2. Within the intent of the mining law, Rev.Stats., § 2322, with
respect to the right to pursue a vein extralaterally on its dip,
those are the "end lines" of a lode location that cut across the
strike of the vein if it crosses the location. P.
256 U. S.
25.
3. A presumption that there was a discovery vein crossing the
end lines of a location as laid out should not be indulged, for the
purpose of denying extralateral rights to a vein crossing the side
lines, where there is substantial evidence that this was the only
vein apexing within the location, and no substantial evidence to
the contrary. P.
256 U. S.
26.
4. Where the vein of a patented claim crossed the location
transversely,
held that the right to pursue it on dip
beneath an adjacent junior patented claim was not affected by the
fact that either the discovery shafts of the senior claim or the
vein would be left outside of it if its side lines (located as end
lines) were limited as they should be, because a discovery shaft
was not essential to the validity of the location at the time when
it was made, and because discovery of the vein must be presumed in
favor of the senior patent. P.
256 U. S.
27.
5. Evidence
held to prove that one of a series of
similar deposits, found at many different horizons, connected with
a fissure vein and similar in composition to the ore in the
fissure, was a part of that vein, rather than a distinct bedded
deposit. P.
256 U. S.
27.
Decree (230 Fed.Rep. 553) reversed.
Petition by the respondent for a rehearing as to questions
presented but left undecided in s.c.,
255 U. S. 255 U.S.
151. The questions are disposed of on the argument as originally
made.
Page 256 U. S. 24
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit brought by the respondent to establish its right
to a large body of ore found within the lines of the respondent's
patent as it construed that document. The main contest concerned
the southwesterly 135.5 feet of the patent as laid out by courses
and distances, from which was taken the main body of the ore. At
the argument, the petitioner's statement was that "practically all
the ore in controversy was taken from within this 135.5 foot
strip."
Page 256 U. S. 25
The decision with regard to that strip was in favor of the
petitioner, and as it seemed possible that the respondent would not
be able to establish that any appreciable amount of ore was taken
from the land belonging to it, and that it might not care to
attempt the proof, the questions raised with regard to such ore, if
any, were left undecided, according to the usual practice. But the
respondent points out that the petitioner has admitted that a small
amount of ore, not exceeding $20,047.50 in value, did come from the
respondent's land, and presses for a decision concerning its right
to that. The motion is put in the form of a petition for rehearing,
but the main thing asked, and the only thing for which we see any
reason, is that we decide the questions argued but left open by us.
That we proceed to do. Nothing that has been decided will be
reopened, but leave to file the petition is granted to that single
end.
It is not disputed by the respondent, the Conkling Mining
Company, that a fissure on its strike crosses the parallel side
lines of the petitioner's claims, and, on its dip, passes beneath
the Conkling mining claim in the immediate vicinity of the ore body
in dispute and between vertical planes drawn through the parallel
side lines of the petitioner's claims and continued in their own
direction. What is disputed is that this ore body is any part of
the vein referred to, known as the Crescent Fissure, and that, if
it is, the petitioner has any right to treat the end lines of its
claims as side lines, and to pursue the vein underground beyond the
vertical planes drawn through those lines.
We take up the last question first. The typical case supposed by
Rev.Stats. § 2322 is that of a claim laid out lengthwise along the
strike of a vein. In that case, the end lines of the location will
limit the extralateral right. But that case is only the simplest
illustration of a principle. The general purpose is to give a right
to all of the vein
Page 256 U. S. 26
included in the surface lines if there is only one, provided the
apex is within the location. It often must happen that the strike
of the vein is not known, but must be conjectured at the time of
discovery, and that the location is across, instead of along, the
vein. This has been obvious always, and therefore it would be wrong
to interpret the words "end lines" narrowly, as meaning the shorter
ones in every instance. Those are the end lines that cut across the
strike of the vein if it crosses the location. We see no sufficient
reason for thinking that, because the discoverer has not claimed as
long a portion of the strike as he might have, he should be
deprived of even his diminished lateral rights. It has been the
accepted opinion of this Court for many years that where, as here,
the strike of the vein crosses the location at right angles, its
dip may be followed extralaterally, whatever the direction in which
the length of the location may run. If across the strike, as here,
the side lines, as it commonly is expressed, become the end lines.
Subsequent locators know as well as the original ones that the
determining fact is the direction of the strike, not the first
discoverer's guess.
Flagstaff Silver Mining Co. v. Tarbet,
98 U. S. 463;
King v. Amy & Silversmith Consolidated Mining Co.,
152 U. S. 222,
152 U. S. 228.
Del Monte Mining & Milling Co. v. Last Chance Mining &
Milling Co., 171 U. S. 55,
171 U. S. 90-91;
Jim Butler Tonopah Mining Co. v. West End Consolidated Mining
Co., 247 U. S. 450,
247 U. S.
453.
But it is said that, when the end lines are determined, they are
end lines for all purposes, even if there are different veins
running in different directions having their apexes within the
claim.
Walrath v. Champion Mining Co., 171 U.
S. 293, and it is argued that there is a presumption
that has not been overcome that there was a discovery vein running
parallel with the side lines, that this determined the end lines,
and that therefore the petitioner got no extralateral rights in the
Crescent Fissure. The circuit
Page 256 U. S. 27
court of appeals, approaching the petitioner's claim as a claim
of an exceptional privilege, seems to have attached a weightier
burden of proof to it than we are disposed to do. They were not
satisfied that the discovery vein which determined what the end
lines should be was not some other vein than the Crescent Fissure.
But we see no substantial evidence that there was another vein. We
have the distinct testimony of experts that there was no such, and
we agree with the view of the district judge sustaining the
petitioner's extralateral rights. Whether there are other answers
to the contention we need not decide.
See Jim Butler Tonopah
Mining Co. v. West End Consolidated Mining Co., 247 U.
S. 450,
247 U. S. 454
et seq.
It is urged that, if the end lines be taken as the side lines,
then the discovery shafts, being four hundred feet distant from the
apex of the Crescent Fissure, left either the vein or the discovery
outside the location with the side lines, limited as they should
be. But, at that time, there was no requirement making a discovery
shaft essential to a valid location. And, in any event, our
conclusion being that the petitioner must be presumed to have
discovered the Crescent Fissure, however it may have been done, the
distance of the shafts does not affect the case.
The only question that remains is whether the ore within the
respondent's lines formed part of the Crescent Fissure vein. The
circuit court of appeals, in view of its opinion upon the last
point, made no decision upon this. But the experienced district
judge, after careful consideration, was of the opinion that the ore
belonged to the vein. We see nothing to convince us that he was
wrong. The position of the respondent is that the ore in
controversy is a distinct bedded deposit. But, as the district
judge remarks, similar deposits are found at many different
horizons, connected with the fissure and similar in composition to
the ore in the fissure. The deposit in question was like the
others. Whether we consider merely the
Page 256 U. S. 28
practical fact of the continuously occurring deposits along the
course of the vein or the theory of their origin which seems to us
the most probable, we believe the district judge to have been
right.
Decree of circuit court of appeals reversed.
Decree of district court affirmed.