The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-10-15
ing language concerning department

| of 1872, followed the end-lines as
marked on the surface, and has
| limited the extra-lateral right of
| patentees by vertical planes drawn
| down through such end lines; as IN
| the patent to Wood in this case Any
! decision that the department erred IN
in that respect, and that the rights OF
the patentees were different, would
disturb titles derived from such pat
ents, and lead to great confusion ana
! litigation. If it is expedient to change
! the rule, legislative action should be
invoked, as it would operate only In
| the future; and not judicial decision
which would affect past cases as
WE'LL
Iron Co. VS.. Elgin Co. lis u. S. 2O7.
| If in ascertaining rights of the
] grantee, under any such patent, the
exigencies of the case disclose that the
surface location, which primarily must
determine all questions as to end-iineS
and extra territorial rights, is made
! quate TO determine them, by reason of
some such situation of the
| staff case COS u. S. 463) or in
the Amy Siiversmith case Q52 U. S.
222) or in the Last Chance Q57 u S.
y then the course of the vein upon
which the location was made, the
| principal vein, must be ascerta1ned TO
assist in determining the question; and
when ascertained, that, in connection
with such other matters as may prop
! erly affect the solution of the problem,
must determine which are the end-lines.
And the determination is conclusive
as to all other veins within the loca-
ton, and extra territorial rights upon
! them.
| Having then, determined from the
| evidence that the location was made
upon the silver vein, and that the
! vein described in the patent as the
Marion vein, is the Silver vein, all
| questions as to the location and
course of the gold vein become i'm
material to the point now under con
| Sideration, the silver vein being the
| principal vein by which eXtra-terrf-
torial rights must be measured, so far
as the course OF any vein may affect
| them.
TWO APPLICATIONS FOR PAT
ENTS.
1t was said in argument (perhaps to
avoid the conclusion just reached) that
there were two applications for a
patent OF the Marion claim; one before
the law of 1872 went into effect, and
the other after, and that II was upon
the latter that the patent was granted.
If the latter application is relied upon
as bringing the possessor of the claim
within any benefits of the law of 1872
that he would not have by virtue
merely of the issue of the patent there
under, it must cast upon him also the
burden of the new conditions of the
! law of 1872 in so far as they may adj.
versely affect his rights contended for,
and the difficulty that confronts him
then is. that under the law of 1872, his
end-lines must be parallel. e%o'
Under the act of 1866, IA statute
at L., p. 251, parallelism in the end
lines of a surface location was not re-
quired, but where a location has
been made since the act of 1872, such
parailelism is essential to the existence
of any right in the locator or patentee
to follow his vein outside of the verti-
cal planes drawn through the side
lines. His lateral right by the statute
is confined to such portion of the vein
as lies between such planes drawn
through the end-lines and extended in
their own direction, that is, between
parallel vertical planes. 1t can en-
brace no other portion
Iron Co. vs. Elgin Co. 11S U. S. POS
1t was first decided, that under the
law of 1866, end-lines need not be par
allel, in the Eureka Richmond case "a
Sawyer 1922 affirmed by the supreme
court in the United States Q03 United
States S39) although that question was
not commented upon in the opinion of
the supreme court. In that case the
views of Mr.. Justice Field suited in
rendering the opinion of the circuit
court, as to parallelism of d-lines,
were advanced in his discussion of the
proposition that the patents to certain
claims were invalid because the end
lines were not parallel.
The claims in question in that case,
as in this, We're located under the law
of 1866 and PATENTED under the law
of 1872; and his conclusion was that
the -parallelism of end-lines did not
invalidate the patent. The objection
that the end-lines were not parallel
does not seem to have been interposed
directly against the existence of extra
territorial rights. nor discussed from
that standpoint, but as the decision of
the court gave to the claims in. question
such rights, it seems that the judgment
of the court must be given the force of
determining that locations, under the
law of 1866 need not necessarily have
parallel end-lines to possess extra-ter-
ritorial rights.
1t should be observed, however, that
the variations from a parallel in the
claims involved in that case were very
slight, and the construction by the
supreme court of the United States of
the law of 1866, in another case, gives
countenance to the opinion that any
marked deviation from a parallel be-
tween the end-lines' of location, would
be fatal to any claim of right beyond
the surface boundaries, because there
would be nothing by which to measure
such right, or mark its bounds.
THE FLAGSTAFF CASE.
In the Flagstaff case, decided after
the law of 1872 was enacted, but about
a controversy that arose before, and
which was governed wholly by the law
of 1866, that court said:
Both parties agree in the general
rule that the owner of a mining right
in a lode or vein cannot follow the
course of the vein beyond the end
lines of his location extended perpen-
dicularly downward, but that he may
follow the dip to an indefinite distance
outside of his side-lines. This is I'M
doubtedly the general rule of miners
law, and the true construction of the
act of congress. The language of the
act of 1866 IA statute at L., p. 251)
in relation to "a vein or lode is that
no location hereafter made shall ex-
coed two hundred feet in length along
the vein for each locator, with an adj
ditional claim for discovery to the dis
coverer of the lode, with the right to
follow such vein to any depth, with
all its dips, variations and angles, to-
gether with reasonable quantity of
surface for the convenient working of
the same as fixed by the local rules,
etc. The act of 1872 or id. 80 is more
explicit in its terms; but the intent
is undoubtedly the same, as it respects
end-lines and side-lines, and the right