(dissenting): I am unable to concur with the majority of the court in the views they have just expressed, or in the conclusion they have reached. Our differences'are so radical that I am constrained to state the principal grounds for my non-concurrence. The Eureka Hill Company owns the Eureka claim, and the Bullion Company (appellant) owns the Bullion claim 76. Both claims were located under the law of 1866, and both were patented under and by virtue of the law of 1872.
1. The first question which requires consideration is whether the cross-complaint states grounds for equitable relief. The following section is the authority claimed for the equitable interference to try the title to the property: “An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim:” Laws Utah, 1884, p. 271, sec. 620.
I am inclined to think that this section is not applicable to the case at bar. If the interpretation put upon it by counsel for the respondent be correct, that the party suing must be in possession, and the party being sued must be out of possession, then, in my view, the respondent, the *57Eureka Hill Company, has, in its cross-complaint, stated itself out of court. The facts alleged show the appellant to be in the permanent occupancy — the actual possessor of the lode or ground — as much as the respondent is. The appellant is on the lode at one place, and the respondent is on it at another. The respondent claims that it is in possession as the owner of the Eureka claim, and the appellant claims possession as owner of the Bullion claim 76. The respondent claims that it is in possession of the place where the appellant is working, but admits that its possession is .only constructive, because it owns the ledge. But such constructive possession can avail nothing against the appellant, when the appellant has ousted respondent from the part occupied by appellant. To such part, the appellant’s occupancy is exclusive and hostile to respondent’s, the appellant claiming title to it as part of the Bullion ground. To so much, therefore, of the ground as is reached by the appellant through its shaft, sunk upon its own ground, there can be no question of appellant’s actual possession. It was more in possession than a mere trespasser. It was not going and coming upon the ground as one who goes upon land to get wood, cut grass, or get sand, but it was there doing work, and continuous work, claiming to own the ground and lode, and proposed to continue there. It certainly, therefore, was not out of possession, and the statute does not apply unless it be out of possession. But it is said that the Bullion Company (appellant) claims more ground than it actually occupies, namely, 700 feet of the “northerly end” of the Eureka lode. But by the interpretation of respondent, and also df the lower court, this 700 feet includes the place actually occupied by appellant. . If this be true, then in order to defeat a trial, by action at law, of the legal title to that part actually occupied by appellant, it is only necessary for the party suing to say that the party sued claimed more than he occupied. I do not think this kind of mancevering should prevent a party from having his legaL title tried by action at law, in which he would have a jury as his right. But it may be said, and I think not without some truth, that from the language of the cross-cómplaint we have *58no right to infer that the 700 feet in question embraced the part in actual occupancy of appellant. Yet if this be true, the question remains, what right has a party in a suit over ground occupied by defendant to make by his cross-complaint a contest to ground not occupied by a defendant, in order to defeat a trial by jury of the title to the part occupied? Such a right cannot exist by reason of the rule that, if equity attaches for one purpose, it attaches for all, because — First, the trial by jury is a constitutional right; and, second, if the party sued be in occupancy of a part of the ground, the suit in equity cannot be resorted to, for the reason that it can, under the statute, be resorted to only where defendant is out of possession. A bill in chancery cannot be used as an action of ejectment.
It is well recognized that relief in equity, by way of injunction, may be resorted to, to stay waste or trespass; but this is pending litigation of the legal title, and the litigation of the legal title must be in a court of law. The injunctive relief is to stay waste or trespass, but the relief at law is to settle a legal title. Because one has such right to go into equity to stay waste or trespass is not a ground for taking jurisdiction to try legal title in equity, and I do not think any authority can be shown for it.
It is sometimes said, and in one instance by high authority, that the constitutional right of trial by jury is satisfied by the trial of the issue as an issue out of chancery, but I am unable to subscribe to such a doctrine. Such a jury is not a constitutional right, and it is not to try the title in the true sense of the word, but is simply used to enlighten the conscience of the chancellor, and has no binding effect upon the court, or upon the rights of the parties. But in the case at bar there was no trial by jury of any issue, either out of chancery or otherwise. Under the section of the statute referred to, I can therefore see no authority for a resort to an equitable proceeding.
It is- then a question whether, aside from the statute, there is any authority for the interposition of equity. Is it contended that the powers of a court of law are not sufficient to afford a complete remedy, or its modes of pro*59ceeding are inadequate to the purpose? I am unable to see wherein either trespass or ejectment might not give a complete remedy, and that such mode of proceeding would not be adequate to the purpose. Trespass would settle the title to the ground trespassed upon, and ejectment would settle the title to the whole lode, and guard all the rights of the parties: Bullion Min. Co. v. Croesus Gold & Silver Min. Co., 2 Nev., 168; Bainbridge, Mines (4th London Ed.), 332.
Where, as in this case, the question relates only to legal titles, it would seem that a suit at law is the appropriate and only appropriate place to try them. Ejectment is the remedy usually resorted to throughout this whole nation to try titles to land. In this territory, the' action is in the nature of ejectment; and if it allows the title to be tried, and that title be legal, what is there for equity to deal with? The remedy is complete.
But it is contended that the mode. of proceeding is inadequate, in that the judgment would not show on its face that the title was settled, and that this must be shown by extraneous evidence, which is frequently lost, or at least difficult to obtain.- I do not think that the mode of proceeding can be said to be inadequate, simply because the judgment does not show that- the title was tried. The mode of proceeding referred ’to in such cases is that which is used to try the title, and not that which is used to show that the title was tried. The mode of proceeding would be fully adequate to try the title; and, if that be so, the simple fact that the judgment did not show that the title was tried, is a very attenuated thread upon which to hang the interposition of equity, and to deprive a party of a constitutional right of trial by jury. Besides, if the argument in behalf of the equitable interposition can be upheld in such a case, then there is no case of ejectment or trespass in which the same reason for such interposition cannot be shown. The inevitable logic of said interposition -of equity is to strike down the action of ejectment and trespass altogether for the trial of the legal title. But a complete answer to the argument that the judgment would not, and the decree would, show that the title was *60tried, is to be found in tbe fact tbat, especially in ejectment, the general presumption is that the .title was tried, and that such judgment is a bar to the subsequent trial of the title to the same property, unless it be shown that the title was not tried.
2. The whole question regarding the title to the ore bodies inside the Bullion lines could have been settled in the principal action. The respondent (Eureka Company) by its cross-complaint, claims that by trespass it could only have settled title to the spot where it alleged that the Bullion Company was trespassing, and the trespass was alleged at one point, through one shaft. If this were true, the reasoning would show simply that, whore a party is sued for trespassing all over a 10-acre field, he can, in response, bring a cross-bill alleging that he claims the lot, and that the other party is trespassing at one point on it, and that he cannot bring trespass, because, by so doing, the title to only that one point could be settled, whereas he wanted to settle the title to the whole lot, and resorted to equity to do it, as at law he could settle title to the one point only. It would seem strange that he should nob realize that the title to the whole 10 acres could have been settled in the principal suit, without a resort to equity, for in the principal action title to the whole 10-acre lot could ' be put in issue. That is this case. The principal action charged defendants with trespassing all through the Bullion claim, under ground, and asked judgment against defendants for such trespass. If respondent (defendant) and not the Bullion Company, had the right to such lode in the Bullion ground, could it not have been so ascertained in that action, and defendant have had judgment? If that action would not have settled that question, nothing would have been settled in it; for the whole lode, so far as it was in the Bullion ground, was claimed by the Bullion Company, and its right thereto denied. It is claimed that the cross-complaint is made in order to settle the adverse claim of the Bullion Company to so much of the Eureka lode as is found inside of the side lines of the Bullion. The principal suit is to exactly the same effect. It charges respondent with trespassing all through that part of the Bullion *61ground; and if the respondent could sbow that all of its works under the Bullion were upon its own ledge, would not that settle tbe question of title? This cross-suit is not a suit to settle boundaries, and nothing in it would lead a person -to presume that such was its purpose. The principal suit, in my judgment, would have given all of the relief that the respondent could claim under the cross complaint.
3. The statute in regard to cross-complaints requires that the affirmative relief asked in a cross-complaint must be one “affecting the property to which the action relates:” Laws Utah 1884, p. 207, sec. 305. The relief granted by the court affected the property to which the principal action relates, but there is no statement in the cross-complaint affirming that the relief prayed for does in any manner affect such property. That it does, so relate is a matter of the merest inference. The principal action has reference wholly to a ledge or lode having its apex inside of the side lines of the Bullion claim, and the cross-complaint speaks only of a ledge or lode having its apex inside of the side lines of the Eureka claim. The only intimation that anything else is included, is a reference to an immaterial departure from the side lines at one point and for a short distance. With this “unimportant” variation, it refers to no lode whose apex is not wholly inside of the Eureka claim. The ground about which the principal suit has to do, is a lode whose apex is A\diolly inside the side lines of the Bullion claim. The cross-complaint, therefore, on its face, does not affect the property to which the principal action relates, and the cross-complaint is not Avarranted or authorized.
4. That these two actions, the principal one and the cross-complaint, are in regard to the same ground, is not a matter of allegation, but one of bare inference, from the . well-knoAvu fact outside of the pleadings that the northern ends of the two claims overlap each other, and thus present a surface conflict; and this is a reasonable inference, if we are allowed to resort to bare inferences. Both claims have a northerly and southerly direction, and, as they proceed north, approach, and for some 700 feet over*62lap, each other, forming a wedge-shaped parcel of ground, with the point of the wedge directed south. It would seem to me that any. one reading the pleadings, and knowing of this triangular surface conflict, and assuming that the principal action and the cross-complaint had, or ought to have, regard to the same property, would necessarily conclude that the contest on this cross-bill must have reference wholly to this overlap- -this wedge — and so much of the ledge as should pass out of the side lines on the dip. Such a conclusion, to my mind, is inevitable and irresistible.
But after the action had been pending for a time, and a trial was about to be entered upon, the parties entered into a stipulation which completely removed this “wedge” out of the case, and all rights regarding the same were to be held in abeyance. This stipulation provides that the judgment in the case at bar shall not prejudice nor affect the rights of the parties thereto regarding the “wedge;” but there is no provision therein precluding the stipulation from affecting the judgment in this case. The judgment shall not affect the “wedge,” but the stipulation may affect the judgment. Had it been intended that the stipulation should not affect the judgment, it is presumed that it would have been so stated. It was a stipulation in this case, and made a part of the judgment roll, and the very purpose of it was to affect the judgment. If not so, why was it entered into in this case, and the pleadings modified accordingly by order of court? It seems to me that, even if both parties had agreed that it should not affect the judgment, still the court could not have reached a conclusion favorable to respondent without considering- the title to the “wedge.” But they did not so agree, although they removed the “wedge” out of this case. It was evidently then considered by the court as in the case. But what is the effect of its removal? To my mind, the effect is to take the heart out of the case. There is nothing left to litigate. The removal of all questions regarding the title to the “wedge” removes all questions regarding the entry of the lode into the Bullion ground. In the cross-complaint it is held, if anything is held as to the Eureka *63ledge entering tbe Bullion ground, that it so enters on the dip, and not otherwise. But there is no way for it to dip into the Bullion ground, except by passing through the “wedge,” either on the apex or on the dip. The title to the “wedge” is therefore an important factor in the case; and, if the title to it is by stipulation held in abeyance the title to the alleged Eureka lode, either on the dip or on the apex, is necessarily held in abeyance. It is not to be recognized as belonging to anybody. If the court cannot pass upon the title to the “wedge,” how is it to pass upon the title to an extension of the ledge, which is found only by the court deciding who owns the “wedge?” The Eureka Company can have no right or title to the lode passing into the Bullion ground, no matter whether on the dip or on the apex, unless it owns the lode just before it passes into such ground. The Eureka Company claims title to the lode because it first located it, and claims the right to follow it. If, in attempting to follow it, there is a space that it cannot show "title to, how is it possible to show title to that which is beyond? Its title must be continuous from the ground it is admitted to own, clear into the disputed ground. If this continuity is broken, it holds nothing beyond. The basis of its claim to so much of the ledge as is in the Bullion ground is that it is a continuation of that which it is admitted to own. If, then, its title to so much of the ledge as intervenes between what it is admitted to own and that which is in contest is not and cannot be established in this action, but is held' in abeyance, it can have no possible standing upon which to make a claim to the continuous part in the Bullion ground. It is like the accretions to land bordering upon a body of water. The claimant has title to the accretions because he owns the land to which the accretions attach; but, if his title to the land thus bordering on the water is not to be shown or proved, there is, to my mind, no way for the claimant to establish his title to the accretions. In the present case, the “wedge” is, by stipulation, taken out of the case, and hence there is no way for the Eureka Company to establish its title to the parts of the lode beyond the, “wedge.” I do not *64think the trial could proceed, over the objection of the appellant, after attention was called .to the stipulation; and, if the trial should proceed, judgment for the appellant was inevitable, for the “wedge” extended clear along the whole 700 feet, and there was no-way for the Eureka Company to reach the Bullion ground except through the “wedge.” All of its works, its drifts, and cross-cuts, through which it sought to have its connections with the Bullion ground, were through the “wedge.” The very place where the Bullion Company would strike the lodo in it's shaft, as specified in the cross-complaint, was in the “wedge,” or in the ledge after it had passed through the “wedge” and into the Bullion ground. If it could not prove title to the “wedge,” how was it harmed by the works of the Bullion Company ? The Bullion Company was not on ground to which the Eureka could prove title, and without this it had no right to complain. All of the drifts, cross-cuts, and other works through which respondent carried its experts and other witnesses lead through the “wedge.” Blot the “wedge” out, and the connection with its lode was completely broken.
5. The case tried was not the case made by the pleadings. The cross-complaint'alleges that the Eureka Company (respondent) is owner of, and in possession of, the Eureka mining claim, and “that said mining claim contains a lode of rock in place, bearing silver and other metals, the course, sir ike, or apex of which are in the said mining claim, and between, the side lines thereof, and in direction nearly parallel to said side lines; that said lode in the Eureka mining claim is very wide, and dips westerly, and, by a variation of the hanging wall at one point ami for a short distance, the said wall, and a small and comparatively unimportant part of the width of the lode, is westerly of and outside of the westerly surface side line of the Eureka mining claim, and in ground claimed to belong to the Bullion mining claim, lot 76, but for the entire length of said Eureka mining claim the main ¡>avt of the vein in its width is in, and has its <(,pe,r in, the said Eureka mining claim;” that the Eureka claim is older than the Bullion, (76), yet that the plaintiff (Bullion *65Company) for over a year bas been in possession of, and claiming to own, tlie Bullion mining claim, and “bas set up and made, and still asserts, an adverse claim to about 700 feet of tbe northerly end of said Eureka lode, tbe property of said defendant, and said plaintiff claims tbat about 700 feet of tbe northern end of said Eureka lode belongs to and is a part of said Bullion mining claim, lot 76, and tbat plaintiff owns said part of said lode as a part of said mining claim; tbat tbe plaintiff, in pursuance of said adverse claim, in tbe assertion thereof, within three months last past, bas sunk a shaft on the surface ground of tbe said Bullion mining claim, lot 76, near the westerly side line of tbe Eureka mining claim, and extended tbe same down and into tbe Eureka lode,” and bas taken therefrom valuable ores, and appropriated them, and thus wasted tbe property of tbe Eureka Company, and done it irreparable damage: “tbat plaintiff still continues, by said work, and by this action and otherwise, to assert its adverse claim,” and threatens to continue said work, etc.
Thus we have a cross-complaint, wherein the Eureka Hill Company claims to own and possess a lode, “tbe course, strike, and apex of which” are within the side lines of tbe Eureka, and yet the case tried was one tbe “course, strike, and apex” of which were not within said side lines, and the Eureka, on the trial, did not claim tbat the apex was “within tbe side lines” of the Eureka, but only that a part of it was so inside. Any one reading tbe cross-complaint would, it seems to me, necessarily conclude tbat the contest was for property claiming its apex • wholly within the side lines of the Eureka claim, or at least where there was no material departure from such side lines. The language seems to have been chosen to impress this idea; for it is so guarded that it admits that “the hanging wall at one point and for a short distance,” and tbat “a small and comparatively unimportant part” of the width of the lode, is westerly of and outside of the westerly surface side line of tbe Eureka mining claim, but tbat the main part of the vein in its width is in and has its apex in'the said Eureka mining claim.” It is true tbat it *66is alleged tbat tlie “Eureka raining claim, and the lode therein for its entire luicllh, was located and appropriated before the location of said Bullion claim, lot 76.” But that is a mere recital, referring to the lode already described as having its apex, and the main part of its width, within the side lines of the Eureka. The appellant was not notified by the complaint that respondent proposed to claim any other lode than such as it had described, or that the lode it claimed had any other description or different boundaries from that already described. If respondent intended to claim a lode with different description, it should have said so in the cross-complaint. The language of the cross-complaint was misleading. If respondent intended to claim a lode whose apex was not wholly, except an unimportant part, within the Eureka side lines, it would seem to me that the language used was purposely misleading. Had the claim set up at the trial, that respondent intended to claim the lode on its apex clear across the Bullion ground and far beyond, been set up in the cross-complaint, the whole litigation as to the right of the respondent to go outside its side lines, along the apex of the vein, could'have been disposed of on the demurrer, and the trial thereafter confined to the question of identity of the lodes; and had it not beeii disposed of,. the appellant would have had full notice of the claim to be set up by respondent. But no such -claim was intimated in the cross-complaint. It did not claim the right to follow the ledge on the apex in any direction outside of its side lines; nor did it claim the whole ledge, except as being a ledge with its apex and strike within the side lines of the Eureka. At the trial is the first time that this claim of the right to follow the lode on the apex heard of. The “hanging wall” is alleged to have, “at one part and for a short distance,” gone outside of the westerly side line of the Eureka, yet on the trial this» “one part” and “short distance” lengthens out to the full length of the whole 700 feet, and the “comparatively unimportant” departure from the side, line of the Eureka grows to the enormous proportion of embracing, lengthwise, the whole of about 700 feet of the northerly end of $he Bullion claim, and stretching clear across that claim *67and. far beyond. No banging wall was found, and from the terms of the decree it would seem to be in tlie “unknown beyond,” if it exists at all. If it was not found, the court could not say that it existed. Instead of the trial being in regard to a ledge the “main part” of which was in the side lines of the Eureka, it appears to have been in regard to a lode mainly outside of the Eureka lines. The decree allows the respondent all that part of the ledge which has its apex inside the Bullion side lines, and extends this allowance further to the west, into a claim not litigated in this case, and there stops in the midst of the apex, and arbitrarily establishes a line as the 'western limit of the Eureka Company’s rights. This line is fixed, not at the hanging wall, for none is found, but at a point on the apex beyond which respondent waives his right. There is nothing in the pleading to justify or to warrant a decree to any of the lode beyond so much of it as had its apex within the side lines of the Eureka extended vertically downwards.
But we are told that this granting of about 700 feet long by 800 feet wide of the ledge, with its apex outside of the Eureka claim, is an immaterial variance, and does not prejudice appellant’s rights. If a man be sued for possession of a 10-acre tract of land, with specified boundaries, it is not to be presumed that there can be judgment for a thousand acres with entirely different boundaries. The counsel for respondent says that this is like a contest over a horse. When the contest began the animal was a colt, but when decided it had grown to be a horse, yet it was the same animal. Was this ledge a small affair when this litigation began? and has it grown to its vast proportions since? It was small according to the pleadings, and is so yet, but not so as to the matter tried. Counsel also said that they did not know the vein was so large when they began the action. Then respondent is evidently getting something he did not sue for. I do not think that more ought to be granted than was sued for. If we were to take an admitted fact, the value of the mineral under so much of the apex of the ledge as is within the side lines of the Eureka claim is very great, probably worth hundreds of thousands of dollars, This and more is allowed to respondent under a *68cross-complaint which claimed none of it. It seems to me that this is not an immaterial variance. The cases referred to to support the position of respondent do not go to such an extent. They extend mainly to the idea that an immaterial variance was such as did not affect the judgment, at least appreciably. But here the “variance” is the whole bone of contention. It is the whole subject of the trial and the decree. And this is in effect, admitted by respondent, for it admits that the “wedge” is out of the case, and that it is not claiming the ledge by reason of its being on the dip of the Bullion ground. What else, then, is there left, except this variance to litigate? Evidently nothing. This variance was so great as to overshadow everything else. It is said that the pleadings might have been amended; but they were not, nor was there any leave to amend asked of the court. Whether the resxiondent could have amended is therefore not a subject for consideration, as it was not asked. Certain it is that the variance is so extraordinary that, in my judgment, the decree should not be allowed to stand, as it does not in any sense correspond to the case made in the pleadings.
The decree likewise seems to fix boundaries, but nothing of the kind was prayed for in the cross-complaint.
6. The respondent claimed on the trial that the Eureka lode was very wide; its apex extending from the Montana claim on the east through the Eureka claim, and on through the Bullion claim, and far into another claim west of the Bullion. The width of the apex, for the 700 feet in contest, is not known, its hanging wall never having been reached.
At common law the owner of land has title to all below the surface, to the center of the earth. If the title to a tract of land is conveyed, we know that it means everything within the boundaries extended vertically downwards to any depth; and, without some statutory requirement or qualification, the Eureka claim and the Bullion claim would each embrace all that is within the side lines, and also end lines, extending vertically downwards. The uncertainty as to what is conveyed by such claims arises upon the language of the statute, and we are authorized to accept any change *69or modification o£ tbe common-law rule, and adopt it; but, when tbe statute fails to make any modification or change, we fall back upon the common law to guide us to a correct conclusion.
The statutes of 1866 and 1872 have made one modification or change in the common-law rule, and only one. That change is to allow a departure from the side lines of a claim, on the dip of the vein. This is the sole modification, unless it be said that the language of the law of 1866, allowing all “dips, spurs, and variations,”' be a change; but that is, I believe, so universally admitted to mean the immaterial and trifling departures as not to be said to be a change of the rule. "We approach the consideration of the question, then, with the common-law rule before us, with but one modification, and that having reference alone to the dip.
In the trial of the present suit it was not contended by respondents that the Eureka lode passed into the Bullion ground on the dip of the lode; but the whole contest has been and is that it departs on the apex from the Eureka claim, and on the apex it is claimed clear across the Bullion, and a hundred feet beyond, and yet the apex is not extended to the hanging wall. If the apex be so wide that it cannot be covered by the surface lines of these claims, so that a part of the apex is in one, and part of it in the other, and other parts still in other claims, it would seem to me to be a case not contemplated in the statute, nor by the legislators who framed the law. It is simply a case unprovided for by statute, and not within the terms of it. At the time of the passage of the law, such wide veins were rare, if known at ail, in this country. If it be a case not provided for in the statute, it is the duty of the courts to apply the common-law rule, with a view, however, to carry out the spirit of the statute as far as possible. If the ledge were one o£ layers, with cleavage, the cleavage could be followed downwards; thus carrying out the spirit of the statute authorizing the miner to follow the ore on the dip. It is true that generally the dip is ascertained by the hanging wall; but where there is none, or at least none shown to exist, as in the present case, the following of the cleavage or layers would be the only way to approximate to *70the rule of following file dip. But if there be no hanging wall, and no cleavage or layers in the lode, my judgment is that there is no possible course to pursue but to follow the common-law rule, and to give to each claim all that is within its side lines drawn vertically downwards. This is the only just rule, and when you pass beyond that you are at sea, without rudder or compass. But counsel for respondent say that, if we adopt such a rule in this case, we go contrary to the settled practice all over the coast. We heard similar appeals when the case of Flagstaff v. Tarbet was before us, and the question was as to the “swinging doctrine.” But the swinging doctrine was nevertheless not good law, and the supreme court of the United States so declared in that case. But if the doctrine claimed by respondent be the ruling one on this coast, there should be some such ruling in the courts. I will refer to the cases to which we have been cited in support of this broad-vein theory.
In the case of Golden Fleece Co. v. Cable Con. Co., 12 Nev. 312, which was a protest case, nothing of a brood-vein doctrine is taught, or even referred to in the opinion of the court. The only thing that could be styled a reference thereto is found in the language of Chief Justice Hawley in his concurring opinion. The chief justice was considering this old “swinging doctrine,” which has been for a long time recognized by miners, and he still clung to so much of it as would allow the first locator to follow the strike of the vein outside of his side lines, so long as he did not go beyond the end lines extended in their own direction.
But this whole swinging doctrine has been considered exploded for years. The language of the statute itself, and the ruling of the United States supreme court in Tarbet v. Flagstaff, 98 U. S. 463, had settled it. The “swinging doctrine” was the whole subject treated upon in that last-named case. It is now referred to as supporting the broad-vein theory. I confess that I can see nothing in it of the kind. There was no question in it as to the vein passing out of the side lines otherwise than on the strike of the vein. There was no wide-vein theory in it, nor any wide vein. There was no widening of the vein so as to *71pass out on tbe width of the vein on the apex. Some dicta of the court are treated, however, as supporting the wide-vein theory. These dicta, it will be seen, have no reference to a widening of the vein, but to its passing out on the strike; but, if read as regarding the wide-apex theory, it is, to my mind, not comforting to those who hold to the broad-apex doctrine. It says: “Slight deviations of the outcropping lode from the location of the claim would probably not affect the right of the locator to appropriate the continuous vein; but if lie should make a material departure from his location, and run off in a different direction, and not return to it, it certainly could not be said that the location was on that vein or lode further- than it continued subsequently to correspond with it. Of what use would a location be for any purpose of defining the rights of the parties if it could be thus made to cover a lode or vein which runs entirely away from it?”
The facts (if as claimed by respondent) in the case at bar show us that the vein does depart on the width, on the apex, and never returns again. It cannot be said to return, when the decree of the court shows that it was not followed even to the hanging wall. How much further it extended is unknown, and till it becomes known theye can be nothing to show that it returned. There are two cases in Colorado which decide squarely this question, and hold that where a lode, as in those cases, departs from the apex into another claim, and then bends and comes back to the claim from which it started, the first locator had no right to that part of the lode which passed on the apex into another claim. Wolfley v. Lebanon Min. Co., 4 Colo. 112; Lebanon Min. Co. v. Rogers, 5 Pac. Rep. 661.
We are referred to the case of Rose v. Richmond Co., 17 Nev. 25; but I have looked through that case in. vain to find support for the broad-apex theory, except that the court decided the case upon the assumption that the first locator takes the whole lode to its entire width, But this ássumption cannot be quoted as authority for the broad-vein doctrine, for the reason that no issue was raised upon the point, but counsel consented that the court should decide the case without passing upon that point. This was *72expressly stated by the court. There was no occasion for the court to examine the question, or decide upon it. "When the case was affirmed in the "United States supreme court, (114 U. S. 576,) we again find that no such doctrine is considered by the court, nor even any intimation that any such question was in the case.
"We are next referred to the Eureka-Richmond Case, 4 Sawy, 302, in support of the respondent’s position; but a careful examination of the case discloses that nothing of the kind was in issue in it. I am at a loss to know how this case could be considered a support to the broad-vein— broad-apex — theory. It supports the very opposite theory, if either. The statement of the case showed that the contest was over ore in the Potts deposit or chamber, and the court says: “The defendant claimed and worked that part of the chamber to the eastward of said line W X produced to C, whereupon the plaintiff, claiming that portion of the ore body as being on the, dip of its portion of the lode, brought this action to recover the possession.” Judge Field in delivering the opinion, in speaking of the line "W X, said, further, “that the line thus designated, extended down in a direct line along the dip of the lode, would cut the Potts chamber, and give the ground in dispute to the plaintiff.” The ore in the Potts chamber east of the said line is given to plaintiff because it is on the dip of plaintiff’s ledge or lode. There is absolutely nothing in the case to aid the broad-vein-theory.
Our attention is called also to the case of North Noonday Min. Co. v. Orient Min. Co., 6 Sawy. 299; S. C. 1 Fed. Rep. 522. There does not appear to be anything in the case that would call for a ruling upon the point in' question; the vein discovered evidently being a narrow one. The court, however, makes use of this language in the charge, (and we have nothing of the case except the charge:) “But if you find that said vein or lode so cut by defendant is not one of the veins or lodes discovered within any claim, the title to which you find in the plaintiff, and that its apex or top is not within the side lines of any such claim of plaintiff, drawn vertically downwards, but is a separate, independent vein, every part of whifh lies to the *73eastward or outside of and beyond any claim, the title to which you find to be in plaintiff, and no part of the apex or top of which is within the side lines of such claim drawn vertically downwards, then it does not belong to plaintiff.” The term “no part of the apex or top” might be inferred to favor the idea of respondents if it were by itself, but the charge must be taken as a whole. In the very language quoted, the court says that if the jury find the vein in question to be “a separate, independent vein, every part of which lies to the eastward or outside of and beyond any claim” of the plaintiff, and “no part of its apex” is within plaintiff’s lines, it certainly does not belong to plaintiff. But it is evident from a prior part of the. charge that the court did not think it would belong to plaintiff even if a part of its apex was within its side lines, for the court says that the inquiry for the jury was “whether the vein or lode in question * * * is one of the veins or lodes discovered in any of the claims, the right, title, and possession to which you find to be in the plaintiff as against defendant; and, if you find it is one of such veins or lodes, or if you find that it is not one of these lodes, but that it has its apex or top loithin the side lines of any such claim, the title and possession to which you so find to be in the plaintiff, drawn vertically downwards, then, in either case, it belongs to the plaintiff.” These sentences, taken together, show that the court had no idea of saying that the vein would belong to plaintiff in that action if any part of the apex was within his side lines “drawn vertically downwards.” No question appears to have been in the case relative to a broad apex extending from one claim to another.
The case of Jupiter Min. Co. v. Bodie Con. Min. Co., 7 Sawy, 96, S. C. 11 Fed. Rep. 666, was, like the last preceding case, an action in the nature of trespass, and as in the last case, all we have of it is the charge of the court to the jury. The court several times quotes the language of the statute as to the apex, but nowhere says anything as to an apex extending in width from one claim to another. The question of the rights of conflicting claimants to an apex which is on the width, partly in one claim and partly *74in another, does not arise. That ease is not more a support to tbe wide apex theory than the statute, and the statute says nothing whatever upon the subject.
In the case of the Iron Silver Min. Co. v. Cheesman, 116 U. S. 530, the question was as to whether the place below the surface, where the work was being done, belonged to the vein of one party or to that of the other. • The court, after quoting the statute, says: “It is obvious that the vein, lode, or ledge, of which the locator may have the exclusive right of possession and enjoyment, is one whose apex is found inside of the surface lines entended vertically; and this right follows such vein, though in extending ‘doimuoards’ it may depart from a perpendicular and extend laterally outside of the vertical lines of such surface location.” The same case, reported in 2 McCrary, 191, and 8 Fed. Rep. 297, shows clearly that the court was dealing with the right of a locator to follow his lode on the dip. If there be anything in the case bearing upon the question at issue as to a broad vein, it is against the broad-vein theory, for the court recognizes the right of a locator to follow his vein only in its “extehding downwards.”
And the same may be said regarding all of the cases cited by respondent in support of the broad-apex theory. Not a solitary reported case has been shown where the question 'has been decided in favor of the broad-vein theory. In only one could it have been decided, and that was the case of Rose v. Richmond, 17 Nev. 25, and really it could not well have been decided in that case, for the reason that the parties waived it, and consented that the case should be decided without deciding that question. Such a case can no more be quoted as authority on this question than the case of Cannon v. U. S., 116 U. S. 55, appealed from this territory, can be quoted on the question of the j urisdiction of that court in such cases. The question was not raised, either by the parties or by the court, and hence could not have been decided.
If there were existing any reported case that would support the broad-vein doctrine, I have no doubt it would have been found, judging from the fact the interest of the respondent — like the interests of appellant — were in the *75hands of able counsel, who worked for months in court on this case, to say nothing of the vast work necessary outside the court-room. It is said that one case decided at nisi prius, in Montana, favors the broad-vein theory, yet it is said to be offset by a nisi prius decision to the contrary in Arizona. Neither of the cases are furnished us, and we do not know what language was used by the court in either case. Neither of the cases are reported, nor have they reached the supreme courts in the respective territories.
We find that in some of the highest courts of the land the broad-vein theory has been positively repudiated.
In the case of Hall v. Equator M. & S. Co., in the circuit court of the United States, we find the court, speaking by Judge Hallett, holding squarely against the broad-vein theory, and in favor of the doctrine that where a claim is located, and does not cover the whole width of the ledge, the locator cannot follow such lode outside the side lines, on the apex. The text of the opinion is furnished us in pamphlet. The court says: “As to all of the disputed ground, the principal question affecting the whole lode is whether, by locating a part of the width of outcrop, the whole may be taken.” The claim in question in that case was, as were the claims in the case at bar, located under the law of 1866. The court further says: “If the law is illiberal, it is not for that reason the less controlling. If, however, a right to the entire lode cannot be asserted under a location covering a part only of its width, as seems to be obvious, the location may be valid for the part described in it. If it is on the top of the lode, it is within the act, and so it ought to be good for the part within the lines extending downwards vertically, if for no more.” And further speaking of the locator’s right to go out of his side lines, the court says: “For as to his right to go into other territory, he can only do so in pursuit of a lode or vein that has its top or apex tuholly on his ground; and, having but a part of the lode in his territory, he cannot comply with that condition. This appews to he a olear inference from the language of the act. The right given relates to veins, lodes, or ledges *76the tops o£ which are inside the surface lines, which obviously means the whole, and not a part. If, then, two or more collateral locations be made on one and the same vein, and the vein appears to be homogeneous throughout its width, we are authorized to say that each shall be confined within its own lines drawn down vertically.”
There was a second trial of the same case, and Judge Miller, of the supreme court of the United States, charged the jury “that there is introduced, both by plaintiffs and defendant, evidence tending to prove that the claims of both parties are located on the same vein or lode of mineral-bearing rock in place, the general apex or upper surface of which is about 100 feet wide. If the jury believe this to be true, then I instruct you, as the law of this case, that the plaintiffs having the prior title from the United States to that portion of this lode within the lines of their patent, extended vertically downwards to the earth’s center and the defendants having contested plaintiff’s right to run a patent on the parts of the lode in controversy in the court of the territory, according to the act of Congress on that subject, and failed in that contest, and having accepted and read in evidence a patent for their own claim, which expressly excepts out of its territory claimed the interfering part in plaintiffs’ said patent, the law of the case is for the plaintiffs, and they are entitled to all the mineral found within the side lines of their patent, extended vertically downwards.”
Judge Miller, again, in Stevens v. Williams, 1 McCrary, 480, says, in his charge to the jury: “The plaintiff is not bound to lay his side lines perfectly parallel with the course or strike of the lode so as to cover it exactly. * * * But if he happens to strike out diagonally as far as his side lines include the apex, so far he can pursue it laterally.”
The supreme court of Nevada, in the Golden Fleece Case, 12 Nev. 329, heretofore referred to, says, in speaking of the United States mining statute: “Under that law it cannot be doubted that it [plaintiff ] is bound by the lines of its surface claim in favor of a subsequent locator. It is true that the vein is the principal thing, and the surface *77is but an incident thereto; but it is also true that the mining law bas provided no means of locating a vein except by defining a surface claim, including the croppings or point at which the vein is exposed; and the part of the vein located is determined by reference to the lines of the surface claim. Those lines are fixed by the monuments on the ground, and they cannot be changed so as to interfere with other claims subsequently located.”
The supreme court of the United States clearly supports the view that a locator is bound by his side lines vertically drawn downwards, and that he can depart from his side lines only on the dip of the vein.
In the case of Iron Silver Min. Co. v. Elgin M. & S. Co., 118 U. S., 196, decided at the October term, 1885, of the supreme court of the United States, that court, speaking through Judge Field, says: “A section of the lode within vertical planes drawn downwards through the lines marked on the surface was designed as the grant to the original locator, but as the vein in its downward course might deviate from the perpendicular, and pass out of the side lines, the right was conferred to follow it outside of them.” In the case at bar there is no claim that the Eureka lode passed out of its westerly side line on the dip, therefore there was no way for it to be followed out of the side lines. “The lines marked on the surface were designed as the grant,” and it was confined to said surface lines drawn vertically downwards. But that court is still more emphatic when it says, through Judge Field, in the same case: “The surface side lines extended downwards vertically determine the extent of the claim, except when in its descent the vein passes outside of them.” And in speaking of the locations not being made to fit the veins, the court says: “The remedy must be found, until the statute is changed, in carefully making the location, and postponing the marking of its boundaries until explorations can be made to ascertain as near as possible the course and direction of the vein.” And, further, the court says, speaking by the same judge in the same case: “Even then, with all the care possible, the end lines marked on the surface will often vary greatly from a right angle to the true *78course o£ tbe vein. But, whatever inconvenience or hardship may thus happen, it is better that the boundary planes should be definitely determined by the lines of the surface location than that they should be subject to 'perpetual readjustment according to subterranean de relopments made by mine workings. Such readjustment at every discovery of a change in the course of the vein would create great uncertainly in tille to mining claims. The ride, whatever hardship it may work, in particular cases, should be settled, and thus prevent, as far as practicable, such uncertainty.” And the court, again, in speaking of end lines — and the same reasoning applies to side lines — says: “If the first locator will not or cannot make the explorations necessary to ascertain the true course of the vein, and draws his end lines ignorantly, he must bear the consequences. He can only assert a lateral right to so much of his vein as lies between vertical planes drawn through those lines. Junior locators will not be prejudiced thereby, though subsequent explorations may show that he erred in his location.”
In the case from which we have just quoted, the supreme court of the United States emphasizes its language by ruling that the first locator cannot follow his vein outside of his side lines, even on the dip of the vein, when that dip is not within the parallel end lines, produced or extended in their own direction. That court thus holds that the statute, wherever it changes the common-law rule, must be strictly construed, and that nothing outside of the common-law limits is given unless it is granted in express terms.
Thus we have the plain letter the statute held to mean what it in express language says, and nothing is to be taken by inference. I think that the authorities I have quoted, together with the words of the statute itself, settle clearly that a locator of a claim on mineral land cannot follow his ledge outside of his side lines, except on the dip, and that, therefore, the claim set up by respondent of its right to follow its lode on the apex outside of its side lines is untenable, See, also, McCormick v, Varnes, 2 Utah, 355.
*79Aside from tbe authorities, there is another view of this question, which I think would show that' the claim of a right to follow the lode on the apex outside of the side lines cannot be upheld. This claim of right set up by respondent as the basis of the decree is, in my judgment, inconsistent with the statute itself in another way. If it be assumed that the Eureka Company has the right to follow the lode on its ajiex outside of the Eureka side lines, and to within the Bullion side lines and beyond, and that the apex all the way across the Bullion claim should all be ai the surface, as it is at the various points within the Eureka side lines, to whom would the apex belong within the Bullion ground? The Eureka Company claims that it has the right to follow its apex, and have all below the apex; and, on the other hand, the statute says that the Bullion Company shall have all of its surface ground. There is no dispute about the right of the Bullion Company to the surface ground, and the respondent has been especially careful to several times call the court’s attention to the fact that it (the repondent) does not claim the Bullion surface, but admits that it belongs to the Bullion Company. But the claim of the respondent to the whole apex and the language of the statute, cannot both stand, when the apex might happep to reach the surface. Either the claim of the respondent must give way, or the statute must give way. Which shall it be ?
It may be answered that the apex- does not come to the surface; but,- suppose it did, would the argument be in any manner different? If the Eureka Company has the right to follow the lode on its apex, and be entitled to the whole apex, is this right changed by the apex coming to the surface? If the Eureka Company be entitled to the apex to its full width, there does not seem to be any reason why it should be denied this right because the apex comes to the surface; and, if it has such apex, it has the surface of the Bullion as well as the under ground. The argument of the respondent leads inevitably to this conclusion. But if the statute, instead of the position of the respondent as to the apex, be upheld, and the surface be given to the owner of the Bullion claim, what becomes of the doc-. *80trine that the Eureka Company has the right to follow the lode on its apex outside of its side lines, and to the full width of the apex? If, then, the Eureka Company should not have the surface, where will the separation line be drawn between the Eureka and Bullion claims? If the Eureka Company has all the ledge beneath the surface, how much below the surface will its claim begin? Will it be an inch, or a foot, or a thousand feet? By what rule will we decide the matter? Are we not completely at sea? Yet to my mind this is the logical result of the argument, and the result proves the argument unsound. The only rule is to follow the lode on its dip, as specified in the statute. That gives us a plain and clean line of division; and, if there be a case where this cannot be done, by a discovery of the hanging wall, the nearest approach to it is to approximate the matter, and to follow the cleavage or general direction of the ledge downwards; and, if that cannot be done, the common-law rule must control, fixing each locator’s limit by his surface boundaries extended vertically downwards.
7. I am of the opinion that the respondent was estopped from claiming any part of the lode or lodes, the apex of which parts was within the surface boundaries of the Bullion claim 76, extended vertically downwards.
In O’Reilly v. Campbell, 116 U. S., 418, where a locator in his notice gave a certain direction to his claim, and another party made a subsequent location not in such direction, and worked upon it for three years, without objection of first locator, the United States supreme court said: “We do not think that the first claimants, under these circumstances, can appropriate the second claim. It is true, the locators of the Omaha claim intended to take the vein or lode, and tuere ignorant of its true direction. But it toas incumbent upon them to make- and ascertain its true course, and indicate it in some public and visible manner, so thcd others might not be excluded from explorations on adjacent ground, or be deprived of the benefit of their labor. It is a rule among miners on the public lands, so often brought to our attention, and so often declared, that we may speak of it as a part of our. judicial *81knowledge, that discovery and appropriation are tbe source of title to raining- claims, and that development of working is tbe condition of their continued possession. Jennison v. Kirk, 98 U. S., 453-457; Jackson v. Roby, 109 U. S., 440. This was tbe rule before Congress, by its legislation, sanctioned it. Four years after the defendants bad made their location tbe predecessors of tbe plaintiff took up tbe Highland Boy claim, and for three years they or their successors continuously worked and expended money upon it without objection from the defendants, or any indication from them to the public that their own Omaha claim was at all interfered with. It was too late afterwards to raise the objection,”
In the case at bar the respondent saw that the Bullion claim was located, and held, claimed, and worked for years and patented, also, under the belief that it did not interfere with the Eureka claim. Bespohdent knew the rules and regulations of the mining district where its claim was located; knew that all claims were located not exceeding 200 feet wide, and that each claim was by such rules declared to carry with it all mineral therein contained. For years respondent allowed appellant to work, develop at great expense, and possess this property. It also advertised to the world, years before, by a prospectus circulated through the country, that it did not claim the property. It claimed a lode designated as within its own claim; Even down to 1883 the president of the respondent company loaned appellant $20,000, and took a mortgage upon the Bullion, among other claims. In this case, as in the case of O'Reilly v. Campbell, it was too late, after so many years, to raise any objection to appellant’s right to the lode.
8. In the decree the respondent is alloted a large body of the lode where the apex is in neither the Eureka nor in the Bullion claim, but is further west. Before this ground could be included in the decree it should have been within the pleadings, and the court could grant nó decree for such large body of the lode until it found which was the earlier location. There is no finding whatever as to the title to this part of the lode, or as to *82whether the West Bullion or the Eureka was the earlier. I£ the West Bullion were earlier than the Eureka, that claim (West Bullionj would, under the ruling of the court, take the whole ledge to its full width. This finding was a prerequisite to decision of the title by the decree.
9. The next question for consideration is whether there are two. veins, or one broad vein, extending in its width, on its apex, clear through all of these claims. If there be a substantial conflict of evidence, the appellate court will not generally reverse the judgment for insufficiency of evidence. The preponderance of . evidence against the finding of the lower court must be great and decided. I shall not say, therefore, that there was not evidence to support the finding of the .lower court that there was but one vein, taking into view the opinions of experts; but, considering the case outside of the opinions of experts, I think the evidence strongly preponderates against the broad-vein theory.
Whether there is one vein or two veins should not be made to depend upon the opinion of experts alone, unless it should appear that the question involved njatters which lie “beyond the scope of the observation, knowledge, and experience of men in general.” Jefferson Ins. Co. v. Cotheal, 7 Wend. 72, 78. Such opinions can be of no great weight, unless they “are to be deduced from facts that are not disputed, or, at least, from facts that are in evidence before the jury:” 1 Phil. Ev. *778; 1 Greenl. Ev. sec. 440, p. 605. I am, and have for a long while been, of the opinion that in mining suits generally too much weight is given to the opinion of experts, and not enough to the facts proven.
The question before a Massachusetts court was as to whether two pieces of wood were parts of the same stick of natural growth. The opinions of workers in wood were admitted to prove it (Com. v. Choate, 105 Mass. 456); but such opinions would have been of very little weight had there been witnesses present to testify that they saw one piece cut from a growing tree in Canada and saw the other piece cut from a growing tree in Florida. The facts thus proven would have outweighed all mere opinions.
*83Aside from the opinions of the experts, the evidence in the case at bar seems to show two distinct outcroppings of ore-bearing rock for hundreds, if not thousands, of feet, appearing and then disappearing, and again reappearing, and extending northerly and southerly; but, where the croppings were beneath the surface, the same apparent distinction was kept up. The underground workings show that there are two vast bodies of ore extending northerly and southerly. Thom each of these vast lodes or ledges there are such fissures or breaks from east to west, and possibly such fissures or breaks reach sometimes across from one great ore body to the other; but these side fissures or off-shoots are all in the same country rock— limestone — that is to be foiind on each side of these veins, and in no instance that I remember is one of them shown to carry ore all the way. The limestone country rock fills the space between the great deposits, as it does the country around. It would seem to me to be more reasonable to call the Black Sea and the Mediterranean Sea one and the same body of water, because connected by a narrow strait, or to call the Mediterranean Sea and the Atlantic Ocean one and the same body of water because connected by the Straits of Gibraltar, or to call the Siamese twins one person because they have a fleshy connection, than to call these two great bodies of ore one and the same lode. They are two bodies — two lodes — with no ore connections.
A lode, said Judge Field, in the Eureka Case, 4 Sawy. 311, as the term is “used in the acts of Congress, is applicable to any zone or belt of, mineralized rock lying within boundaries clearly separating it from the neighboring rock.” And Judge Hallet, in Stevens v. Williams, 1 McCrary, 488, says: “In general, it may be said that a lode or vein is a body of mineral or mineral body of rock, within defined boundaries, in the general mass of the mountain.” These definitions have been adopted by the supreme court of the United States in Iron Silver Min. Co. v. Cheesman, 116 U. S. 529.
The experts for the respondent do not seem to agree as to what the lode or zone in this case is. In one part of the *84testimony we are led to believe that tbe sbale-bed on tlie east is the east boundary of. the lode, and at another place that the boundary must be further east than the shale-bed, and in another place that it is reached before we reach the shale-bed; and from other parts we are led to believe that the ore-bearing bodies of rock in the openings in the lime country rock are the lodes or lode. If the shale be the boundary on the east, there seems to be no reason why the shale-bed, about a thousand feet to the west, should not be the western boundary. Between the ore-bearing rock and the eastern shale-bed we find all the rock to be lime, and the same seems to be the case between the ore-bearing rock and the shale-bed on the west. But the lime, both on the east and west of the ore, is barren, and it cannot come within the definition of'“lode” or “zone” given us above by the courts. The deposit, in order to be a “lode” or “ledge,” within the meaning of the act of Congress, must be a “mineral-bearing rock.” We must, therefore, throw out of consideration all the lime-beds outside of the sliale-beds, and throw out the shale-beds, and also throw out the lime-beds inside the shale-beds, and narrow the true lode down to the great openings in the limestone, which are filled with quartz and lime, bearing silver and lead. All else is country rock. Dr. Hunt, a leading-witness in the case, defined a “lode” as a “mass of min-eralized rock in place, limited by non-mineralized rock;” and, when questioned further, he says that he does not bound the lode by definite walls, or boundaries, or limits, except by the material which is not impregnated. He had put to him a question as follows:
“Question. Then the lode, in your judgment, would widen as manufacture would enable parties to utilize a lower grade of ore?” and he made answer: “Yerymuchso.”
Such language might be good in geology, but it would leave out of view entirely the idea of a lode, as given by the courts. The law, as interpreted by the courts, and as I have quoted, requires that this “mineralized rock” must lie “within boundaries dearly separating it from the neighboring rock;” it must be within “ well-defined boundaries.” A shifting boundary, its position depend*85ing upon tbe price o£ lead or silver, cannot be adopted by tbe courts. It would play sad bavoc in a decree. Tbe requirements by law of Congress of “boundaries clearly separating” tbe mineral from the neighboring rock — tbe requirements of “well-defined boundaries” — will not allow tbe adoption of tbe rule of following tbe mineralization to an indefinite extent; but there must be some way of settling tbe question by boundaries clearly marked, and not indistinctly marked, by tbe shadings of mineralization, more or less distinct. There must be something' more definite than fading mineralization. There must, of course, be mineralized rock of some kind; but tbe rock, and not tbe mineralization, must have clearly-defined boundaries, clean-cut limits — such limits as can be intelligibly understood in a decree or judgment of a court. The zone must be impregnated with ore, and not with tbe stains from ore; there must be something more substantial.
In this case tbe ledge or lode that was really located, was, I have no doubt, one of quartz, or other rock in place, carrying silver and other metals in limestone, and having limestone walls, and running northerly and southerly. There are two such veins, with lateral breaks, some of which may reach from one body to the other; but these breaks, although some of them carry ledge matter, do not carry ore. Such breaks, therefore, do not, as I take it, make these great ore bodies one ledge or lode, as contemplated in the act of Congress. One of these lodes does not go as a mass to the other, nor spread out to meet it, but the only connection was some slender drifts through ledge matter, without ore. The theory of the experts who find there is but one ledge is, in substance, that all these ore bodies in Eureka hill had a common origin, and are connected with some central line of deposits, and cannot be segregated as separate and independent veins in origin or character, but the whole must be taken together as a unit, and as one lode or zone. But, to my mind, by such a theory, all of the lodes in any particular section of country which were of a common origin and character belong to one mother lode, and cannot be separated from it ás independent lodes. That may be a good theory in geology, *86but I do not think that Congress had any such idea in view when it enacted the laws regarding mining claims. Congress had no idea of giving one man a whole mountain country; because, possibly, it may all have been thrown up at one time, or because the minerals came up at one time, and were of the same' general character. One lode may be connected with another, but that does not make them one and the same. Such a theory is too broad to fit any law of Congress ever yet enacted.
The opinions of the experts in the case are, however, divided as to whether there be one vein or two veins. But the broad-vein idea is, as I take it, based upon a theory not in accord with the act of Congress, and the opinions of some of the experts were formed upon very limited examinations of the works. For example, one of the most important witnesses spent but 10 or 12 hours in these labyrinths of underground workings, and examined but two levels. Still I deem his opinion very valuable, and given, as all others were, with the utmost candor and honesty. But I am not disposed to call' in question the conclusion of the court on this point further than I have already stated.
Whether, however, we consider that there was one vein or two veins, the evidence will show that the ore body passes from the side lines of the Eureka claim on the strike of the ledge, and both veins pass on the northwest. It was the duty of respondent, if it claimed the lode in the Bullion ground, to have traced it out — made the necessary explorations. Such is the requirement of section 7 of the by-laws of the Tintic mining district, and such is the rule recognized in O’Reilly v. Campbell, 116 U. S. 418, and in Cheesman v. Iron Co., 116 U. S., 529.
There are some other minor points upon which I cannot concur with the majority of the court, but it is not necessary for me now to detail them. The reasons which I have given are abundantly sufficient to show why it is impossible for me to concur with the majority of the court in the conclusion rendered by them. I think the judgment and decision of the court below should have been reversed.