4 dred feet, and terminate before reaching the easterly bound ary of the claim. The case was illustrated in both courts by the following diagram: Fig. 24. At all events, in any view of the case, it became an immaterial question whether it began and ended wholly within the group or crossed the easterly end line and ended at the fissure. The plaintiff owned the Irish-American, into and beneath the surface of which the vein had penetrated on its dip to the northward, and the bone of contention was the ownership of the ore which the defendant took from beneath the surface lines of the Irish-American. It was claimed on the trial that the extra-lateral rights were confined to the lines as made in the original location of the surface, and that in a case where a vein might cross another location, those lines forming its side lines would be drawn upon it vertically, or, following the Amy & Silversmith case, where it crossed a side line, such line would be drawn against it vertically. The court held that there is no limit to the number of claims which may be patented in one application; that defendant owning several claims comprising the North Star might have procured separate patents, and in so doing might have so established his lines as to make them parallel, just as is done now in application for patent, and if several claims jointly included the entire apex of all the veins, they could have been so surveyed as to make all the end lines parallel, and thus give it what it substantially claims in the North Star patent. That defendant had only done by one act, at less expense, what it might have done by several acts and at greater expense. The North Star is of greater superficial area than in law is ever authorized for a single ledge location, but it has been held by the supreme court that while the law prescribes a limitation to a single location, there is no limit to the number of locations one person may hold by purchase, or that may be included in a single patent.1 "It is therefore concluded," said the court, "that the defendant may follow its ledge on its descent under the IrishAmerican claim, and to any depth, between a perpendicular plane drawn through the east end line of the claim and another similar parallel plane crossing such claim at the point fixed as the western terminus of the ledge, being designated by "C," .. and judgment for defendant is ordered. accordingly." 2 In upholding this judgment the circuit court of appeals of the ninth circuit uses these words: "We are of opinion that the defendant was not required to show the separate lines of any of the original locations embraced within the surface boundaries of its patented claim. It was enough for it to show that a lode running in an easterly and westerly direction, and having its apex within the surface boundaries of the patented ground of the North Star, extended, in its 1 St. Louis S. & R. Co. v. Kemp, 104 U. S. 636. 2 Carson City G. & S. M. Co. v. North Star M. Co., 73 Fed. Rep. 597. downward dip, into the workings of the Irish-American ground owned by the plaintiff in error, and that all its acts complained of by the plaintiff were in extracting ore from such lode 'extended downward vertically,' within its sideline planes, beneath the patented lines of the Irish-American ground. It is true that the burden was upon the defendant to show by a preponderance of the evidence that the ore which it extracted from beneath the patented surface ground of the plaintiff belonged to the lode or vein the apex of which was within the surface lines of its own patented ground. But this burden is met and overcome by the undisputed facts, found by the court, that the defendant was the owner of and in possession of the entire apex of the lode within the boundaries of the North Star patented mine, and its continuity and identity in its dip downward vertically beneath the Irish-American ground. It was unnecessary to go further, by proving the lines of one or more or all of the locations as originally made." 2 § 851. Original location lines immaterial - Doctrine of Doe v. Sanger. It will thus be seen that the lines of the original locations are not of such controlling importance as that they may not be changed. Indeed, we have already seen that amendments and addenda to locations may be made at any time before patent. The obvious reason of this is that lines may be finally adjusted by the addition of more ground, by purchase or location, the changing of locations themselves, or any other fair and legitimate means whereby the miner is enabled to completely and properly cover the strike of his vein. Imaginary lines are unimportant. The vital question, after all, is, does the miner own the apex and strike of the 1 Citing Duggan v. Davey, 4 Dak. 110,122, 26 N. W. Rep. 887, 891; Leadville M. Co. v. Fitzgerald, 4 M. R. 380, 15 Fed. Cas., p. 98, No. 8,158; Stevens v. Murphy, id.; Doe v. Waterloo M. Co., 54 Fed. Rep. 935, 937; Cons. Wyoming G. M. Co. v. Champion 2 Carson City G. & S. M. Co. v. North Star M. Co., 83 Fed. Rep. 658, 663. 3 Ante, Part VII, ch. V. vein, and is the ore in question under the neighbor's ground, the ore having its apex in the miner's claim between ver tical planes of parallel exterior boundaries, extended in their own direction? The tendency of judicial thought, as we shall see hereafter,' and as the subject of mining law is becoming better understood, is to enlarge rather than to diminish the extralateral right, and in no case to deny it, where it is capable of ascertainment. Resort to the common-law rule should. never be invoked, except in cases of doubt as to the true position of the apex.2 An illustration of this principle is found in a case decided by the supreme court of California. It will be better understood by the following diagram: SILVER KING Fig. 25. The strike of the vein was easterly and westerly through the Silver King claim, the plaintiff owning a claim to the south, called the" Oriental," and the dispute was as to the ownership of ore bodies dipping from the apex in the Silver King southerly into and under the surface ground of the Oriental. In this case the location was made with the southwesterly side line much longer than the northeasterly side line, the claim running substantially northwest and southeast; but when surveyed for patent, the southwesterly side line was shortened so as to create a parallelism of end lines. It was contended that, the location originally not being in the form of 1 Post, this Part and chapter, Empire State Idaho M. Co., 106 arts. C. and D. Fed. Rep. 471-74. 2 Bunker Hill & S. M. Co. v. 3 Doe v. Sanger, 83 Cal 203, 23 Pac. Rep. 365. a parallelogram, the doctrine of the Horseshoe case must apply and all lines be cut down vertically; that a figure such as this gave the locators no extra-lateral rights. The court, speaking through Mr. Justice McFarland, said: "But we do not think such a construction of section 2320 is admissible in any view, or for any purpose. It would include absolute mathematical parallelism; for, if the divergence of a few feet in a distance of six hundred feet would not vitiate a location, why should any reasonable divergence, which does not materially change the figure of the location from that of a parallelogram? The intention of the statute was to make valuable property rights of lode miners to depend upon something more substantial and important than the mere trick of a perfectly correct measurement of surface ground or mathematically accurate survey. A substantial compliance with section 2320 is all that is required. . . If, however, a location is made in substantial compliance with the intent of the statute,- that is, where there are two side lines running along the course of the vein, and two shorter end lines running across it, so that the two sets of lines are distinct and apparent,- such a location is not void, but gives the right to follow a vein laterally, although the original end lines may not be exactly parallel, or although they may differ from a true parallel as much as they did in the case of the Silver King. The statutes of congress upon the subject, except so far as they provided for patents, were little more than mere formal legislative declarations of what had before rested in the unwritten consent. They follow mainly the customs which miners exercising the license had established among themselves, and which fixed the character and incidents of mining property. And one of the inherent and most valuable qualities of property in a lode mine, as fixed by these customs, was the right to mine the lode to indefinite depths, although it might so far depart from a perpendicular in its downward course as to extend outside the vertical side lines of the surface location." 1 1 Doe v. Sanger, 23 Pac. Rep. 367. |