Page:Federal Reporter, 1st Series, Volume 3.djvu/378

 IKON SILVEB MINING CO. V. MUBPHT. 371 �shaft to a depth of 300 feet — something like that — and have run down to the vein in the plaintiffs' incline, and the plain- tifÏB 8ay they bave the top or apex in their ground. �Now, it ia a part of the statute law of the United States that these locations shall be upon the top and apex of the vein. The law goes upon the hypothesis that ail veina are more or les s vertical in the earth. They corne up something in this manner : if we suppose this sheet of paper representa the vein, that they extend in some position vertically, or fiomewhat so, to the surface of the earth, and that the end or top of the vein cornes up towards or near the surface, and the miner in searching for it will make his location in reference to the end or top which comes np toward the surface ; and the plaintiffs say that they did make their location according to the top and apex; that they found it in a certain locality, and enelosed it in their parallelogram ; laid out their ground with reference to the top and apex. Now the law — that being done — gives the miner the whole vein wherever it may go. The law permits him to foUow it to any depth — to any depth — although in its downward course it may enter the land adjoia- ing. He may go down on the course of the vein as far as he can pursue it — ^as far as he can show that it is the same Iode or vein he may follow it, however deep it may go, until it be. comes, in the nature of things, an impossibility to go any further. You know that at some depths it is impossible to go because it becomes so warm, or other difficulties are en- countered which render it impossible to go further. Now, the plaintiff claims that in pursuit of the lode^ away out to the east of their location, the defendants came down upon them and ousted them from the possession, and if that is true the plaintiffs are entitled to recover; because, if the vein originating in their own ground proceeds distinctly and clearly out td the place in controversy, the plaintiffs are entitled to it there as well as in their own surface lines. �Now, as to whether it does proceed in that manner I think the evidence is quite clear, and you will have no difficulty about that. From this point in these first workings of the plaintiffs, as shown on the map,.aiîd has been,,illustrated ����