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may be; that is to say, whether the lode stands at an angle of twenty, thirty, forty, seventy or eighty degrees, that it is still within the terms of the act of Congress, if it be a lode, and one that may be followed with such boundaries as to enable the locator to identify it beyond his own territory; that whatever its inclination may be below the horizon, that he inay follow it. So that to state the point as it may be applied to the present case, the inclination of the lode, if it should be, for instance, twenty or twenty-five degrees below the horizon, it is the same as if it were more; if it originates in the plaintiff's gronnd and extends into that beyond the territory of the defendants, the plaintiff is entitled to it, although it may have no greater inclination than twenty or twenty-five degrees.
Having stated to you that the controversy relates to the lode beneath the surface, as extended from the territory of the plaintiff's claim into that of the defendants, I have written here what I regard as the practical question for your consideration, as well as directions respecting these questions.
As a starting point in the evidence before you the fact appears to be established, that large qnantities of valuable ore have been found in the Carbonate claim. This may be taken to show that a lode exists in that locality in so far as the question relates to the boundaries of that claim. That is to say, if the question for present consideration related to the ownership of ore within the surface limits of the Carbonate claim, it would not be necessary to consider very carefully the position of the ore in the earth. Because within the lines of each location the owner shall be regarded as having full right to all that may be found, until some one can show a clear title to it as part of some lode or vein having its top and apex in other territory. To state the proposition in other words, we may say that there is a presumption of ownership in every locator as to the territory covered by his location, and within his own lines he shall be regarded as the owner of all valuiable deposits, until some one shall show by preponderance of testimony that such deposits belong to another lode having its top and apex elsewhere. If, however, it is not important to examine the situation of the ore within the lines of the location with reference to the question of ownership, it may be
of some value to consider that subject for the purpose of ascertaining whether there is a lode in that ground extending thence eastward into adjoining territory. Upon that point it may be said that the inineral must be in place within definite boundaries; that it must be practically continuous from the plaintiff's ground into defendants', and that the top and apex of the lode must be in plaintiff's ground. As to the first question, if the lode is in the general mass of the moutain as distinguished from the slide, debris or “tumble stuff” of the surface, it is in place within the meaning of the act of Congress. If the rock above the lode is in its original position, although somewhat broken and shattered by the movement of the conntry or other causes, it is in place. And in this kind of deposits it may be said that the lode is in place wherever the rock above is in place. The occurrence of detached masses of rock, whether called boulders or by some other name, and whether they are of lime or other formation, in proximity to the ore, is not in itself conclusive evidence that the overlying mass of rock is not in place. That fact, it it is a fact, may tend to prove that some or all of the overlying mass is of the same character.
But if there is evidence to show that the overlying mass is not the same, but of original structure, the occurrence of boulders or detached masses of rock with the ore, is not sig. nificant. If the principal part of the rock above the mineral is in its original position, according to the present structure of the mountain, the lode is in place, although some masses of rock or boulders may be associated with the ore.
Upon another qnestion, the same circumstance, if it is proven, may be of some weight. And that question is as to the boundaries of the lode. If the ore is found in general within boundaries of porphyry and lime, althongh some frayments of each may occur with it, the lode is well defined. It, however, the ore occurs in porphyry and lime, or in both or either, in such confused and irregular way as shows no line of demarcation for the ore body, the lode is not so defined as that it may be followed beyond the lines of plaintiff's location. The physical structure of the earth at and within the grounds in controversy and immediately west of the dividing line between the claims in plaintiff's ground, is to be
considered in that view. If it is broken up and jumbled in such a way that from plaintiff's ground over the line and beyond, through defendants' workings, it seems to be unreasonable to say that there are boundaries of porphyry and lime to the mineral body, the plaintiffs can not recover. If there are such boundaries, the evidence is sufficient on that point. Intimately connected with this is the second question before suggested, whether the lode is practically continuous from plaintiff's ground in to defendants' ground. Of course, it there is a continuous and unbroken sheet or body of ore extending from one claim into the other, there can be little doubt as to the boundaries. Subject to the explanation already given, relating to the position of the overlying rock, whatever may be above and below such a sheet or ore body may be regarded as walls or boundaries. But if the mineral is not continuous, upon the facts here shown we inust look to the matter of boundaries to ascertain whether the lode extends from one claim to another. There may be such interraption in the course of an ore body as to lead to the inference that there can be no connection between the separate parts, althongh the "contact," as it has been called, may continue from one to the other. But if you find from the evidence that there is a body of ore in plaintiff's ground near to their east line, and there are other bodies of ore in defendants' ground, and that there are well-defined boundaries to both and all, which are the same as to both and all, and such boundaries extend from one to the other, you ought to find that they are parts of the same lode. So that if the mineral is not continuous from one claim to the other, the question turns upon the inatter of boundaries, and that is to be decided by the preponderance of testimony. Not the number of witnesses inerely, but upon what you may regard as the weight of testimony, after giving due credit to each and all.
These are the important questions. There is another that was referred to in the course of the argument. It is also mentioned in this writing, but I have not cominented on it, as to the position of the top or apex of this lode. I have not heard any evidence, which is sufficient to establish the fact that it lies below this claim, to the west of it. You will remember it was contended on the part of the defendants, that as to this portion of the lode, if there is any within this ground, that as to this portion which extends into the Little Giant ground, that it has its top or apex in the Ætna location, which is immediately west of the Carbonate location, and, upon that hypothesis, that would be owned by the Ætna people; that there was a lode beginning in their ground, having its top there and extending clear across the Carbonate claim, and into the Little Giant claim. That would be a tenable position if there were evidence sufficient to establish the fact, but I do not regard the evidence as of very great weight upon that point, and, therefore, I have not said very much about it. But it is a question for your consideration, and if you find, as a matter of fact, that the top and apex of the lode, or such part of it as is claimed by the plaintiffs against the defendants, that it lies in the Ætna ground, and not in the Carbonate ground, but down to the west of the Carbonate claim, then, of course, the plaintiffs can not recover in this action. Upon that theory or hypothesis, the lode wonld belong to the Ætna people and not to the plaintiff's in this case.
The matter in controversy here relates only to that portion of the Carbonate claim, or the Carbonate lode, if you find that there is one which extends from the north end down as far as the Shamrock location. The evidence that was given in respect to all the workings below that point, or southward from that point, is only to show the character of the deposit, to show what it is generally, and how it was found in all that territory. It is sufficient to say, if you find the issue for the plaintiffs that it is the owner in fee, so far as the claims ad. join each other.
As to the question of damages, if you find for the plaintiff, there is some evidence here tending to show that a certain amount of ore was taken from this ground; that is, from the territory covered by the Little Giant location; if you find for the plaintiff's they are entitled to the value of that ore whatever it may be. You will, perhaps, remember better than 1, the testimony. I believe that there is some evidence to show that something like $2,000 was taken out or something of that kind.
I do not think of anything more that may be necessary to say to you, gentlemen, except that the burden of proof is
upon the plaintiffs—that it rests with them, as they are holding the affirınative in this action, to show by a preponderance of testimony every fact which is necessary to support a finding in their favor; that is to say, that there is a lode in their ground, and that they have the top or apex of it, and that it extends in well detined boundaries from their territory into that of the defendants. It is upon them to prove it by a preponderance of evidence. If you find the testimony to be evenly balanced your verdict will be for the defendants; iť there is a preponderance of testimony for the plaintiffs, it will be for the plaintiffs, of course.
The jury returned a verdict for the defendants.
1. A patent or location carries the lode with its dip. Wolfley v. Lebanon Co. 4 Colo. 112; Post SIDE LINES; Mining Co. v. Tarbet, 98 U. S. 463; Post LODE.
2. Nearly all ledges diverge from the perpendicular-and sometimes change their dip: These incidents considered with reference to ledge sold eparata from its hoisting works. Bullion Co. v. Croesus Co. 2 Nev. 169; Post EJECTMENT.
3. Lode can not be followed on the dip beyond its end lines. Eureka Co. v, Richmond Co. 4 Saw. 303; Post LODE.