corded. What did you do with reference to marking that claim on the surface? A. I established a post at either corner, and at the north and south end centers. Q. Describe the character of the posts, and the markings that were placed upon them. Mr. Heyburn: Wasn't that all gone into? Mr. Lindley: No, sir; it was overlooked. Mr. Heyburn: If counsel will state that, perhaps, we may shorten- What is it you want? Mr. Lindley: The stakes of the amended location of the Stemwinder. I wish to prove that they were properly marked, and, with regard to the northwest corner stake, the manner in which he ultimately tied that stake to a certain point. The stake itself in later years, of course, has been-is gone. It has been replaced by data furnished by Mr. Loring. Mr. Heyburn: Is it not a fact that, as a matter of law, you would be bound by the point fixed upon, if there has been an official survey, and that the Surveyor General would require that post put on that point if there is any dispute about it? Mr. Lindley: All I wish to show by this witness is that the Stemwinder stakes were all of the proper size required by law, of the amended location, and that they were properly marked according to law, and that the northeast corner stake, as now delineated on the maps of James M. Porter, is where Mr. Loring placed it. Mr. Heyburn: There is no controversy about it. We will let it go in. Mr. Lindley: Q. Go ahead. A. The south end center was a post six feet long and six inches square, and marked, 'South end center of the amended location of the Stemwinder.' The southwest corner was a post five feet long, four inches in diameter, squared, and marked, 'Southwest corner Stemwinder lode amended location.' Southeast corner was a post four inches in diameter, five feet long, marked, 'Southeast corner Stemwinder lode, amended location;' and the southeast corner, as I described, was 207.8 feet from the northwest corner of the Bunker Hill lode, as originally staked. The northwest corner was a post four inches in diameter, squared, and five feet long, and marked, 'Northwest corner of Stemwinder lode, amended location;' and the northeast corner was a post five inches in diameter, squared, five feet long, marked, 'Northeast corner Stemwinder lode, amended location.' The north end center I think I have not described yet. A post four inches in diameter, squared, five feet long, marked, 'North end center Stemwinder lode, amended location.' Q. Does that complete the marking? A. It did. Q. In any subsequent period, Mr. Loring, did you have occasion to fix the locality where that stake stood with reference to any other survey? A. You refer to the northwest corner? I did. Q. State how you tied that particular corner stake subsequently. A. In July of that year I made a survey and planted center corners. I then connected the northwest corner of the Stemwinder lode, amended location, with that center corner. Mr. Heyburn: The corner of this claim? A. Of a survey I made. Mr. McBride: July of what year? A. 1887. Mr. Lindley: Q. At that time the corner stake of the Stemwinder was still standing? A. They were all standing for at least two years thereafter."

At the time of the making of the original location of the Stemwinder, no objection appears to have been made by anybody to its lines as laid. Although, as has already been said, it has been determined in previous litigation between the owners of the Stemwinder, Emma, and Last Chance that the two last-mentioned claims were prior in point of time to the Stemwinder, Devine's testimony in this case is to the effect that, as a matter of fact, at the time he marked the boundaries of the Stemwinder neither the Emma nor Last Chance had been located; and the testimony of J. I. Smith, one of the locators of the Emma and Last Chance, rather corroborates Devine in that particular. At all events, the boundaries of these three claims, all of which were located on the same day, and all upon the mistaken impression of their locators that the vein or lode outcropping within them ran easterly and westerly, overlapped; and the question of the overlapping having arisen between the owners of those claims, who seem to have been friendly at the time, they went upon the ground and measured 300 feet northerly from the

Stemwinder discovery point, and there built a stone monument, which they orally agreed should be a point in the northerly line of the Stemwinder and the southerly line of the Emma. So far as appears, no other point in such line was designated, and no record anywhere made of such oral agreement. Time ran on, and on the 15th of March, 1887, the Stemwinder Mining Company, a corporation, acquired the Stemwinder claim, without, so far as appears, any knowledge of the oral agreement concerning the stone monument, and on the 23d of May, 1887, amended the location of the Stemwinder in the manner indicated on the diagram, from which it will be seen that the amended location is almost entirely within the original, although, in defining the end lines of the amended location, courses very slightly varying from those of the original side-end lines were given. At different times, commencing with February 20, 1886, and ending with May 21, 1887, the Viola, Skookum, San Carlos, Cariboo, and Jersey Fraction claims, belonging to the appellant herein, were located. The relative position of these intervening claims is also shown on the diagram. The purpose of amending the Stemwinder location was thus stated in the notice of such location:

"That said mining claim was duly located on the 17th day of September. 1885, by S. R. Devine, who was a citizen of the United States over the age of 21 years, and notice thereof posted on the claim, and recorded in the records of Shoshone County, Idaho Territory, in Vol. C of quartz locations, page 318, on the 26th day of September, 1885, to which record reference is hereby had, and made a part of this amended location, and as a basis thereof, and thereafter said locators by conveyances duly made and recorded sold the same, and the said company by divers mesne conveyances has become and is now the owner of said mining claim, and is in possession thereof and owns all the right, title and interest of said locators therein formerly owned and held by them. That since said original location was made the true course, position, and the strike of the vein as originally located, marked out and defined as the Stemwinder vein or lode, has been demonstrated and determined, and within the line as originally staked and located herein, and by survey it has also been demonstrated that said locators staked out on each side of said vein, ground in excess of 300 feet on each side of said vein, and the object of this amended location is to conform to the laws relating to mining claims, both national and local, and to mark and define and record the same to the extent and with the boundaries hereinafter set forth, the same being within the boundaries so located, marked, and staked in the original location hereof, and not otherwise. Therefore, the said the Stemwinder Mining Company, by and through its said officers duly authorized hereby, give notice that it hereby locates the vein and lode so discovered originally by way of Amended Location for the purposes aforesaid, and hereby claim the vein within the limits and to the extent as follows, to wit:

"Beginning at center of southeasterly end of claim at a post upon which amended location notice is posted, thence north 69° 40′ west 356.85 feet to southwest corner, whence a prominent peak bears south 8° 22′ east, another prominent peak bears north 84° 35' east-northwest corner, Bunker Hill lode bears north 69° 40′ west, 207.8 feet, thence north 12° 28′ west, 619.6 feet to northwest corner, thence south 69° 40′ east 713.7 feet to the northeast corner, thence south 12° 28′ east 619.6 feet to the southeast corner, thence north 69° 40' west 356.85 feet to place of beginning, situate about one half mile southwesterly from town of Wardner, on easterly hillside in Yreka Mining District, County of Shoshone, and Territory of Idaho.

"And that said company intends to hold and work said above-described mining claim as provided by the local laws and customs and the mining laws, both local and national. It is further intended herein not to abandon in any manner

corded. What did you do with reference to marking that claim on the surface? A. I established a post at either corner, and at the north and south end centers. Q. Describe the character of the posts, and the markings that were placed upon them. Mr. Heyburn: Wasn't that all gone into? Mr. Lindley: No, sir; it was overlooked. Mr. Heyburn: If counsel will state that, perhaps, we may shorten- What is it you want? Mr. Lindley: The stakes of the amended location of the Stemwinder. I wish to prove that they were properly marked, and, with regard to the northwest corner stake, the manner in which he ultimately tied that stake to a certain point. The stake itself in later years, of course, has been-is gone. It has been replaced by data furnished by Mr. Loring. Mr. Heyburn: Is it not a fact that, as a matter of law, you would be bound by the point fixed upon, if there has been an official survey, and that the Surveyor General would require that post put on that point if there is any dispute about it? Mr. Lindley: All I wish to show by this witness is that the Stemwinder stakes were all of the proper size required by law, of the amended location, and that they were properly marked according to law, and that the northeast corner stake, as now delineated on the maps of James M. Porter, is where Mr. Loring placed it. Mr. Heyburn: There is no controversy about it. We will let it go in. Mr. Lindley: Q. Go ahead. A. The south end center was a post six feet long and six inches square, and marked, 'South end center of the amended location of the Stemwinder.' The southwest corner was a post five feet long, four inches in diameter, squared, and marked, 'Southwest corner Stemwinder lode amended location.' Southeast corner was a post four inches in diameter, five feet long, marked, 'Southeast corner Stemwinder lode, amended location;' and the southeast corner, as I described, was 207.8 feet from the northwest corner of the Bunker Hill lode, as originally staked. The northwest corner was a post four inches in diameter, squared, and five feet long, and marked, 'Northwest corner of Stemwinder lode, amended location;' and the northeast corner was a post five inches in diameter, squared, five feet long, marked, 'Northeast corner Stemwinder lode, amended location.' The north end center I think I have not described yet. A post four inches in diameter, squared, five feet long, marked, 'North end center Stemwinder lode, amended location.' Q. Does that complete the marking? A. It did. Q. In any subsequent period, Mr. Loring, did you have occasion to fix the locality where that stake stood with reference to any other survey? A. You refer to the northwest corner? I did. Q. State how you tied that particular corner stake subsequently. A. In July of that year I made a survey and planted center corners. I then connected the northwest corner of the Stemwinder lode, amended location, with that center corner. Mr. Heyburn: The corner of this claim? A. Of a survey I made. Mr. McBride: July of what year? A. 1887. Mr. Lindley Q. At that time the corner stake of the Stemwinder was still standing? A. They were all standing for at least two years thereafter."

At the time of the making of the original location of the Stemwinder, no objection appears to have been made by anybody to its lines as laid. Although, as has already been said, it has been determined in previous litigation between the owners of the Stemwinder, Emma, and Last Chance that the two last-mentioned claims were prior in point of time to the Stemwinder, Devine's testimony in this case is to the effect that, as a matter of fact, at the time he marked the boundaries of the Stemwinder neither the Emma nor Last Chance had been located; and the testimony of J. I. Smith, one of the locators of the Emma and Last Chance, rather corroborates Devine in that particular. At all events, the boundaries of these three claims, all of which were located on the same day, and all upon the mistaken impression of their locators that the vein or lode outcropping within them ran easterly and westerly, overlapped; and the question of the overlapping having arisen between the owners of those claims, who seem to have been friendly at the time, they went upon the ground and measured 300 feet northerly from the

Stemwinder discovery point, and there built a stone monument, which they orally agreed should be a point in the northerly line of the Stemwinder and the southerly line of the Emma. So far as appears, no other point in such line was designated, and no record anywhere made of such oral agreement. Time ran on, and on the 15th of March, 1887, the Stemwinder Mining Company, a corporation, acquired the Stemwinder claim, without, so far as appears, any knowledge of the oral agreement concerning the stone monument, and on the 23d of May, 1887, amended the location of the Stemwinder in the manner indicated on the diagram, from which it will be seen that the amended location is almost entirely within the original, although, in defining the end lines of the amended location, courses very slightly varying from those of the original side-end lines were given. At different times, commencing with February 20, 1886, and ending with May 21, 1887, the Viola, Skookum, San Carlos, Cariboo, and Jersey Fraction claims, belonging to the appellant herein, were located. The relative position of these intervening claims is also shown on the diagram. The purpose of amending the Stemwinder location was thus stated in the notice of such location:

"That said mining claim was duly located on the 17th day of September. 1885, by S. R. Devine, who was a citizen of the United States over the age of 21 years, and notice thereof posted on the claim, and recorded in the records of Shoshone County, Idaho Territory, in Vol. C of quartz locations, page 318, on the 26th day of September, 1885, to which record reference is hereby had, and made a part of this amended location, and as a basis thereof, and thereafter said locators by conveyances duly made and recorded sold the same, and the said company by divers mesne conveyances has become and is now the owner of said mining claim, and is in possession thereof and owns all the right, title and interest of said locators therein formerly owned and held by them. That since said original location was made the true course, position, and the strike of the vein as originally located, marked out and defined as the Stemwinder vein or lode, has been demonstrated and determined, and within the line as originally staked and located herein, and by survey it has also been demonstrated that said locators staked out on each side of said vein, ground in excess of 300 feet on each side of said vein, and the object of this amended location is to conform to the laws relating to mining claims, both national and local, and to mark and define and record the same to the extent and with the boundaries hereinafter set forth, the same being within the boundaries so located, marked, and staked in the original location hereof, and not otherwise. Therefore, the said the Stemwinder Mining Company, by and through its said officers duly authorized hereby, give notice that it hereby locates the vein and lode so discovered originally by way of Amended Location for the purposes aforesaid, and hereby claim the vein within the limits and to the extent as follows, to wit:

"Beginning at center of southeasterly end of claim at a post upon which amended location notice is posted, thence north 69° 40′ west 356.85 feet to southwest corner, whence a prominent peak bears south 8° 22′ east, another prominent peak bears north 84° 35′ east-northwest corner, Bunker Hill lode bears north 69° 40′ west, 207.8 feet, thence north 12° 28' west, 619.6 feet to northwest corner, thence south 69° 40′ east 713.7 feet to the northeast corner, thence south 12° 28′ east 619.6 feet to the southeast corner, thence north 69° 40' west 356.85 feet to place of beginning, situate about one half mile southwesterly from town of Wardner, on easterly hillside in Yreka Mining District, County of Shoshone, and Territory of Idaho.

"And that said company intends to hold and work said above-described mining claim as provided by the local laws and customs and the mining laws, both local and national. It is further intended herein not to abandon in any manner

or by implication any rights, privileges, property, possession, or title derived, originated, owned or held under the original location hereof; but that the purpose hereof is to more particularly mark, locate, define and describe the ground, vein and premises held by said company, without waiving any rights under said original location, all of which the said company claims as the al successor in interest and title and possession derived from said original locators."

The decree of the court below excepted the rights-surface and extralateral-pertaining to the Emma and Last Chance claims, and gave to the appellee the balance of the surface embraced by the lines of the amended location of the Stemwinder, and such portions of the underground segment of the vein apexing within its surface boundaries as lie northwesterly of and beyond a vertical plane drawn downward through the northwesterly line of the Last Chance claim, and between vertical planes drawn downward through the amended north and the amended. south lines of the Stemwinder, extended westwardly indefinitely"Save and except such as accrue to said respondent [appellant] under and by virtue of its ownership of the Viola, San Carlos, Skookum, Jersey Fraction, and Cariboo claims, shown upon said Exhibit A [the diagram above set out]; that, as against the rights accruing to said respondent [appellant] by virtue of its ownership of the Viola, San Carlos, Skookum, Jersey Fraction, and Cariboo claims, this complainant is the owner of all such underground parts of said vein as lie between a vertical plane drawn downward through the southerly boundary line of said Stemwinder lode claim, and such line produced indefinitely in its own direction north, 69° 40′ west, marked on said Exhibit A, 'Amended south line of Stemwinder,' and a vertical plane drawn downward through the original north location line of said Stemwinder, and such line extended indefinitely in its own direction north, 72° 54' west, being the line marked on Exhibit A as 'Original north line of Stemwinder.'"

While disputes have been many, and seemingly bitter, between the present owners of the respective claims in question, and objections were made by some of the appellant's grantors to some of the lines and stakes of the Stemwinder, subsequent to its original and amended locations, it does not appear that such parts of the lines of either the original or amended Stemwinder claim as were laid upon the Emma and Last Chance ground were put there forcibly or surreptitiously or otherwise fraudulently or against the consent of the owners of either of those claims at the time. The same conditions appeared in the case between the present parties and others reported in 109 Fed. 538, 48 C. C. A. 665, where we said:

"The priority of location of the Emma over the Stemwinder claim is not only found as a fact by the court below, but is conceded by the plaintiff in error; and the plaintiff further concedes, not only in its brief, but in its complaint, that the Emma has the right to follow the vein in its dip between vertical planes drawn through its converging end lines to the point of their intersection. The underground segment of the vein included within the triangle formed by the prolongation of those two vertical converging end lines and the westerly side line of the Emma, as well as the surface and everything under the surface of the Emma claim, is thereby eliminated from controversy. Notwithstanding the location and rights of the Emma, the Stemwinder claim was so located as to include within its lines a considerable portion of the Emma surface. The lines of the Stemwinder that cross the vein are parallel, and are therefore, in law, the end lines of that claim, whether so intended by the locator at the time of its location or not. Mining Co. v. Tarbet, 98 U. S. 463, 25 L. Ed. 253; Argentine Min. Co. v. Terrible Min. Co., 122 U. S. 478, 7 Sup. Ct. 1356, 30 L. Ed.