mensely rich. It is only necessary to discover a general mineral vein or lode, whether small or large, rich or poor, at the point of discovery, within the lines located, to entitle the miner to make a valid location, including the vein or lode." 1 In a later case we find this definition: "After a careful consideration we reach the opinion that a vein or lode cannot be in place, within the meaning of the act, unless it should be within the general mass of the mountain. It must be inclosed by or held within the general mass of fixed and immovable rock. It is not enough to find a vein or lode lying on the top of fixed or immovable rock, for that which is on top is not within, and that which is without rock in place cannot be said to be within it. . . . We are therefore led to inquire whether the veins or lodes are so inclosed in the general mass of the mountain or lie only on the surface of the fixed and immovable rock with no other covering than the superficial mass to which reference has been made. If the rock above the lode is in its original position, although somewhat broken and shattered by the movement of the country, or other cause, it is in place. In a Dakota case, Judge Moody, speaking of a lode or vein, says: "I am inclined to adopt and do adopt the rule of the practical miner and prospector that the vein is discovered when there is disclosed a well-defined body of rock in place carrying gold, which body afterwards proves to be continuous. In this district it frequently occurs that the one line of demarkation between the surrounding country and the vein or body of ore is where the rock begins to bear gold. The slate or country rock itself frequently carries gold, and is successfully and practically and profitably worked as ore. . . I cannot adopt the rule that the vein must be deemed that part which contains pay ore. The term 'pay ore' is a relative term. What does not now pay 1 North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299, 1 Fed. Rep. 522. 2 Leadville M. Co. v. Fitzgerald, 1 McCrary, 480, 15 Fed. Cas. 98, No. 8,158; Stevens v. Murphy, id. the expense of milling, what is waste to-day, may, with cheapened transportation and subsistence of operatives, to-morrow be pay ore. . "1 To this statement it might be further added that, as new and improved methods of reducing ore are discovered and put to practical use, what was considered waste twenty years ago may now be classed as pay ore. The only safe rule, therefore, in defining a lode is to characterize it as a defined and segregated mass of the mountain, distinguishable from the country or rock lying above or below or on either side of it, which carries some of the useful minerals or metals in greater or less quantity. Other definitions of vein or lode have been made at different times. For instance, Judge Sawyer says: "A vein or lode authorized to be located is a seam or fissure in the earth's crust filled with quartz or with some other kind of rock in place carrying gold, silver or other valuable mineral deposits named in the statute."2 Judge Hillyer gives this definition, speaking with reference to another case in the federal court: 3 "It was considered in that case that the terms 'vein' and 'lode,' as used by congress, for reasons there given, could not always be restricted to aggregations of mineral matter in fissures of rock."4 It may be said generally that if an ore body is continuous to the extent that it may maintain its character, it is in place. So far as the ore body is continuous, it must either have been originally deposited in that form or removed bodily with its inclosing rocks to the place where it is Golden Terra M. Co. v. Mahler, 17 Fed. Cas. 918. In the case of 2 Dak. 399, 4 M. R. 390. Jupiter M. Co. v. Bodie Cons. M. Co., 11 Fed. Rep. 666, 7 Sawy. 96. Eureka M. Co. v. Richmond Cons. M. Co., 4 Sawy. 302, Fed. Cas. No. 4,548. Mount Diablo M. Co. v. Callison, Tabor v. Dexter, 23 Fed. Cas. 16, the court held that, where the lode lay on top of the ground, the hanging wall evidently having been eroded away, it was not a vein of rock in place. found; and in either of these cases it may be said to be in place within the meaning of the statute.1 § 286. Further definitions-"Broad-vein cases" and zone theory. The terms "lode," "ledge" and "vein" as used in the statutes, and understood by miners generally, and as defined by the courts, as previously noticed, are synonymous and interchangeable. In their broadest sig nification and most comprehensive sense, they mean any zone belt or aggregation of mineral-bearing rock or earth distinctive in itself and lying within well-defined boundaries, separating and distinguishing it from the general mass of the mountain or neighboring rock, and must be in place, as we shall hereinafter see. From their general signification has resulted what are popularly known as "broad veins," or "zones." These cases have occasioned much discussion, and a principle has been introduced known as the "broad-vein or broad-apex theory," sometimes called the "mineralized zone" doctrine. Wherever it has been before the courts so far, according to the result of our research, there has been but one case reaching an appellate court where the decision was made squarely upon this point. And even this case, we may say in passing, was decided partially on other grounds. So that what experts and mining lawyers characterize as broad-vein theory, is still virgin soil. In order to appreciate the full force of this condition it will be necessary to repeat, in effect, some little that we have said in the definition of a lode itself. In a recent case it was said: "In defining lodes and veins the text-books and several of the decisions speak of them as fissures in the earth, filled with quartz in place, and carrying gold and silver or other minerals. But true fissure veins and lodes often exist and are continuous without having any filling in certain points or places of mineral matter. A ma Iron Silver M. Co. v. Cheesman, 2 McCrary, 191, 8 Fed. Rep. 297. 2 Ante, § 283-285. 3 Bullion-Beck & Champion M. Co. v. Eureka Hill M. Co., 5 Utah, 1. jority of such lodes have, in addition to the clean fissure filling of mineral, a considerable amount of decomposed wall rock, clay, etc. In slate formations, it frequently occurs that one of the walls has been subjected to a certain amount of fracture, which results in the formation of a number of seams, and in the decomposition of the material included between the seams of unaffected wall rock, which miners designate as horses.' To constitute a vein it is not absolutely necessary that there should be a clean fissure filled with mineral, but it may and does exist when filled in places with other matter. The fissures should, of course, have form and be well defined, with hanging and foot walls. Between these walls will be found bodies of quartz, rich and poor, but there is also liable to be found in many places short or long distances between the quartz bodies or pay chutes where no quartz will be found in the fissures between the walls. Yet the vein exists, and is often as well defined as if the same was filled with quartz. The clay, selvadges, slickensides, striation and ribbing of the walls are frequently as strong evidence of the indication of permanency and continuity as the existence of the quartz itself."1 The following language is used by Mr. Justice Field: "Our judgment being that the limestone zone in Ruby hill in Eureka district, lying between the quartzite and the shale, constitutes, within the meaning of the act of congress, one lode of rock-bearing metal." 2 § 287. Definition of "in place."- The meaning of the words "in place," as used in the statute, is the body of country which has not been affected by the action of the elements and which may remain in its original state and condition, as distinguished from the superficial mass lying above it. It is the solid, fixed rock, as distinguished from the surface debris, slide, alluvial or wash. Commissioner 1 Cons. Wyo. M. Co. v. Champion M. Co., 63 Fed. Rep. 544. 2 Eureka M. Co. v. Richmond M. Co., 4 Sawy. 302, 8 Fed. Cas. 819. 3 Iron Silver M. Co. v. Cheesman, 116 U. S. 529; Same case below, 8 Fed. Rep. 297, 2 McCrary, 191; Hyman v. Wheeler, 29 Fed. Rep. 353; Drummond says of it: "It will be observed that the mineralproducing lands are divided into two classes the one class embraces lands where the mineral matter is within 'rock in place,' or geologically speaking, 'in situ,' and the second includes placers and all forms of deposit excepting those in 'rock in place.' In this connection I deem it a matter of importance to give the construction this office places upon the expression, 'vein or lode of quartz or rock in place,' to prevent mistakes in locating the two classes of mines referred to, thereby saving the claimants considerable expense and delay." It does not necessarily mean solid rock, in the sense that it should be free from breaks, seams, gashes or general brecciation; it means the hard subsurface forming the make-up of the mountain. The supreme court of the United States, on this subject, says that "excluding the wash, slide or debris on the surface of the mountain, all things in the mass of the mountain are in place." While in the supreme court of Nevada Justice Bigelow defines it: "So far as shown, the rock on either side was fixed, solid and immovable. Mineral matter so situated, no matter where it is originally formed or deposited, is in place' within the meaning of the law." To constitute rock in place, it is not necessary that it be merely hard or quartz rock, but any combination of rock, broken or mixed up with mineral and other things, is rock in place within the meaning of the statute.' § 288. Definition of strike or course" Along the vein." The statute does not use the words "strike or course;" the words employed there to mean the same thing Stevens v. Williams, 1 McCrary, 484, 23 Fed. Cas. 40, 44 (Nos. 13,413, 13,414); Leadville M. Co. v. Fitzgerald, 15 Fed. Cas. 98; Cheesman v. Shreeve, 40 Fed. Rep. 787; Burke v. McDonald, 2 Idaho, 646, 33 Pac. Rep. 49; Jones v. Prospect Mountain Tunnel Co., 21 Nev. 389, 31 Pac. Rep. 642. 1 Com'r Circular, Gen. Land Office, July 13, 1873; Copp's Min. 2 Iron Silver M. Co. v. Cheesman, 116 U. S. 529. 3 Jones v. Prospect Mountain Tunnel Co., supra. 4 Stevens v. Williams, supra. |