Figure 9 represents a cross section taken through C D (on figure 7), at right angles to A B. The angle of this declination is found by the court to be eight degrees, from west to east, or five degrees greater than that shown in the section A B.

As to what constitutes the "top," or "apex," of a vein, the court expressed its views as follows:

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"The definition of the top, or apex, of a vein usually given is the end or edge of a vein nearest the surface; "and to this definition the defendants insist we must "adhere with absolute, literal, and exclusive strictness, so "that wherever, under any circumstances, an edge of a vein "can be found at any surface, regardless of all other cir"cumstances, that is to be considered as the top, or apex, "of the vein. The extent to which this view was carried by the defendants-and I must confess its logical results "were exhibited by Professor Dickerman, their engineer, "who, replying 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, stated that, in his opinion, the whole line of that "outcrop, from the bottom clear over the hill, so far as it "extended, would be the apex of the vein. Some other wit"nesses had similar opinions. The definition given is no "doubt correct, under most circumstances, but, like many "other definitions, is found to lack fullness and accuracy "in special cases, and I do not think important questions "of law are to be determined by a slavish adherence to this "letter of an arbitrary definition.

"It is indeed difficult to see how any serious question "could have arisen as to the practical meaning of the "terms top, or apex, but it seems, in fact, to have become. "somewhat clouded.

"Justice Goodard, a jurist of experience in mining law,

"in his charge to the jury in the case of Iron S. M. Co. v. "Louisville, defines 'top,' or 'apex,' as the highest or ter"minal point of a vein, where it approaches nearest the "surface of the earth, and where it is broken on its edge so as to appear to be the beginning or end of the vein."

After quoting Judge Beatty's definition given to the public land commission referred to in a preceding section, the court continues:

"I am aware that in several adjudged cases 'top,' or apex,' and 'outcrop' have been treated as synonymous, "but never, so far as I am aware, with reference to a case "presenting the same features as the present. The word "apex ordinarily designates a point, and so considered. "the apex of a vein is the summit; the highest point in a "vein is the ascent along the line of its dip, or downward "course, and beyond which the vein extends no farther; so that it is the end, or, reversely, the beginning, of the "vein. The word 'top,' while including ' apex,' may also "include a succession of points-that is, a line, so that "by the top of a vein would be meant the line connecting a succession of such highest points or apices, thus form'ing an edge."

Applying these definitions to the facts of the case under consideration the court below held that the Sitting Bull location did not cover the top, or apex, of the vein. That the outcrop shown on the northern slope of Custer Hill was merely an exposure of the edge of the vein on the line of its dip, just as the exposure of the side edge of the ideal fissure vein represented on Figure 4.1

Judgment passed for the plaintiff. The supreme court of Dakota adopting the views of the trial court, affirmed the judgment. It was not in terms decided that the outcrop on the west slope of the hill was the top, or apex, of the vein. It was not necessary to do so in order to defeat the extralateral right claimed by the Sitting Bull. But if the owner of a location covering the outcrop on the western slope should pursue his vein easterly with his underground works so as to intersect the workings of the Sitting Bull, showing identity and continuity, and establish1 See, ante, 309.

ing that the angles of declination disclosed in such workings were the same as in the case proven, the conclusion is irresistible that the western outcrop would be the true apex of the vein, and this is in consonance with the rule applied to veins more or less vertical.

According to the views of Professor Dickerman, both lines of exposure shown on figure 4, would constitute an apex, or top. If such were the case, there would be no longer any difference between "strike" and "dip." The mathematical relationship which must necessarily exist between them would be destroyed, and any vein exposure on the side or bottom edge would be an "apex," and give extralateral rights. In other words, a locator covering the bottom edge of a vein, if it were exposed, could follow his vein on the upward course, and hold it as against a locator of the upper edge, or top. This is not a mere fanciful supposition.

An illustration of this occurred in Idaho in the case of Gilpin v. Sierra Nevada Cons. M. Co., decided by the supreme court of that state. It presents a case, so far as the facts were developed at the hearing, of a location on a flat vein similar to that shown in figure 10, where the location

was laid along what was claimed as an apex corresponding to the hypothetical exposure on the eastern slope of the hill covering the lower edge of the vein; that is, a location on

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the assumed line of exposure from a (figure 10) southerly along the eastern slope of the hill. The workings of the Sierra Nevada on the vein from this exposure into the hill showed an upward trend to the west in the direction of b. This was indicated by a number of physical facts. Among others, the flowage of water out of the mouth of defendant's tunnels, which had their openings on the exposure from a southerly, the tunnels having been run on the foot wall or floor of the vein. The defendant's works, following the vein on its upward trend, penetrated underneath the surface of plaintiff's claims. An injunction was sought and denied by the lower court. The supreme court of Idaho reversed the order and directed an injunction principally on the ground that the location of the Sierra Nevada did not cover the apex, and that the showing made did not justify or authorize its presence underneath the plaintiff's

surface.1

Figures 10 and 11 represent veins having a top, bottom, and side edges exposed. It was formerly one vein, but erosion has made two of it. According to Professor Dickerman's theory, one locating the eastern exposure in figure 10 could follow up the hill along the vein, a b, provided, of course, that the western outcrop, b, has not been previously covered,—or, he might locate the exposures a b and c d,— and follow the vein into the mountain, whether its pitch was upward or downward.

Under the rule in the Duggan-Davey case, the exposures cd and a b might be apices if the vein dipped to the south at a greater angle of declination than shown on the northern face from b to a, and c to d. On the other hand, if the course into the hill was upward, the true apices would be found on the southern side. In that case, the exposures, a b and c d, would be the bottom instead of the top.

Professor Dickerman's theory, if applied, might be a convenient way of settling aggravating and expensive controversies by making the extralateral right depend entirely

1 For dissenting opinion, see, 23 Pac. 1014.

on priority of appropriation, independent of the fact that the location is on the side edge of the vein, or on the bottom, instead of the top. But congress would have to remodel its laws, or the courts would have to change their construction of them before such a legal result is possible.

Of course, the difficulty comes from applying the terms of a law which was framed to meet ideal conditions- to peculiar occurrences in structural geology, not contemplated when the law was framed.

If a given deposit is of rock in place, it is a lode, or vein. If it is a lode, or vein, it has an apex, or top. While it may be difficult to determine where that top, or apex, is, yet, in the theory of the law it exists, and the lode locator must find it and lay his location along it, or take the chances of developing a valuable mine for some one else to take away from him, after openings have been made in the earth so that the surveyors may determine the relative angles of declination.

311. The Leadville cases.-As in almost all other phases of the mining law, the flat deposits of Leadville. have produced their full quota of adjudicated law on the subject of "tops" and "apices." As these deposits are legally held to be veins, or lodes, of rock in place, it follows that they must have apices. We have heretofore given an outline of the formation in which these deposits occur, and the manner of their occurrence.'

But in connection with the quotation of some of the definitions of the words "top," or "apex," as applied by the Colorado courts, we think it instructive to present in cross-section, illustrations showing the physical conditions surrounding some of the litigated cases, where these definitions have been announced and applied. A much better understanding of the views of the court in a given case is reached by the aid of diagrams.

1See, ante, ? 300.