shape or form. But before it can legally and rightfully be denominated a lead, or lode, it must have length, and width, and depth; it must be capable of measurement; it must occupy defined space, and be capable of identification.'

Of course, in speaking of the edge of the vein nearest to the surface, we mean the surface along the course of the vein, the upper edge, and not the lower edge, or side edge. As absolute horizontality does not exist in nature, save in the case of the level of the sea, every vein, lode, or deposit, whatever its form, has either an upper and lower edge, or a top and a bottom, as well as sides. It may be difficult to find them, or to determine their relative position, but they exist, in the nature of things.

To further illustrate, recurring again to figure 4: Suppose that, instead of the mountain being in its normal condition, the north face of the hill was abraded, cut down vertically, as you would cut a cheese, leaving the edge of the vein from the point marked "apex," to the bottom of the vein which may be assumed to be at B, exposed to the observer as we see it in the figure. In other respects, the vein preserves its position in the mountain as described. Will it be seriously contended that the exposure of the edge "apex" to B, constitutes an apex, because it appears at the surface on the perpendicular face of the hill? It has been so claimed. In the case of Duggan v. Davey, decided by the supreme court of Dakota, a case soon to be considered by us, it was stated by Professor Dickerman, a distinguished expert, in response to an inquiry as to what would be the apex of a vein cropping out at an angle of one degree from the vertical on a perpendicular hillside, and cropping out also at a right angle with that along the level summit of the hill (which is the case assumed by us with reference to figure 4), that in his opinion the whole line of the exposure from the bottom B upward to the point marked "apex clear over the hill, as far as it extended, would be the apex of the vein. In other words, one part of the

1 Foote v. National M. Co., 2 Mont. 403.

apex

surface

can be perpendicular, or at right angles to the other.1 Of course, the court declined to follow him.

310. Illustration of a departure from the ideal lode -The case of Duggan v. Davey.-One of the most interesting and instructive of all the adjudicated cases involving the interpretation of the terms "top," or "apex," is Duggan v. Davey, decided by the supreme court of Dakota. The decision follows, in the main, the opinion given by the trial court. It is a lucid and masterly presentation of the law, and, as presented, affords us an opportunity to illustrate and explain by diagrams the position of the vein in the earth, its exposure on both top and side, the contention of the respective parties as to what constituted the apex, and the conclusions of the court deduced from the facts. It is one of the few cases which affords a full opportunity of explaining by simple methods the true definition of the term "top," or "apex," as well as the "strike" and "dip," and their relationship one to the other. Entertaining these views as to the importance of the case, we are justified in presenting it fully.

Figure 6 is a perspective, showing an edge or outcrop of the vein exposed along the western face of Custer Hill, traversing it in a northerly and southerly direction, and an edge or outcrop traversing the northern slope in an easterly and westerly direction. We take the following description from the opinion of the trial court:

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

24 Dak. 110.

The western slope of the hill presents a lateral face from south to north, along the line of the outcrop, of thirteen hundred feet. At its northern extremity it turns to the east, and its northern slope presents a lateral face from west to east of upwards of three thousand feet. Along its base and following it in this turn in the direction indicated is a small stream called Bare Butte creek. These slopes are quite steep, and extend from base to summit about twelve hundred to thirteen hundred feet. The whole country is hilly and broken, and the hill is only one of a series of similar elevations, with which it is more or less directly connected.

Beginning at or near the southern extremity of the western slope of Custer Hill, at a point (marked x on figure 6) half way up the slope, there is found an outcropping layer or stratum of reddish quartzite, or metamorphic sandstone, of several feet in thickness, overlaid by a body or stratum of limestone or dolomitic shale, of a thickness not definitely ascertained. From this point the croppings may be readily traced in several places by high reef-like ledges, jutting out boldly from the face of the hill along the western face to its northern extremity.

The general bearing of this line of croppings may be stated at N. 11° W., the distance twelve hundred and fortythree feet, and the angle of inclination upward from south to north, approximately, three degrees.

At the northern extremity of the hill this line of outcrop of quartzite, with its overlying limestone or dolomite, turns and extends along the northern slope with a downward inclination, thus gradually nearing the base of the hill until, at a distance of something over twenty-five hundred feet, it disappears beneath the bed of the creek.

The course of the outcrop along the northern slope of the hill is for a distance of nineteen hundred and fifty feet, N. 70° 30′ E., and the angle of declination eight degrees, from west to east.

The "vein" consists of the underlying quartzite, impregnated with iron and silver in various forms, the width of

N.

the so-called vein material not being uniform. The richer ore deposits are usually found along the contact with the overlying limestone.

The entire line of outcrop on both slopes of Custer Hill appears to have been appropriated by different locations, but the controversies in the case under consideration arose out of claims located on the northern slope. We present

FIGURE 7.

in figure 7 a diagram showing the surface boundaries of the claims, the "vein exposure," and the underground workings, in horizontal projection. From this figure it will appear that the Sitting Bull, belonging to the defendants, covers about thirteen hundred and eighty feet of the outcrop on the northern slope of the hill. Its end lines are parallel, and if this outcrop or vein exposure is the "top," or "apex," of the vein, the location approximates the ideal shown in figure 5.'

North

The plaintiffs owned the Silver Terra, some distance south and up the hill from the Sitting Bull. It does not appear upon what vein the Silver Terra location was based. It was not material for the purposes of the case that it should be shown. Both parties had lode patents for their respective claims. The Sitting Bull had, in following the vein southerly into the hill with its underground works, penetrated underneath the surface of the Silver Terra, whereupon the owners of that claim brought an action in equity to enjoin the owners of the Sitting Bull from trespassing within the boundaries of the Silver Terra.

The Sitting Bull justified its presence underneath the Silver Terra surface by asserting ownership of the apex of the vein, and its right to follow it between its end-line planes, to an indefinite depth.

The principal question involved was

"Is the top, or apex, of this vein, or lode, within the lines of "the Sitting Bull location?"

The court below, in arriving at its conclusions, considered the relative angles of declination in determining which was the top, or apex, of the vein. For the purpose of illustrating this, we present two figures (8 and 9). Figure

Mouth of Tunnel

(Sitting Bull)

8 is a longitudinal section taken through the line A B, shown on the horizontal projection (figure 7), parallel to the line of the outcrop exposed on the western slope of the hill. The angle of declination is found by the court to be, approximately, three degrees, from north to south.

South