throughout its entire depth as is found within vertical planes drawn through the end lines, extended in their own direction, regardless of their divergence or non-divergence in the direction of the dip.

See, ante, 2 552.

However plausible may be the reasoning in support of one or the other of these suggested methods, no solution will be accepted which is not in consonance with principles which have received the highest judicial sanction, nor which does violence to the rules of interpretation which, by reason of their frequent reiteration, have become axiomatic. What are these principles and rules which may be fairly invoked in aid of a correct solution, and which may be stated without begging the question? There are at least two, which, in our judgment, cannot be challenged. They may be thus enunciated:

First -Under the act of 1866, parallelism of end lines was not required:

Second-The extent of the rights conferred by the patent must be measured with reference to the direction of the surface lines as described in that instrument. There can be no arbitrary or conventional readjustment of such lines after patent, for any purpose.

If these propositions are correctly stated, and their binding force is unequivocally established, they may afford, in connection with their corollaries, the key to the situation. We will consider them in the order named.

2576. Under the act of 1866, parallelism of end lines not required-Doctrine of the Eureka case.-There is probably no single case found in the books which is more familiar to the mining practitioner than the one generally known as the "Eureka case," tried before Justice Field and Judges Sawyer and Hillyer, three of the most eminent mining judges of the west. The opinion written by Justice Field has always been regarded as a judicial classic. Therein was announced the first judicial definition of the words "lode" and "vein," subsequently adopted by the supreme court of the United States, and reannounced by the courts of last resort in all the mining states and territories. We are presently concerned with so much of the opinion only as affects the subject of the dip or extra

lateral right as applied to mining claims acquired under the act of July 26, 1866.

In order to apply the doctrine of that case to the hypothetical one under consideration, as well as for purposes of convenience, we herewith reproduce the diagram accompanying the opinion.'

For illustrative purposes, we have produced the east end lines of the At Last and Margaret claims in the direction of the dip, as indicated by the dotted line, thus showing a state of facts similar to that now under consideration and exhibited in figure 32.

The Eureka Company, plaintiff in the case, asserted the right to so much of the "Potts Chamber" as lay to the east of a vertical plane drawn through the west end lines

14 Saw. 302; 9 Morr. Min. Rep. 578; 8 Fed. Cases, 819.

of the Champion, At Last, and Margaret claims, produced, that is, the line W X C.

Objection was taken by defendant to the validity of the patents to these two claims, because the end lines of the surface locations as patented are not parallel, as required by the act of 1872, both patents having been issued subsequent to the passage of the act. When the locations were made upon which the patents were based does not appear. It must be noted that the Eureka Company as plaintiff in the case was compelled to affirmatively establish its right to the ore bodies in dispute. Therefore, the extent of its extralateral right was necessarily involved. We quote so much of the opinion of the court as deals with this particular branch of the case.

"Within the end lines of the locations, as patented in "all these cases, when drawn down vertically through the "lode, the property in controversy falls. Objection is taken "to the validity of the last two patents, because the end "lines of the surface locations patented are not parallel, as required by the act of 1872; but to this objection there are several obvious answers.

"In the first place, it does not appear upon what loca"tions the patents were issued. They may have been, and "probably were, issued upon locations made under the act "of 1866, where such parallelism in the end lines of surface loca"tions was not required. The presumption of the law is, "that the officers of the executive department specially "charged with the supervision of applications for mining patents and the issue of such patents, did their duty; and "in an action of ejectment, mere surmises to the contrary "will not be listened to. If, under any possible circum"stances, a patent for a location without such parallelism "may be valid, the law will presume that such circum"stances existed.

"In the second place, the provision of the statute of "1872 requiring the lines of each claim to be parallel to "each other, is merely directory, and no consequence is "attached to the deviation from its direction. Its object is "to secure parallel end lines drawn vertically down, and "that was effected in these cases by taking the extreme points of the respective locations on the length of the "lode.

SS

"In the third place, the defect alleged does not concern "the defendant, and no one but the government has the right to complain."

When the case reached the supreme court of the United States on writ of error, that court, speaking through Chief Justice Waite, said:

66

"Upon the face of the patents, the United States has "granted to the Eureka the right to all veins, lodes, and deposits, the tops, or apices, of which lie on the inside of "its surveys as patented, throughout their entire depth and "wherever they may go, provided it keeps itself within the "end lines of the surveys. The findings, that the ground "in dispute is within the end lines, and that the apex is "within the surface, settles the rights of the parties be"tween themselves, as well under their patents as under "their compromise agreement."

1

In the Elgin case, the same court, speaking through Justice Field, modified the views of the trial court expressed in the Eureka case (without referring to it), with respect to the effect of non-parallelism of end lines, under the act of 1872, but re-announced the rule, that such parallelism was not required under the act of 1866."

The rule has ever since been fully recognized and followed in the circuit courts."

What are the logical results flowing from this doctrine. as applied to the exercise of the extralateral right in cases of diverging end lines, as illustrated in the hypothetical case under consideration? The statement of the rule, that parallelism of end lines was not required under the act of 1866, is the announcement of something more than a mere abstraction. The necessity for parallelism was not urged in any of the cases heretofore cited, for the purpose. of assailing any intralimital rights. Even under the act of 1872, which requires parallelism, a disregard of this requirement does not affect this class of rights.1

1 Richmond M. Co. v. Eureka M. Co., 103 U. S. 839, 847. Iron S. M. Co. v. Elgin M. Co., 118 U. S. 196, 208.

3 Walrath v. Champion M. Co., 63 Fed. 552, 556; Cons. Wyoming G. M. Co., Id. 540, 550; Carson City G. & S. M. Co. v. North Star M. Co., 73 Fed. 597, 599. 'See, ante, 552.