I dissent. The construction given to the conveyance under which the appellants claim can be upheld only by disregarding the radical difference between the relation of a mining claim to its surface description and that which is included in the surface description of other lands. As to lands generally a conveyance includes everything above and below the surface of the earth within *Page 550 vertical planes conforming to the surface lines, but this is not true of mining claims. The patent from the United States does not transfer to the patentee everything within the vertical planes extended downwardly through his end- and side-lines, and it does transfer things outside of such planes, viz., all parts of veins having their apexes within his surface lines, though in their descent they are carried by their dip beyond the planes of his side-lines.
This is the effect of a patent for the entire claim, and when the patentee conveys a part of that claim described by surface lines the necessary implication is that he reserves all that is embraced within the lines of that portion of the surface claim not conveyed, including the extralateral dip of all veins having their apexes within the lines of the part so reserved. To give a deed for a part of a mining claim any other construction is to defeat the intention of the parties ninety-nine times in a hundred, and the circumstances under which the deed in question here was given afford ample proof that in this case a construction is given to the deed which neither grantor nor grantee intended.
The following is the opinion of Department Two above referred to, rendered on the 22d of November, 1906: —