Figures 12A and 13B are longitudinal sections on the line of the strike of the vein north and south, the latter section being along the joint Lime-Smuggler side line, along plane B B of figure 12B.

Figures 13A and 12B are cross-sections on the line of the dip, east and west, through the Lime incline, although in figure 12B the incline is not drawn.

Figures 12A and 13A are reduced, with slight modifications, from the atlas sheets of Mr. Emmons accompanying his monograph on "The Geology and Mining Industry of Leadville.""

Figures 12B and 13B are practically reproductions of

18 Fed. 297; 116 U.'S. 529.

2 Monograph XII. of the U. S. Geological Survey.

S

the sections prepared by Mr. C. M. Rolker, accompanying his "Notes on Leadville Ore Deposits," read before the American Institute of Mining Engineers.1

An inspection of figure 12A indicates that the only vein exposure is on the slope of the hill facing California Gulch, This exposure, and the one appearing on the opposite side in Dome Hill, having resulted from natural erosion. Bearing in mind the description given of the character of the vein and its inclosing rocks, given in a preceding section, the facts involved in the case were substantially as follows:

1 Trans. Am. Inst. Min. Eng., vol. xiv., p. 283.

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The Iron Silver Mining Company owned by patent the Lime claim. Adjoining it on the east was the Smuggler, owned by the defendants. Prior to location, the defendants sunk a vertical shaft (see figure 12A) to the depth of forty feet, and at the bottom found a large body of mineral. After the discovery of the mineral in the Smuggler claim the owners of the Lime ran inclines (see figure 13A) from the Lime claim into and upon the Smuggler claim, and connected them with the Smuggler workings. Thereupon the Iron S. M. Co. commenced their action against defendants to eject them from the body of mineral they had discovered and developed within the Smuggler location, claiming that it was the lode or vein of mineral which had its apex within the Lime claim. This the Smuggler owners disputed, claiming that there was no vein or lode within the Lime ground; that whatever mineral was there was not in place, but had been removed to that point from some other locality.

The case was tried three times by jury.1

We have already noted the charge of Judge Hallett in this case, as to what constitutes a lode, or vein, which was the principal contention between the parties. Upon the subject of "apex," we quote the following from Judge Hallett's charge to the jury:

as to

"A good deal has been said by the witnesses "whether there is a top or apex of the vein. That de"pends very much as to whether there is any vein, or lode, there. If you find that there is a vein, or lode, to my "mind the evidence is clear enough that the top of it is in "the Lime location; and if there is none there, of course "that which does not exist, does not exist in any part"it does not exist by its top nor by its bottom, nor "where between the two points.":

any

The first resulted in a verdict for the defendant. Plaintiff demanded a second trial as a matter of right, a practice permissible under the laws of Colorado. The second trial resulted in a disagreement; the third in a verdict and judgment for defendant, which was affirmed by the Su

preme Court of the United States (116 U. S. 529).

2 Iron S. M. Co. v. Cheesman, 8 Fed. 297, 302.

The jury found that there was no vein, or lode, which was the customary finding in all cases where the Iron Silver Mining Company attempted to assert extralateral rights. This was the unwritten law of Leadville. While the deposits were veins, or lodes, within the definitions given by the courts, they were not such, as a matter of fact, when the question was left to a jury of the neighborhood, if their verdict would uphold the right to pass on the dip of the vein through and beyond vertical planes, drawn through the side lines.' We cite the charge of Judge Hallett for the purpose of illustrating his views on the subject of "top," or " apex." This charge, as a whole, was approved by the supreme court of the United States."

Stevens & Leiter v. Williams.3—

This case involved a controversy between the Iron and Grandview claims, situated upon Iron Hill, where the occurrence of the vein and vein exposure were similar to those found in the Lime-Smuggler case. The question of apex in the Iron-Grandview case received full consideration in two trials, at the first of which Judge Hallett presided, and at the second Justice Miller. Although the case was never passed upon by the supreme court of the United States, the charges to the two juries given by the presiding judges are considered to be a full exposition of the law on the subject. We are justified in quoting them fully. Judge Hallett's charge is as follows:

"We have now to consider the question which was so "much discussed by counsel as to the location with refer"ence to the top and apex of a vein; and upon that point "it is clear, from an examination of the act, that it was "framed upon the hypothesis that all lodes and veins oc"cupy a position more or less vertical in the earth- that is, "that they stand upon their edge in the body of the moun"tain, and these words 'top' and 'apex' refer to the part "which comes nearest to the surface. The words used are 1 For an interesting discussion of this, see Dr. Raymond's Law of the Apex.

2116 U. S. 529, 535.

3 First trial, 1 Morr. Min. Rep. 557; second trial, Id. 566.

"top,' or 'apex,' as if the writer was somewhat doubtful "as to which word would best describe or best convey the "idea which he had in his mind. It was with reference "to that part of the lode which comes nearest to the sur"face that this description was used; probably the words were not before known in mining industry; at least, they are not met with elsewhere, so far as I am informed. Perhaps, they were not the best that could have been used to describe the manner in which the lode should be taken "and located. But whether that be true or not, they are "in the act of congress, and there seems to be little doubt as to their meaning; they are not at all ambiguous. "some instances, they may perhaps refer to the floe of the "lode; that is, a part of the lode which has been detached "from the body of mineral in the crevice and flowed down "on the surface. In others, where there is no such outcrop, they may mean that part which stands in the solid rock, although below a considerable body of the superficial mass, which I have attempted to describe to you.

66

In

We

are all agreed, however, the courts and counsel, every one, "that that is the meaning of the words; that they are to be “taken in some such sense as that, as being the part of the "lode which comes nearest the surface; and the act requ i res "that the location shall be along the line of this top, or apex. Supposing the lode to have a somewhat vert i cal position in the earth, with this line of outcrop, or of pearance on the surface, or nearest to the surface, it shall be taken up and occupied by the claimant as his location; "and he must find where this top, or apex, is and make "his location with reference to that.""

ap

On the second trial, Justice Miller charged the jury, as follows:

"I think that you will agree with me, as all counsel agree, "and all the witnesses agree substantially, conceding "that there is a vein, that the top, or the apex, of a vein, "within the meaning of the act of congress, is the highest "point of that vein where it approaches nearest to the sur "face of the earth, and where it is broken on its edge "to appear to be the beginning or end of the vein. "in the true definition of the word 'outcrop,' as it concerns "word outcrop' has been used in connection with it, and "a.vein, is probably an essential part of the definition of "its apex, or top; but that does not mean the strict use of

1 Stevens & Leiter ». Williams, 1 Morr. Min. Rep. 557, 561.

The