The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1917-06-07

ported cases do not, of course, include
all the eXtralateral cases which have
arisen within this period, but they dc
include the more important, and they
afford a reliable criterion of the pro-
portion of cases arising from year to
year. The maximum was reached in
Fthe year 1902 when ten cases were re-
ported Since 1902 the number of re-
ported, cases has steadily decreased SO
that, for the past decade, excluding
Iduplications of the same case. extra
lateral litigation has not averaged two
reported cases a year. During the
years 1908 and 1911 no eXtralateral
cases whatever were reported, The
federal extralateral decisions of the
trial courts usually find their way in
to the reports because of their i'm
portance. The extralateral decisions
in the state trial courts are not found
in the reports, but these cases are OF
such magnitude that they often reach
the state appellate courts.
1t would hardly seem that the few
cases arising in the entire west, es-
pecially where an industry of such
! magnitude and Importance as that OF
lode mining is involved, would justi-
fly the extravagant statements that
have been made by some who urge the
abolition of the right. 1t must be re-
membered that the charge of excess
i've litigation is the main reason urg-
ed for repeating the law of the apex
The deductions of the writer as to the
comparatively small amount of extra
lateral litigation which has arisen
when we consider the vast number OF
| ode mines being operated in the west
under the extralateral law, is cOrrob-
GRATED by an Independent investiga-
ton made by Charles H. Shamel the
author of Mining, Mineral and Geo
ogical Law" Proceeding along entire
~ different lines, he examined the syl
labuses of all of the cases reported in
Morrisons Mining Reports" which
contain all the important mining de-
cisons reported in the United States
during the past half century. He ar
rived at the following result: Il con-
fess that | was surprised at the actual
figures. The total number of sylla-
buses in the % volumes of decisions
| Is $685. Of which the number con-
corning the apex law is 115. The apex
cases are only about 1.9 per cent OF
the whole Instead of causing
1913 per cent of mining litigation, as
DR.. Raymond has somewhere stated, 1t
has caused much less than its proper
tionate share of the trouble. Facts
are stubborn things The chief, the
constantly reiterated, the convincing
argument, against the apex law is
based on a gross mistake as to the
facts in the case"
/ Charles S. Thomas, a United States
senator from Colorado, who, as an
eminent mining attorney, is well quail
flied to speak on the subject of mining
litigation, corroborates this view. lie
says: Now the vast amount of min
ling controversy--and | am speaking Of
numbers of actions-has not been apex
litigation. They have been the mos
expensive and the most far reaching
They have perhaps resulted in the
greater proportion of injustice; bu
the conflicting (surface) locations have
produced that multitude of cases,
small percentage of which perhaps
reach the court Of appeals, but whose
aggregate has burdened the prospectol
and locator with an expense almos
llnbearable."
It is not therefore, an excessive
amount of litigation which can b.
legitimately charged to the extralat
eral right; the olny valid charge OF
this score which can be made, is thu
great expense incident to such few
cases as arise.
The advocates of the repeal of thu
law of the apex have given little con
fsideration to the serious consequence
that will inevitably result unless othe
features of the public land law arr
simultaneously and profoundly amend
ed The greatest practical difficult,
that will follow from abolishing tn
extralateraf right and combining 10
Gator to the mineral found within thu
vertical boundaries of his location, Il
the fact that only in those locations
which embrace the apex of the veil
can discovery of mineral readily b.
made Discovery of mineral withil
, the boundaries of the location is tn
most vital essential of our existing
mining law Locations which includ
the apices or upper portions of tn
veins within their boundaries coul
still readily meet this important re
quirement of discovery. but surfac
! Locations everything the dip of the vel
at considerable distances from tn
I apices, or upper terminal edges. of tn
t veins could meet the discovery re
e quirement only after the locators ha
= expended considerable labor and tim
: in sinking shafts to find the vein
n depth. AS the vein dipped farther In
: to the earth it would be increasing
: difficult to make discovery With
e the vertical boundaries Of the overly
e ling locations, and finally at great DEPT
/, the expense of sinking such shat