Page:Federal Reporter, 1st Series, Volume 3.djvu/380

 lEON 8ILVEB MININO 00. V. MUBPHT. 878 �to the north of it. So that the single question which appears to be for your consideration relates to this top or apex, and wliether there is any such thing there or not. Upon that point, fearing that I might talk a little at random, as I some- times do, I have written down what I wish you to consider with reference to it : �"The principal question for your consideration is whether the plaintiff has the top and apex of the Iode in its location, or within the lines of its location, extended downward vertically. As presented by the evidence, the question is whether the top and apex of the Iode is anywhere exposed, or does in faot lie in plaintiffs' ground. �"And first we may say, by way of definition, that the top or apex is the end or edge or terminal point of the Iode nearest the surface of the earth. It is not required that it shall be on or near or within any given distance of the surface. If found at any depth, and the locator can define on the surface the area which will enclose it, the Iode may be held by such location. Now, whether there is such an end, edge or termi- nal point of the vein or Iode at any depth in plaintiflf's ground, is the question to be determined by the evidence. To estab- lish that proposition, the plaintiff has given muoh evidence. tending to prove that the ore body terminates at or near the first level north, or the water level spoken of by the witnesses; and that, if any ore or vein matter may be found westward from that line, its presence in that locality may be accounted for on the hypothesis that it was brought into that position Bubsequently to the deposition of the vein, and by Bome dis- ruption and upheaval of the country. �"You will readily recall what was said by the witnesses for the plaintiff as to the deposition of the Iode matter between the porphyry and lime while the latter were in some other and probably lower position, and by subsequent upheaval or depression the whole mass was broken into fragments, of which ore is found at the Iron claim. In such movement it is said that a new fissure was formed on the face of the infracted limestone, into which much of the vein matter would neces- sarily fall, and thus may be explained the presence of any ore ����