The end lines of a lode mining claim, in the sense of the mining
law, are those which are laid across the vein to show how much of
it in length is appropriated and claimed by the miner. All other
lines are side lines.
To sustain the extralateral right, the end lines must be
parallel and straight, but this is not required of the side
lines.
A mining claim was laid out as a parallelogram 1500 by 600 feet,
but with two diagonally opposite angles truncated so that what
would have been end lines in the absence of the truncation were
thereby shortened substantially, but less than one half.
Held that these shortened lines, which were straight and
parallel, were the end lines within the meaning of the mining law
and for the purpose of determining the extralateral right, and that
the truncating lines were parts of the side lines. The extralateral
right is a creation of the federal mining laws, and they alone must
be looked to in defining it.
Where a single vein whose apex is within the boundaries of the
claim, in its descent separates into two limbs -- one being the
discovery vein --
Page 247 U. S. 451
which dip dwnward through the vertical planes of the side line,
the extralateral right, its other elements being present, applies
to each. The findings showed a fissure vein with two dipping limbs
whose course downward was substantial, regular, and practically
free from undulation. For 750 feet out of a total length of 1150
feet within the claim, each was practically a separate vein with a
distinct summit or terminal edge. For the remaining 400 feet, the
two were united, and, from the place of union, mineralized rock
continued upward for from 20 or 30 to 100 feet. There was no
contention that a top or apex had been found elsewhere.
Held that it could not be said as a matter of law that
there was no top or apex within the claim in the sense of the
mining law.
39 Nev. 375 affirmed.
The case is stated in the opinion.
Page 247 U. S. 452
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is a suit by the owner of two lode mining claims, the
Eureka and the Curtis, to enjoin the owner of an adjoining lode
claim, the West End, from exercising an asserted extralateral right
in respect of a vein extending beneath the surface from the latter
claim into the others. All the claims are patented, and their
ownership is conceded. The Eureka adjoins the West End on the
south, and the Curtis lies immediately south of the Eureka. The
state courts, both trial and appellate, upheld the defendant's
asserted right to follow the vein extralaterally, 39 Nev. 375, and
the plaintiff seeks a reversal of that decision on the theory that
it is in contravention of the mining laws of Congress, in that (a)
the end lines of the West End claim are not parallel and straight,
and therefore an essential element of the right to follow the vein
extralaterally is wanting; (b) this right can be exercised only in
one direction, that is, beyond one side line, not both, and, as the
discovery vein [
Footnote 1]
dips to the north, the
Page 247 U. S. 453
right can be exercised only in that direction, and (c) the facts
specially found do not show that the top or apex of the vein is
within the vertical limits of the West End claim.
For present purposes, the West End claim may be described as
having the form of a parallelogram 1,500 feet in length from east
to west and 600 feet in width from north to south, but with a small
portion of the northeast corner cut off by a diagonal line and a
somewhat larger portion of the southwest corner similarly cut off.
See diagram, 39 Nev. 375. Thus, what would be the end
lines of the parallelogram if it were complete are substantially
shortened, but the major part of each remains. These shortened
lines are not only parallel, but straight. Are they the end lines
of the claim in the sense of the statute? Or do its end lines
consist of the shortened lines and the diagonal lines? End lines in
the sense of the statute are those which are laid across the vein
to show how much of it, in point of length, is appropriated and
claimed by the miner. All other lines are side lines. True, the end
lines must be both parallel and straight. Rev.Stats. §§ 2320, 2322;
Walrath v. Champion Mining Co., 171 U.
S. 293,
171 U. S. 311.
But it is not so with the side lines. They may have angles and
elbows and be converging or diverging, so long as their general
course is along the vein and the statutory restriction on the width
of claims is respected.
Del Monte Mining Co. v. Last Chance
Mining Co., 171 U. S. 55,
171 U. S. 84.
Applying these tests to the bounding lines of the West End claim,
we regard it as plain that the diagonal lines at the two corners
are part of its side lines, and not of its end lines. In this
respect, the case is like
Walrath v. Champion Mining Co.,
supra, where, in determining what was the northerly end line
of the Providence claim (
see diagram, 171 U.S.
171 U. S.
298), the line g-h was held to be the true end line, and
the diagonal line f-g to be no part of it. Thus, the objection
that
Page 247 U. S. 454
the end lines of the West End claim are not parallel and
straight is untenable.
What in mining cases is termed the extralateral right is a
creation of the mining laws of Congress, and to learn what it is,
we must look to them, rather than to some system of law to which it
is a stranger. Besides, as Congress has plenary power over the
disposal of the mineral-bearing public lands, it rests with it to
say to what extent, if at all, the right to pursue veins on their
downward course into the earth shall pass to and be reserved for
those to whom it grants possessory or other titles in such lands.
What it has said is this, Rev.Stats. § 2322:
"The locators of all mining locations . . . on any mineral vein,
lode, or ledge, situated on the public domain, their heirs and
assigns, . . . 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. 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."
It will be seen that the extralateral right so created is
subject to three limitations. One conditions it on the presence of
the top or apex inside the boundaries of the claim. Another
restricts it to the dip or course downward, and so excludes the
strike or onward course along the top or apex. And the last
confines it to such outside parts as lie between the end lines
continued outwardly in their own
Page 247 U. S. 455
direction and extended vertically downward. But otherwise, it is
without limitation or exception, and broadly includes "all veins,
lodes and ledges throughout their entire depth" -- one as much as
another, and all whether they depart through one side line or the
other. Given two veins which in their descent pass, one through one
side line and the other through the other side line, how could it
be held that the right applies to one vein and not to the other
when the statute says "all veins . . . throughout their entire
depth"? By what rule would a court be guided in making a selection
between the two, when the statute makes none? And where a single
vein, in its descent, separates into two limbs which depart through
the opposite side lines, on what theory could the right be
sustained as to one limb and rejected as to the other? The terms of
the statute, as we think, do not lend themselves to any such
distinctions, but, on the contrary, show that none such is
intended.
In
Mining Co. v. Tarbet, 98 U. S.
463,
98 U. S. 467,
this Court, in pointing out the intent of the statute, said that
"the end lines are to cross the lode and extend perpendicularly
downwards, and to be continued in their own direction either way
horizontally." And in
Del Monte Mining Co. v. Last Chance
Mining Co., 171 U. S. 55,
171 U. S. 88, a
case in which the statute was much considered, it was said:
"Every vein whose apex is within the vertical limits of his
surface lines passes to him by virtue of his location. He is not
limited to only those veins which extend from one end line to
another, or from one side line to another, or from one line of any
kind to another, but he is entitled to every vein whose top or apex
lies within his surface lines. Not only is he entitled to all veins
whose apexes are within such limits, but he is entitled to them
throughout their entire depth,"
"although such veins, lodes or ledges may so far depart from a
perpendicular in their course downward as to extend outside the
vertical side
Page 247 U. S. 456
lines of such surface locations."
"In other words, given a vein whose apex is within his surface
limits, he can pursue that vein as far as he pleases in its
downward course outside the vertical side line ."
And again, p.
171 U. S.
89:
"The locator is given a right to pursue any vein whose apex is
within his surface limits on its dip outside the vertical side
lines, but may not in such pursuit go beyond the vertical end
lines."
In
Calhoun Gold Mining Co. v. Ajax Gold Mining Co.,
182 U. S. 499, it
was added, p.
182 U. S.
508:
"There are no exceptions to its language. The locators 'of any
mineral veins, lode or ledge' are given not only 'an exclusive
right of possession and enjoyment' of all the surface included
within the lines of their locations, but '
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.' A locator therefore is not confined to the vein upon
which he based his location and upon which the discovery was
made."
And also, p.
182 U. S.
509:
"Blind veins are not excepted, and we cannot except them. They
are included in the description 'all veins,' and belong to the
surface location."
We conclude, therefore, that, when the other elements of the
extralateral right are present, it may be exercised beyond either
or both side lines depending on the direction which the departing
vein or veins take in their downward course.
So much of the special finding as bears on the character of the
vein and the presence of its top or apex inside the vertical lines
of the West End claim is as follows:
"The said vein does not on its upward course, or at its top or
apex, outcrop or reach the present surface, but is covered or
buried to a considerable depth by lava, locally known as and called
'midway' andesite, which, after the formation of the vein, flowed
over the then surface of the territory in which the vein exists;
that at and for a distance of 360 feet westerly from where said
vein
Page 247 U. S. 457
or lode crosses the easterly end line of said West End claim,
which crossing is at a distance of 135 feet northerly from the
southeast corner of said West End claim, there is a juncture or
union between two limbs or sides of said vein, and, from the summit
of said juncture or union, the downward course of one limb or side
thereof is in a northerly direction, and the downward course of the
other limb or side thereof is in a southerly direction; that there
is a continuation upward from the summit of said juncture or union
of said northerly and southerly dipping limbs or sides of said vein
of ore and silver-bearing quartz or rock in place for a distance
from 20 or 30 to more than 100 feet, and to what was the surface
before the same was buried beneath the said lava flow; that such
ore and silver-bearing quartz were deposited where the same are now
found at the same time and during the same period that the main
vein below was created, and from mineral-bearing solutions having
the same source; that the dip is fairly conformable, and the strike
or course of such upward continuation of ore and silver-bearing
quartz is conformable, to the dip and strike or course of said
northerly dipping limb or side of said vein from the summit of said
juncture downward, and the court finds that said upward
continuation is a part of said vein or lode; that thence westerly,
and for a distance of 360 feet, the northerly and southerly dipping
limbs, sides, or slopes of said vein do not unite or form a union
or juncture in their upward course, but, for that distance, each of
said limbs or sides has a separate and independent top or apex;
that thence westerly, for a distance of 40 feet, the northerly and
southerly dipping limbs, sides, or slopes of said vein are again
found in conjunction, as in the said most easterly 360 feet; that
thence westerly, and until said northerly and southerly dipping
limbs, sides, or slopes of said vein intersect with and cross said
northerly side line of said mining claim, they do not unite or form
a union or juncture
Page 247 U. S. 458
in their upward course, but, for that distance, [
Footnote 2] each of said limbs or sides has a
separate and independent top or apex; that, between said distance
of 40 feet, where said northerly and southerly dipping limbs,
sides, or slopes of said vein, as aforesaid, unite or form a union
or juncture in their course upward, and said points on said
northerly side line of said mining claim where, as aforesaid, said
contra-dipping limbs, sides, or slopes of said vein respectively
intersect said side line and cross the same, and so depart from
said mining claim, there are two points at which it appears that
said contra-dipping limbs, sides, or slopes of said vein on their
upward course approach closely to a juncture or union, but, as to
said contra-dipping limbs, sides, or slopes of said vein at said
two points actually forming a juncture or union on their upward
course, the evidence is meager and unsatisfactory; that the point
where the said northerly dipping limb or side of said vein departs
from the said mining claim through the northerly side line thereof
is 1,120 feet westerly from the northeast corner of said claim,
measured along the northerly side line thereof; that the point
where said southerly dipping limb or side of said vein departs from
said mining claim through the northerly side line thereof is 1,142
1/2 feet westerly from the northeast corner of said claim, measured
along the northerly side line thereof; that, throughout said
distance of 40 feet, where the contra-dipping limbs or sides of
said vein are found in conjunction as hereinbefore stated, there is
a continuation upward from the summit of the juncture or union of
said two limbs or sides of said vein of ore or vein quartz to what
was the surface before the same was covered by the lava flow; that
the dip or downward course of both the northerly and southerly
dipping sides or limbs of the vein where the two are found in
conjunction, as aforesaid, and also in the places where each, as
aforesaid,
Page 247 U. S. 459
has its separate and independent top or apex, is regular and
practically free from undulations; that the said southerly dipping
limb or side of the vein in the easterly portion of the West End
claim -- that is to say, the easterly 360 feet thereof -- has been
developed from the top or summit of said juncture of said
contra-dipping limbs to and beyond the southerly side line of said
claim, or for a distance, measured on the slope or downward course
of said southerly dipping limb or side, of 800 feet or thereabouts,
the average dip there being 17 degrees from the horizontal; that
the westerly portion, that is to say, the westerly 300 feet of said
southerly dipping limb or side of said vein found in the West End
claim, has been developed from its top to and beyond the southerly
side line of said claim, or for a distance, measured on its slope
or downward course, of 1,000 feet or thereabouts, the average dip
there being 30 degrees from the horizontal; that the average dip of
said northerly dipping limb or side of said vein, so far as the
same has been developed in its downward course, is 17 degrees from
the horizontal; that said vein is a fissure vein; that there is a
difference in the strikes or courses of said northerly and
southerly dipping limbs of said vein of about 40 degrees; that at
said places and throughout said distances where said contra-dipping
limbs of said vein are found to intersect and form a juncture, as
aforesaid, there has been a mingling of the mineralizations of said
two limbs of said vein within the angle beneath the juncture of the
said two limbs; that at such places and throughout said distances
the footwall of said two limbs of said vein, within the angle
beneath their said juncture, by the process of replacement has been
converted into mineralized quartz for considerable distances below
said juncture, said replacement quartz extending from limb to
limb."
Giving due effect to the finding, it is manifest that the vein
in controversy is not a flat or horizontal vein, or one
Page 247 U. S. 460
which would be practically horizontal but for a succession of
rolls or waves in its elevation. On the contrary, it is shown to be
a fissure vein with two dipping limbs whose course downward is
substantial, regular and practically free from undulations. For 750
feet out of its total length of 1,150 feet within the West End
claim, each limb is practically a separate vein with a distinct
summit or terminal edge. For the remaining 400 feet, the two limbs
are united, and, from the point of union, the mineralized quartz or
rock continues upward for from 20 or 30 to more than 100 feet, and
this seems to answer all the calls of a summit or terminal edge. In
these circumstances, we hardly would be warranted in saying as
matter of law that the vein has no top or apex within the claim in
the sense of the statute.
See Stewart Mining Co. v. Ontario
Mining Co., 237 U. S. 350.
It is well to remember, as this Court has indicated in other
mining cases, that to take from the discoverer a portion of that
which he has discovered and give it to one who may have been led to
make an adjoining location by a knowledge of the discovery is
unreasonable.
The contention is not that the top or apex of this vein has been
found elsewhere, but only that what is found in the West End claim
is not such in the sense of the statute. "The law," as has been
truly said, "assumes that the lode has a top, or apex, and provides
for the acquisition of title by location upon this apex." Probably
this assumption could not be indulged where the fact appeared to be
otherwise, but it serves to show that the absence of a top or apex
ought not to be adjudged in the presence of such a finding as we
have here.
Judgment affirmed.
[
Footnote 1]
The discovery was on the northerly limb hereinafter
described.
[
Footnote 2]
Approaching 400 feet.