The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1918-03-28

therefore the Evening Star takes the
whole of the vein where the apex is
bisected by the common side lines
Lawson V. U. S. NJ, Co., 207 u. S. l.
In these contentious we have the two
decisive questions of the case, which,
concretely stated, are, Q do such COM
mon side lines longitudinally traverse
the apex of the vein containing the
ore bodies in issue; and, il so, CD is
the Evening Star prior in time, and
hence in right to the Grouse and Iron
Crown. Unless the first question is
answered in the affirmative, manifest
! ly the plaintiff must fail; and upon
that issue 1t assumes the burden of
proof. When defendant established the
identity of the ore bodies in contro-
versy with the vein apeXing in the
Grouse and Iron Crown 1t overcame
the presumption of superior right in
the plaintiff arising from the owner
ship of the Evening Star. But if it
is shown that it is a broad overlapping
apex, the burden again shifts to the
defendant, for III such case the apex
rights of the two claimants would ap-
pear equal, and the defendant could
justify its invasion of plaintiffs ground
only by proof of prior discovery. If,
therefore, it is not shown that the
Iron Crown extends laterally into the
Evening Star, or If it appears that
the former claims are prior in time
to the latter, the plaintiff cannot sue
ceed. | use the phrase Burden of
proof" in a practical sense. The ap
parent conflict in certain of the de-
cided cases which have been drawn to
my attention impresses me as being
one Of form more than of substance
Plaintiff suggests the insufficiency Of
defendants pleadings to admit of
proof of acts of location of the Grouse
and Iron Crown claims, but l am in
clined to overrule the objection. The
defendant responded to all the issues
rendered by the plaintiff True, plain
tiff pleads the discovery and location
of it's claims, but nowhere does it sug
gest the theory, now relied upon, that
the ore bodies in controversy are en-
braced within a bisected vein, and 1t
would be harsh rule that would re-
quire a defendant to anticipate such
a contention. The defendant does
plead that the ore bodies are part of
the lode apeXing in the Grouse and
Iron Crown, and that 1t Is the owner
of the entire lode. Under the circum-
stances this averment is thought to be
sufficient to warrant admission of
added, the plaintiff was prepared to
meet.
In considering the geological issue
it will be understood that the contour
of the earth's surface in the locality
of the claims is irregular and that
the country is Overlaid with a wash
of considerable, though varying, depth; f;
the lode, as well as it's apex, as in
it's deeper reaches, is exposed only in
the cuts, tunnels, and other excaVa-
tons Some of these existed when the
suit was commenced, but much of the
work was subsequently done, to estab-
lish the defendants theory that the
apex is in the Grouse and Iron Crown,
and the plaintiffs theory of broad,
branching apex. The testimony is
greatly illuminated not only by elab-
crate maps and diagrams, but by
models accurately representing both
the surface contour and the under
ground workings in their exact extent
and relation.
OF course, as was said in Migeon v.
Montana Central Railway Co., II Fed.
249, the definition of a vein must al
ways have special reference to the
formation and particularly char
acteristics of the particular dis
trict," and it may be added that the
question of width often presents con-
siderations entirely different from
those involved in the issue of con-
tinuity upon course or dip. But the
difficulty here Is to propose any defin-
ition, either general or specific, which
will meet the necessities of either
party. without exception the eminent
experts who testified in the case SEEM
ed to be reluctant to commit them
m or
by the use of which another geOlogist
or mining engineer could upon the
ground at any given point with meas
urable certainty fix the lateral limits
of the vein. Such definitions as were
ventured were so qualified, either di-
rectly or by subsequent statements and
concessions, that in practicable appli-
cation they turn out to be of little
service. Ineed 1t is preeminently a
case where each side finds 1t much
simpler task successfully to assail its
Iopponents's record than to defend its
own, and such, apparently, are the in
herent difficulties that 1t is doubted
whether for any possible decision geo.
logical reasons can be assigned which
are not out of harmony with some tes-
timony adduced upon behalf of the
party in whose favor the decision il
rendered. And yet when we view the
formation in its larger aspects anc
consider that upon a strike and dill
of substantial continuity the defendan
has actually extracted from slopes thu
width of which Is comparatively mar
row and uniform ore Of value ex
ceeding $25, 100000, no room Is lef
for doubt that we are dealing will
vein or lode, and it's limits we mus
determine as best we can. Whateve
the difficulties from a purely scien
tific standpoint, the problem is an ac
tual one and demands practical solu
tion.
In considering the geology we hav
first the admitted existence of shear
ed zone of quartzite, extending north
westerly and southeasterly through
the several claims, of unproven width
but in general wide enough at leas
ito include all of the several workings
save the southern portions of the lon
tunnels, leading into the propertie
from the south. BY "shearing" 1t vii
be understood Is meant the cracking
of the earth's strata, due to the actiol
of powerful compressive forces, tn
veinlets or lines of cleavage in tn
lrock so affected giving to a section