"feet, and where there seems to have been no question that "it was within the original and unbroken mass of the "mountain. So far as was shown, the rock on either side "was fixed, solid, and immovable. Mineral matter so "situated, no matter where it was originally formed or Ideposited, is in place within the meaning of the law. "The manner in which mineral was deposited in the places where it is found is at best but little more than a "matter of mere speculation, and to attempt to draw a distinction based upon the mode, or manner, or time of "its deposit would be utterly impracticable and useless. "The question was long ago settled by the courts."1

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A mere superficial deposit, although originally in place, the overlying rock having been eroded and replaced by debris or wash, is not in place."

Auriferous cement gravel beds found in the channels of ancient rivers, lying upon bed-rock and covered with thick deposits of other gravel, the whole frequently capped with a lava of great thickness, would seem to be "in place" within the definitions heretofore given. But the land department, as well as the courts, treats them as deposits of rock not "in place," and requires them to be located under the laws applicable to placers.

ARTICLE IV. "TOP," OR "APEX."

305. The "top," or "apex," of a 2310. Illustrations of a departure

305. The "top," or "apex," of a vein as a controlling factor in lode locations.-The importance of a correct definition of the terms "top," or " apex," or at least a proper application of their definitions to the varying geological conditions encountered in the administration of the mining laws, cannot be overestimated. The top, or apex, of the vein which is the subject of appropriation, is the prime factor in determining the extent of the rights acquired by a lode location. This is apparent when we consider the following requirements of the law:

(1) No lode location is valid unless it includes, to some extent at least, within vertical planes drawn through the surface boundaries, the top, or apex, of a discovered vein;

(2) The right to pursue the vein on its strike ceases at the point where the apex of the vein passes beyond the surface boundaries or vertical planes drawn through them;

(3) The right to pursue the vein on its downward course out of and beyond vertical planes drawn through the side line, into and underneath the lands adjoining, when this right exists to any degree, can only be exercised to the extent that the top, or apex, of the located vein is found within the surface boundaries of the location, or within vertical planes drawn through them.

It is not our purpose to here discuss these elements. They will be fully considered under appropriate heads in other portions of this treatise. We enumerate them simply to demonstrate the necessity of an accurate understanding of what is meant by the terms "top," or "apex," and the care with which principles announced in one case are to be applied to another.

In the light of the rules announced in the previous articles, if a given mineral deposit is in place, it is a lode. If it is a lode in contemplation of law, it has a top, or apex. While it is not easy in all cases to determine where the apex, or top, is, yet it must exist, otherwise it cannot properly be located as a lode. It cannot be located under the placer laws, because these laws apply only to deposits

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not in place, and before it can be legally located as a lode, the apex, or top, must be found. If a location is made on the side or on the dip, whoever discovers and properly locates the apex, will be entitled to enjoy the full rights accorded to regular valid lode locations, and the rights of those who have located on the side edge, or dip, must yield.

Most of the difficulties arising from the application of the definition of "top," or "apex," to individual instances are accounted for by the fact that the courts of last resort hold certain classes of blanket, or flat, deposits to be "lodes," thus creating the necessity of determining what is a top, or apex, as applied to such judicially constructed lodes. If it is a lode, it must have an apex; for without it no lode location can be properly made. If it is a lode, or vein, of quartz or other rock in place, it cannot be appropriated under the laws applicable to placers or mere superficial deposits. It is true that after a lode patent is issued, the existence of an apex within the patented ground will be conclusively presumed. Yet it will not be presumed that any particular exposure of the vein is that apex. must still remain a question of proof.

It

306. The terms "top," or "apex," not found in the miner's vocabulary-Definitions of the lexicographers.Prior to the passage of the act of July 26, 1866, the terms "vein" and "lode" formed a part of the miners' vocabulary. They were incorporated into local rules, and their signification was fairly understood throughout the mining regions. The first congressional law on the subject of mining on the public domain was but a crystallization of these rules; and it was no more than natural that when the courts came to construe the terms which had thus found their way into legislative enactments, they should be interpreted according to the understanding those who first made the definitions and applied them. In

1 Iron S. M. Co. v. Campbell, 17 Colo. 267.

of

2 Jennison v. Kirk, 98 U. S. 453; Broder v. Natoma W. Co., 101 U.S. 274; Chambers v. Harrington, 111 U. S. 274. See, ante, 2 56.

addition to this, the terms "vein" and "lode" had a recognized scientific meaning which did not differ from the popular one, except as applied to novel and peculiar conditions.

But neither "top" nor nor "apex" found a place in the miner's glossary at any period in the history of the mining industry, either in the mining regions of the west or elsewhere; nor had they ever been recognized or applied by scientists for the purpose of designating any part of a vein, lode, or mineral deposit of any kind. Neither miner nor geologist is entitled to the credit for their appearance in the public statutes; nor are they to be held responsible for the perplexities and embarrassments surrounding their proper interpretation. Thus left without custom, precedent, or scientific definition to guide them, the only alternative left to the courts was to apply the ordinary rule of interpretation; that is, that words are to be construed according to the ordinary sense in which they are used and understood. To ascertain what is the ordinary sense in which a word is used, we must appeal to the lexicographers.

We quote the definitions of "apex " found in the standard dictionaries:

Standard Dictionary:

"(1) The pointed or angular end, or highest point, as of "a pyramid, spire, or mountain; extreme point; tip; top. (2) The vertex of a plane or solid angle.

(3) The highest point of a stratum; as a coal seam."

Century Dictionary:

(1) The tip, point, or summit of anything. In geometry, "the angular point of a cone or conic section. The angu"lar point of a triangle opposite the base.

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(2) In geology, the top of an anticlinal fold of strata. "This term, as used in United States Revised Statutes, has "been the occasion of much litigation. It is supposed to "mean something nearly equivalent to outcrop; but pre"cisely in what it differs from outcrop has not been, neither "does it seem capable of being, distinctly made out.

1 Duggan v. Davey, 4 Dak. 110, 140.

Webster's Dictionary:

"The tip, point, or summit of anything."

Soule's Synonyms:

'Top; summit; acme; zenith; pinnacle; highest point; "utmost height."

2307. Definitions given in response to circulars issued by the public land commission.- Under an act of congress passed March 3, 1879, a public land commission was appointed for the purpose of codifying the then existing laws relating to the survey and disposition of the public domain, and to make such recommendations as it might deem wise in relation to the best methods of disposing of the public lands. This commission consisted of J. A. Williamson, commissioner of the general land office; Clarence King, director of the geological survey; A. T. Britton, Thomas Donaldson, and J. W. Powell. For the purpose of informing themselves generally on conditions existing in the west, the commissioners issued a circular containing a series of questions, to which answers were received. These circulars were sent to mining engineers, surveyors, lawyers, judges, and practical miners. Under the head of "Lode Claims," the fourth question was:

"What do you understand to be the top, or apex, of a vein

"or lode?"

We select from the list of answers quoted by Dr. Raymond in his "Law of the Apex":

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"The highest point at which the ore or rock is found "in place' or between the walls of the vein, and not a "blow out,' or part of the ledge broken down outside the

"walls."

"The croppings, or the exposed surface of the vein, or

"lode."

"The highest point at which it approaches or reaches

"the natural surface of the ground."

"The highest point of its outcrop in rock in place. "That point at which the vein enters or emerges "rock in place."

from