Amador ledger., 1900-12-28

with the reservation of all rights &C
quired under the act of 1866, indicates
that in the opinion of the Legislature no
change was made in the rights of the
previous locators by combining their
claims within the end lines. The act
simply recognized pre-existing rule
applied by miners to single vein or
lode of the locator, and made it appli-
cable to all veins or lodes found within
the surface lines"
This proposition is substantially reit-
Grated in Iron Silver Mine vs. Elgin,
1l8 U. S., 1874, and in many other cases,
including the latest to which our atten-
ton has been called-Walrath VS.. Cham
pion, III U. S., 293.
1t remains but to add on this point
that the patent under which plaintiff
claims only grants of the discovery lode
1889 and 94-100 linear feet "of the said
Pioneer quartz vein, lode, ledge or deposit,
as hereinbefore described, throughout
| its entire depth. Provided
that the right of possession to such out
side parts OF said veins, lodes, lodges or
deposits shall be confined to such por-
tions thereof as lie between vertical
| planes drawn downward through the
end lines of said survey at the surface,
80 continued in their own direction,
etc. And in the habendum is added as
condition, "that the grant hereby
made is restricted to the land hereinbe-
fore described as lot No. 48, with 1889
and 94-100 linear feet of the Pioneer
quartz vein, lode, ledge or deposit
throughout its entire depth" etc.
l think it clear that there is no at
tempt here to convey all within planes
passing through the end lines, if such
planes would at any depth include more
| than the amount specifically defined on
the strike of the lode.
Upon this conclusion, that patent to
a location with end lines diverging in
| the direction of the strike does not con-
vey all within those planes, but at the
| most not more than the stated number
of feet on the lode, at any given depth,
| the appellant contends that such patent
grants no extralateral rights at all. Such
would be the law if the location were
under the law of 1872, and as the patent
to the Pioneer was issued after that law
| took effect counsel contends that it is
| subject to its requirement that the end
lines must be parallel or the patentee
has no extralateral rights. Another OBJ
| lection is that there is no description OF
| the segment of the lode which extends
| beyond the surface location, and no
grant can be effectual which does not
define the thing granted.
| Parallel end lines were not required in
locations by the law of 1866, and yet ex-
tralateral rights were specifically given.
| The act refers to rules and regulations
made by miners, but it is not said that
any such rule required parallel end lines.
1t is claimed in argument that such was,
in general, the custom of miners, but it
is not even contended that there was
such a custom in Amador county, and
all the patents shown in this case lack
such parallelism.
think it would have been competent
for Congress in the law of 1872 to have
required parties who had equitable
| rights to patents to cause such adjust
ments of their surface lines as would i l.
dictate and define their extralateral rights
in other words, to have made their
end lines parallel before patent would
issue, on pain of losing all extralateral
| rights. There are no such provisions in
the act of 1872, but the rights of locators
under former laws are expressly con-
| firmed to them.
The presumption is very strong against
| forfeiture, and against such construction
of any law as would work a forfeiture.
The language of an act to have such
effect must be very plain, or the Court
will, if possible, give construction to it
| that would not have that effect.
1t is admitted that such extralateral
rights are recognized and asserted in the
Eureka case, and think in the language
used by Judge Field in Iron S. & NJ. Co.
vs. Elgin, 11S U. S., 1856. The Horse
Shoe case" is equally clear upon this
matter. "Under the act of 1866 IA
Statutes-at-Large, p. 25l), parallelism
in end lines of a surface location was not
required, but where location has been
made since the act of 1872 such parallel
ism is essential to the existence of any
right in the locator or patentee to follow
his vein outside of the vertical planes
down through the side lines" This
very clearly implies that locator under
the act of 1866 has such right, although
his end lines are not parallel. In many
other cases the same thing is implied.
(Del Monte vs. Last Chance Co., III U.
S., So; Walrath Va Champion, So Fed.
Rep, 552; same case, III U. s., 1881
We come, then, to the other phase OF
the question: Can it be determined as
matter Of law, from the patent or the
complaint, what segment of the dip, if
any, the plaintiff acquired by his Local
| tim 0r naknnt2 n ia odnoikfa or