ventor should be encouraged. So the prospector who climbs the mountains, and digs and toils, and discovers a valuable mine, ought to be protected, encouraged, and rewarded for his enterprise, his toil, and his skill. This, it is believed, the public good, as well as justice, demands, and justice and the public good are the chief ends of this law.

Section 2 of the act of 1866 provides "that when any person or association of persons claim a rein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, or copper, having previously occupied and improved, etc., it shall and may be lawful for said claimant

to file in the local land office a diagram of the same, so extended laterally or otherwise as to conform to the local laws, customs, and rules of mines, and to enter such tract, and receive a patent therefor granting such mine, together with the right to follow such vein or lode, with its dips, angles, and variations, to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition." The claim to be secured is that to a lode or vein, and the grant is of the mine (which appears to be synonymous in its meaning with the terms "vein" or "lode"), together with the dips, angles, and variations, to any depth, and the right to follow the lode into land adjoining.

The third section requires the surveyor general to designate in his survey the value of the labor and improvements, and the character of the vein exposed, and declares that the survey shall in no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued. This section regards the vein as the valuable subject of the patent.

Section 4 makes provision for the adjustment of government surveys to the limits of mining claims previously located, and provides that no location thereafter made shall exceed 200 feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, to

gether with a reasonable quantity of surface for the convenient working of the same as fixed by local rules; and provides, further, that no person may make more than one location on the same lode, and not more than 3000 feet shall be taken in any one claim by any association of perWhile this section limits the right of a person to a lode longitudinally, it does not limit such right in the direction of the width of the lode. The right as to the width of the surface ground is limited, but not the right as to the width of the vein.

sons.

Section 2 of the act of 1872 provides "that mining claims upon veins or lodes shall be governed, as to length, along the vein or lode, by the customs, regulations, and laws in force at the date of their location. And mining claims located after the passage of the act shall not exceed one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein. at the surface, nor be limited to less than twenty-five feet on each side of the middle of the vein at the surface."

Section 3 declares "that the locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge, . . . shall have the exclusive right of possession and enjoyment of all the surface ground 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 downwards vertically, although such veins, lodes, or ledges may so far depart from a perpendicular. in their course downwards as to extend outside of the vertical side lines of said surface locations." And the longitudinal rights of locators are limited by vertical planes drawn downward through the end lines of their claims. The proviso to this section limits the locator's rights on the surface to the surface lines of his claim, but recognizes his right to the entire vein beneath the surface and downwards.

This section gives the exclusive right of possession and

enjoyment of the surface of a claim, and to all veins the apexes of which are found within planes extended downwards vertically through the surface lines. Does this language mean that the apex must be entirely within those lines, or that it must not be entirely without? When the apex lies partly within and partly without, was it the intention to segregate the vein, or, so to speak, to split it laterally?

The fourteenth section gives the prior locator the entire vein within the space of intersection; and, where two or more veins unite, the oldest or prior location takes the whole below the point of union, including the space of intersection. These provisos recognize no division. The point of union may be beneath the surface of the junior claim, and that claim may have the larger vein, but that makes no difference - the first discoverer takes the entire vein below the point of union. The point of union must be regarded as in fact the apex of the united vein, or the tops of the veins which form it must be its apexes; but the apex of the vein first discovered is the legal apex of the united vein, and gives the right to the whole. By complying with the law the first discoverer takes it all as the reward for his diligence and enterprise, and this would be so notwithstanding that the united lode might be under the surface ground of the junior claim. In a case where a number of veins have so united, if the ore indications had been such as to authorize the conclusion that there was but one broad vein or lode, then each locator would have been confined to so much as was beneath the surface, and the vein at last might be found beneath the surface of the junior claim, in which case the first discoverer would lose all but a fraction, and the junior discoverer would have almost all that is valuable. If the law is as claimed by appellant, such would be the result; and when the apex is found, as in this case, a hundred feet beneath the surface, the first discoverer may lose the main body of the vein, if he does not, before locating, take time to explore the entire top of the vein by sinking shafts; and he must lose more or less in any case where the apex is so broad that the law and the rules of miners will

not permit him to make his surface claim wide enough to cover it.

The lode in question was located under the law of 1866, and section 16 of the act of 1872 declares that nothing contained in that act shall be construed to impair in any way rights or interests under existing laws. Under the law of 1866 the surface ground was merely for the convenient working of the lode. The discoverer and first locator took the lode in its entirety. The law contemplated its segregation in its length, not in its width. It refers to lodes between the end lines, not to a part of a lode. No expression can be found in it indicating an intention to limit the rights of the locator to a portion of the lode in its width. The discovery of any part of the apex of a vein is regarded by it as a discovery of the entire apex. And we think that the law of 1872, when all of its provisions are considered together, and in connection with the former law on the subject, as it should be, evinces the same intent. Under this law the discoverer of any part of the apex gets the right to its entire width, despite the fact that a portion of the width may be outside of the surface side lines of his claim extended downwards vertically. While he has no right to the extralateral surface he has a right to the extra lateral lode beneath the surface.

This view is in harmony with the case of Flagstaff Silver Min. Co. v. Tarbet, 98 U. S., 463. In that case the patent of the defendant was for 2,600 feet in length and 100 feet in width, and the location was across the vein. The court held that the side lines became the end lines; that a party could not locate across the vein, and then claim the full length of his claim on the strike, nor could he follow the vein longitudinally entirely outside of his surface lines vertically extended. The court said: "Slight deviations of the outcropping lode from the location of the claim would probably not affect the right of the locator to appropriate the continuous vein, but if it should make a material departure from his location, and run off in a different direction, and not return to it, it certainly could not be said that the location was on that vein or lode further than it

continued substantially to correspond with it. Of what use would a location be for any purpose of defining the rights of the parties if it could be thus made to cover a lode or vein which runs entirely away from it?"

In the case before us the apex of the vein did not run off in a different direction, and not return to the location. According to the findings in this case, the location of the claim was along the apex of the vein, and the southerly portion of the apex was entirely within it, but the northerly end of the apex widened out so that the lode was partly within and partly without.

The circuit court, district of California, used the following language in its charge to the jury in a mining case: "But if you find that said vein or lode so cut by defendant is not one of the veins or lodes discovered within any claim the title to which you find in the plaintiff, and that its apex or top is not within the side lines of any such claim of plaintiff drawn vertically downwards, but is a separate, independent vein, erery part of which lies to the eastward or outside of and beyond any claim the title to which you find to be in the plaintiff, and no part of the apex or top of which is within the side lines of such claim drawn vertically downwards, then it does not belong to plaintiff, and your verdict will be for defendant." North Noonday Min. Co. v. Orient Min. Co.. 6 Sawy., 299; S. C. 1 Fed. Rep., 522.

To the same effect is the case of Rose v. Richmond Min. Co., 17 Nev., 25, although there the point seems to have been conceded by counsel on both sides. The United States circuit court of Colorado held, however, that a right to an entire lode cannot be asserted under a location covering a part only of its width, and is only good for the part within the lines extended vertically downwards: Hall v. Equator Mining & Smelting Co.

Other decisions upon the point were mentioned by counsel on the argument, but we are unable to obtain any authentic report of them.

The ruling of the court admitting in evidence the patent from the United States to the Eureka Mining Company, which was the source of respondent company's title, is