Amador ledger., 1900-12-28

rather commended, by counsel on both
sides that the Court cannot construct end
lines. If the Court is to adjudge that
plaintiff is entitled to follow the dip be-
yond his lines, 1T must find some mode
OF limiting the right along the vein, and
that limitation must result as matter of
law from the patent, when the necessary
facts are shown as to the property it at
tempts to convey-that is, as to the
course and dip of the lode.
The contention of the parties in regard
to this matter is shown upon the dia-
gram. OF course it is understood that
plaintiff contends for all included be-
tween planes drawn through its end
lines, although they diverge and would
inevitably extend his rights along the
strike. While defendant contends that
because of such divergence plaintiff has
no extralateral rights. But each party
has an alternative theory, in case its
primary contention is not sustained.
Plaintiff says, if planes through its end
lines do not control, then planes are in
Dictated between lines perpendicular to
the general course of the lode.
Defendants alternative is that, as the
southern end line constitutes the initial
| line in the survey, it necessarily follows
from the requirement of parallel end
planes that the northern end line shall
be parallel to it. That by locating
and fixing the. southern end line.
first the northern end line was
thereby also definitely and finally To-
Gated. These theories are shown in the
diagram: 3-5 is the southern end line
continued; 1-6 is parallel line from
the northern end of the lode. This
shows defendants theory. These lines
would give the ore in dispute to de-
PENDANT.
The lines suggested by plaintiff are
1-2 and "a. These are at right angles
to the general course OF the lode, and
planes descending through them would
give the ore to plaintiff. The line BIB
is the northern end line continued, and
between that line and 3-5 is plaintiffs
first contention, which we have consid-
cred.
am not referred to any authorities
which support the contention Of appel
liant that the southern end line must be
considered as the basis from which the
surface form of the location was pro-
| Jected. As stated, the argument is that
| A6fAAS OOOA l6b AOOobCQ IL AOllOUOQg 90
matter of law, that the other end line
must be in the same direction in order
that end lines may parallel. But the
location was made, surveyed, the land
paid for, and application made for the
patent before the law of 1872 was en-
acted, The act of 1866 did not require
parallel end lines to insure extralateral
rights or at all. There was, therefore,
no implication that the second end line
should be parallel to that first estab-
llshed. 1t was not an absolute necessity
that by naked description one end line
should be described before the other. A
side having been located, one sentence
could have created both end lines from
each end and at right angles to the side
line in a certain direction. No such
general rule, therefore, applicable to all
cases could be adopted. Planes 30 con-
structed could not result as matter of
law.
Planes through the lode at the end
lines of the location at right angles to
the general course would impose the re-
quired limitation upon the rights of the
locator along the lode. The rule that
| they must be SO constructed would be
universally applicable-at last theoreti-
cally. The Congressional system for the
sale of mineral lands is founded upon
the proposition that the course of the
lode can be traced. That nature, in her
infinite variety, does not always so de-
posit her mineral gifts is unfortunate;
but think in constituting the law we
may have regard to the views of the
lawmakers in regard to its subject, how
ever crude and inadequate such views
were. The law of 1856 is said to have
| been but capitalization of the rules
and customs of the miners. The first
lodes worked were, l think, nearly in
uniform direction. The individual claims
were short, usually two hundred feet.
Under such circumstances it was not
difficult to appropriate to each his num-
Der of feet on the dip at any depth. In
California mines such claims were very
often consolidated and disputes avoided.
Often, as on the Comstock lode, the
| miners, agreed upon a base line from
which the surface form of locations were
projected, or to which they were adj
justed. This would result in parallel
end lines.
The general practice, think, was to
have their claims bounded, so lar as the
lode was concerned, by parallel end
lines, whatever might be the form of
tACA cuIldOO lOCatAOus LII law, eAOy
adopted the idea put forth by Judge
Field in the Eureka case. Their rights
on the lode were limited to planes at the
limit OF their right to the lode on the
surface, at right angles to the general
course of the lode.
The Eureka case is perhaps the only
express authority for this proposition,
but do not find, as claimed by the
learned counsel for the appellant, that it
has been repudiated by later cases. On
the contrary, these cases which imply
extralateral rights when the end lines
are not parallel seem to concede this
rule. l am unable to understand WAL
| rath vs. Champion, III U. S., 293, upon
any other theory. There was liberty of
surface form under the act of 1866, but
the law strictly confined the right on
the vein below the surface. This &C.
cords both with the Eureka case and the
Flagstaff case. In the latter case it
was said: "But our laws have at
tempted to establish rule by which
each claim shall be SO many feet of the
vein lengthwise of its course to any
depth below the surface, although later
ally its inclination shall carry it ever so
far from perpendicular" But rights
on the strike were limited by the sur
face lines of the location under both
laws. Judge Field was familiar with the
mining customs and laws. l have no
doubt he expressed in the Eureka case
what had been and was the universal
understanding and practice of miners.
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