30 Foor

lateral rights with certainty, and that it is necessary to deny them for that reason. But such a case as this is not one of them.

§ 860. Vein beginning and ending wholly within the claim Crossing no line at all. Can the case mentioned in the last preceding section be different in principle from

FOUT WALL DRUM

HANGING WALL

STRIP

LUMMO

NINE HOUR

Fig 29.

the case to which we have before adverted, where the apex of the vein might begin and end wholly within the claim? We think not.1

There was good evidence besides in the North Star case, to the effect that the apex of the claim did not reach any

1 Del Monte M. & M. Co. v. Last Chance M. & M. Co., 171 U. S. 55, 89. And see ante, § 837, note 1, p. 731.

320 ft Plane

of its exterior lines. In view of the authorities, and the state of mind of bench and bar to-day, we think we are safe in saying that no lawyer or judge would deny extra-lateral rights in any case where the vein began and ended entirely within a claim. The reason of this principle and of this line of thought is found in the deduction that where a ledge or vein has pursued a known course for some distance within the claim, it affords the presumption that it will continue such course for a sufficient distance to cross a line. If it does not, however, and this fact is known, in accordance with the principle laid down by Judge Hawley in the Wyoming-Champion case, the lines lying across the course of the vein as far as demonstrated should be taken as its end lines and the others as side lines, and extra-lateral rights decreed accordingly.2

ARTICLE D.

When Extra-lateral Rights Abridged, Cut Off or Denied.

§ 865. When extra-lateral rights are abridged — Previous grant with impenetrable bounding plane.

866. Right to penetrate adjoining ground granted or withheld according to law.

867. Intersecting an older vein on the dip.

868. Lines so laid as to cut off prior vein at particular point of inter

section.

869. Effect of consolidating in a group.

870. Other limitations and qualifications-Meeting of converging lines-Controlling importance of priority of location in the ordinary case-Merger of matters of discovery and location in patent.

871. Converging end lines.

872. When extra-lateral rights are wholly denied.

873. For discrepancy of definite wall or casing — The Leadville cases. 874. Extra-lateral rights denied for lack of inclination of dip and because claim not laid upon the strike.

1 Carson City G. & S. M. Co. v. North Star M. Co., 73 Fed. Rep. 597, 602.

2 Cons. Wyoming G. M. Co. v. Champion M. Co., 63 Fed. Rep. 540,

549.

-

§ 865. When extra-lateral rights are abridged — Previous grant with impenetrable bounding plane.-Manifestly there are circumstances where the statutory right to follow the dip or downward course may be abridged or cut off; for example, where the vertical bounding plane of a previous grant is encountered, the right to penetrate which is not reserved out of such grant. Such a grant, it is quite apparent, depending upon the angle of approach, would gradually abridge and finally cut off the right to pursue the vein on its downward course. A fair example of such a condition is shown in the case first above cited. H. located a soldier's bounty warrant upon a certain piece of land in California as agricultural land, and made his entry thereon. Some three years later M. located a mining claim adjoining this land. By mesne conveyances, plaintiff acquired the title of H. and defendant that of M. The defendant, in pursuing the vein on its downward course, removed ore from beneath the surface ground of plaintiff. In denying the right of defendant so to do, Judge Sawyer says: "The only question is whether, under the Revised Statutes, a party discovering and acquiring title by patent from the United States to a mineral gold-bearing vein or lode having its apex within the land purchased is entitled to follow the vein or lode down on its dip, across the boundaries of his own lands, into the agricultural lands of an adjoining proprietor, who has the elder title? In my judgment he clearly has not. The equitable title to the agricultural lands held by plaintiff fully vested on the entry and payment by Hammack on June 15, 1874. After that the United States merely

1 Amador-Medean G. M. Co. v. South Spring Hill G. M. Co., 36 Fed. Rep. 668. Pending the appeal in this case the property in question all passed to one corporation, but there were certain stockholders of the Amador-Medean company who claimed to retain the interest they had at the time the decision below

was rendered, and in order to preserve their interests without passing upon the merits of the case, there being no longer any real parties in controversy, the supreme court reversed the case. South Spring Hill G. M. Co. v. AmadorMedean G. M. Co., 145 U. S. 300, 36 L. ed. 712.

held the dry legal title in trust for the purchaser without any pecuniary or beneficial interest in it. From the moment of the entry, payment and issue of the certificate of purchase, these lands cease to be public, and become private property."

1

This is undoubtedly the law, and nothing more need be added to it. The cases, however, calling for the application of this rule are rare and becoming more so, for the reason, as we have seen, that wherever lands are granted by patent, agricultural, town site, or otherwise than as mineral lands, in a mining locality, the minerals and mining rights are generally, almost without exception, reserved by the law and by the patent from the operation of the grant, and the right to penetrate adjoining land is reserved out of such land.'

§ 866. Right to penetrate adjoining ground granted or withheld according to law.- Standing alone, the mere insertion in the patent of the grant of the right to follow the vein on its downward course within the planes of the end lines, produced in their own direction, and assuming even that it be a perfect location, would be absolutely meaningless, unless such adjoining or neighboring land had in turn this right reserved out of it. All of these rights are creatures of the statute, and, in expressing or reserving them in or out of patents, the officers of the land department merely speak by the statute, or, more accurately, the statute speaks through them, and only such rights can be inserted therein, or exceptions reserved therefrom, as are authorized by the law.3

1 Amador-Medean G. M. Co. v. South Spring Hill M. Co., 36 Fed. Rep. 668. See also the cases there cited, Pacific Coast M. & M. Co. v. Spargo, and same against Fick, 8 Sawy. 647, 16 Fed. Rep. 348; People v. Shearer, 30 Cal. 648; Gwynn v. Niswanger, 15 Ohio, 368; Astrom v. Hammond, 3 McLean, 108, 2 Fed. Cas. 71; Carroll v. Perry, 4 McLean,

26; Carroll v. Safford, 3 How. 441; Witherspoon v. Duncan, 4 Wall. 210, 219; Hughes v. United States, id. 332; Union M. & M. Co. v. Dangberg, 2 Sawy. 450, 24 Fed. Cas. 590; Wirth v. Branson, 98 U. S. 118.

2 See ante, Part X, ch. VI, §§ 755758. See also § 666.

3 See ante, Part X, ch. VI, § 755

§ 867. Intersecting an older vein on the dip.- The right to pursue the vein on its dip or downward course is likewise cut off when it unites with an older discovered vein. The statute reads: "And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including the space of intersection." 1

It thus appears that the right is granted by the statute ex vi termini. The language of the statute is plain and unambiguous, and the only circumstances that we can call to mind that can involve the slightest doubt as to its meaning are those where the surface boundaries of a claim might be so laid across the strike of the vein as to preclude the owner of the oldest vein from claiming below the point of intersection at a particular place, or where there has been consolidation, and a priority thus obliterated. We will consider these matters in the next succeeding sections, and in the meantime it is sufficient to say that the mandatory force of this statute has been recognized by the courts wherever brought in question.2

§ 868. Lines so laid as to cut off prior vein at particular point of intersection.- One of the exceptions to the general rule is, as noted in the last preceding section, where the lines are so laid as to prevent the assertion of prior and superior right of the older vein in consequence of the absence of the right to pursue the vein on its downward course or dip at the particular point; for it must be remembered that the same rule applies in this class of cases as in all

758. See also § 666, and Deffeback v. Hawke, 115 U. S. 402; Cowell v. Lammers, 10 Sawy. 245, 21 Fed. Rep. 200; Butte City Smoke-house Lode Cases, 6 Mont. 397, 12 Pac. Rep. 858: Doe v. Waterloo M. Co.,

54 Fed. Rep. 936.

IR. S. U. S., § 2336.

2 Little Josephine M. Co. v. Fullerton, 58 Fed. Rep. 521; Colorado

Central Cons. M. Co. v. Turck, 50 Fed. Rep. 888; Stinchfield v. Gillis, 107 Cal. 84, 40 Pac. Rep. 98; Cham. pion M. Co. v. Cons. Wyoming M. Co., 75 Cal. 78, 16 Pac. Rep. 513; Cons. Wyoming M. Co. v. Champion M. Co., 63 Fed. Rep. 540; Roxanna G. M. & T. Co. v. Cone, 100 Fed. Rep. 168.