66 "the word 'outcrop.' That would not, perhaps, imply the "presentation of the mineral to the naked eye on the sur"face of the earth; but it means that it comes so near to "the surface of the earth that it is found easily by digging "for it, or it is the point at which the vein is nearest to the "surface of the earth; it means the nearest point at which "it is found towards the surface of the earth. And where "it ceases to continue in the direction of the surface, is the top, or apex, of that vein. It is said in this case that the "point claimed to be the top, or apex, is not such, because "at the points where plaintiff shows or attempts to prove an interruption of that vein in its ascent toward the sur"face, and what he calls the beginning of it, the defendants 66 say that it is only a wave or roll in the general shoot of "the metal, and that from that point it turns over and pursues its course downward as a part of the same vein "in a westerly or southwesterly direction. It is proper, I "should say to you, if the defendant's hypothesis be true, "if at that point which the plaintiff calls the highest point, "the apex, is merely a swell in the mineral matter, and that it turns over and goes on down in a declination to "the west, that it is not a true apex within the statute. It "does not mean merely the highest point in a continuous "succession of rolls or waves in the elevation and depres"sion of the mineral nearly horizontal."1 6. Iron Silver Mining Company v. Murphy. This involved a controversy between the Iron and Loella claims. Judge Hallett charged the jury as follows: "The top, or apex, is the end, or edge, or terminal point of the lode nearest to the surface of the earth. It "is not required that it shall be on or near or within any "given distance of the surface. If found at any depth, "and the locator can define on the surface the area which 'will inclose it, the lode may be held by such location." 2312. Hypothetical illustrations, based upon the mode of occurrence of the Leadville and similar deposits. -It is not our purpose in this article to deal with the subject of extralateral rights or treat of the apex, as affecting 1Stevens & Leiter v. Williams, 1 Morr. Min. Rep. 566, 574. those rights. We reserve this important element of the mining law for individual treatment in a later portion of this work. We are now interested in determining what is or is not a "top," or "apex." In the course of investigation, however, reference to the extralateral right is incidentally involved, to the end that the conclusions reached may be rationally explained and applied to cases within reasonable probabilities. The We have heretofore considered two classes of deposits: those whose position in the earth approximates the perpendicular, and those approaching the horizontal. geological conditions at Leadville suggest additional complications, by reason of the fact that the veins do not always occupy the same plane, but are frequently found in alternating anticlinal and synclinal folds, which are best expressed by the use of the term "undulating." cross-section. FIGURE 14. 14 a For purposes of illustration, we present in figure In the figure the stratum d d represents the material; cc, the overlying white porphyry; bb, the vein underlying blue limestone. The lines A and B B repre sent the crests of the ridges formed by the anticlinal at right angles to the axes. folds If the overlying porphyry were removed, leaving the vein material exposed throughout, it would not be a vein of rock in place, legally speaking, but a mere bed. Neither A x nor B B would be apices. They are tops or crests of the folds, but not apices of the deposit. The whole exposed. surface would be the top of the deposit, contradistinguished from the bottom lying on the limestone. The same result would follow if the deposit, instead of being exposed at the surface, was covered with detritus or "slide." The deposit, legally speaking, would not be in place in the mass of the mountain. There are no analogies between this instance and that of an outcrop of the upper edge of a vein emerging from the inclosing rocks. Such an uncovered deposit as we have described could only be located under the laws applicable to placer claims. A locator would acquire only so much of the deposit as might be found within vertical planes drawn through his surface bounda ries. With the vein in position, as shown in figure 14, it might be said that its highest part, or the part approaching nearest to the surface (assuming that there was no surface exposure elsewhere), would be along the crest of the fold. But this would not be the top, or apex, of the vein. It would be the top, or apex of a fold in the vein. If this line were the apex of the vein, a location with side. lines along the crest would give the locator the right to follow the vein in both directions, east and west, "up hill "and down dale," indefinitely, so far as the vein preserved its continuity and identity. The only exposures of the vein in position as shown in Figure 14 that can possibly answer to the definitions given by the courts are those indicated by the abrupt terminations at the east and west. As to which of these two exposures would be considered the true apex, is a difficult question, and might have to be determined mathematically, by ascertaining which occupied the higher elevation above a given datum plane. Eliminating from consideration the inquiry as to which of the two exposures is the higher above a given datum plane, a location on the east or west would cover an apex; and if it covers an apex, the right of extralateral pursuit would inure to the locator, to the extent that the identity and continuity of the vein could be established up and down the undulations or folds. If we can assume that the crest of the anticlinal fold has been eroded, as represented by the dotted line xx, we would have then two distinct veins, with their attributes of apices, strike, and dip. But suppose the erosion occurred in the synclinal fold, as illustrated by the dotted line y y, leaving two exposures,- would these be apices? They would not be, according to the rule announced in the case of Gilpin v. Sierra Nevada Consolidated, heretofore referred to, unless, as suggested by Judge J. H. Beatty in that case, the course upward proved, on subsequent development, to be caused by a mere local fold or dislocation. law, It is hardly profitable to pursue this discussion further. Enough has been said to show the absurdity of the when applied to geological conditions which were not in contemplation of the law-makers when the laws enacted. But it is, nevertheless, the law, if these deposits are "veins, or lodes of rock in place," and the courts that they are. were old else Geologists have always insisted that this character of deposits should be separately classified. There is no reason why the law-makers should not so classify them, or abandon the entire element of lateral pursuit, and limit the locator to vertical planes drawn through surface boundaries. In considering the difficulties, surrounding the application of the law to conditions similar to those existing at Leadville, we recall the almost prophetic language of Judge W. H. Beatty, then chief justice of Ne vada: "We are willing to admit that cases may arise to which "it will be difficult to apply the law; but this only proves 1 See, ante, 2310. "that such cases escaped the foresight of congress, or that, "although they foresaw the possibility of such cases oc"curring, they considered that possibility so remote as not "to afford a reason for departing from the simplicity of the plan they chose to adopt."1 66 § 313. The existence and situs of the "top," or "apex," a question of fact. When we consider that most, if not all, of the definitions of" top," or "apex," found in this article are contained in charges to juries, it is hardly necessary to cite authorities to show that the existence and situs of the "top," or "apex," are questions of fact. What constitutes an apex, is a question of law to be determined by the court; but whether a given portion of a lode, or vein, is its "top," or "apex," and what is its course through the ground of contending parties, is a question for the jury." This accounts for the presence in the literature of the law of so many able and logical statements as to what constitutes a "top," or "apex," and the absence of recorded. cases, establishing the existence of any such tops, or apices, within the Leadville belt. It would seem that among the muniments of a lode locator's title in this section is the unwritten law of the neighborhood, that no extralateral rights should be permitted. ARTICLE V. "STRIKE," "DIP" OR "DOWNWARD COURSE." 317. Terms "strike" and "dip" | 318. "Strike" and " 'dip" as junot found in the Revised dicially defined. Statutes - Popular use of the terms. 2317. Terms "strike" and "dip" not found in the Revised Statutes - Popular use of the terms.-The act of July 26, 1866, granted the right to follow the located vein, "with its dips, angles, and variations, to any depth.' 1 Gleason v. Martin White M. Co., 13 Nev. 442. 2 Illinois S. M. Co. v. Raff (New Mex.), 34 Pac. 544; Blue Bird M. Co. v. Largey, 49 Fed. 289. See, also, cases cited in ante, 311. |