This cause coming here from the 'Third district, involves as the main issue, the old, vexed “apex” question, which has been the subject of litigation in the courts of every mining state in the Union, and which has more than once been considered "by the supreme court of the United States.
The law as to following a vein of metal outside the «ide lines of a claim, the “apex” of the vein being within the side lines, is well established, the right •determined by congressional enactment and judicial •decision.
But while what constitutes an “apex” and a “vein” •are questions of law, the existence of either or both present questions of fact to be passed upon in each case as it arises, under the law applicable to the state of facts as established.
The assignments of error in this cause are numerous, and before considering the same seriatim, it is well to set out as succinctly as possible the contention of the respective parties as developed by the record.
The plaintiff in error is the owner of a patented •claim, the Illinois, situated in the Kingston district, in Sierra county.
The defendants own the “Calamity” claim lying •east of and adjoining the Illinois. Plaintiffs, in working their ground, passed out under the east side lines of the Illinois and into the ground of the Calamity, •extracting ore in large quantities therefrom.
Defendants brought suit in ejectment, and upon the second trial in the county of Grant, venue having been changed from Sierra, obtained verdict with $1 damages, and costs.
mines and mm- - ieftimonyofSoL=«deen<Te.tness: The contention of plaintiff is that in taking ore from the ground of the Calamity, they followed a vein, having its apex within the side lines of the Illinois, on its dip, under the east side line of the last mentioned claim, into the Calamity ground. That this vein consisted of different chutes, veins, gashes, pockets, or bodies of ore, occurring in lime, or in the contact between lime and shale, all connected by stringers or otherwise, forming a continous contact vein with its apex on the Illinois, a shale hanging wall and blue lime foot wall, and ore in the different pockets or places when found, while of different values, of practically the same characteristics.
The defendants contend that within the meaning of the law, there is no vein either upon the Illinois or Calamity. That the ore occurs in an immense lode or mineral-bearing lime zone; that the ore, whether deposited in the pockets, gashes, pipes, or other forms, of infiltration, sublimation, or otherwise, was so deposited without reference to the shale or hanging wall, that the entire body of lime practically is mineralized, or at least that deposits of mineral of the same character are found from the surface of the lime, whether overlain by shale or exposed to the air, down to the lowest depths at which work has been done. That there is no apex upon the Illinois claim; that the so-called apex is a point upon the lime mineral lode or zone whence the shale has been eroded upon the throwing up in a rolling form of said lime zone. That said bare spot extends westward across the side line of the Illinois, and onto the adjoining property. That the ore is found upon this bald lime in the same form and of the same character as around its edges where the shale still exists, and under the shale when same remains intact. That the shale is not a hanging wall in the sense that it forms the nonmineral-bearing rock overhanging a vein or body of mineral which in turn is supported or rests upon another nonmineral-bearing rock of the same or different formation from the hanging wall, but that the shale is merely the capping. There is no contact vein, while there is a contact between the shale cap and the lime mineral-bearing mass, lode, or zone.
Defendants further contend that if it is conceded that the Illinois and Calamity are located upon a “vein” of mineral, that then the apex of that vein is to the north of both and upon the Andy Johnson and Brush Heap mines. The testimony is very voluminous.
As to the first assignment, that the court erred in sustaining the objection to the question asked witness Beay, “If there is a foot wall, then there is a vein?” we think that the objection was properly sustained. Witness had just testified that there was no foot wall; he was not testifying as an expert, and the question demanded an answer to a theoretical supposition the condition to sustain which had been denied by the witness.
The second assignment is to refusal of the court to Instruct the jury that if they believed the evidence they should find for the defendant.
Issus * existence of vein and apex: instructions. The two theories which have been alluded to, and upon which this cause was tried, were each supported by the testimony of the numerous wit- » nesses, and we agree with the lower court .. . . , that as to the mam points at issue, the existence of a vein and of an apex, there was, to say the least, sufficient evidence of the nonexistence of both, not only to justify, but to demand, the submission of the case to the jury.
model of mines: evidén¿e!llty of' The third assignment of error, that the court should not have permitted the jury to take with them a small model when they retired, because the same had not been admitted in evidence, is not well taken. The model in question had been used by two witnesses to explain their testimony. They were miners who had worked on the property in question; they had made the model, and they admitted that it was not a perfect mechanical facsimile of the mines; the court refused to admit it as such, but it did admit it for the purpose, distinctly declared, to the jury, of explaining the testimony of the witnesses. Several other witnesses testified to and from it; it was used by both plaintiff and defendant, and when the jury retiring, asked for the model it was. given them, and we think properly.
. The fourth, fifth, sixth, seventh, and eighth assignments are to the submission of special questions, numbers 3, 5, 6, 8, and 9 by defendant to the jury.
We think that these questions were material to the issues and were properly submitted, and number 3, which was only to be answered upon an affirmative reply to another question, was unanswered by the jury, as was number 6.
The other assignment of error relates to the charge of the court to the jury, leaving it as a fact to be determined by them whether a vein existed upon the Illinois mine, and whether there was an apex, and as to the law under the rules of which as applied to the evidence they were to determine the existence or nonexistence of a vein and apex.
We think that under the evidence the court properly submitted the questions as to the existence of a vein and an apex to the jury as questions of fact to be determined by them; there was a substantial conflict and that the authorities cited by plaintiff, Hyman v. Wheeler, 15 Mor. 519; Iron-Silver Min. Co. v. Cheesman, 116 U. S. 529, etc., do not sustain his contention when applied to the cause at bar.
The evidence in this cause is all to the effect that the shale cap or wall overlying the ground in dispute, eroded or broken in the Illinois, continuing in a semicircular form westward, onto the next claim, contains no mineral whatsoever.
The mineral occurs in the lime, and, as some witnesses testify, in a few places between the shale and lime, but not connected with the former.
We can recognize the definition of a vein as given by Judge Hallett in Hyman v. Wheeler, 15 Mor. 519, and still see that the jury in this cause might from the evidence have determined that here was a vast bed, lode, zone, or mass of mineral-bearing lime, with no foot wall and, in some localities, with no hanging wall or even cap, — in others covered with shale, the lime body extending throughout the Illinois, the Calamity, the Andy Johnson, Brush Heap, and locations west and south of the Illinois, as well as possibly other mines.
That this body or mass, zone, or lode of lime was broken or cut up into fissures, gashes, pockets, veins, etc., and these spaces filled with mineral, deposited by infiltration when the mass was covered with water before or after the shale was formed, or else by sublimation, or even by heat melting the mineral from rock containing it above; in fact, we might accept either of the theories advanced by geologists and mineralogists as to the formation of the rock or deposit of mineral, and there would yet be nothing to prevent our reconciling that theory with the verdict of the jury in this cause, that there was neither a vein nor an apex upon the Illinois mine, or at least such a vein as could be followed beyond the side lines of that claim.
There may be a contact, and yet no'contact vein. The mineral may be exposed at a point upon one claim and followed continuously under the Surface from this point to another property, though an undisputed vein between clearly defined hanging and foot walls, and still the point at which the mineral is exposed not be the apex of the vein which may have an apex ten miles distant, or may have no apex at all.
It would be the height of foolishness for a court in New Mexico, with our mineral-bearing lime formation extending with the different mountain ranges from Colorado to Old Mexico, to say that mineral can not be found in lime at a thousand feet depth, or on the surface with a cap of slate or a contact of porphyry. One of these lime belts, zones, or masses may be mineral-bearing throughout its length and breadth, in one certain locality or in various places, and the body, mass, or zone bearing the mineral dip into the earth on all sides under mountains of granite with no apex to the vein or mass distinguishable to the naked eye, or discoverable by the ingenuity of the prospector. The zone or mass may follow the undulations of a broken country down into the valley and rising over the divides, cutting through, covered by or overlapping other formations, but until it is broken and the edges exposed or ■some edge or end as a beginning point found from which it can be followed down at some angle below the horizontal, there is no apex from which it can be followed beyond the side lines of a claim located upon it.
These questions were fairly and ably presented to the jury through the medium of the instructions evidently prepared with great care and reflecting great credit upon the trial judge, John R. McFie.
We can find no error in the instructions and none in the refusal to set the verdict aside.
We cite Hyman v. Wheeler, 15 Mor. 519; Iron-Silver Mining Co. v. Elg. Min. Co., 118 U. S. 196; Stephens v. Williams, 1 Mor. Min. Rep. 557; 1 Mor. 576, 554; 9 Mor. 587 to 590.
Judgment below affirmed.
Seeds and Freeman, JJ., concur,,