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

Raymond, there u q strong equitable
argument in favor OF extra-territorial
rights, although it involves departure
from the literal provisions OF the stat
ute and the invention of "eQuttaDly
created land lines, as they are termed
by the supreme court Of the onlts1
States (Last Chance VS.. Tyler, lof
q. S. $3.50, and it is possible that the
court may finally SUSTAIN the views
urged in favor OF that doctrine, though
it has given little encouragement TO II
thus far.
1t was first promulgated by the SUI
preme court of Montana in 1880 IN tae
case of King VS.. Amy & Silversmltn.
g Mont 54S) That case was reversed
by the supreme court of the United
States Q52 U. S. 22z), Mr.. Justice Fie4d
delivering the opinion Commenting
upon that opinion, the Montana cours,
in Fitzgerald VS.. Clark, Q7 Mont. lz4),
says:
I'VE understand that the United
States supreme court not only reversed
our judgment. but discarded as I'M
tenable the principle upon whicn we
pronounced it, This decision was re-
ceived with regret, not only by the
bench and bar in the mining regions,
but by both practical ana seleneliic
miners. The regret was greater III
that the decision enlanated, as we nave
said in the Amy Silyersmith case, from
Mr. Justice Field, the judicial father
of the mining law in the United states
jurist who has illuminated this topic
of the law by not only his 9rofound
learning, but by his practical expsr-
fence in mining affairs.
The court then proceeds TO quote from
and comment upon the cases that have
been decided since 1890 in accord with
its own position in the Amy-Silversm1tn
case. In the Amy case the vein crossed
both lines marked on the surface as
the sde-lines of the claim. In one CT
the cases just referred to, decided since
1890, in the circuit court of appeals for
the Ninth circuit, the vein entered
through an end line, and passed out
I through a side line, Cast Chance VS..
Tyler. II fed. O. S. app, but on APP
peal the supreme court of the United
States reversed the Judgment OF the
circuit court of appeals where the Mon
tana doctrine had been approved,
though the reversal was upon another
point. But as that doctrine has no di-
rect bearing here, further comment is
unnecessary.
1t is worthy of note, that in nearly
all the cases before the supreme court
of the United States, where the ques-
ton of trans-lateral rights has been
inpnlved the decisions of that court
have been adverse, and its disposition,
contrary to that manifested in other
tribunals, seems to be to decline to
extend the statutory provisions allow
ing such rights to doubtful cases.
In accordance with the views ex-
pressed herein, applying the language
of Mr.. Justice Field in the. Elgin case:
I'VE are, therefore, of opinion that
the objection, that by reason of the
surface form of the Marion claim,
extra-territorial rights do not attach
to it, is valid one; and further, be-
cause the silver-bearing vein upon
which it is located, does not pass
through lines that can be considered
end-lines, no basis is thus afforded for
such rights. Such being the conclusion,
it becomes unnecessary to consider
other matters contested upon the trial.