the scientist and that applied by the practical miner. But it is when we encounter certain classes of deposits, and meet with new and unique conditions, the existence of which was neither known nor contemplated when the "miners made the definitions," nor when congress enacted the mining laws, that the courts have been forced to admit that "what constitutes a lode, or vein, of mineral matter "has been no easy thing to define."1

The first reported case in which a judicial definition of any of these terms was attempted is the case of the Eureka M. Co. v. Richmond M. Co., one of the most famous of the mining cases ever considered by the courts. It was tried before three of the most eminent mining judges - Field, Sawyer, and Hillyer,— who had the benefit of the testimony of some of the most distinguished scientists of the period. It was a case involving rights accruing under the act of 1866, and the following is the definition formulated:—

"We are of the opinion that the term (lode) as used in "the acts of congress is applicable to any zone or belt of "mineralized rock lying within boundaries clearly separa"ting it from the neighboring rock. It includes . . . all "deposits of mineral matter found through a mineralized "zone, or belt, coming from the same source, impressed "with the same forms, and appearing to have been created "by the same processes."

The zone to which this definition was applied was of dolomitic limestone, a sedimentary deposit, broken, crushed, and fissured, resting on a foot-wall of quartzite, and having a hanging-wall of clay shale. The width of the zone varied from a few inches to four hundred and fifty feet. Its mean width was about two hundred and fifty feet. The hangingwall had a dip of eighty to eighty-five degrees, while the foot-wall had an average inclination of forty-five degrees. Throughout this body of limestone, vugs, chambers, and large caverns were encountered, in the bottoms of which ore, - lead carbonates, carrying gold and silver,— was invari

1Iron S. M. Co. v. Cheesman, 116 U. S. 529.

14 Saw. 302; Judge Field, in Iron S. M. Co. v. Mike & Starr G. & S. M. Co., 143 U. S. 394.

Y

VEIN,'

ably found. Overlying the hanging-wall was another zone. of limestone, which differed from that lying on the quartzite, being plainly stratified, and contained neither

ores nor caverns.

No one connected with the case contended that is was a fissure.1

While we are not concerned with the genesis of these ore deposits, it is a matter of common knowledge that the inclosing rock (limestone) being soluble, the caves, vugs, and chambers resulted from the chemical action of percolating waters creating space for the subsequent deposit of the ores.

Professor Le Conte, in his "Elements of Geology," gives a cross-section, exhibiting a homely illustration of the result of the erosive action of the water in rocks of this character, and cites the Mammoth Cave, in Kentucky, Wier's Cave, in Virginia, and Nicojack Cave, in Tennessee, as examples. Our apology for introducing these elements into the discussion is found in the admonition of the courts, referred to in a preceding section, that in applying a definition we must look to the facts, circumstances, and conditions of structural geology which justified its creation, before we can intelligently determine whether it should be applied to other cases.

We do not complain that the law was incorrectly applied in the Eureka case. But there is hardly a mining case of any considerable importance in which one side or the other does not. attempt to apply the zone theory announced in this case to conditions wholly different from those encountered on Ruby Hill.

The Eureka case stands as a forensic classic; but its force as a precedent ought to be limited to cases where the conditions are parallel, or at least analogous.

The passage of the act of May 10, 1872, introduced new terms, and created new complications, which must be considered when dealing with the present state of the law.

1 See monographs of W. S. Keyes and R. W. Raymond, Trans. Am. Inst. Min. Eng., vol. vi., pp. 344, 393.

23d ed. 76.

293. The Leadville cases.

We shall have occasion.

to analyze the group of cases arising out of the unique geological conditions existing at and in the vicinity of Leadville, Colorado, when we discuss the subject of " apex in the succeeding article, presenting a cross-section which gives a fair illustration of the mode in which these so-called veins" occur. As we shall there fully explain our understanding of these local conditions to which definitions have been applied, we confine ourselves presently to quotations from these various cases, most all of which refer to and apply to the Eureka case:

In general, it may be said that a lode, or vein, "is a "body of mineral, or mineral-bearing rock, within defined "boundaries in the general mass of the mountain."2

"In this definition the elements are the body of mineral "or mineral-bearing rock and the boundaries. With either "of these things established, very slight evidence may "be accepted as to the existence of the other. A body "of mineral or mineral-bearing rock in the general mass "of the mountain, so far as it may continue unbroken and "without interruption, may be regarded as a lode, whatever "the boundaries may be. In the existence of such body, "and to the extent of it, boundaries are implied. On the "other hand, with well-defined, boundaries, very slight "evidence of ore within such boundaries will prove the "existence of a lode."

"Such boundaries constitute a fissure; and if in such "fissure ore is found, although at considerable intervals, "and in small quantities, it is called a lode, or vein. . . . "A continuous body of mineral or mineral-bearing "rock extending through loose, disjointed rocks, is a lode as "fully and certainly as that which is found in more regu"lar formation."

4

1 For a full presentation and discussion of these cases, see Dr. Raymond's Law of the Apex.

Judge Hallett, in Iron S. M. Co. v. Cheesman, 8 Fed. 299, 301, quoted by Justice Muller in Stevens & Leiter v. Williams, 1 McCrary, 480, 488. 3 Quoted in Cheesman v. Shreve, 40 Fed. 787, 795.

Judge Hallett, as quoted and approved in Iron S. M. Co. v. Cheesman, 116 U. S. 529; United States v. Iron S. M. Co., 128 U. S. 673. See, also, Hyman v. Wheeler, 29 Fed. 347, 353; Illinois S. M. Co. v. Raff, 34 Pac (N. Mex.), 544.

"The thinness or thickness of the matter in particular places does not affect its being a vein or lode. Nor does "the fact that it is occasionally found in the general course "of the vein or shoot, in pockets deeper down in the earth, "or higher up, affect its character as a vein, lode, or ledge."

"By veins, or lodes, are meant lines or aggregations of "metal embedded in quartz or other rock in place. The "terms are found together in the statutes, and both are "intended to indicate the presence of metal in rock. Yet "a lode may, and often does, contain more than one vein.""

"With ore in mass and position in the body of the "mountain, no other fact is required to prove the existence "of a lode or the dimensions of the ore. As far as it prevails, the ore is a lode; and it is not at all necessary to "decide any question of fissures, contacts, selvages, slicken"sides, or other marks of distinction, in order to establish "its character." 3

"It has sometimes been contended that the lode must "have a certain position in the earth; that is to say, it "must be more or less vertical, before this rule which is "given in the act of congress can be applied; but we have heretofore held, and we are still of the opinion, that it applies to all lodes which have an inclination below the plane of the horizon, whatever it may be."4

66

66

66

3

In Stevens & Leiter v. Williams is found the following by Judge Hallett:

"As to the word vein,' or 'lode,' it seems to me that "these words may embrace any description of deposit "which is so situated in the general mass of the country, "whether it is described in any one way or another; that "is to say, whether, in the language of the geologist, we "say it is a bed, or a segregated vein, or gash vein, or true "fissure vein, or merely a deposit. Whenever a

"miner finds a valuable mineral deposit in the body of the "earth (in place) he calls that a lode, whatever its form may be, and however it may be situated, and whatever "its extent in the body of the earth."

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1Justice Miller, in Stevens & Leiter v. Williams (second trial), 1 Morr. Min. Rep. 573.

2 United States v. Iron S. M. Co., 128 U. S. 673.

3 Hyman v. Wheeler, 29 Fed. 347, 353; Cheesman v. Shreve, 40 Fed. 795. Leadville M. Co. v. Fitzgerald, 4 Morr. Min. Rep. 380.

523 Fed. Cases, No. 13, 414.

The same judge, in another case, held that an impregnation to the extent to which it may be traced as a body of ore is as fully within the broad terms of the act of congress as any other form of deposit.'

While the supreme court of the United States, in the cases of Iron S. M. Co. v. Cheesman, United States v. Iron S. M. Co., and Reynolds v. Iron S. M. Co., had accepted the definition of a lode, or vein, announced by Judge Hallett, thus determining that the blanket deposits of Leadville were in law embraced within the definition of the terms "lode" and "vein," their position was vigorously assailed in the later case of Iron S. M. Co. v. Mike & Starr G. & S. M. Co. This case was twice argued, a re-argument having been ordered, and the attention of counsel directed to the question, among others, as to what constituted a vein or lode within the meaning of sections twenty-two hundred and twenty and twenty-three hundred and thirty-three of the Revised Statutes. The action was brought by the plaintiff in error as the owner of the William Moyer placer to eject the defendant. The defense was "known lode" existing at the time of the application for the placer patent, called the Goodell lode. The verdict was for the lode claimant. Plaintiff appealed. The judgment was affirmed by the supreme court of the United States, in an opinion from which we quote:

"There was an earnest inquiry as to whether in "view of the disclosures made in this, as in prior cases, of "the existence of a body of mineral underlying a large area "of country in the Leadville mining district, whose general "horizontal direction, together with the sedimentary char"acter of the superior rock, indicated something more of "the nature of a deposit, like a coal-bed, than of the verti"cal and descending fissure vein in which silver and gold are ordinarily found, it did not become necessary to hold "that the only provisions of the statute under which title "to any portion of this body of mineral or the ground in "which it is situated can be acquired are those with respect "to placer claims. .

Hyman v. Wheeler, 29 Fed. 347, 353. 2116 U. S. 529.

3128 U.S. 673. 5143 U. S. 394. +116 U.S. 687.