It is a matter of common knowledge, that veins are not of uniform value throughout, but that frequently the "pay ore" occurs in "shoots," at intervals in the course of the vein, and that these "shoots" have frequently, in the language of the miner, a right or left-hand "pitch." There is no reason why the locator should not be permitted to mark his end lines, observing the statutory requirement as to parallelism, with regard to the pitch of the ore bodies within the vein, if he is fortunate enough to detect their existence and direction during his work of preliminary exploration.

If it be true, and the courts so assert, that the theory of the law requiring this parallelism is, that the miner may only have as much of the lode underneath as he has apex within his surface, then the object is accomplished by making a location in the form suggested by figures 17 and 18, as well as by that suggested by figure 16. The subsequent locator is in no sense injured, and will be compelled to either make his location conform to the lines of the first discoverer, or take the chance of losing a segment of the vein by underground conflict with the prior appropriator.1

It must be borne in mind, however, that the failure to construct the end lines so that they are parallel to each other does not render the location absolutely void, so long as it is within the statutory limit. A location in the form of a horseshoe or an isosceles triangle" will, subject to the extralateral right of others who have properly located the apex, hold whatever may be found within vertical planes drawn through the surface boundaries; provided, of course, that such irregularly-shaped figures include some portion of the apex of a discovered vein.

The requirement as to parallelism of end lines, as a condition precedent to the exercise of the extralateral right, means that they should be parallel throughout, or at least should not diverge in the direction of the dip. This 'Flagstaff M. Co. v. Tarbet, 98 U. S. 463; Eureka Case, 4 Saw. 302. 2 Iron S. M. Co. v. Elgin M. Co., 118 U. S. 196. 3 Montana Co. Limited v. Clark, 42 Fed. 626.

requirement of the law is not satisfied by constructing broken end lines, as shown in figure 19, and a survey for patent made in such form would be rejected.

Where the

FIGURE 19.

location as originally marked upon the ground has nonparallel end lines, it may be rectified at any time, if such rectification does not interfere with intervening rights.2

A locator of a mining claim may abandon a portion of his original location without forfeiting any rights he may have to the remainder of the claim."

There is no necessity for the two end lines being of the same length. If they both cross the lode and one parallels the other, the fact that one may be six hundred feet long and the other shorter is entirely immaterial. The end lines as finally established should be throughout their length upon the public domain. We do not admit that a junior locator has any right to invade the surface of a senior proprietor for any purpose. If the lode of the junior locator on its course reaches or crosses the properly established surface boundaries of a prior location, the right to pursue the vein beyond that point cannot be asserted. The end line of the junior must either conform to the crossed boundary of the senior, or he must, at the expense of abandoning a portion of the lode, so construct his end lines that no part of them shall be on territory previously appropriated.

We are aware, that in the manual of instructions issued by the land department on October 25, 1895, the commissioner of the general land office, construing prior issued circulars, sanctions the right of the junior to extend one.

1 Instructions to Surveyor Gen'l, 10 Copp's L. O. 86.

?Doe v. Sanger, 83 Cal. 203; Doe v. Waterloo M. Co., 54 Fed. 935.

3 Tyler M. Co. v. Sweeney, 54 Fed. 284; Last Chance M. Co. v. Tyler M. Co., 61 Fed. 557; Tyler M. Co. v. Last Chance M. Co., 71 Fed. 848.

d

f

N

half of his end line within the surface lines of a prior location, as shown by the line a b in figure 20, the location B representing the prior location; but we are of the opinion, that this is based upon an erroneous construction of the law. If the triangle x y b is a part of a prior valid appropriation, A. has no right to appropriate it. At best, the line x b could be nothing more than an imaginary one, and mining rights upon the public domain cannot be based upon imaginary lines. As heretofore indicated, in our judgment, A. must adopt either the lines y c and de, or y z and d f.

b

a

e

It is not to be understood, that the mere marking of the location in the first instance, by placing monuments within the limits of a prior location, will render the subsequent location void. This frequently occurs, and the junior location is held to be valid to the extent that it covers vacant and unappropriated ground if the monuments are within the statutory limit.' Many irregularly shaped locations, such as the triangle in Montana Limited v. Clark," are the results of this doctrine.

FIGURE 20.

Our contention is, that the junior locator's rights will be determined, in case of his neglect to rectify his lines, by reference to the intersected boundaries of the senior locator, regardless of where the junior's monuments are placed, or the course of the lines connecting them.

This discussion suggests the question of "cross lodes"— a subject to be fully considered in a subsequent chapter.3 1 Doe v. Tyler M. Co., 73 Cal. 21; West Granite M. & M. Co. v. Granite M. & M. Co., 7 Mont. 356. See, post, art. vii, of this chapter.

242 Fed. 626.

See, post, tit. vi., ch. ii.

366. The side lines.-The primary function of the side lines is, to connect the opposite extremities of the end lines, and to complete the enclosure of a surface within which is found the apex of the discovered lode. As the width of a location is fixed with reference to the middle of the vein, the law contemplates that this must be ascertained by actual exploration and development, and cannot be assumed to be in an unexplored position.1

Where the vein outcrops at the surface, there can be no question as to the point from which the lateral measurement must begin. When the discovery shaft develops the vein at some distance below the surface, and the locator does not determine by any further development that the nearest actual surface point is elsewhere, and the fact does not otherwise appear, the land department has ruled, that for executive purposes, the middle of the vein as disclosed in the shaft will be assumed to be the point from which lateral measurements are to be calculated."

According to the regulations of the department, lateral measurements cannot extend more than three hundred feet on either side. Four hundred feet cannot be taken on one side and two hundred on the other; but if, by reason of prior claims, the full width allowed cannot be taken on one side, the locator will not be restricted to less than three hundred feet on the other.3

Side lines, properly drawn, run on each side of the course of the vein, distant not more than three hundred feet from the middle of such vein; but there is no requirement that they should be parallel. So long as they keep within the statutory width they may have angles and elbows, as in figure 21, or converge toward each other, as in figure 22, without jeopardizing any rights so far as the located lode is concerned, if the end lines are properly constructed with

1 In re Albert Johnson, 7 Copp's L. O. 35.

In re Hope Mining Co., 5 Copp's L. O. 116; par. 10, Circ. Instructions, Dec. 10, 1891 (see appendix).

3 Par. 10, Circ. Instructions, Dec. 10, 1891 (see appendix).

King ".

Amy & Silversmith M. Co., 152 U. S. 222.

5 Stevens v. Williams, 1 Morr. Min. Rep. 566.

reference to such lode. A locator, whose surface lines are constructed as in figure 22, of course obtains less area than is embraced in the ideal location, but otherwise he suffers

no dimunition of rights from those acquired by the ideal. The parallelism or non-parallelism of the side lines may, however, become an important factor if the locator makes. a mistake, as he frequently does, as to the course of his vein, and locates crosswise instead of along the vein.

Where a location is of excessive width, the excess should be cast off, so that the middle of the vein shall be in the center of the location.1

367. Side-end lines.-End lines are not always those which are designated as such by the locator. If the vein does not cross the line called by him an end line, it is not in law an end line. In such case it performs the mere function of a side line. In all cases where a vein crosses a side line, the side line performs the function of an end line. to the extent, at least, that it stops the pursuit of the vein on its strike. It is therefore called in law an end line." We call it a side-end line for descriptive purposes. Whether the side-end line performs the function of an end line for the purpose of determining the extralateral right, will depend upon circumstances. If the vein crosses two side lines, substantially as in the Flagstaff-Tarbet3 and

'Lakin v. Dolly, 53 Fed. 333.

2 Flagstaff M. Co. v. Tarbet, 98 U. S. 463; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478; King v. Amy & Silversmith M. Co., 152 U. S. 222; Eilers v. Boatman, 3 Utah, 159; Stevens v. Williams, 1 Morr. Min. Rep. 557; Tombstone M. & M. Co. v. Wayup M. Co. (Ariz.), 25 Pac. 794; Watervale M. Co. v. Leach (Ariz.), 33 Pac. 418; Colorado Cent. R. R. v. Turek, 50 Fed. 888; Id. on rehearing, 54 Fed. 262; Tyler M. Co. v. Sweeney, 54 Fed. 284.

398 U. S. 463.