When it is considered that up to the year 1866 the quicksilver product of the Pacific slope (and it does not occur elsewhere in the United States), was confined to three mines, two of which were then claimed under Mexican grants-the New Almaden, in Santa Clara county, California, and the New Idria (Panoche Grande), in Fresno county, California, and that active search for cinnabar deposits was not inaugurated until 1874,' popular knowledge on the subject of the mode of occurrence was not particularly extended. It is more than likely that "cinnabar" was, in popular estimation, found in fissures, the same as gold and silver, and that the association of cinnabar with gold and silver in the act arose out of ignorance of the true character of its occurrence, rather than a deliberate attempt to classify it in the category of lodes, with a full knowledge as to the form in which it was found. Be that as it may, the miner first applied the terms "lode" and "vein,” and they had with him a definite meaning. Whether it accorded with scientific theories and abstractions is, at this late day at least, of no serious moment. Speaking of the essential differences between the miner and the scientist on the subject of definitions, Dr. Foster, in his contribution to the "Quarterly Journal of the Geological Society," on the Great Flat lode in Cornwall, quoted by Dr. Raymond in his monograph on the Eureka-Richmond case, presents some suggestions on the subject of the definition of these terms which are worthy of repetition here: 3 "The terms lode,' or mineral vein,' commonly regarded as synonymous, are usually taken to mean the mineral " contents of a fissure. I have endeavored to show that 1 Becker's Geology of the Quicksilver Deposits of the Pacific Slope, pp. 10, 11. ? The ignorance of many of the early miners of California on geological subjects is thus quaintly suggested by Mr. J. Ross Browne (Mineral Resources of the West, 1867): "Many believed that there must be some volcanic source from which "the gold had been thrown up and scattered over the hills; and they "thought that if they could only find that place, that they would have "nothing to do but to shovel up the precious metal and load their mules "with it." 3 Trans. Am. Inst. Min. Eng., vol. vi., p. 371, 381. "the Great Flat lode is in the main a band of altered rock. "Much of the veinstone extracted from some of the largest "Cornish mines, such as Dolcoath, Cook's Kitchen, Tincroft, "Carn Brea, and Phoenix, for instance, closely resembles the "contents of the Great Flat lode, and was probably formed "in a similar manner; indeed, I question very much whether "at least half the tin ore of the country is not obtained "from tabular masses of stanniferous altered granite. If, "then, many of the important lodes of such classic ground "as Cornwall do not satisfy the common definition, one of "two things ought to be done; either the miner should 'give up the term 'lode' for these repositories, or else the "meaning attached to the word by geologists should be "extended. I need hardly say that the first alternative is "not likely to be adopted; nor do I think it is one to be "recommended-for I believe that one and the same fissure "traversing killas and granite may produce two kinds of "lodes. I should propose, therefore, that the term "lode,' or 'mineral vein,' should include not only the contents of fissures, but also such tabular masses of metallif"erous rock, as those I have been describing. 66 . . If, however, this course should be thought on the whole unde"sirable, the geologist and miner must agree to differ in "their language, and some of the lodes of the latter will. "have to be designated as tabular stockworks by men of "science." We do not conceive that from a judicial standpoint it is a matter of vital importance that the miner and the scientist should harmonize their differences on the subject of mere definition. The danger lies in accepting the definitions of either, and attempting to apply them to conditions not within the reasonable contemplation of the law, or in attempting to deprive a locator of the benefit of his discovery, if the thing discovered can not be forced into the mold of arbitrary definition, either popular or scientific. If in the construction of the terms used in the mining laws there is one evil to be avoided as great as the servile adherence to arbitrary definition, it is the blind application of a rule announced in one case, where local conditions may justify it, to other cases, where a similar application of the rule, by reason of modified or totally different conditions, would produce absurd results. As was said by Judge Hawley, sitting as circuit judge in the case of Book v. Justice M. Co., "Various courts have at different times given a defini"tion of what constitutes a vein, or lode, within the mean"ing of the act of congress; but the definitions that have "been given, as a general rule, apply to the peculiar char"acter and formation of the ore deposits, or vein matter, "and of the country rock, in the particular district where 'the claims are located." i And in a later case: 1 "The mining laws of the United States were drafted for "the purpose of protecting the bona fide locators of mining "ground and at the same time to make necessary provision "as to rights of agriculturists and claimants of townsite "lands. The object of each section and of the whole policy "of the entire statute should not be overlooked. The par"ticular character of each case necessarily determines the rights of the respective parties, and must be kept con"stantly in view, in order to enable the court to arrive at "a correct conclusion. What is said in one character of "cases may or may not be applicable in the other. What"ever variance, if any, may be found in the views expressed "in the different decisions touching these questions arises "from the difference in the facts and a difference in the ""character of the cases and the advanced knowledge which "experience in the trial of the different kinds of cases "brings to the court. . The definition of a lode 66 must always have special reference to the formation and "peculiar characteristics of the particular district."" As was said by Judge Field, speaking of the act of July 23, 1866, The mining acts" were not drawn by geologists or for geologists. They were not framed in the interest of "science, and consequently with scientific accuracy in the "use of terms. They were framed for the protection of "miners in the claims which they had located and devel"oped, and should receive such a construction as will carry "out this purpose." 3 158 Fed. 106, 121. 2 Migeon v. Montana Cent. Ry., 77 Fed. 249, 254. 290. The terms "lode," "vein," "ledge," legal equivalents. The act of July 26, 1866, used the term "vein, or "lode." The act of May 10, 1872, added the word "ledge," and all these terms occur in the Revised Statutes. Of the three terms, the word "lode" is the more comprehensive. A lode may, and often does, contain more than one vein.' Instances have been known of a broad zone, generally recognized as a lode, itself having welldefined boundaries, but being traversed by mineralized fissure veins, each possessing such individuality as to be the subject of location. A lode may or may not be a fissure vein, but a fissure vein is, in contemplation of law, a lode. "Ledge" is more of a local term, at one time in common ⚫ use in California and some parts of Nevada. It is mentioned in the act of May 10, 1872, and is incorporated into the Revised Statutes, but it is practically unrecognized in many mining localities. Generally speaking, the terms are used interchangeably.3 As observed by Dr. Raymond, "lode" is an alteration of the verb "lead." In many localities the word "lead" is. used as synonymous with "lode." "Lead" is also applied in California to certain subterranean auriferous gravel deposits, which, however, can be acquired only under theplacer laws, according to the rules established by the land. department. The terms "lode" and "vein" are always associated in the existing mining statutes, and are invariably separated by the disjunctive. For all practical purposes, they may be considered as legal equivalents. Unless the authority cited itself makes the distinction heretofore suggested, the definitions hereafter given apply equally to both words. 1 United States v. Iron S. M. Co., 128 U. S. 673. Mt. Diablo M. & M. Co. v. Callison, 5 Saw. 439. See, also, Doe v. Waterloo M. Co., 54 Fed. 935. 3 Iron S. M. Co. v. Cheesman, 8 Fed. 297, 301; Cheesman v. Shreve, 40, Fed. 787, 792; Morr. Min. Rights, 8th ed. 113. 'Gregory v. Pershbaker, 73 Cal. 109. 2291. Classification of cases in which the terms "lode" and "vein" are to be construed.- Judge Hawley, speaking for the circuit court of appeals in the ca se of Migeon v. Montana Cent. Ry.,' says: "There are four classes of cases where the courts have "been called upon to determine what constitutes a lode or "vein, within the intent and meaning of different sections "of the Revised Statutes: "(1) Between miners who have located claims on the "same lode, under the provisions of section twenty-three "hundred and twenty; "(2) Between placer and lode claimants, under the pro"visions of section twenty-three hundred and thirty-three; "(3) Between mineral claimants and parties holding "townsite patents to the same ground; "(4) Between mineral and agricultural claimants to Ithe same land." To these we may add another: (5) Controversies between a lode miner, who has penetrated into and underneath lands adjoining in the development of what he has located under the law applicable to lode claims, and the adjoining or neighboring surface proprietor, whose claim to the underlying mineral deposits rests solely upon presumptions flowing from surface ownership. In interpreting these terms the nature of the controversy is an undoubted element to be considered. In some classes of cases a more liberal rule is followed than would be justified in others. It is useless in our judgment to search for a judicial definition which would be absolutely applicable under every conceivable state of facts and in all classes of controversies. 2 292. Judicial definitions and their applicationThe Eureka case. It may be safely asserted that as to the terms "lode" and "vein," when applied to geological conditions existing in most mining localities, there is no essential difference between their definition as given by 177 Fed. 249, 254. |