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[247 U.S. 450, 451] Messrs. Curtis H. Lindley, of San Francisco, Cal., and Hugh H. Brown, of Tonopah, Nev., for plaintiff in error. [247 U.S. 450, 452] Messrs. W. H. Dickson, of Salt Lake City, Utah, S. S. Downer, of Reno, Nev., A. C. Ellis, Jr., of Salt Lake City, Utah, Peck, Bunker & Cole, of Oakland, Cal., and H. H. Atkinson, of Tonopah, Nev., for defendant in error.
Mr. Justice VAN DEVANTER delivered the opinion of the Court.
This is a suit by the owner of two lode mining claims, the Eureka and the Curtis, to enjoin the owner of an adjoining lode claim, the West End, from exercising an asserted extralateral right in respect of a vein extending beneath the surface from the latter claim into the others. All the claims are patented and their ownership is conceded. The Eureka adjoins the West End on the south and the Curtis lies immediately south of the Eureka. The state courts, both trial and appellate, upheld the defendant's asserted right to follow the vein extralaterally (39 Nev. 375, 158 Pac. 876), and the plaintiff seeks a reversal of that decision on the theory that it is in contravention of the mining laws of Congress, in that ( a) the end lines of the West End claim are not parallel and straight, and therefore an essential element of the right to follow the vein extralaterally is wanting; (b) this right can be exercised only in one direction, that is, beyond one side line, not both, and as the discovery vein1 dips to the north the [247 U.S. 450, 453] right can be exercised only in that direction; and (c) the facts specially found do not show that the top or apex of the vein is within the vertical limits of the West End claim.
For present purposes the West End claim may be described as having the form of a parallelogram 1,500 feet in length from east to west and 600 feet in width from north to south, but with a small portion of the northeast corner cut off by a diagonal line and a somewhat larger portion of the southwest corner similarly cut off. See diagram, 39 Nev. 375, 158 Pac. 876. Thus what would be the end lines of the parallelogram, if it were complete, are substantially shortened, but the major part of each remains. These shortened lines are not only parallel, but straight. Are they the end lines of the claim in the sense of the statute? Or do its end lines consist of the shortened lines and the diagonal lines? End lines in the sense of the statute are those which are laid across the vein to show how much of it, in point of length, is appropriated and claimed by the miner. All other lines are side lines. True, the end lines must be both parallel and straight. Rev. Stat. 2320, 2322 (Comp. St. 1916, 4615, 4618); Walrath v. Champion Mining Co., 171 U.S. 293, 311 , 18 S. Sup. Ct. 909. But it is not so with the side lines. They may have angles and elbows and be converging or diverging, so long as their general course is along the vein and the statutory restriction on the width of claims is respected. Del Monte Mining Co. v. Last Chance Mining Co., 171 U.S. 55, 84 , 18 S. Sup. Ct. 895. Applying these tests to the bounding lines of the West End claim, we regard it as plain that the diagonal lines at the two corners are part of its side lines, and not of its end lines. In this respect the case is like Walrath v. Champion Mining Co., supra, where in determining what was the northerly end line of the Providence claim (see diagram, 171 U.S. 298 , 18 Sup. Ct. 909), the line g, h, was held to be the true end line and the diagonal line f, g, to be no part of it. Thus the objection that [247 U.S. 450, 454] the end lines of the West End claim are not parallel and straight is untenable.
What in mining cases is termed the extralateral right is a creation of the mining laws of Congress, and to learn what it is we must look to them rather than o some system of law to which it is a stranger. Besides, as Congress has plenary power over the disposal of the mineral-bearing public lands, it rests with it to say to what extent, if at all, the right to pursue veins on their downward course into the earth shall pass to and be reserved for those to whom it grants possessory or other titles in such lands. What it has said is this (Rev. Stat. 2322 [Comp. St. 1916, 4618 ]):
It will be seen that the extralateral right so created is subject to three limitations. One conditions it on the presence of the top or apex inside the boundaries of the claim. Another restricts it to the dip or course downward, and so excludes the strike or onward course along the top or apex. And the last confines it to such outside parts as lie between the end lines continued outwardly in their own [247 U.S. 450, 455] direction and extended vertically downward. But otherwise it is without limitation or exception and broadly includes 'all veins, lodes and ledges throughout their entire depth'-one as much as another, and all whether they depart through one side line or the other. Given two veins which in their descent pass, one through one side line and the other through the other side line, how could it be held that the right applies to one vein and not to the other, when the statute says 'all veins ... throughout their entire depth'? By what rule would a court be guided in making a selection between the two when the statute makes none? And where a single vein in its descent separates into two limbs which depart through the opposite side lines, on what theory could the right be sustained as to one limb and rejected as to the other? The terms of the statute, as we think, do not lend themselves to any such distinctions, but, on the contrary, show that none such is intended.
In Mining Co. v. Tarbet, 98 U.S. 463 , 467 (25 L. Ed. 253), this court in pointing out the intent of the statute said that 'the end lines are to cross the lode and extend perpendicularly downwards, and to be continued in their own direction either way horizontally.' And in Del Monte Mining Co. v. Last Chance Mining Co., 171 U.S. 55, 88 , 18 S. Sup. Ct. 895, 908 (43 L. Ed. 72), a case in which the statute was much considered, it was said:
And again ( 171 U.S. 89 , 18 Sup. Ct. 908):
In Calhoun Gold Mining Co. v. Ajax Gold Mining Co., 182 U.S. 499 , at page 508, 21 Sup. Ct. 885, 890 (45 L. Ed. 1200), it was added:
And also ( 182 U.S. 509 , 21 Sup. Ct. 890):
We conclude therefore that, when the other elements of the extralateral right are present, it may be exercised beyond either or both side lines depending on the direction which the departing vein or veins take in their downward course.
So much of the special finding as bears on the character of the vein and the presence of its top or apex inside the vertical lines of the West End claim is as follows:
Giving due effect to the finding, it is manifest that the vein in controversy is not a flat or horizontal vein or one [247 U.S. 450, 460] which would be practically horizontal but for a succession of rolls or waves in its el vation. On the contrary, it is shown to be a fissure vein with two dipping limbs whose course downward is substantial, regular and practically free from undulations. For 750 feet out of its total length of 1,150 feet within the West End claim each limb is practically a separate vein with a distinct summit or terminal edge. For the remaining 400 feet the two limbs are united and from the point of union the mineralized quartz or rock continues upward for from 20 or 30 to more than 100 feet, and this seems to answer all the calls of a summit or terminal edge. In these circumstances we hardly would be warranted in saying as matter of law that the vein has no top or apex within the claim in the sense of the statute. See Stewart Mining Co. v. Ontario Mining Co., 237 U.S. 350 , 35 Sup. Ct. 610.
It is well to remember, as this court has indicated in other mining cases, that to take from the discoverer a portion of that which he has discovered and give it to one who may have been led to make an adjoining location by a knowledge of the discovery is unreasonable.
The contention is not that the top or apex of this vein has been found elsewhere, but only that what is found in the West End claim is not such in the sense of the statute. 'The law,' as has been truly said, 'assumes that the lode has a top, or apex, and provides for the acquisition of title by location upon this apex.' Probably this assumption could not be indulged where the fact appeared to be otherwise, but it serves to show that the absence of a top or apex ought not to be adjudged in the presence of such a finding as we have here.
[ Footnote 1 ] The discovery was on the northerly limb hereinafter described.
[ Footnote 2 ] Approaching 400 feet.
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Citation: 247 U.S. 450
Docket No: No. 249
Decided: June 10, 1918
Court: United States Supreme Court
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