a statute. It calls for no more than an independent ownership of coal and railroad. That is one step towards a complete divorce of interest between carrier and shipper. It may prove step enough, or it may lead to further progress. It is as far as Congress has as yet gone, and no injustice is involved in taking it.

NEW YORK.

Learned Hand.

LODE LOCATIONS: A SPECIFIC QUESTION OF EXTRALATERAL RIGHTS AND A GENERAL THEORY OF INTRALIMITAL RIGHTS.

I. A QUESTION CONCERNING THE EXTRALATERAL RIGHTS INCIDENT TO OWNERSHIP OF A JUNIOR LODE LOCATION WHICH PARTLY OVERLAPS A SENIOR LODE LOCATION.

MA

AY the lines of a junior lode location be laid across the surface of a valid senior lode location for the purpose of securing to the junior locator apex rights on so much of the vein as apexes within the lines so laid, excepting only where a conflict arises with the apex rights of the senior locator?

Since the decision of the Del Monte case,1 it has been very generally, but not universally, considered by mining lawyers that this question may be answered affirmatively.

The facts in the Del Monte case are illustrated by the plat on page 267.

The three locations shown on the plat were all patented. Both as to time of location and as to time of patent, the order of seniority was Del Monte, New York, Last Chance. The triangle B, however, notwithstanding the seniority of Del Monte as to location, was, by express agreement with the owner of the Del Monte, patented to the owner of the Last Chance.

The owner of the Del Monte, though holding the oldest of the three locations, could not, of course, since the location included no part of the apex of the vein within its boundaries,2 have any right

1 Del Monte M. & M. Co. v. Last Chance M. Co., 171 U. S. 55.

2 The vein was a broad lode. In Del Monte M. & M. Co. v. New York & L. C. Co., 66 Fed. 212, it was claimed that the hanging wall lay within the Del Monte territory. The court said: “In the present inquiry the outcrop of the lode will be taken to be... on the line of the foot-wall as shown on the diagram" (p. 213). Lindley (pp. 993-994) states: "The case involving the extralateral right of the Last Chance as against the Del Monte [Del Monte M. & M. Co. v. Last Chance M. Co.] was presented to the circuit court of appeals upon an agreement of counsel that the course of the footwall as marked in the diagram . . . should for the purposes of the case be deemed to be the course of the apex." For broad lode questions, see Lindley, Mines, § 583; Snyder, Mines, § 803.

to such of the ore as lay between the dip-right bounding planes of the owner of either of the two junior locations on the apex. The owner of the Del Monte, however, did have-in accordance with that doctrine which is not capable of logical establishment, but which is enunciated by most jurists as elementary-a common

law right to such of the ore as lay within imaginary vertical planes drawn through the boundaries of the location, wherever such ore was not subject to the apex rights, if any, incident to the ownership of either of the locations on the apex.

Two actions were brought by the Del Monte Mining and Milling Company in protest against the extraction of ore from under its

surface by one or the other of the owners of the junior locations. The first action involved the apex rights, if any, incident to the ownership of the New York only. The second action involved the apex rights, if any, incident to the ownership of the Last Chance only. These two actions, therefore, may be distinguished, for brevity, by calling the first Del Monte v. New York, and by calling the second Del Monte v. Last Chance. Del Monte v. New York was not appealed from the Circuit Court; Del Monte v. Last Chance was taken up to the Supreme Court, and is now commonly known as the Del Monte case.

In Del Monte v. New York it was held that the line r-g' must be drawn, parallel with the end lines of the New York, from the point of departure of the vein from the easterly side line of the New York, and that the apex rights of the owner of the New York, as against the owner of the Del Monte, must be bounded on the north by such line, the court saying: 5 "Following the course of the end lines of the New York location in a westerly direction. from this point [r], there is a considerable space [the triangle -r-s'], which widens in the westward course between the line last mentioned (r-g') and the north compromise line [r-s', practically]. To this respondent is not entitled, as against complainant, the owner of the Del Monte claim. So much of the territory last mentioned [the triangle '-r-s'] as lies west of the east side line of the Del Monte location [i. e., v'-v'-o'-o] is subject to the prayer . . . As to the territory south of that last mentioned [i. e., south of the line r-z'], the motion [that is, the motion for an injunction restraining the owner of the New York from extracting ore from under the surface of the Del Monte] will be denied."6

8 Del Monte M. & M. Co. v. New York & L. C. Co., 66 Fed. 212. Del Monte M. &. M. Co. v. Last Chance M. Co., 171 U. S. 55.

5 P. 215.

6 The question as to the extralateral rights of the owner of the New York, though general in form, and without specific reference to the New York, was nevertheless certified to the court in the Del Monte case (see question 4, 171 U. S. 60), and was considered and answered. The question referred to was as to the extralateral rights, in general, of any locator whose vein passes through one end line and one side line of his location, and the court decided that, in such case, the extralateral rights must be limited by a line parallel with the end lines, drawn from the point where the vein crosses the side line. In so deciding, the court merely followed the well-settled rules evolved from the principles discussed in the King v. Amy, 9 Mont. 543, rev'd 152 U. S. 222, Tyler v. Last Chance, 71 Fed. 848, and Fitzgerald v. Clark, 17 Mont. 100, and many other cases to the effect that though the true end lines of a location, irrespective of how they are called by the locator, are the lines crossed by the apex, yet that not every line which is crossed by an apex is an end line; that when two lines are crossed by an apex they may

In Del Monte v. Last Chance (the Del Monte case) the court expressly decided that the owner of the Last Chance had extra

both be considered to be end lines only if they are opposite to each other; that if the apex crosses one end line and one side line of a location, the line designated by the locator as an end line will be held to be the true end line, and an imaginary line parallel with such end line will be drawn from the point at which the apex crosses the side line; and that vertical planes drawn through such parallel lines, and extended indefinitely across the opposite side line, will bound the territory within which the locator may pursue the vein inside and outside the boundaries of his location. Thus the Supreme Court held in effect, in the Del Monte case, as the Circuit Court had previously held in fact, in Del Monte v. New York, that the extralateral rights of the New York must be limited on the north by the line r-z', parallel with the end lines, drawn from r, the point of departure of the apex from the side line (pp. 86-91).

On page 85 of the opinion, however, the court seems to intimate that the New York had extralateral rights as far north as the line c-h'. The expressions of the court, in this regard, are as follows: "It is obvious that the line eh, the end line of the New York claim, extended downward into the earth will at a certain distance pass to the south of the liners, and a triangle of the vein will be formed between the two lines, which does not pass to the owners of the New York." Lindley, 1057-1058, explaining this reference to the line e-h' as the northerly boundary of the extralateral rights of the owner of the New York, states that the court meant the line e-h' applied at r, "making the line r-z-z." The court in the Copper Trust case, 65 Pac. 1024, considered that the court in the Del Monte case, in stating its reasons for refusing to consider the extent of the extralateral rights of the owner of the Last Chance, merely mentioned the line e-h' as being a line to the north of which the owner of the New York could have no rights "under any circumstances." At any rate, in view of the positive holding of the court on the general question of extralateral rights incident to ownership of a location like the New York, the somewhat careless reference to the line e-h' must be disregarded. Snyder, however, takes the expressions on page 85 of the opinion literally. He states (p. 705): "The New York was not a party to that litigation, and of course its rights were not determined, though they were incidentally referred to, such reference, however, not being necessary to a decision of the questions before the court. In discussing the possible rights of the Last Chance to pursue the vein on its dip at any point south of the projected line r s, the court speaks of the vein south of the line eh, projected beyond its intersection with rs, as the property of the New York, but there is no warrant in law for any such right north of point x [that is, the point s on our plat], for want of an apex. Whether the court will adhere strictly to this dictum," etc. In the first place, a glance at the plat will show that if the apex rights of the owner of the New York had extended as far north as the line e-h', such rights might well have been considered by the court in its determination as to whether or not the owner of the Last Chance had rights, under the surface of the Del Monte, everywhere north of the line 7-s'. Furthermore, if it were granted that a question as to the extralateral rights of the New York called for a judicial expression of opinion on a point not necessary to the determination of the point in issue, and that the court might therefore have refused to answer it [as it did with respect to the question as to whether or not the Last Chance had extralateral rights to the south of the line r-s' (see infra)], still it is doubtful that any holding concerning the extralateral rights of the owner of the New York, since the court was not considering the case on its merits (it expressly refused so to do, pp. 9192), but was merely answering a question certified to it by the court below, can properly be characterized as a dictum. Finally, it may be said that Snyder, in considering the expressions on page 85 of the opinion to be a holding to the effect that the northerly