This section is replete with what Judge Lewis, in considering another portion of mining law, characterizes as grammatical solecisms." In the language of Dr. Raymond, "This phraseology has the merit of clearly conveying "the meaning intended, though descriptive geometry and "the English language suffer somewhat in the operation. But the goal is reached, though the vehicle is The section clearly grants the following intralimital rights: (1) Exclusive dominion over the surface; (2) The right to certain parts of all veins whose tops, or apices, are found within vertical planes drawn downward through the surface boundaries. The extent to which the locator is entitled to such veins within his surface boundaries will depend upon a number of circumstances, to be fully considered in connection with the subject of extralateral right. It is quite manifest from a reading of the section, that no title passes by virtue of the location to any part of any vein which has its top, or apex, wholly outside of the boundaries of such location. 551. The right to the surface and presumptions flowing therefrom.-Whatever may be reserved out of the grant created by the perfection of a valid lode location, one thing is quite manifest. The right of a senior locator to the exclusive possession of the surface cannot be invaded, assuming, of course, that at the time to which the location relates, no rights of way or servitudes were imposed upon the land. While, as we shall hereafter see, outside apex proprietors may penetrate underneath the surface in the lawful pursuit of their veins, the law expressly preserves the surface from invasion. 1 Hobart v. Ford, 6 Nev. 77. 2 Law of the Apex, Trans. Am. Inst. Min. Eng., vol. xii., p. 387, 392. 3 See, ante, 531. What are the presumptions, if any, flowing from the ownership of the surface? Prima facie, everything within the vertical bounding planes belongs to the locator. In the language of Judge Hallett,— "We may say, that there is a presumption of ownership "in every locator as to the territory covered by his loca"tion, and within his own boundaries he is regarded as "the owner of all valuable deposits until some one shall "show a higher right." While the courts do not altogether agree as to the weight of testimony necessary to overthrow this presumption, we think there is an undoubted concensus of opinion in support of the above rule.' We may safely base our discussion of the more important elements of the law applicable to lode locations. upon this presumption, and as we progress, endeavor to show the circumstances under which, and extent to which, it may be overcome, reaching ultimate conclusions by such. gradations as the nature of the subject will permit. ? 552. Intralimital rights not affected by the form of surface location.-We have heretofore suggested, that the ideal location, the one which confers the greatest property rights susceptible of being conveyed under the mining laws, contemplates a surface regular in form along the course of the vein, with end lines crossing it, substantially presenting the form of a parallelogram. A departure. from the ideal, however, if the statutory limit is not exceeded as to area, does not destroy or impair the intralimital rights of a locator. The requirement as to non 'Leadville M. Co. v. Fitzgerald, 4 Morr. Min. Rep. 380, 385; Doe v. Waterloo M. Co., 54 Fed. 935; Cons. Wyoming M. Co. v. Champion M. Co., 63 Fed. 540; Duggan v. Davey, 4 Dak. 110; Iron S. M. Co. v. Campbell 17 Colo. 267; Cheesinan v. Shreve, 37 Fed. 36: Montana Co., Limited, v. Clark, 42 Fed. 626; Cheesman v. Hart, 42 Fed. 98; Bell v. Skillicorn (New Mex.), 28 Pac. 768; Jones v. Prospect Mt. T. Co., 21 Nev. 339. 2 See, ante, 2 360. parallelism of end lines affects only the extralimital or, strictly speaking, the extralateral rights.' It frequently happens, that locations originally made to approximate the ideal are reduced to irregularly shaped surfaces by reason of conflicts with prior appropriators. In such cases, the right to pursue the vein on its downward course outside of the locator's vertical bounding planes may not exist; but in other respects the locator's rights to whatever may be found within such planes is the same as in the case of a location of the highest type. This is, of course, on the assumption that the location includes some part of the apex of a discovered vein. A location to be valid for any purpose must have within its boundaries such apex." It is unquestionably true that neither the form of the surface location nor the position of the vein as to its course controls or restricts the intralimital rights. According to Judge Ross, this is the logical deduction flowing from the decision of the supreme court of the United States in the Elgin case.1 2553. Pursuit of the vein on its course beyond bounding planes of the location not permitted.-Subject to the extralateral right of outside apex proprietors, a locator may be said to own all those parts of such veins having their tops, or apices, within the boundaries as are found within such boundaries. Wherever a vein on its course, or strike, passes out of and beyond any one of these planes, the right of the locator to it ceases. Whatever may be his privilege with reference to the pursuit of his vein in depth, longitudinally it cannot be followed beyond any of the boundaries. We have fully explained the rights upon located veins as they were asserted under, and prior to, the passage of the act of 1866.5 It having been definitely settled by the supreme court of the United + Iron S. M. Co. v. Elgin M. Co., 118 U. S. 196. 5 See, ante, 2 58. 1 See, ante, 365. 2 See, ante, ? 364. 3 Doe v. Waterloo M. Co., 54 Fed. 935, 938. States in the Flagstaff-Tarbet case,' that under the act of 1866 a locator could not pursue his vein on its strike beyond the lines of his location, the application of the doctrine of that case to locations made under the act of 1872 was natural and logical. The rule may be said to be elementary." This being true, it follows that no other locator can, in the pursuit of his vein on its strike, pass through the bounding plane of a senior location. An entry underneath the surface of a prior location is only permitted in the exercise of a right to pursue a vein on its downward course. This suggests the subject of cross lodes. ARTICLE II. CROSS LODES. 2557. Section twenty-three hundred and thirty-six of the Revised Statutes and its interpretation. 2558. The Colorado rule. 559. Cross lodes before the supreme court of Montana. 560. The Arizona-California rule. 2557. Section twenty-three hundred and thirty-six of the Revised Statutes and its interpretation.— As we have observed in a previous chapter, under local rules existing prior to the passage of the act of 1866, as well as under the act itself, the lode was the principal thing granted, and the adjacent surface, if any was actually appropriated, was a mere incident; that only one lode could be held by a single location, and that this could be followed on its course, or strike, wheresoever it might lead to the lawfully claimed limit, without the necessity of enclosing it within surface boundaries. Where surface boundaries had been established by the prior locator for the convenient working of his lode, a subsequent locator appropriating a separate vein might pursue it into and through the surface ground of the senior locator, but no one was permitted to invade such surface for the purpose of searching for undiscovered veins.1 See, ante, 2 60. Fig. 3, p. 70. 2 Argentine M. Co. v. Terrible M. Co., 122 U. S. 478; Wolfley v. Lebanon M. Co., 4 Colo. 112; Patterson v. Hitchcock, 3 Colo. 533; Hall v. Equator M. & S. Co., 11 Fed. Cases, No. 5931. 3 See, ante, 58. Atkins v. Hendree, 1 Idaho, 95. Such being the recognized rules, it is not difficult to imagine instances of two lodes held in different ownership intersecting or crossing each other on their strike, or onward course, without creating any conflict of title, except at the place of lode intersection or within the space of actual lode crossing. The act of 1866 made no provision in terms for the determination of rights growing out of such crossings or intersections. Such were the conditions existing when the act of 1872 was passed, which contained the following provision, now preserved in section twenty-three hundred and thirty-six of the Revised Statutes: Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location "shall be entitled to all ore or mineral contained within "the space of intersection; but the subsequent location "shall have the right of way through the space of inter"section for the purposes of the convenient working of the "mine. This is the enunciation of a rule of law, the usefulness of which when applied to the conditions existing at the time of its passage cannot be denied. It established a rule of decision based upon the equitable maxim, that "priority in time establishes a priority of right." The application of this provision to locations made prior to its enactment is not involved in any serious embarrassment. It is only where attempts are made to apply the rule to locations made and rights asserted under the act of 1872 that apparent difficulties have been encountered, giving rise to a conflict of opinion and diversity of decision. Whatever may have been the relationship existing between the lode, which was the subject of location, and the adjacent surface ground under the act of 1866, under the existing law the right to any portion of any lode is dependent upon its having its top, or apex, within the surface boundaries of the location. A regular valid location, which 1 Act of May 10, 1872, 14. |