thorized by the statute, the purpose is manifest that wherever the statutes are silent, that is to say, the statutes of the United States, the local legislature may provide rules for working mines, involving the subject of easements, drainage and other necessary means to their complete development. This is evidently not intended to interfere in any way with either the police regulations of the state or its exercise of the law of eminent domain, but simply advocates the regulation of these matters by the states or territories, and that the property sold by the United States in this manner shall not be relieved of these particular burdens if the state shall see fit to place them upon it. PART XI. OF SUB-SURFACE AND EXTRA-LATERAL RIGHTS. CHAPTER I. GENERAL AND PRELIMINARY-NATURE OF ESTATE-AND HEREIN OF DEFINITIONS. § 765. Preliminary and introductory - Statutory severance. 766. Of the extent and place of the common-law presumption - True dip and strike, application of, to end and side-line veins. 767. The policy of the law. 768. The origin of the law. 769. Same subject — Right recognized on the continent - Natural justice of the dip right. 770. The theory of the statute-Veins nearly vertical-Vein formation. 765. Preliminary and introductory - Statutory sev erance. In this part of our inquiry we shall treat of that branch of the mining law which, at first blush, seems to enact a radical departure from the principles of the common law; that is to say, the right to follow the vein on its dip, or its downward course, beyond and outside of the vertical boundaries of the claim, according to the words used by the statute. The distinction between this feature of the law and its other branches, when all are carefully considered together, is not so marked as the first impression leads one to imagine. This is rather a statutory severance of the mineral estate from the estate which the owner of adjoining ground other wise possesses upon common-law principles, after the vein or lode departs from the vertical planes of the location in which its apex is found, into such adjoining ground. The similarity of the principles governing this estate which the law carves out of that belonging to the adjoining proprietor and gives to the proprietor owning the apex, and the estate which one proprietor conveys to another by deed or lease, as we shall have occasion to examine when we reach that branch of our inquiry,' in its general nature and features, is quite apparent. In both the same incidental rights, duties and obligations between the mineral claimant and surface proprietor exist in all their details, including (which is sufficient for the purpose of the present inquiry) the incidental right of ingress and egress other than barely following the vein; likewise that of surface support.2 766. Of the extent and place of the common-law presumption— True dip and strike, application of to end and side-line veins.-In England at the common law, and in other countries where the common law or the modified civil law prevailed, all minerals, except royal metals, contained or found within and under the surface of the earth, were deemed part of the soil and belonged to the owner of the soil. In this country prior to the federal statutes of 1866 and 1872 this doctrine prevailed. It still prevails in a much more ample form than it did at the common law in all the states, except the public mineral land states of the west, as outlined in the early part of this work. In these states it prevails, except as modified by the statute in one direction and enlarged in another direction; the modification being in the carving out of the estate located or patented the right in a neighboring proprietor, with lines properly laid and marked, to pursue his vein on its downward course beneath the ground in question. The enlarged right is that of thus pursuing the vein on its dip or downward course into neighboring ground between the planes 1 See Severance, post, Part XII, ch. IV. 2 See post, Part XII, ch. V. of the end lines of the claim, or those judicially or by the law declared to be such, and produced and extended in their own direction so as to include the portion of the vein in question. Reasoning upon the line that if there is a vein of ore beneath a certain surface there is no person, except the surface proprietor, authorized by the law to dispute with the person attempting to mine it, the courts have decided that the only solution of the difficulty thus presented is by the application of the common-law rule, by the well-known terms of which the owner of the surface is presumed to own all beneath. And, following this principle, the courts have said that by virtue of ownership of the surface such owner is justified in saying to all intruders, "Hands off until you show a better right," and that the owner of the surface is prima facie owner of all beneath.2 Within certain lines this rule must be applied; but, as we shall attempt to reason out further on," we think some courts have gone too far in asserting the dogmatic rule that the owner of the surface is always prima facie presumed to own all beneath, and even one following a vein of ore on its true dip must show a clear right when he proceeds beyond its own lines. 1 We think one following his vein, on its true dip, let us say, is presumed to be right in all doubtful cases. The courts, however, with a greater show of power than of reason, have decided the matter exactly the other way, and now say, indeed it is firmly settled, that the owner of the surface is, under the common-law rule, presumed to own all beneath it. Let us illustrate our position by the diagram on page 663, taking the diagram in the Del Monte case for an illustration. Instead of the apex of the vein being well defined, sup 1 Cons. Wyoming G. M. Co. v. Champion M. Co., 63 Fed. Rep. 540. 2 Leadville M. Co. v. Fitzgerald, 4 M. R. 380, 15 Fed. Cas. 98, 101; Cons. Wyoming G. M. Co. v. Cham pion M. Co., supra. See also Parrot pose it is in the beds of the limestone and irregular — a frequent occurrence. Suppose the Last Chance claim to be the older and the ore in dispute to be under the New York at a point marked by the word "New," and that they be long to different owners. Being the older claim it would own all the ore between its northerly end line and another line drawn parallel there with at the point where the extreme part of the apex entered the New York ground. The true dip, we must remember, is at right angles with the average strike. Suppose there was a well-founded dispute so that it became a question of fact as to whether the vein crossed the New York side line at the point marked on the diagram or at the point "X," or some intermediate point. In such case we think the presumption should be with the apex owner for all purposes, and the burden upon the New York. It would be with the Last Chance owner mining in good |