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court, will not be disturbed. Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289; Warren v. Keep, 155 U. S. 265, 15 Sup. Ct. 83, 39 L. Ed. 144; Crawford v. Neal, 144 U. S. 585, 12 Sup. Ct. 759, 36 L. Ed. 552; The Iroquois, 194 U. S. 240, 24 Sup. Ct. 640, 48 L. Ed. 955 (May 2, 1904); The S. B. Wheeler, 20 Wall. 385, 22 L. Ed. 385; The Lady Pike, 21 Wall. 1, 8, 24 L. Ed. 672; The Richmond, 103 U. S. 540, 3 L. Ed. 670; Towson v. Moore, 173 U. S. 17, 19 Sup. Ct. 332, 43 L. Ed. 597; Smith v. Burnett, 173 U. S. 430, 436, 19 Sup. Ct. 442, 43 L. Ed. 756; Singleton v. Felton, 101 Fed. 526, 42 C. C. A. 57; The Columbian, 100 Fed. 991, 41 C. C. A. 150; North American Exploration Co. v. Adams, 104 Fed. 404, 45 C. C. A. 185; Fidelity & Casualty Co. v. St. Mathews Sav. Bank, 104 Fed. 858, 44 C. C. A. 225; Western Union Tel. Co. v. American Bell Tel. Co. (C. C.) 105 Fed. 684; National Hollow B. B. Co. v. Interchangeable B. B. Co., 106 Fed. 693, 45 C. C. A. 544; Chauncey v. Dyke Bros., 119 Fed. 1, 55 C. C. A. 579; Thallman v. Thomas, 111 Fed. 277, 49 C. C. A. 317.

The appellants do not, and, in view of the record, could not, contend that there is no evidence to support the findings; but they urge that the weight of the evidence is to the effect that the true course of the vein or lode in question runs easterly and westerly, instead of northwesterly and southeasterly, through the Bunker Hill claim, and crosses the lines originally located as the end lines of that claim; and that, even if its course through the Bunker Hill claim be as found by the master, its width is far greater than found by him, and in fact extends outside of and beyond the westerly boundary of that claim, originally located as one of its end lines and now treated as its westerly side line. The conclusive answer to all of this is that above indicated, viz., that the findings by the master, made, in this instance, upon evidence that is decidedly conflicting, and approved by the court below, are against the appellants upon these points. But it may be added that, even if the vein or lode be as extensive in width upon the surface as contended by the appellants, the priority of the Bunker Hill claim over those here in controversy being established, the extralateral right of the appellee would remain as fixed and determined by the decree of the court below. Empire State-Idaho M. & D. Co. v. Bunker Hill & Sullivan M. & C. Co., 114 Fed. 417, 52 C. C. A. 219; St. Louis M. & M. Co. v. Montana Min. Co., 104 Fed. 664, 44 C. C. A. 120, 56 L. R. A. 725, and like cases there cited. The case showing that the lines originally located as the side lines of the claim are parallel, and it appearing from the findings that the apex of the vein or lode in question crosses those lines, they become in law the real end lines of the claim, under the well-settled doctrine upon that subject. Flagstaff M. Co. v. Tarbet, 98 U. S. 463, 25 L. Ed. 253; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478, 7 Sup. Ct. 1356, 30 L. Ed. 1140; Del Monte M. & M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72; Tyler Min. Co. v. Last Chance M. Co. (C. C.) 71 Fed. 849; Tyler v. Sweeney, 79 Fed. 277, 24 C. C. A. 578; Last Chance M. Co. v. Tyler Min. Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859; Empire M. & M. Co. v. Tombstone M. & M. Co. (C. C.) 100 Fed. 910; Cosmopolitan M. Co. v. Foote (C. C.) 101 Fed. 518; Bunker Hill & Sullivan M. & C. Co. v. Empire State-Idaho M. & D. Co., 109 Fed. 538, 48 C. C. A. 665.

It is further and strenuously urged on behalf of the appellants that the appellee, in following the vein underground between vertical planes drawn downward through its adjudicated end lines, does so more upon its strike than upon its dip; and this, it is insisted, is not permissible under the law. In respect to this matter the master made no findings, holding it immaterial, as did the court below, and confining his finding in that regard to the fact that the course of the vein was downward between the end line planes fixed by him. The extralateral right to a vein or lode outcropping at the surface, where it exists, is fixed by the course of the vein or lode at the surface, and not by its course on a level. "We do not mean to say that a vein must necessarily crop out upon the surface, in order that locations may be properly laid upon, it," said the Supreme Court in Mining Co. v. Tarbet, 98 U. S. 469, 25 L. Ed. 253. "If it lies entirely beneath the surface, and the course of its apex can be ascertained by sinking shafts at different points, such shafts may be adopted as indicating the position and course of the vein; and locations may be properly made on the surface above it, so as to secure a right to the vein beneath. But where the vein does crop out along the surface, or is so slightly covered by foreign matter that the course of its apex can be ascertained by ordinary surface exploration, we think that the act of Congress requires that this course should be substantially followed in laying claims and locations upon it. Perhaps the law is not so perfect in this regard as it might be; perhaps the true course of a vein should correspond with its strike, or the line of a level run through it; but this can rarely be ascertained until considerable work has been done, and after claims and locations have become fixed. The most practicable rule is to regard the course of the vein as that which is indicated by surface outcrop, or surface explorations and workings. It is on this line that claims will naturally be laid, whatever be the character of the surface, whether level or inclined." In the subsequent case of Iron Silver Mining Co. v. Elgin Mining Co., 118 U. S. 196, 206, 6 Sup. Ct. 1177, 30 L. Ed. 98, the same court, after quoting section 2322 of the Revised Statutes [U. S. Comp. St. 1901, p. 1426], said:

"This section appears sufficiently clear on its face. There is no patent or latent ambiguity in it. The locators have the exclusive right of possession and enjoyment of 'all the surface included within the lines of their locations'; and the location, by another section, must be distinctly marked on the ground, so that its boundaries can be readily traced. Rev. St. § 2324. They have also the exclusive right of possession and enjoyment 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 said surface locations.' The surface side lines extended downward vertically determine the extent of the claim, except when in its descent the vein passes outside of them, and the outside portions are to lie between vertical planes drawn downward through the end lines. This means the end lines of the surface location, for all locations are measured on the surface. The difficulty arising from the section grows out of its application to claims where the course of the vein is so variant from a straight line that the end lines of the surface location are not parallel, or, if so, are not at a right angle to the course of the vein. This difficulty must often occur where the lines of the surface location are made to control the direction of the vertical planes. The remedy must be found, until the statute is changed, in carefully making the location, and in

postponing the marking of its boundaries until explorations can be made to ascertain, as near as possible, the course and direction of the vein. In Colorado the statute allows for this purpose sixty days after notice of the discovery of the lode. Then the location must be distinctly marked on the ground, and thirty days thereafter are given for the preparation of the proper certificate of location to be recorded. Erhardt v. Boaro, 113 U. S. 527, 533, 5 Sup. Ct. 560, 28 L. Ed. 1113. Even then, with all the care possible, the end lines marked on the surface will often vary greatly from a right angle to the true course of the vein. But, whatever inconvenience or hardship may thus happen, it is better that the boundary planes should be definitely determined by the lines of the surface location, than that they should be subject to perpetual readjustment according to subterranean developments made by mine workings. Such readjustment at every discovery of a change in the course of the vein would create great uncertainty in titles to mining claims. The rule, whatever hardship it may work in particular cases, should be settled, and thus prevent, as far as practicable, such uncertainty. * The provision of the statute that the locator is entitled throughout their entire depth to all the veins, lodes, or ledges, the top or apex of which lies inside of the surface lines of his location, tends strongly to show that the end lines marked on the ground must control. It often happens that the top or apex of more than one vein lies within such surface lines, and the veins may have different courses and dips, yet his right to follow them outside of the side lines of the location must be bounded by planes drawn vertically through the same end lines. The planes of the end lines cannot be drawn at a right angle to the courses of all the veins if they are not identical."

While the statute requires parallelism of the end lines, and the courts have held that they may not be laid so divergent as to include more in length upon the dip of the vein than is allowed in length upon the surface, neither the statute nor any decision to which our attention has been called defines any particular angle at which the end lines shall cross the general course of the vein in order that the extralateral right given by the statute may exist. And as said by the Supreme Court in the case last cited, where more than one vein apexes within the surface lines, it would be a physical impossibility for the end lines to be drawn at a right angle to the courses of all such veins. And that the extralateral right conferred by the statute may and does exist without regard to the angle at which the end lines cross the general course of the vein has been held both by the Supreme Court and by this court. Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859; Empire State-Idaho M. & D. Co. v. Bunker Hill & Sullivan M. & C. Co., 114 Fed. 417, 52 C. C. A. 219, in which last-named case this court awarded the appellant Empire State-Idaho Mining & Developing Company the right to follow the vein outcropping within the surface boundaries of its San Carlos location between planes drawn down through its end lines at almost, if not quite, as much an angle to the general course of the outcrop of the vein within its surface boundaries as is the angle at which the appellee herein was permitted by the court below to pursue the segment of the vein here in question.

The judgment is affirmed.

EMPIRE STATE-IDAHO MINING & DEVELOPING CO. v. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO.

(Circuit Court of Appeals, Ninth Circuit. June 6, 1904.)

No. 950.

1. MINING CLAIMS-LOCATION-ESTABLISHING LINE ON Older CLAIM.

The locator of a lode mining claim has the legal right to lay an end line of his claim on the surface of a prior claim, in the absence of objection by the owner; and, as against the government and subsequent locators, such location carries precisely the same rights, both surface and extralateral, as it would if all its lines were laid on unappropriated ground.

2. SAME-EXTRALATERAL RIGHTS-AGREED BOUNDARY BETWEEN OVERLAPPING

CLAIMS.

An oral agreement between the owners of two overlapping lode mining claims, located on the same day, in accordance with which a monument was built, which it was agreed should be a point on the line between the claims, cannot affect the extralateral rights appertaining to one of the claims which has passed into the hands of other owners, having no knowledge of such agreement, as against third parties owning junior claims, and having no interest in the other claim or privity with the agreement. 3. SAME EFFECT OF AMENDED LOCATION.

An amended location of a lode mining claim, made because of an error as to the course of the vein when the original location was made, in consequence of which the original side lines became end lines, did not operate as an abandonment of all rights under the original location, where it is expressly stated in the new location notice that such was not the intention; and, where the end lines of the amended location do not entirely coincide with the side lines of the original claim, it was not error for the court, in determining collateral rights as against an intervening locator, to draw vertical planes through the side lines of the original claim, which became end lines by operation of law, owing to the course of the vein, and through the end lines of the amended claim, extending both in the direction of the dip of the vein, and to award to the claim extralateral rights in so much of the vein on its dip as lay within both of such extensions; treating as abandoned only so much of the original claim, with its planes so extended, as lay without the extended end-line planes of the amended claim.

4. SAME-WIDE APEX EXTENDING ACROSS SIDE LINE.

Where the apex of a vein is of such width as to extend beyond the side line of a claim onto a junior claim, the extralateral rights therein belong to the senior claim, within its extended end-line planes.

Appeal from the Circuit Court of the United States for the Northern Division of the District of Idaho.

See 121 Fed. 973.

F. T. Post (W. B. Heyburn, of counsel), for appellant.

Curtis H. Lindley, Henry Eickhoff, John R. McBride, and M. A. Folsom, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS, Circuit Judge. This is an appeal from a decree quieting the appellee's title, as against the appellant, to the Stemwinder lode claim,

14. See Mines and Minerals, vol. 34, Cent. Dig. § 76.

and defining its extralateral right in and to the ledge apexing within the surface boundaries of the claim. Annexed to and made a part of the decree is the following diagram, indicating the location of the various claims mentioned in the record, and the course of the vein in question:

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