In a petition for rehearing appellants urge: "That it is an admitted fact, by both the lower and upper court, that the mass which overlies the so-called Canyon vein within the patented ground is locatable. * * * What law flows from that fact? It is submitted that that question has not been decided, and therefore this petition. * * * The fact that the vein formation called the Canyon vein in its course downward crosses the common side line of the Canyon claim and the patent, and is there met by the vein formation which apexes on the patent, being unalterably fixed and determined by the testimony and the admissions of the court, it is respectfully submitted to the appellate court that there is nothing left to said court but to decide what is the law that follows from said fact. Admit, for the purpose of the argument, that there is a vein which enters the side line of the Canyon, yet it is admitted that said vein on its course downward meets the patent vein or vein formation at the point *Page 395 where it crosses the side line, and from that point down it is submitted that the older location takes under the law and the authorities already submitted."
In the opinion we endeavored to cover this contention, which was made by counsel on the hearing on appeal, but it seemed that the position of the court is not understood, and that a broader admission of fact is assumed than was actually made. It may be inferred from the allegations of the petition that counsel believe that this court conceded that the whole mass within or lying under the boundaries of the Table Mountain mine is ledge matter, and in legal effect a vein to the extent of its entire width, as contended for by appellants in both courts. No such admission was made, and witnesses for the plaintiff, and the district judge, denied directly that such was the fact. It was allowed that the small pieces of quartz and gypsum and little stringers of ore from the thickness of a knife blade to two or three inches might sustain a location, but, if so, they would not give the owners any greater right to veins dipping under their ground and apexing beyond it than they would have if their location were based on a substantial and well-defined lode. It is contended that the whole mass is only the part of a vein. While following the testimony on behalf of plaintiff, and the views and conclusions of the district judge expressed in the order granting a new trial, the admission does not go further than to concede that the formation is porphyry and country rock, impregnated in places with these little stringers and small pieces of gypsum and quartz lying above the walls of a ledge apexing in the Canyon claim.
The petition for a rehearing is denied.
*Page 396BELKNAP, C. J., and FITZGERALD, J., concur.