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found outside of the claim, might have been followed through it in any direction, under the old law, or rather old set of local rules. And, for the purpose of asserting this right, the author of the new discovery might enter upon the old location to mark out the boundaries of his claim.

1 Rev. Stat. § 2322; ante, p. 14.

2 Rev. Stat. U. S., § 2336; ante, p. 23.

§ 36. Right to dip, Apex.—One of the most important provisions of this section1 is that which secures the right not only to that part of the vein or lode which lies within the side lines extending downward vertically, but to so much of it as departed from the vertical side lines on the dip. This provision has been fruitful of no little contention and expensive litigation. As it affects patented and unpatented claims alike, it qualifies the general doctrine of ownership to the center of the earth, which applies to titles to real estate in general.2 Dip, is simply that departure from a vertical position, which is one of the incidents of almost all veins in their downward course. The apex is simply the top of the lode, or terminal point, where it comes nearest the surface. As applied to vertical veins, these terms present few difficulties in construing the statute. The only one upon which serious doubt has been expressed is whether a subsequent location on the apex would take precedence of a prior discovery and location on the same vein below the apex, so as to allow the later discovery to follow the vein, not only within the side lines of the earlier one down to the point where the vein was first discovered, but below that, and thus appropriate the entire vein. Or whether the first discoverer and locator might follow the dip up, as well as down. There can be no doubt that the location which does not include ti

apex of the vein, confers no rights under the statute beyond the side lines, at least with reference to side veins.1 The doubtful question is whether a subsequent location on the same vein, at a point nearer the surface, will deprive the original locator of his right to follow the vein at all below his point of discovery. At present, the tendency seems to be in favor of the right of the first discoverer to follow his vein downward on the dip, though not upward, after a subsequent location has been made on the apex.5 As applied to "flat" or "horizontal" veins, and lodes which are not recognized as veins, the construction of the statute is beset with greater difficulties. Whether the top or apex of the lode lies within the boundary lines of either of two claims, is a question of fact not easily determined in such cases, as in the case of the Iron Mine vs.Loella Mine. In that case, the plaintiff had the highest point on the vein; but the evidence was conflicting as to whether this was not raised by subterranean disturbance subsequent to the deposition of the mineral, and as to whether the point claimed as the apex was merely the effect of an upward swell in what was really a lode continuous from side to side of plaintiff's claim. The jury were instructed that if the vein was “continuous as suggested, that is to say, if coming in at one side it passes unbroken to the other, the plaintiff cannot follow it beyond the lines of its location."7 This was substantially the theory of the defendant, for whom the jury found. There are deposits of mineral in lodes which so far depart from the characteristics, of what is known by the term "vein," that the statutory provisions as to dip and apex can never be safely applied, for the simple reason that they have no ascertainable apex, and the dip, if there be any, is merely accidental, and not characterfie of that class of deposits, as it is of fissure veins, for ich the law was enacted. The right to follow the dip is bounded by the end lines of the claim, which are cross




wise of the general course of the vein on the surface;
and where a claim is located across the vein instead of
along it, the side lines will be regarded as the end lines
for the purpose of determining the right of the loca-
tor to follow the dip.8

1 Rev. Stat. U. S., § 2322, ante, p. 14.

2 Bullion M. Co. vs. Croesus M. Co., 2 Nev. 169; Iron-Silver M. Co. vs. Cheeseman, 1 Col. Law Rep. 461; Eureka, &c. Co. vs. Richmond M. Co., 4 Sawyer (U. S. Cir. Ct.) 302.

3 Iron Mine vs. Loella Mine, 1 Col. Law Rep. 16.

4 Iron Mine vs. Loella Mine, 1 Col. Law Rep. 16-23; Mining Co. vs.
Tarbet, 98 U. S. 463.

5 Iron Mine vs. Loella Mine, 1 Col. Law Rep. 16-23; Van Zandt vs.
Argentine M. Co., 1 Col. Law Rep. 524. Opinion by HALLETT, J.
But not beyond his side lines, unless the location is on the apex.
Mining Co. vs. Tarbet, 98 U. S. 463.

6 Supra.

7 Opinion by HALLETT J. (U. S. Cir. Ct. Dist. Col.)
8 Mining Co. vs. Tarbet, 98 U. S. 463.

§ 37. Same-Veins uniting on the dip.-The statute
provides that when two or more veins unite, the oldest or
prior location shall take the vein below the point of
union, including all the space of intersection.1 The lan-
guage here used is such that there can be little doubt that
it refers to veins which unite in their downward course.
There is another provision in the same section for cases
where veins unite in crossing. This would only occur
where one vein so far departs from the vertical as to pass
within the side lines of an adjoining claim, in which the
vein had less dip. So long as the veins are distinct, and
can be separately followed, they cannot be said to unite.
The statute is merely intended to prevent confusion..
1 Rev. Stat. U. S., § 2336, ante, p. 23.

§37a. Right to cross veins.-Section 2322 of the Revised Statutes 1 gives quite extensive privileges to the locator, both with reference to the exclusive enjoyment of the surface within his boundaries and the right to all veins or


lodes therein included. But by a subsequent section2 it has been decided that these rights are materially abridged so far as regards cross veins.3 This decision has not passed unchallenged, and until the question has been passed upon by the Supreme Court of the United States it can hardly be said to be definitely settled. However, in Hall vs. Equator Mining and Smelting Company,5 we have the construction given to the statute by HALLETT, J., of the United States Circuit Court, which, from the acknowledged ability and experience in mining questions of the learned judge, is entitled to great weight. There is at least an apparent conflict between the two sections referred to,6 and upon the ground, that as between conflicting sections of the same statute, the last in order of arrangement will prevail, it was held that the cross-lode section would govern.8 In this case the question of priority was definitely settled by the patent, but it was held that the section of the statute last in order of arrangement gave the prior claim only to that portion of the cross lode at the point where the two lodes intersected, to the exclusion of the remainder of such lode lying within the territory of the prior location, thus making the question of intersection apply to the lodes or veins, and not to the claims.

1 Ante, p. 14.

2 Rev. Stat. U. S., § 2336, ante, p. 24.

3 Morrison's Mining Rights in Col. (3d ed.) 282.

4 See Morrison's Mining Rights in Col. (4th ed.) 94-98.

5 Reported in full, Morrison's Mining Rights (3d ed.) 282.

6 §§ 2322 and 2336, Rev. Stat., ante, pp. 14 and 24.

7 In the act of 1872, of which these sections formed parts, § 2322 was numbered "3" and § 2326 was numbered "14." This is the order of arrangement referred to, and the only one that could control, as one of the repeal provisions (§ 5600, Rev. Stat. U. S., ante, p. 29), declares that no inference of legislative construction is to be drawn from the arrangement in the revision.

8 Citing Bacon's Ab. Stat. D., Davies, 156 N.; Brown vs. County Commissioners, 27 Pa. St. 37; Smith vs. Moore, 26 Ill. 392, as to the rule of construction.

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SECTION 38-Extent of tunnel claim, length.

39-Conflict with prior claims.

40-Width of tunnel site.

41-Labor and improvements on tunnel location.

§ 38. Extent of tunnel claim, Length.- From the language of the statutel it is quite plain that the exclusive right to locate claims on the line of the tunnel, extends 3,000 feet from the "face" of the tunnel. This term, face, is defined as synonymous with "breast."2 The term "breast" is frequently used among miners to signify that portion of the tunnel in which the work is prosecuted-the end opposite to the opening. But "face" is used in the statute to mean that point where the tunnel is commenced or goes under cover. And the length of the tunnel site is 3,000 feet from this point.

1 Rev. Stat. U. S. § 2323, ante, p. 15.

2 Morrison's Mining Rights.

3 Copp, 144; Corning Tunnel, &c. Co. vs. Pell, 4 Col. 507; post, Land Office Rules, 22.

§ 39. Conflict with prior claims.-The prior discovery which excludes the rights of the tunnel owners has reference to lodes and not to claims; so that the first clause or half of the section would seem to give them the right to locate, possess, and enjoy any newly discovered blind leads, even on claims already located. As this section is numbered "4" in the original act, and the section which gives all side veins within his boundaries to the locator of a lode claim,1 is numbered "3," the conflict between them would, under the doctrine that gives preference to the last

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