adopted as a practical test of what is to be considered a lode under the Act of Congress.-Eureka Co. v. Richmond Co. 9 M. R. 578; Harrington v. Chambers, 1 Pac. 362. Any body or belt of mineralized rock is a lode.-Book v. Justice Co. 58 Fed. 106; Shoshone Co. v. Rutter, 87 Fed. 801.

Different Degrees of Proof.-In Fitzgerald v. Clark, 42 Pac. 283, the distinction is made between the proof sufficient upon which to base a location and the proof required where the continuity of the vein is in question, holding to greater strictness in the latter case. The degree of proof required, and the use of the words "considerable distance" or "considerable interval" in the continuity, in the instructions, is discussed in Butte Co. v. Societe, 58 Pac. 111.

In Land Office Controversies the value of the mineral deposit is a matter immaterial to the government save in controversies between mineral and nonmineral claimants.-Tam v. Story, 21 L. D. 440.

Faults and pinches do not affect the legal continuity of the vein.-Chessman v. Shreeve, 40 Fed. 793. The mineral beyond the fault is part of the same lode or range.-Raisbeck v. Anthony, 41 N. W. 72.

Show of Mineral by Seepage.-While the richness or poverty of the vein or of the seam or stratum of rock followed as a vein, in determining the question of such rock being vein matter, is not of controlling importance, yet, on practical acquaintance with the subject, it will be seen that such point of relative value cannot be wholly ignored.

Where the opinions say that it may be rich or poor, they refer to the well known fact that true veins, for long distances, are often quite barren. But it does not follow that every seam of rock which will assay is necessarily any vein at all. For there do exist seams which carry a little mineral and yet are not veins within the geological or legal definition. The mineralization in such cases, in some of them at least, is

caused by infiltration of ore from a true vein or deposit along some plane of cleavage, or along the plane between two formations, or through mere mechanical cracks in the rock, and all their mineral is only precipitated or crystalized seepage from the lode or deposit above. Such bastard veins have just enough resemblance to true veins to be used as a pretext of title against neighboring locations on the legitimate vein. They are generally lacking in walls, continuity and in the normal uniformity of a true vein, and yet may have slips which are practically indistinguishablę from walls, and have some discolored matter and particles of ore, just enough to be dangerously similar to what is of value only as it is unlike such things.

The question of vein or no vein in law, is, in such cases, a fact to be determined by the jury under the instructions of the court.-Iron-Silver Co. v. Mike & Starr Co. 143 U. S. 394; Blue Bird Co. v. Largey, 49 Fed. 289.

Mineral Bearing Zone.-A broad formation impregnated everywhere with mineral, but traversed by true fissures within itself, cannot be considered as the lode; the fissures within such zone are the lodes and the zone is the country.-Mt. Diablo Co. v. Callison, 9 M. R. 616. Ore distributed generally, though unequally, throughout the entire mass of the limestone of the mountain does not constitute a continuous lode such as may be followed beyond the lines of its location.Hyman v. Wheeler, 29 Fed. 354; 15 M. R. 519. A belt of porphyry containing mineralized seams is a lode.Book v. Justice Co. 58 Fed. 106. When a larger deposit is separated into distinct seams with separate walls, each seam is a separate lode.-Doe v. Waterloo Co. 54 Fed. 935.

Ore in Pockets, Vugs or other irregular and disconnected occurrences without vein matter between does not make a lode.-Cheesman v. Shreeve, 40 Fed. 787. Nor ore bodies formed outside the fissure.— Tombstone Co. v. Way Up Co. 1 Ariz. 426.

Where the Continuity of the Ore Body is Broken by the Contact, becoming barren for a considerable distance, the legal extent of the vein ceases.-Stevens v. Williams, 1 M. R. 557; Stevens v. Murphy, 4 M. R. 380. A vein need not be a straight line nor uniform in dip, thickness or richness of ore. The enclosing cleft or fissure may narrow or even close for a few feet and be found further on. Its continuity may be proved by following either the ore or the rock which carries the ore. Slight proof of ore is sufficient where the enclosing boundaries are distinct; there need be no proof of such boundaries if the ore itself can be followed. But if the vein disappear so far or so completely that it cannot be recognized when it is again found or alleged to be found, there is no sufficient proof of continuity.-Iron Silver M. Co. v. Cheesman, 116 U. S. 530; followed substantially in Hyman v. Wheeler, supra, and in the Cheesman case, 40 Fed. 787.

All Deposits "in Place" Are Lodes.-The uniform ruling has been that all forms of mineral or mineral gangue in place, whether fissure or contact veins, or impregnations, or other irregular deposits, should be construed to come within the expression "veins or lodes" used in the Act of Congress, and as such to be subject to location and patent under the Act.-Hayes v. Lavagnino, 53 Pac. 1029. There has been in fact a concession that such should be the holding rather than a contention to the contrary. The substantial and contested point has been whether a location or patent on certain forms of deposit was entitled by virtue of including the apex or so-called apex of the vein or deposit, to follow the vein or deposit beyond the side lines underneath the adjoining ground or claims of other parties. This point will be considered under the next following headings: APEX and DIP.

APEX.

Section 2322 is the only paragraph of the Congressional Act which refers to the apex of a lode in connection with its dip. It gives to the claimant all lodes, the tops or apexes of which lie inside of his surface lines in these words:

The Grant of the Apex Right.-"The locators of all mining locations * * * shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface-lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of such surface locations."

The Limitation to the Planes of Projected End Lines.-"But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end-lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges."

The common law grant of lands conveys the surface and whatever minerals underlie the surface within lines drawn perpendicularly downward toward the center of the earth.

The above section implies a departure from this rule; a lode location under its terms or a patent issued upon such location, being in the case of a location, a conditional, in the case of a patent, an absolute grant (1) of the surface (2) of the veins whose tops or apices lie within its side lines, wherever the dip may carry them; and on the other hand other veins whose tops or apices are outside of the lines, but which dip underneath the location or patent, are excepted in favor of the proprietor of such underlying

That such grant is valid and capable of being enforced no one has doubted, but in ascertaining what lodes are included and what excluded in such case in connection with the varying character of deposits, the tendency of veins at times to lose their continuity and the fact that a location seldom covers the apex of a vein from end line to end line has caused serious litigation, and while some points have been passed upon, others remain in doubt; and such decisions as have been made have not always been acquiesced in as a final and correct disposition of the points involved.

Relation of the Apex to the Side Lines.—All right to follow the vein on the dip beyond the side lines depends upon these facts:

1. That the vein, being continuous and in place, have an apex.

2. That the end lines of such claim be parallel.

3. That such apex be enclosed within the lines of the claim.

1. THAT THE VEIN BEING CONTINUOUS AND IN PLACE HAVE AN APEX.

Conversely it follows, if the vein be of such a class that it cannot properly be said to have an apex, or if the discovery be made on the dip and so far to one side that the side lines fail to enclose the apex, or if the side lines be laid transversely to the strike of the lode that the side lines as well as the end lines become vertical bounding planes.

Apex Not Essential to Vein Formation.-Because veins and lodes are granted by the Act of Congress together with the right to follow between certain planes such as have their top and apex within and along certain lines it does not follow contrary to the geological fact that every vein must have an apex, or that the edge or any part of the vein is made by fiction of law, its apex in law, so as to favor a construction acknowledged to be a departure from common law precedents.