"The top, or apex, is generally understood to be that part of the lode that is first discovered. A vertical lode "has its apex at the surface."

"Where the mineral-bearing crevice-matter is first met, "either on the surface, or, as in blind lodes, underground; "but wherever it is met, there begins the apex."

"The croppings, or highest point of the ledge appear"ing above or discovered beneath the surface."

"The highest point of the center of the ledge."

"The outcrop in the highest geological level, whether "this is accidentally higher or lower than some outcrop "caused by denudation, or slip."

"Where it comes through or to the surface of the rock "in which it is incased, though it may be covered, and "sometimes is, with twenty or thirty feet of loose earth."

"That portion of the lode along its course which outcrops to the surface, or, if 'blind,' which comes nearest "to the surface."

"The line such vein would make in its intersection with the surface, calculated from its true dip at each point."

"The uppermost part of the ledge between the two walls, “although these may be missing."

"In case the vein outcrops at the surface, I would call "any portion of such outcrop the top, or apex. If the vein "does does not reach the surface, then the highest point "to which the vein, or lode, can be traced is the apex"not necessarily the nearest point to the surface, but the "absolute highest point."

"The summit, comb, crest, or highest point on the ridge "of a vein, or lode."

"The upper edge; that part which is first reached or "passed, in developing a mine."

"The outcrop, or, in case of a blind ledge, that line of "the vein, or lode, which approaches the surface the "nearest."

"That portion of the vein that is visible in the country "rock when the loose dirt or earth has been removed.

"Some veins stand up above the country rock like a wall. "The top of such veins would be the highest part of such "wall above the ground or bed-rock."

"Its highest point at any given place."

"The outcrop."

"The point at surface where the ore is met with; either superficially seen in the croppings, or just beneath the "surface."

"Either the outcrop or crevice between walls at the top "of bed-rock."

"The vein at the surface."

"Outcrops generally."

"The width of the vein, or lode, on the surface; but the "United States mining law means the top, or apex, to be "the width of the claim, six hundred by fifteen hundred "feet."

"The outcropping of the vein."

"Where it has been projected through the country rock by an acting subterranean agency or force."

Judge Beatty, then chief justice of Nevada, gave the clearest and most comprehensive of all the definitions. It is as follows:

"The top, or apex, of any part of a vein is found by following the line of its dip up to the highest point at "which vein matter exists in the fissure. According to this "definition, the top, or apex, of a vein is the highest part of "the vein along its entire course. If the vein is supposed to be divided into sections by vertical planes at right angles to its strike, the top, or apex, of each section is the "highest part of the vein between the planes that bound "that section."

"Of course, there are irregular mineral deposits departing widely in their characteristics from the typical or "ideal vein which seems to have been in the mind of the "framer of the act of 1872. To such deposits the foregoing definitions will not apply; and, in my opinion, great "difficulty will be experienced in any attempt to apply "the existing law to them."1

1 Report of Public Land Commission, 399; Dr. Raymond on Law of the Apex, 28.

2308. Definition of Dr. Raymond.- Dr. Raymond, in his "Law of the Apex," with reference to these terms and their use in the act of May 10, 1872, says:

"I have reason to believe that they were used instead of "the word 'outcrop,' in order to cover 'blind lodes,' "which do not crop out. The conception of an apex, "which is properly a point, was probably taken from the appearance of a blind lode in a cross-section, where the "walls appear as lines and the upper edge as a point. The term may also have been intended to cover the imaginary "case of an ore deposit which terminates upwards in a "point. We may, however, dismiss from consideration the case of a simple point, and safely assume that the "the same as a top, and is either a line or a surface."

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apex

is

The definition crystallized by him and found in his 'Glossary of Mining and Metallurgical Terms," is, "the "end or edge of a vein nearest the surface."

We think this definition should be qualified to some extent. Our views will be found in the next section.

309. The ideal lode, and its apex.- For the purpose of the application of principles and definitions, and furnishing a standard of comparison, we present in figure 4 a vertical cross-section of an ideal lode-such a lode, or vein, as the early miner undoubtedly had in mind when he "made the definitions" and applied the terms "lode" and "vein." This cross-section is intended to represent the

position of the vein in the inclosing rock, descending into the earth in a direction approximating the perpendicular or vertical, crossing in its downward course the planes of stratification, having well-defined foot and hanging-walls, and emerging at the surface at the point marked "apex," where is found a visible outcrop. This outcrop, we may assume, is exposed on the east slope of the hill, and continues to be traceable on the surface in a regular, defined course for an indefinite distance southerly at right angles to the "dip" or downward course. This hypothetical vein. has all the attributes of a true fissure, and may be said to be an ideal vein or lode-one concerning which there can be no possible controversy, as it answers the definition of the judge, the scientist, and the practical miner. Is there any question as to where the apex of that vein is? or what is its strike or course and its dip or downward course? We think not. With the mountain in its normal condition, there is but one method of making a valid location covering that vein, and that is by inclosing the outcrop or apex within surface boundaries, presenting an ideal lode location, shown in the accompanying figure 5.

There is no room for controversy over the rights flowing from such a location, either surface or underground, assuming that there are no other prior locations covering the apex of the same vein whose end-line planes might intersect those represented by the figure.

How should the apex of this vein be defined? It is not a point, because a point has neither length nor breadth. It is not a line, because a line has no dimension but length. It is but a succession of points. As that term is employed in the mining laws, an apex is unquestionably a surface which is a succession of lines.

The apex of this ideal vein within the location is a surface bounded by the walls of the vein and the end lines of the location. This surface is, of course, irregular. It may be higher at one place within the boundaries than it is in another; but mere elevation of the upper edge of the vein at different points within the location is of no moment. If the top of the mountain were ground down to a horizontal plane, the vein as exposed would be a plane surface; but, nevertheless, it would be an apex. The fact that the exposed edge of the vein is ragged, or that the surface of the outcrop is higher in one place above a given datum plane than it is in another, makes no difference in the principle.

If this upper edge does not outcrop so as to be visibly traceable on the surface, but is "blind," covered with detritus or a capping of country rock, it is still a surface bounded by the walls of the vein, and vertical planes drawn downward through the end lines. The plane of contact of the upper edge of the vein with the detritus or capping, intersected by the walls of the vein, would be the apex surface. We cannot conceive that an apex of a lode, within the meaning of the act of congress, can be anything but a surface, although we are aware that the supreme court of the United States has said that an apex is often a line of great length. But it undoubtedly meant a surface, because in another portion of the same case it speaks of the "apex in its full width." Mathematically speaking, there is no width to a line. As was said by the supreme court of Montana, a lead, or lode, is not an imaginary line without dimensions; it is not a thing without

'Larkin v. Upton, 144 U. S. 19, 23.