For these reasons, therefore, we are of the opinion that the first question must be answered in the affirmative.

emptor, or it may not be known that the set- | wards outside the side lines of his location, tlements are on the same quarter." but the limits of his rigut are not to extend The distinction thus suggested is pertinent on the course of the vein beyond the end lines here. A party who is in actual possession of projected downward through the earth. His a valid location may maintain that possession rights on the surface are *bounded by the sev- [85] and exclude everyone from trespassing there- eral lines of his location, and the end lines on, and no one is at liberty to forcibly disturb must be parallel in order that going downhis possession or enter upon the premises. At wards he shall acquire no further length of the same time the fact is also to be recog- the vein than the planes of those lines exnized that these locations are generally made tended downward inclose. If the end lines upon lands open, uninclosed, and not subject are not parallel, then following their planes to any full actual occupation, where the lim-downward his rights will be either convergits of possessory rights are vague and uncer-ing and diminishing or diverging and increastain and where the validity of apparent loca-ing the farther he descends into the earth. tions is unsettled and doubtful. Under those In view of this purpose and effect of the circumstances it is not strange on the con- parallel end lines, it matters not to the prior trary it is something to be expected, and, as locator where the end lines of the junior locawe have seen, is a common experience that tion are laid. No matter where they may be, conflicting locations are made, one overlap- they do not disturb in the slightest his ping another, and sometimes the overlap re- surface or underground rights. peated by many different locations. And while in the adjustment of those conflicts the rights of the first locator to the surface with [84] in his location, as well as to veins *beneath It may be observed in passing that the anhis surface, must be secured and confirmed, swer to this question does not involve a dewhy should a subsequent location be held ab-cision as to the full extent of the rights besolutely void for all purposes and wholly igneath the surface which the junior locator nored? Recognizing it so far as it establishes acquires. In other words, referring to the the fact that the second locator has made a first diagram, the inquiry is not whether the claim, and in making that claim has located owners of the Last Chance have a right to parallel end lines, deprives the first locator of pursue the vein as it descends into the ground nothing. Certainly, if the rights of the prior south of the dotted line r s, even though they locator are not infringed upon, who is preju- should reach a point in the descent in which diced by awarding to the second locator all the rights of the owners of the New York, the benefits which the statute gives to the the prior location, have ceased. It is obmaking of a claim? To say that the subse-vious that the line e h, the end line of the quent locator must-when it appears that his New York claim, extended downward into lines are to any extent upon territory cov- the earth will at a certain distance pass to ered by a prior valid location-go through the south of the line r s, and a triangle of the form of making a relocation simply works the vein will be formed between the two delay and may prevent him, as we have seen, lines, which does not pass to the owners of from obtaining an amount of surface to which the New York. The question is not dishe is entitled, unless he abandons the under-tinctly presented whether that triangular ground and extralateral rights which are portion of the vein up to the limits of the secured only by parallel end lines.

south end line of the Last Chance, bc,
In this connection it may be properly in- extended vertically into the earth, belongs
quired, What is the significance of parallel to the owners of the Last Chance or not,
end lines? Is it to secure the locator and therefore we do not pass upon it.
in all cases a tract in the shape of a paral- Perhaps the rights of the junior locator
lelogram? Is it that the surveys of mineral below the surface are limited to the
land shall be like the ordinary public surveys length of the vein within the surface of the
in rectangular form, capable of easy adjust- territory patented to him, but it is unneces-
ment, and showing upon a plat that even sary now to consider that matter. All that
measurement which is so marked a feature comes fairly within the scope of the question
of the range, township and section system? before us is the right of the owners of the
Clearly not. While the contemplation of Last Chance to pursue the vein as it dips into
Congress may have been that every location the earth westerly between the line a d t and
should be in the form of a parallelogram, not the line r s, and to appropriate so much of
exceeding 1,500 by 600 feet in size, yet the
purpose also was to permit the location in
such a way as to secure not exceeding 1,500
feet of the length of a discovered vein, and
it was expected that the locator would so
place it as in his judgment would make the
location lengthwise cover the course of the
vein. There is no command that the side
lines shall be parallel, and the requisition that
the end lines shall be parallel was for the
purpose of bounding the underground extra-
lateral rights which the owner of the location
may exercise. He may pursue the vein down-

it as is not held by the prior location of the [86]
New York, and to that extent only is the
question answered. The junior locator is en-
titled to have the benefit of making a loca-
tion with parallel end lines. The extent of
that benefit is for further consideration.

The second question needs no other answer
than that which is contained in the discussion
we have given to the first question, and we
therefore pass it.

The third question is also practically answered by the same considerations, and in the view we have taken of the statutes the

easterly side of the New York lode mining | were apparently side lines were adjudged end claim is not the end line of the Last Chance lines because the vein on its course passed lode mining claim. through them, the location being not along The fourth question presents a matter of the course of the vein but across it. But importance, particularly in view of the in-in neither of these cases was the question now ferences which have been drawn by some before us presented or determined. All that trial courts, state and national, from the can be said to have been settled by them is, decisions of this court. That question first, that the lines of the location as made by isthe locator are the only lines that will be rec"If the apex of a vein crosses one endognized; that the courts have no power line and one side line of a lode mining claim, to establish new lines or make a new locaas located thereon, can the locator of such tion; second, that the contemplation of the vein follow it upon its dip beyond the verti- statute is that the location shall be along the cal side line of his location?" course of the vein, reading, as it does, that a The decisions to which we refer are Flag-mining claim "may equal, but shall not exstaff Silver Mining Company v. Tarbet, 98 ceed, 1,500 feet in length along the vein or U. S. 463 [25: 253]; Iron Silver Mining Com-lode;" and, third, that when subsequent expany v. Elgin Mining & S. Company, 118 U. S. 196 [30:98]; Argentine Min:ng Company v. Terrible Mining Company, 122 U. S. 478 [30: 1140]; King v. Amy & S. Consol. Min ing Company, 152 U. S. 222 [38 419].

plorations disclose that the location has been made, not along the course of the vein, but across it, the side lines of the location become in law the end lines. Nothing was said in either of these cases as to how much of the apex of the vein must be found within the surface, or what rule obtains in case the vein

Chance Mining Company v. Tyler Mining Company, 157 U. S. 683, 696 [39: 859, 865], was before us (in which the question here stated was presented but not decided, the case being disposed of on another ground) we said, after referring to the prior cases, “but there has been no decision as to what extraterritorial rights exist if a vein enters at an end and passes out at a side line."

Two of these cases have been already noticed in this opinion. In Flagstaff Silver Mining Company v. Tarbet a surface loca-crosses only one *end line. So, when Last [88] tion, 2,600 feet long and 100 feet wide had been made. This location was so made on the supposition that it followed lengthwise the course of the vein, and the claim was of the ownership of 2,600 feet in length of such vein. Subsequent explorations developed that the course of the vein was at right angles to that which had been supposed, and that it crossed the side lines, so that there was really but 100 feet of the We pass, therefore, to an examination of length of the vein within the surface the provisions of the statute. Premising area. It was held that the side lines that the discoverer of a vein makes the lowere to be regarded as the end lines. In cation, that he is entitled to make a location Iron Silver Mining Company v. Elgin Mining not exceeding 1,500 feet in length along the & 8. Company the location was in the form of course of such vein and not exceeding "300 a horseshoe. The end lines were not parallel. feet on each side of the middle of the vein at The location was quite irregular in form, and the surface," that a location thus made dis[87] *inasmuch as one of the side lines was sub-closes end and side lines, that he is required stantially parallel with one of the end lines it was contended that this side line should be considered an end line, and this although the vein did not pass through such side line. But the court refused to recognize any such contention and held that the end lines were those which were in fact end lines of the claim as located, and that as they were not parallel there was no right to follow the vein on its dip beyond the side lines. In Argentine Mining Company v. Terrible Mining Company the claims of the plaintiff and defendant crossed each other, and in its decision the court affirmed the ruling in Flagstaff Silver Mining Company v. Tarbet, saying (p. 45 [30: 1142]):

"When, therefore, a mining claim crosses the course of the lode or vein instead of being 'along the vein or lode,' the end lines are those which measure the width of the claim as it crosses the lode. Such is evidently the meaning of the statute. The side lines are those which measure the extent of the claim on each side of the middle of the vein at the surface."

In King v. Amy & 8. Consol. Mining Company the prior cases were reaffirmed and those lines which on the face of the location

to make the end lines parallel, that by such parallel end lines he places limits, not merely to the surface area, but limits beyond which below the surface he cannot go on the course of the vein, that it must be assumed that he will take all of the length of the vein that he can, we find from § 2322 that he is entitled to "all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically." Every vein whose apex is within the vertical limits of his surface lines passes to him by virtue of his location. He is not limited to only those veins which extend from one end line to another, or from one side line to another, or from one line of any kind to another, but he is entitled to every vein whose top or apex lies within his surface lines. Not only is he entitled to all veins whose apexes are within such limits, but he is entitled to them throughout their entire depth, "although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations." In other words, given a vein whose apex is within his surface limits, he can pursue that vein as far

as he pleases in its downward course outside [tion. "Our laws have attempted to establish the vertical side lines. But he can pursue a rule by which each claim shall be so many the vein in its depth only outside the vertical feet of the vein, lengthwise of its course, to side lines of his location, for the statute pro-any depth below the surface, although latervides that the "right of possession to such ally its inclination shall carry it ever so far [89] outside *parts of such veins or ledges shall from a perpendicular." Flagstaff Silver Minbe confined to such portions thereof as lie being Company v. Tarbet, 98 U. S. 463, 468 tween vertical planes drawn downward as [25: 253, 255]. above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or lodes."

This places a limit on the length of the vein beyond which he may not go, but it does not say that he shall not go outside the vertical side lines unless the vein in its course reaches the vertical planes of the end lines. Nowhere is it said that he must have a vein which either on or below the surface extends from end line to end line in order to pursue that vein in its dip outside the vertical side lines. Naming limits beyond which a grant does not go is not equivalent to saying that nothing is granted which does not extend to those limits. The locator is given a right to pursue any vein, whose apex is within his surface limits, on its dip outside the vertical side lines, but may not in such pursuit go beyond the vertical end lines. And this is all that the statute provides. Suppose a vein enters at an end line, but terminates half way across the length of the location, his right to follow that vein on its dip beyond the vertical side lines is as plainly given by the statute as though in its course it had extended to the farther end line. It is a vein, "the top or apex of which lies inside of such surface lines extended downward vertically" and the same is true if it enters at an end and passes out at a side line.

These conclusions find support in the fol|lowing decisions: Stevens v. Williams, 1 McCrary, 480, 490, in which is given the charge of Mr. Justice Miller to a jury, in the course of which he says: "You must take all the evidence together; you must take the point where it ends on the south, where it ends on the north, where it begins on the west and is lost on the east, and the course it takes; and from all that you are to say what is its general course. The plaintiff is not bound to lay his side lines perfectly parallel with the course or strike of the lode, so as to cover it exactly. His location may be made one way or the other, and it may so run that he crosses it the other way. In such event his end lines become his side lines, and he can only pursue it to his side lines, vertically extended, as though they were his end lines, but if he happens to strike out diagonally, as far as his side lines include the apex, so far he can pursue it laterally." Wakeman v. Norton, decided by the supreme court of Colorado, June 1, 1897, 49 Pac. 283, in which Mr. Justice Goddard, whose opinions, by virtue of his long experience as trial judge in the mining districts of Leadville and Aspen, as well as on the supreme bench of the state, are entitled to great consideration, said, p. 286: "In instructing the jury that, in order to give any extralateral rights, it was essential that the apex or top of a vein should on its *course pass [91] Our conclusions may be summed up in these through both end lines of a claim, the court propositions: First, the location as made on imposed a condition that has not heretofore the surface by the locator determines the ex-been announced as an essential to the exertent of rights below the surface. Second, the cise of such right in any of the adjudicated end lines, as he marks them on the sur-cases." Fitzgerald v. Člark, 17 Mont. 100 face, with the single exception hereinafter no-[30 L. R. A. 803], a case now pending in this ticed, place the limits beyond which he may court on writ of error. Tyler Mining Comnot go in the appropriation of any vein or pany v. Last Chance Mining Company, court veins along their course or strike. Third, of appeals, ninth circuit, decided by Circuit every vein "the top or apex of which lies in- Judge McKenna, now a justice of this court, side of such surface lines extended downward Circuit Judge Gilbert and District Judge vertically" becomes his by virtue of his Hawley, 7 U. S. App. 463. Consolidated Wylocation, and he may pursue it to any oming Gold Mining Company v. Champion depth beyond his vertical side lines, al-Mining Company, circuit court northern disthough in so doing he enters beneath the trict California, decided by Hawley, District surface of some other proprietor. Fourth, the Judge, 63 Fed. Rep. 540. Tyler Mining Comonly exception to the rule that the end lines pany v. Last Chance Mining Company, cirof the location as the locator places them es-cuit court district of Idaho, decided by Beatthe course [90]tablish the limits beyond which he may not ty District Judge, who in

go in the appropriation of a vein on its course of his opinion pertinently observed: "What or strike is where it is developed that in fact reason under the law can be assigned the location has been placed, not along, but why these rights shall not apply when across, the course of the vein. In such case the law declares that those which the locator called his side lines are his end lines, and those which he called end lines are in fact -side lines, and this upon the proposition that it was the intent of Congress to give to the locator only so many feet of the length of the vein, that length to be bounded by the lines which the locator has established of his loca

his location is such that his ledge passes through it in some other way than from end to end? The law does not say that his ledge must run from end to end, but he is granted this right of following 'all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of his surface lines.' Upon the fact that an apex is within his surface lines, all his underground

claim situated in the "Summit Valley" mining district in Silver Bow county, Montana.

The defendants in error own two-thirds interest, and the plaintiff in error one-third interest in the "Niagara" lode mining claim situated in the same district and county. The "Niagara" lode lies alongside of the "Black Rock" lode so that the south side

rights are based. When, then, he owns an apex, whether it extends through the entire or through but a part of its location, it should follow that he owns an equal length of the ledge to its utmost depth. These are the important rights granted by the law. Take them away, and we take all from the law that is of value to the miner." 71 Fed. Rep. 848, 851. Carson City Gold & Silver Mining Com-line of the "Niagara" forms or is a part of pany v. North Star Mining Company, circuit court northern district of California, decided by Beatty, District Judge, 73 Fed. Rep. 597. Republican Mining Company v. Tyler Mining Company, circuit court of appeals ninth circuit, decided by Circuit Judges Gilbert and Ross and District Judge Hawley, 48 U. S. App. 213. See also 2 Lindley on Mines, § 591. The fourth question, therefore, is answered in the affirmative.

The fifth question in effect seeks from this 92] court a decision of the whole case, and therefore is not one which this court is called upon to answer. Cross v. Evans, 167 U. S. 60 [42:77]; Warner v. New Orleans, 167 U. S. 467 [42:239].

It will therefore be certified to the Court of Appeals that the first question is answered in the affirmative, the third in the negative, the fourth in the affirmative. The second and fifth are not answered.

the north side line of the "Black Rock" lode. The "Black Rock" lode is the older of the two locations. As appears from the pleadings in the cause the vein or lead crosses the east end line and south side line of the "Niagara" lode 513 feet west of the northeast corner of the "Black Rock" lode and dips to the south and under the surface of the "Black Rock" lode claim.

The plaintiff in error entered upon that part of the vein east of the point where it crosses the division side line between the "Black Rock" and "Niagara" lode claims and extracted ore from the said vein on its dip under the "Black Rock" lode at the point above described.

Thereupon the defendants in error, who, as stated supra, own two-thirds interest in the "Niagara" lode claim, brought an action asking for an accounting and judgment for two thirds the value of the ore extracted by the plaintiff in error. Judgment was rendered against the plaintiff in error for the sum of $27,242.54 being two thirds the value of the ore extracted, and for ($234.50) two hundred and thirty-four and 50-100 dollars, the cost of the suit.

An appeal was taken to the supreme court of the state and the judgment of the lower court was affirmed.

The questions presented by this record for decision are raised solely by the judgment roll consisting of the pleadings and judgment of the lower court and opinion of the supreme court of the state.

This cause presents to this court for the first time a new question for adjudication. In some respects analogous questions have

Argued December 7, 8, 1897. Decided May already been settled by this tribunal, but the

23, 1898.

IN ERROR to the Supreme Court of the State of Montana to review the judgment of that court affirming the judgment of the District Court of the County of Silver Bow in said state in favor of the plaintiffs, William F. Fitzgerald et al., against the defendant, William A. Clark, for damages for ores extracted from the Niagara lode mining claim in said county and state, and adjudging that two thirds of the vein in controversy are the property of the plaintiffs. Affirmed.

See same case below, 17 Mont. 100 [30 L. R. A. 803].

Messrs. Robert B. Smith and Robert L. Word, for plaintiff in error:

This cause comes here on a writ of error directed to the supreme court of the state of Montana, and the questions involved grow out of the following state of facts:

The plaintiff in error is the owner and in possession of the "Clack Rock" lode mining

exact question here presented has never been decided.

Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 696 (39:865).

The apex of the vein or lode of the "Niagara" claim crosses the east end line and the south side line of said "Niagara" claim. The plaintiff in error entered upon said vein upon its downward course or dip into the earth and extracted therefrom certain valuable ores, for an accounting of which this action was brought.

The ore taken by the plaintiff in error was from that portion of the vein which had its apex within the surface lines of the "Niagara," but the ore was taken from the vein on its downward course or dip, the vein dipped to the south and underneath the "Black Rock" claim, and it was upon this dip or downward course of the said vein that the plaintiff in error entered and extracted the ore sued for.

The question thus presented for determi

1. The rejection of equitable pleas in ejectNo1E. As to pre-emption rights-see note

to United States v. Fitzgerald, 10: 785.

That patents for land may be set aside for fraud, see note to Miller v. Kerr. 5: 381.

As to errors in surveys and descriptions in patents for lands; how construed, see note to There may be numerous veins within the Watts v. Lindsey, 5: 423.