The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1895-11-12
An Important Decision.

An important DtCiSlOn'
The decision handed down yesterday
by the supreme court of Montana in
wolves a question of vital interest to
every man in the Northwest who is an
owner Of mining property; it is the case
of Fitzgerald and others. plaintiffs and
respondents, against Clark and others,
defendants and appellants. Because of
its significance in relation to former
decisions rendered by the Montana
supreme court and the supreme court
OF the United States, the Standard
prints this morning the essential part
of the decision rendered yesterday. The
opinion was written by Judge De Witt,
his associates concurring. Judge De
Witt sets forth the question in logical
order; his statement of the views held
by the Montana supreme court is adj
mirably clear; his discussion of the
point at issue is put in terse phrase;
and, in view of the presidents, 1t may
be foretold that his conclusions will be
approved by jurists who are skilled in
the laws relating to mining.
The common-law rule is and always
has been that the owner of real prop
erty has his estate in all above and
below the surface. When quartz min
ing began, however it became apparent
that such an estate in mines was who'll
ly unsatisfactory. by reason of the fact
that mineral veins depart from a per-
pendicular in their downward course,
nf VI ri
boundaries as marked on the surface.
The subject was discussed in congress.
and II was determined that an estate
should be granted to a miner which
would secure to him the vein he had
found. no matter where the vein went
on its downward course. or on the dip.
as miners call 1t, even IL the vein de-
parted from the exterior surface boun-
| daries, where these extended down
ward. The result was the mining law
OF May. 1872. an essential clause of
which says that the locators of all min
ing claims shall have the exclusive
right of possession and enjoyment of
all veins. lodes and lodges. throughout
their entire depth, the top or apex of
which lies inside OF the surface lines.
The law was perfectly understood by
miners, and was, we believe, wholly
satisfactory. 1t was considered that IL
one discovered the apex of the vein he
might locate 1900 feet in length on the
vein and three hundred feet on each
side OF II. He might follow the. vein to
any depth on the dip, but he must
keep within the planes of the end lines
extended downward and projected in
their own directions. The first difficulty
arose in the Flagstaff casec referred 10
in the opinion printed this morning.
In that case the apex was found to
pass through both side lines. and per-
pendicular to the same. The supreme
court OF the United States held that in
such case the side lines become the end
lines. or are the end lines. and that the
miner could not follow his vein under
the side lines.
In that case. with the apex at right
angles to the side lines. the dip OF
course could not extend under sucl
side lines. But the trouble arose in the
Am--silversmlt case. in Judge De
Wolfe's court in Butte. In that cas-,
the apex crossed the location diagon
ally, entering at one side line near az
end line, and passing out OF a side lin,
near an end line. Here the dip did ex
tend under the north side line Of IN
Amy. The supreme court or Montan'
held that the Flagstaff case did not ap
ply, and that the Amy could follow a.
dip under It's north side line. In popu
lar language. perhaps. it may be salt
that the court held that the west en-
line of the Amy should be drawn in Z