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1140; King v. Mining Co., 152 U. S. 222, 14 Sup. Ct. 510, 38 L. Ed. 419. No doubt, the owner of the Emma could have lawfully prevented any intrusion upon his claim, and have maintained the exclusive possession thereof. As said by the Supreme Court in Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co., 171 U. S. 55, 83, 18 Sup. Ct. 895, 43 L. Ed. 85: ‘A party who is in actual possession of a valid location may maintain that possession and exclude every one from trespassing thereon, and no one is at liberty to forcibly disturb his possession or enter upon the premises. At the same time the fact is also to be recognized that these locations are generally made upon lands open, uninclosed, and not subject to any full actual occupation, where the limits of possessory rights are vague and uncertain, and where the validity of apparent locations is unsettled and doubtful. Under those circumstances, it is not strange-on the contrary, it is something to be expected, and, as we have seen, is a common experience-that conflicting locations are made, one overlapping another, and sometimes the overlap repeated by many different locations. And while in the adjustment of those conflicts the rights of the first locator to the surface within his location, as well as to veins beneath his surface, must be secured and confirmed, why,' asks the court, 'should a subsequent location be held absolutely void for all purposes, and wholly ignored? Recognizing it so far as it establishes the fact that the second locator has made a claim, and in making that claim has located parallel end lines, deprives the first locator of nothing. Certainly, if the rights of the prior locator are not infringed upon, who is prejudiced by awarding to the second locator all the benefits which the statute gives to the making of a claim? To say that the subsequent locator must, when it appears that his lines are to any extent upon territory covered by a prior valid location, go through the form of making a relocation, simply works delay, and may prevent him, as we have seen, from obtaining an amount of surface to which he is entitled, unless he abandons the underground and extralateral rights which are secured only by parallel end lines. In this connection,' continued the court, 'it may be properly inquired, what is the significance of parallel end lines? Is it to secure to the locator in all cases a tract in the shape of a parallelogram? Is it that the surveys of mineral land shall be, like the ordinary public surveys, in rectangular form, capable of easy adjustment, and showing upon a plat that even measurement which is so marked a feature of the range, township, and section system? Clearly not. While the contemplation of Congress may have been that every location should be in the form of a parallelogram, not exceeding 1,500 by 600 feet in size, yet the purpose, also, was to permit the location in such a way as to secure not exceeding 1,500 feet of the length of a discovered vein; and it was expected that the locator would so place it as, in his judgment, would make the location lengthwise cover the course of vein. There is no command that the side lines should be parallel, and the requisition that the end lines shall be parallel was for the purpose of bounding the underground extralateral rights which the owner of the location may exercise. He may pursue the vein downward outside the side lines of his location, but the limits of his right are not to extend on the course of the vein beyond the end lines projected downward through the earth. His rights on the surface are bounded by the several lines of his location, and the end lines must be parallel, in order that going downward he shall acquire no further length of the vein than the planes of those lines extended downward inclose. If the end lines are not parallel, then, following their planes downward, his rights will be either converging and diminishing, or diverging and increasing, the further he descends into the earth. In view of this purpose and effect of the parallel end lines, it matters not to the prior locator where the end lines of the junior location are laid. No matter where they may be, they do not disturb in the slightest his surface or underground rights.'
"The court accordingly answered in the affirmative this question propounded to it by the Circuit Court of Appeals for the Eighth Circuit: 'May any of the lines of a junior lode location be laid within, upon, or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extralateral rights not in conflict with any rights of the senior location?'
"In the case of the Hidee Gold-Mining Company, decided by the Secretary of the Interior January 30, 1901 (advance sheets), it was held that the location of a lode mining claim may even be laid within, upon, or across the surface of patented lode mining claims for the purpose of claiming the free and unappropriated ground within such lines and the veins apexing in such ground, and of defining and securing extralateral underground rights upon all such veins, where such lines are established openly and peaceably, and do not embrace any larger area of surface, claimed and unclaimed, than the law permits.
"As, therefore, upon the facts appearing, there was no valid objection to the Stemwinder location, the next question is, what rights did the owner of that location thereby secure? Confessedly, he acquired nothing as against the Emma, either on the surface or underground. But how is it as against the government and every subsequent locator? In the absence of any objection on the part of the owner of the Emma, the locator of the Stemwinder had, as we have seen, the legal right to extend his lines upon and across that claim. The ground to the north and south of the Emma was, according to the findings, open and unappropriated public land, with a mineral-bearing ledge passing in a northwesterly and southeasterly direction through the Emma and into the adjoining unappropriated public land to the north and south of that claim. Across that ledge and on unappropriated public land the locator of the Stemwinder laid his southerly end line, and along the course of the ledge and on unappropriated public land he laid his westerly side line. Across the ledge, partly on unappropriated public land and partly on the prior Emma location, he laid his northerly end line, parallel with his southerly end line, and along the course of the ledge, partly on the Emma and partly on unappropriated public land, he laid his easterly side line, almost, if not quite, parallel with his westerly side line. As, in the absence of any objection on the part of the owner of the Emma, the locator of the Stemwinder had the legal right to cross the prior location, his lines, as against the government and all subsequent locators, would therefore seem to have been perfectly laid. Under such circumstances, we are unable to see why, as against the government and all subsequent locators, the location should not carry precisely the same rights, surface and extralateral, that it would carry if none of the lines had been laid upon or over a prior location, which, under the statute governing extralateral rights, would give to the locator of the Stemwinder, as against the government and all subsequent locators, the right to follow the dip of the vein in its departure from the westerly side line of the claim indefinitely between vertical planes drawn through the parallel end lines extended indefinitely in their own direction. We think, too, that this is the logical deduction to be drawn from the reasoning upon which the judgment of the Supreme Court in the case of Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co., supra, was based. In effect, the court below made the south line of the Emma the north end line of the Stemwinder, thereby destroying the parallelism of the end lines of the Stemwinder fixed by its locator, and either destroying all of its extralateral rights entirely, or limiting them to converging lines intersecting at the point Y on the diagram. This is in conflict with what was held by the Supreme Court in the Del Monte Case in respect to the line, e, i, of the New York claim. That line, which was the northerly side line of the New York, stood in the same relative position to the Last Chance claim there involved as the south boundary of the Emma claim does to the Stemwinder; and the Supreme Court, in answer to the third question submitted to it by the Circuit Court of Appeals for the Eighth Circuit, held that the easterly side line of the New York did not constitute the end line of the Last Chance claim there in question. Locations of lode mining claims are made for the purpose of reaching the underground veins. "The area of surface,' said the court in the Del Monte Case, 'is not the matter of moment. The thing of value is the hidden mineral below, and each locator ought to be entitled to make his location so as to reach as much of the unappropriated, and perhaps only partially discovered and traced, vein as is possible.' 171 U. S. 75, 18 Sup. Ct. 895, 43 L. Ed. 85."
It cannot, therefore, be now held, as claimed by the appellant, that no extralateral right pertains to the Stemwinder claim. Nor are we
able to agree with the appellant's counsel that the extralateral right of the Stemwinder should be bounded on the northerly side by a vertical plane drawn downward through the patented south line of the Emma claim because of the placing of the stone monument already referred to; and this for several reasons: First, it does not appear that the Stemwinder Mining Company, or its successor in interest, the appellee herein, knew anything about the stone monument, or the oral agreement under which it was built, at the time they acquired their interest; second, the monument was but one point, and was insufficient to indicate any boundary line; and, third, no connection is shown between the appellant and the Emma and Last Chance claims, or any of their owners or locators-there was no privity between them, or any of them.
Did the court below err, as against the intervening claims of the appellant, in fixing the bounding planes of the extralateral right of the Stemwinder through the original north line of the Stemwinder, and through its amended south line? By this decision, it will be seen, the court confined the extralateral right of the Stemwinder within the limits of its original location, and did not extend it beyond the planes of its amended location; and in confining it, as it did, to planes drawn through the northerly end line of the original location and the southerly end line of the amended location, it is given less of the vein on its dip than would be included within planes drawn through the end lines of its amended location. Was it right, in going back to the original north line of the Stemwinder, in fixing its extralateral right as against the intervening claims of the appellant? That question, it seems to us, depends upon whether or not the amendment of the location in question was an abandonment, for all purposes, of the original? If so, it would follow that the court below was in error in this particular. That there was no such intention on the part of the Stemwinder Mining Company was expressly declared in its notice of amended location, wherein it was stated that, the error in the course of the vein having been discovered"The object of this amended location is to conform to the laws relating to mining claims, both national and local, and to mark and define and record the same to the extent and with the boundaries hereinafter set forth, the same being within the boundaries so located, marked, and staked in the original location hereof, and not otherwise."
Again it is declared in the amended notice of location:
"It is further intended herein not to abandon in any manner or by implication any rights, privileges, property, possession, or title derived, originated. owned or held under the original location hereof; but that the purpose hereof is to more particularly mark, locate, define and describe the ground, vein, and premises held by said company, without waiving any rights under said original location, all of which the said company claims as the legal successor in interest and title and possession derived from said original locators."
At the time of the original location of the Stemwinder, none of the claims here set up by the appellant had been located. At the time of its location, it being supposed by its locator that the vein or lode outcropping within its surface boundaries ran in an easterly and westerly direction, and its then supposed side lines being, as a matter of fact, laid across the vein, and being substantially parallel, the law declares that
those which the locator called his side lines were in fact his end lines. Del Monte M. & M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72; Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859; Flagstaff M. Co. v. Tarbet, 98 U. S. 463, 25 L. Ed. 253; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478,7 Sup. Ct. 1356, 30 L. Ed. 1140; King v. Amy Silversmith M. Co., 152 U. S. 222, 14 Sup. Ct. 510, 38 L. Ed. 419; Bunker Hill & Sullivan M. & C. Co. v. Empire State-Idaho M. & D. Co., 109 Fed. 538, 48 C. C. A. 665; Empire M. & M. Co. v. Tombstone M. & M. Co. (C. C.) 100 Fed. 910; Cosmopolitan M. Co. v. Foote (C. C.) 101 Fed. 518; Tyler M. Co. v. Sweeney, 54 Fed. 284, 4 C. C. A. 329. And as they were laid, as the evidence shows, openly and aboveboard, without any forcible, clandestine, surreptitious, or otherwise fraudulent entry upon the ground of another, and without objection on the part of any one, the location of the Stemwinder thus made, carved out, as against the government, and any and every subsequent locator, a segment of the vein throughout its entire depth, which belonged to its locator. Del Monte M. & M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72; Empire State-Idaho M. & D. Co. v. Bunker Hill & Sullivan M. & C. Co., 114 Fed. 417, 52 C. C. A. 219.
Unless the amended location of the Stemwinder operated as a total abandonment of the original, that segment of the vein, within the limits of the planes of the amended location, remains the property of the successors in intercst of the original locator, against all persons not possessed of some prior right. That such amended location was not intended to operate as any such abandonment has already been shown by the express declarations of the notice of amended location above quoted; and that, as a matter of law, it was not an abandonment of the original location, is equally clear. Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Hallack v. Traber, 23 Colo. 14, 46 Pac. 110; McEvoy v. Hyman, 25 Fed. 596; Morrison v. Regan (Idaho) 67 Pac. 955; Duncan v. Fulton (Colo. App.) 61 Pac. 244.
The great width of the vein or lode in question is also again pressed upon our attention by the learned counsel for the appellant; extending, as he insists the evidence shows, beyond the west side line of the Stemwinder claim. In respect to this matter the court below said in its opinion:
"The defendant also maintains that the apex of this ledge is so wide that it extends far to the westward of the west line of the Stemwinder. Upon this subject there is much and some very interesting testimony by experienced and scientific mining men, but no one has been able to set definite limits to the ledge, and that it has no distinct hanging wall cannot be doubted. Its one distinct and persistent feature is its foot wall. It was the axis of action. Upon it the superincumbent mass of hanging country had its oscillating and grinding motion, resulting in the creation of that heavy selvage or gouge now found upon it, and in so shaking and breaking up that hanging country as to change the relation of its component parts; thus creating large masses of brecciated rock, fissures and cavities, through which the circulating mineral elements deposited their ores. It would be expected that those conditions would decrease as we advance from the line of fissure and action, until reaching a point where there had been no disturbance of the rocks. We would expect the evidence of mineralization to extend far beyond the ore deposits, and as far as the country had been disturbed, displaced, or brecciated, but we cannot conclude that the
legal hanging wall extends to the limits of these influences. It is a fact that in many ledges having a distinct hanging and foot wall, the country beyond either is more or less mineralized, and at times even small deposits of ore are found beyond the lines of the walls. Yet no miner would say that such mineralized country rock constituted a part of the ledge. It appears that in this ledge the foot-wall country has very little mineralization or even mineral stains. The reason is evident. The heavy gouge prevented the escape in that direction of the mineral elements, and the rocks having preserved their original compact formation, there were no cavities through which the mineral elements could circulate. To hold that the ledge extends to the extreme limits of all evidence of mineralization is not a reasonable or practicable proposition in such a formation as this. If not there, where then? Not beyond the ore deposit line, or where such strong indications of it are found that the miner could work or explore with the expectation of compensation. It cannot be doubted from the evidence that far beyond the line where any miner, acquainted with this formation, would work for ore, there is much evidence of mineralized rock, quite similar to the material recognized as clearly within the ledge. So far as can thus far be concluded from all the evidence of ore developments, at and within a reasonable distance below the surface in the Stemwinder, I doubt that the apex proper in that claim exceeds 250 to 300 feet in width. Suppose, however, that it does extend beyond the west line of the claim; the only effect would be, under the holding of the Court of Appeals in the King Case, 114 Fed. 417, 52 C. C. A. 219, that, if defendant owns that surface, it would own so much of the apex as lies within it. What its underground rights would be, is a problem I am not called upon to now solve."
We are not prepared to hold that the court below was in error in the view thus taken of the evidence in the cause. But if it be conceded that the vein or lode be as extensive in width upon the surface as contended by the appellant, the priority of the original Stemwinder location over the claims of the appellant here set up being established, the extralateral right of the appellee would remain as fixed and decreed by the court below. Last Chance M. Co. v. Bunker Hill & Sullivan M. & C. Co. (decided at the present term), 131 Fed. 579; Empire State-Idaho M. & D. Co. v. Bunker Hill & Sullivan M. & C. Co., 114 Fed. 417, 52 C. C. A. 219; St. Louis M. & M. Co. v. Montana M. Co., 104 Fed. 664, 44 C. C. A. 120, 56 L. R. A. 725. and cases there cited.
The judgment is affirmed.