This is a suit brought by the respondent to establish its right to a large body of ore found within the lines of the respondent's patent as it construed that document. The main contest concerned the southwesterly 135.5 feet of the patent as laid out by courses and distances, from which was taken the main body of the ore. At the argument the petitioner's statement was that 'practically all the ore in controversy was taken from within this 135.5 foot strip.' The decision with regard to that strip was in favor of the petitioner and as it seemed possible that the respondent would not be able to establish that any appreciable amount of ore was taken from the land belonging to it, and that it might not care to attempt the proof, the questions raised with regard to such ore if any were left undecided according to the usual practice. But the respondent points out that the petitioner has admitted that a small amount of ore, not exceeding $20,047.50 in value, did come from the respondent's land and presses for a decision concerning its right to that. The motion is put in the form of a petition for rehearing; but the main thing asked and the only thing for which we see any reason is that we decide the questions argued, but left open by us. That we proceed to do. Nothing that has been decided will be reopened, but leave to file the petition is granted to that single end.
It is not disputed by the respondent, the Conkling Mining Company, that a fissure on its strike crosses the parallel side lines of the petitioner's claims and on its dip passes beneath the Conkling mining claim in the immediate vicinity of the ore body in dispute and between vertical planes drawn through the parallel side lines of the petitioner's claims and continued in their own direction. What is disputed is that this ore body is any part of the vein referred to, known as the Crescent Fissure, and that, if it is, the petitioner has any right to treat the end lines of its claims as side lines and to pursue the vein under ground beyond the vertical planes drawn through those lines.
We take up the last question first. The typical case supposed by Rev. Sts. § 2322 (Comp. St. § 4618) is that of a claim laid out lengthwise along the strike of a vein. In that case the end lines of the location will limit the extralateral right. But that case is only the simplest illustration of a principle. The general purpose is to give a right to all of the vein INCLUDED IN THE SURFACE LINES, IF THERE is only one, provided the apex is within the location. It often must happen that the strike of the vein is not known but must be conjectured at the time of discovery, and that the location is across instead of along the vein. This has been obvious always and therefore it would be wrong to interpret the words 'end lines' narrowly, as meaning the shorter ones in every instance. Those are the end lines that cut across the strike of the vein if it crosses the location. We see no sufficient reason for thinking that because the discoverer has not claimed as long a portion of the strike as he might have, he should be deprived of even his diminished lateral rights. It has been the accepted opinion of this Court for many years that where as here the strike of the vein crosses the location at right angles its dip may be followed extralaterally, whatever the direction in which the length of the location may run. If across the strike as here, the side lines, as it commonly is expressed, become the end lines. Subsequent locators know as well as the original ones that the determining fact is the direction of the strike not the first discover's guess. Flagstaff Silver Mining Co. v. Tarbet, 98 U.S. 463, 25 L. Ed. 253; King v. Amy & Silversmith Consolidated Mining Co., 152 U.S. 222, 228, 14 Sup. Ct. 510, 38 L. Ed. 419. Del Monte Mining & Milling Co. v. Last Chance Mining & Milling Co., 171 U.S. 55, 90, 91, 18 Sup. Ct. 895, 43 L. Ed. 72; Jim Butler Tonopah Mining Co. v. West End Consolidated Mining Co., 247 U.S. 450, 453, 38 Sup. Ct. 574, 62 L. Ed. 1207.