Page:Federal Reporter, 1st Series, Volume 3.djvu/383

 876 •' FEDERAL REPORTER. �the ore îs found; for the ore may be continuous, apparently, Vfiïh a difference in origin of the fissure as to the several parts thereof. But if the fissure existed on both faces of the limestone at the time the ore was deposited — the latter was deposited, as before explained, at one and the same time and by the same forces — it ought to be said that it is continuous throughout. And no Location can be made on the middle part of a Iode, or otherwise than at the top and apex, which will enable the locator to go beyond his line." �I will say to the counsel in that case, which is not for the consideration of the jury, that it has always been a question in my mind whether a location made on the dip of a vein would not be valid as against one of later date, higher up. That is to say, whether, if a location be made upon the dip of a vein, the locator may not pursue it in the downward course, although he may not in the upward course, and may not hold the whole which lies within his location and below it, as against any one locating subsequently at a higher point on the same vein. I admit that that question is presented in this case, but after some consideration, as this is the doctrine generally accepted in this state, I have concluded to adhere to it, and leave the consideration of the question for the supreme court, if there be anything in it. �"In that view, if you find the faot to be that the vein has no end or terminal point in plaintiff's ground, the law is with the defendants. But if you find the top or apex in plaintiff's location, as before defined, the law is with the plaintiff." �Now, I have one word further of explanation: The tes- timony is to the effect that in going down to the westward, in those winzes that were sunk down some 27 or 30 feet, there was ore in the bottom, and it was not shown that this con- tinued without the plaintiff's ground, and I think that the defendants' theory is that if this point reached at the bottom of these winzes was lower than any other within the location, 80 that in going to the eastward the general elevation would be upward — that is, taking the direction from both points the bottom of the winzes and the east side of the location, or the general course, would be upward — that the plaintiff is thereby ����