(dissenting). — This was an action of •ejectment to recover possession of certain mining ground in the Black Range mining district, county of Sierra, in this territory, by parties holding the title to the Calamity claim against parties holding the title to the Illinois mining claim, which claims are adjoining each other. No dispute was made as to the title or right to possession of the surface ground of either claim. The defendant in the court below filed a special plea, in which it admitted the entering upon the lands of the plaintiff, but justified such entry by setting up substantially in the language of the United States mining laws that the entering by it upon the land of ■the plaintiff was made at a great depth below the surface of the earth, and was made while pursuing a •“vein,” “lode,” or “ledge,” of mineral-bearing rock, which had its apex within the lines of its mining claim, and which so far departed from the perpendicular in its course downward as to pass out of the side lines of its mining claim and to enter the lines of the ■Calamity claim, the property in dispute in this case.
The issue thus made by this plea was the one upon which the case was tried, the defendant assuming the burden of proof and relying upon the accepted proposition that the owner of a mining vein, covered by the .superficiablines of his claim, may not only pursue that vein perpendicularly within those lines, but may, when the vein passes beyond the side lines of this claim or survey, pursue that vein outside of a line drawn vertically down from the superficial side lines, as far as the vein may extend. There does not appear to be any reversible error in the ruling of the court below, with-cut it was in refusing to instruct the jury to find for the defendant, or in refusing to grant a new trial, which must depend upon the question whether the ■evidence supports the plea of the defendant; and this involves the construction that is to be given the words “vein,” “lode,” or “ledge,” as used in the United States mining laws. The existence of the conditions that are required to constitute a mineral “vein,” “lode,” or “ledge” as used in the acts of congress, is-a question of fact to be determined by the jury. But after the existence of the facts in the case is established by testimony, as to whether those facts thus proven constitute a mineral “vein,” “lode,” or “ledge” under the United States laws, is a question of law to be determined by the court. This must necessarily be so, as that which under the statutes in such cases constitutes a “vein,” “lode,” or “ledge” constitutes title, and as to what constitutes title is a question of law. By the testimony of witnesses the existence or nonexistence of the facts is established, and then it is for the-court to determine whether the facts thus established constitute title within the meaning of the acts of congress as construed by the supreme court.
In the case of Iron-Silver Mining Company v. Cheesman, 116 U. S. 534, that court says that, up to that time, it had never given a clear definition of those-words, and, quoting from Judge Field’s opinion in. the Eureka Case, 4 Sawyer, 302, says as follows:
“It is difficult to give any definition of this term as understood and used in the acts of congress which will not be subject to criticism. A fissure in the earth’s, crust, an opening in its rocks and strata made by some-force of nature, in which the mineral is deposited, would seem to be essential to a lode in the judgment, of geologists. But to the practical miner the fissure and its walls are only of importance as indicating the boundaries within which he may look for and reasonably expect to find the ore he seeks. A continuous, body of mineralized rock lying within any other well defined boundaries on the earth’s surface and under it, would equally constitute, in his eyes, a lode. We are of opinion therefore, that the term as used in the acts-of congress is applicable to any zone or belt of mineral rock lying within boundaries clearly separating it from the neighboring rock.”
They also approve Judge Hallett’s definition in Stevens v. Williams, 1 McCrary, 488, wherein he says:
“In general it may be said that a lode or vein is a body of mineral or a mineral body of rock, within defined boundaries, in the general mass of the mountain.” But finally adopted as its own the definition given by the court in the case then under consideration, in its charge to the jury, by saying:
We are not able to see how the judge who presided at the trial of the case could have better discharged this delicate task than he has in the charge before us to which the exceptions are taken, and we give here verbatim that part of it relating to this point. We therefore may take the quotation as being the definition adopted by the court of last resort, upon the question.
The quotation referred to is as follows:
“Upon the evidence before you these parties are to be regarded as owning the surface of the land by them respectively claimed, and all that rightly goes with the surface under the law. No question is presented as to the right of the plaintiff to the Lime location. Holding, by patent from the government, the plaintiff must be regarded as the owner of that claim, and all lodes and veins existing therein. The statute gives the owner of a lode, the one who may locate it at the top and apex, the right to follow it to any depth, although it may enter the land adjoining. And if the Lime location was made on a lode or vein which descends from thence into the Smuggler location, the right of the plaintiff to follow the lode into the Smuggler ground and to take out ore therefrom can not be denied. Thus, the principal question for your consideration is, whether there is a lode or vein in the Lime location which extends from that claim into the Smuggler claim. If a lode is found in that claim, all the evidence tends to prove that the top and apex of such lode is in that claim. There is no room for controversy on that point. To determine whether a vein or lode exists, it is necessary to define those terms; and as to that it is enough to say that a lode or vein is a body of mineral or mineral- bearing rock, within defined boundaries in the general mass of the mountain. In this definition the elements are the body of mineral-bearing rock and the boundaries; with either of these things well established, very slight evidence may be accepted as to the existence of the other. A body of mineral or mineral-bearing rock in the general mass of the mountain, so far as it may continue unbroken and without interruption, may be regarded as a lode, whatever the boundaries may be. In the existence of such body and to the extent of it, boundaries are implied. On the other hand, with well defined boundaries, very slight evidence of ore within such boundaries will prove the existence of a lode. Such boundaries constitute a fissure and if in such fissure ore is found, although at considerable intervals and in small quantities, it is called a lode or vein. To maintain the issue on its part the plaintiff must prove that a lode so here defined extends from the Lime to, and into,' the Smuggler claim.
Reverting to that definition, if there is a continuous body of mineral or mineral-bearing rock extending from one claim to the other, it must be that there are boundaries to such body and the lode exists. Or if there is a continuous cavity or opening between dissimilar rocks in which ore in some quantity and value is found, the lode exists. These propositions are correlative and not very different in meaning, except that the first gives prominence to the mineral body, and the second to the boundaries.”
Therefore, in the consideration of this case, we are to give to the words “vein,” “ledge” or “lode,” as used by congress in the act upon which the defendant relies for his right to enter upon the land in question, the meaning as defined by the supreme court, and considering the act as thus defined, the entire evidence in the case clearly brings the defendant within the requirements and provisions of the act.
It is true that witnesses on the part of the plaintiff testified that there is no vein on the Illinois claim; but in answer to the question: “Why do you say there is no vein?” they answer: “Because there are no two walls there,” and then proceed to testify to the exact state of facts, which, under the rulings of the supreme cofirt, would bring it within the provisions of the act. To illustrate: A Mr. Cox, perhaps the strongest witness on the part of the plaintiff, testified as follows:
“Q. Now in your judgment, as a miner, to this jury, will you say whether or not the lime underneath is a wall? A. It is not a wall but a ledge, a mineral vein or a zone, and the Illinois mine is pitched on it.”
“Q. Do you call it a wall to the contact then, leaving mineral vein out? A. Well, I suppose, you would call it a wall.”
“Q. Well then, is it your judgment that there are two walls on this contact? A. There is a lime and shale.
“Q. There are two walls; now what have you to say about mineral; did you ever see any mineral between those two walls? Witness: On the Illinois?
“Q. Yes, sir. A. I saw a little mineral in one place; the lime was twenty feet perpendicular here.
“Q. Now at that place where you saw the mineral between those two walls, would you call that a vein? A. No sir.” '
The assertions of witnesses that there was or was not a “vein,” “ledge” or “lode,” as claimed, are to be ■considered only of such weight in evidence as their opinions are entitled to as experts, and when made in ■connection with their testifying as to the facts, they are subject to be strengthened or overthrown by them. When a witness gives his opinion and his reasons for it, and his reasons prove incorrect, his opinion necessarily becomes of no weight. This witness says that it was not a vein, because there were no two walls there, andón cross-examination he says: “It is a mineral ledge, a mineral vein or zone, and the Illinois is pitched on it.” The first two words are the exact words used in the act of congress, and the other, “zone,” has been interpreted into it by the supreme court, covering all the requirements to bring the mine in question under the provisions of the act. And thus the entire testimony in the case is uneontradicted to the effect that there is a continuous “vein,” “ledge,” “lode,” “zone” or “belt” of mineral-bearing rock existing from one claim to another, and in such case the supreme court holds: “It must be that there are boundaries to such body and the lode exists.”
It therefore follows that if the apex of such body •of ore.is on the claim of the party following and claiming the same, and if such “vein,” “ledge,” “lode,” “zone,” or “belt” extends downward vertically, so far departing from a perpendicular line as to pass the side lines of •such claim, such departure is authorized by the act of ■congress, and the ore belongs to the party following it. “Or if there is a continuous cavity or opening between ■dissimilar rocks in which ore in some quantity and value is found, the lode exists.”
It is admitted by all the evidence that in this ease there is a contact between the shale and lime, rocks of a dissimilar character, and that in the contact mineral ■of value is found.
Therefore, according to the ruling of the supreme ■court as above laid down, the lode must exist.
There being no conflict in the evidence as to either ■of these propositions, I think the court should have instructed the jury to find for the defendant, or granted ■a motion for a new trial. And, therefore, I can not concur in the conclusion reached by the majority of the court.