The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1890-05-22

0uSly protests against this term, anu dS
se,ts that the plane i not }qdlc.ahlly
This, however, is only a archaeological con
tention. Our own infirmity of language -
such that We can not better designate TINS
line and plane than as does appellant. II
is. in no sense, an original line OF plane OF
the surface boundaries as Located, t nor
It is not line fixed by location. nor ever
fixed, except by the decree of the court be-
low.
The United States supreme court cases
cited by all the counsel are: Mining com.
crse. Iron Silver Mining company
vs.. Elgin company, 11s U. s. 1856; the
Horseshoe case. Argentine company VS..
Terrible company, 122 U. S. ES.
If there be one legal principle that is an
nounced with more clearness and frequency.
others, throughout all these cases, It than all
is, that ''the boundary planes shall be def
nitely detetermined by the lines OF the sur
face location, and that they shall not be sub
iect to perpetual Reimbursement according TO
subterranean developments made by mine
workings." Elgin csse, 2O7; see also 40
and 2O6.
The bounding planes must be drawn by
reference to the original surface lines. and
NAV not be established arbitrarily at the
iudrment of the parties, or the courts at a
later day. The original location fixes the
planes.
We are forced to conclude that the courts
theory ia not in accord with this principle.
The plane established is purely ludlclal
one. It has neither parallelism or colncl-
dence with, or proiec ton from, or reler.
ence to, the planes of any OF the origlnal
surface lines. 1t ls not determined by the
lines of the, surface location; 1t was
never marked on the ground by the loca-
ton, nor is it referable thereto.
The whole theory of the advocate OF this
position is based upon the fact that he takes
but one view of the dip, that which we have
called the compass dip. The dip, in this
respect, is, rs counsel insists, at rlgnt an
point of view, he argues, that when tne
miner follows the dip, he may go downward
from the apex, only at right angles to the
strike, and limited further by the planes OF
the original location end lines. we take
his own language from his brief as follows:
''The Judge before whom the trial was
had held, that lines drawn at right angles
through the vein or lode where it crossed the
side lines, and these lines extended IN the
direction of the dip of the vein until 1t inter,
sects vertical plane drawn downward
through the end lines of the location ana
continued in the same direction ~, 70 +r .ne
place of intersection, constituted the true
dip of the vein, and the part which the 10
Gator was entitled to follow in its down.
ward course"
This is a fair and succinct statement of
the position of the court below, and coun-
sci here.
We cannot but remember that this case
not only determines the rights of the par
ties hereto, but that the decision will form
an important precedent for future adludl-
cation in the courts of this state. II w
adopt the courts theory we must abide by
its legitimate consequences. Thus, three
end line planes operate as boundaries, ane
! the portion of the vein that the miner take'
runs to point. This result cannot be tn
intent of the statute. This is not the sec
ton or block of the vein, in it's entire
depth, which the law intends to grant.
Again, let parallelogram, A 30 D, rep
resent location. The strike of the veil
crosses the location, entering the east ent
| line near the southeast corner. and passing
out of the west end line near the northwes
corner. The inclination of the dip is north
erly. Counsel'swesterlyb boundary plane OF
J his theory would run northeastly, at rlgn
, angles to the strike at the point o
departure from the west end line. The sec
) ton of the vein taken, again runs to tn
point of wedge. The miner is deprive
Q Of the portion of the vein on the dip, lynn
north of the north side line, and betwee
8 the plane of his arttficially established en-
3 line, and the plane of the original west en-
Q line, d. A., projected in its own direction
Q This portion of the vein, it has never befor
q been doubted, that we are aware, would be
!; long to the owner of the apex of the gel
Q lying between the protected planes Of tn
q located end lines.
2 Again the vein may enter an end line an
pass out of the side line; or take det1ee
y ton. These are possible and quite probe
8 BILE, and we believe actual occurrences, l
: fact. The application of counsel's theor
= leads to results from which we must retrea
}. In fact, in innumerable practical examples
p where claim is not located with absolut
& statutory regularity, the miner is entirel
t cut off from following his dip, and cut o
s at greater or less depth, depending upo
! the inclination of the dip, and the angle {
4 which the strike passes out of a surfat
Q line.
h In the case before US the court drew tt
= boundary plane at right angles to the stril
as it seemed to be demonstrated, at a poir
:, of departure from the north side line. III
9 departure at the south side line is not def
4 nitely determined. If, in its course ovt
the Amy location, the vein takes defle
o ton, as seems probable from the findings
: not be parallel, and the portion of the vel
y secured will run to point or into fal
- shaped section.
y If the court would draw the planes
= reference to the general average strike
= the vein throughout its whole extent. Th
g could not be accomplished until extensi'
!. developments had been made on the We
II We are of the opinion that the view
- =. the district court is not sustained by tt
10 statute or the adjudicated cases, and tn
- its adoption threatens the security of mi
"a ing titles. We are, therefore, Obliged
40 disavow it's doctrine.
ia This conclusion, however, does not dete
II mine the case. We are compelled to a.
It nounce construction of the law and Il
w facts upon which Judgment may be ORDER
nv entered below. This involves discussit
ir of the appellants and respondents the
a ries. We will first examine the former.
d. 2. The appellants theory. The contre
Is. ing principle of section 1922, and the
IA cisions Hereunder. is that the miner h
m title to all veins the apex of which lies wit
he in the vertical planes of his surface line
" although such veins, in their inclination
he their course downward, cross the vertic
ed plane of side line, provided that such G
IN terror parts lie within the projected plan
n. of the end lines.
of We are unable to escape the conclusi
W that the application of the appellants IL
e, ory, in the case before u.s. violates this pr
a. ciple. If the Amy people go down up
their dip (using the word in any of its 81
m nitications, and especially as to the col
n pass Dip from any point on the apex, tt
t. will. at greater or less depth, depending I
st on the distance from the point where I
ne Bpex crosses the north side line. encounl
ne the vertical plane of that line; and, if th
es plane is to cut them off up
:" the dip and be the end lii
S. the provisions of the statute, and the u
I'd versally accepted construction of the nj
o. ing law, are plainly subverted. Coun
holds that if the strike cross side Ii