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Deitrich's Decision 5 incline samples Proceeding easterly from tills series of raises on No. 5 level, for ubout 800 feet, we come to another series, which also connects with the surface, the outlet here being In the Grouse claim, What is called No. 5 raise starts about 50 feet east of the Star end line, and rises with a slight Inclination to the south corresponding with the dip, a distance of a little more than 500 feet, , to No. 4 tunnel level. The ground has been stoped out at this point upon No. 4 level for some distance to (Continued from Page 1) structure, the bands running with the course of the vein, and in such a formation it may be found at uny given point that two mineral beurlng bands are wholly separated by a barren one. Occurrences are ulso found where the mineralization is strong along the median line of a zone, but gradually decreases in either direction therefrom, and ultimately fades out; and still others where the heavy mineralization is along the outer edges of the zone, the center being lean or entirely bar ren. It is therefore difficult, without going into great detail, to convey an adequate idea of mineral occurrences, especially as they are disclosed upon cross sections. While it thus appears that vein and mineralized matter are not exact equivalents, it is thought that under the circumstances and the necessities of the case the mineral occurrences must be referred to the most Important fuetor in determ ining the lateral limits of the vein in places where, as is generally true, it is without defined walls. 1 am unable to concur in the view that the vein is of the full width of the sheared zone. If by sheared zone is meant the broad area in which some measure of shear ing may be found. And it may be added that in practice neither party consistently adheres to such a theory. We might possibly lie justified in put ting a strain upon the general defin ition of a vein by assuming Its iden tity with the shear zone (which is probably several thousand feet wide In places) if by so doing we were en abled to find a clear solution of the problem; but such an assumption does not substantially reduce the dif ficulties. The sheared zone has not been fully explored, but it is to be presumed that the shearing, instead of terminating abruptly, diminishes grad ually, and ultimately fades into the undisturbed country, without leaving definite boundary lines. Indeed, there is no little diversity of opinion on the part of the experts touching the form ation at different points of exposure in the several openings, some affirm ing that It Is sheared, others denying, and still others expressing doubt. Passing now to a consideration of the mineralization, we find the evi dence, if not always illuminating, nt least generally definite and certain. Much stoping has been done from the easterly section of the Morning claim to Its extreme westerly end, to a depth of 1650 feet below No. 5 tunnel level, and some ore has ben taken from the level 1850 feet below such level. It is not controverted, and of course will he assumed, that the stop ed region was substantially mineraliz ed and was upon a single vein. Ex tensive sampling has been made of other localities, and elaborate plats have been introduced, exhibiting the assays of such samples. The work was carried on Independently by each side, but I have not gone to the pains of comparing the results In detail. So far at least as the crosscuts are con cerned, the method adopted by the defendant is preferable and inasmuch as In the argument the defendant's as says were referred to almost exclusive ly, 1 have in the main resorted to them rather than to those of the plaintiff. Few samples were found barren of iron, but because of Its worthlessness as a commercial product and Its prevalence to some degree in the country as well as in the vein, i have not undertaken to analyze or group the assays thereof. It may sim ply be noted that from a hasty sur vey of the plats it becomes manifest that quite generally the percentage in the defendant's workings is substan tially greater than in the workings north of what it asserts to lie the northern limit of the vein. A more analytical study Is thought to be worth while of the assays of silver, lead, and zinc, particularly in the op enings for some distance easterly and westerly from the point where pluin tiff claims the vein divides into two branches. Perhaps it should here be noted that under the plaintiff's theory, the branching is further west as we go down on the vein. First, the de fendant's workings. The most westerly connection be tween its lower and upper workings consists of u series of raises from a point on No. 6 tunnel level (800 feet below No. 6 level) ubout 50 feet wes terly from a point vertically beneath the northerly end of the common end line of the Grouse and Iron Crown claims. By traversing these raises and drifts for a short distance one could at the time of the trial (except for about 75 feet in raise, which for that distance, was Incomplete) pass to the surface, in the Iron Crown claim, about 500 feet west of the easterly end and 250 feet south of the north side line, a distance ver tically of approximately 1800 feet, and horizontally In a westerly direction 500 or 600 feet. Twenty-five taken at comparatively regular inter vals In the 800 foot raise from the No. 6 tunnel level to No. 5 show an average of a little over .8 of an ounce of silver, 3.3 per cent lead, and 12.2 ;>er cent zinc, every sample contain ing both lead and zinc. About 50 feet easterly on No. 5 tunnel level from this raise there is an incline raise from No. 5 tunnel level to the Lower Grouse tunnel, which Is about 100 feet above the No. 4 Morning tunnel, and at a point about half way up this raise passes through a large dike for a distance of approximately 150 feet. Through this as well as the unfinished section approximating a distance of 225 feet, no samples were taken. The remaining portions ap proximating 475 feet, were sampled at eighteen different points, and these samples show an average of .6 of an ounce In silver, 2.5 per cent lead, and 9.1 per cent zinc, both lead and zinc being found in every sample. From a point Just east of this raise upon the Lower Grouse tunnel another raise ascends, with an Inclination corres ponding *.o the dip, a distance of about 409 feet, to the Iron Crown tunnel. Eighteen samples taken upon this raise at regular Intervals show an average of 1 ounce of slvler. about 4,5 per cent lead, and 7 per cent zinc. Proceeding westerly In the Iron Crown tunnel for a distance of ubout 150 feet, we come to the Iron Crown raise, from the bottom of which to the surface the distance is about 109 feet. Four samples taken at regular inter vals in the tunnel show an average of nearly 2 ounces of silver, over 7 per cent lead, and over 2 per cent zinc. Four samples distributed at regular intervals in the raise show approxi mately 1.5 ounces of silver, 4 per cent lead, and 1 per cent zinc. No. east and to the west, but about 200 feet to the east is a raise to the Up per Grouse drift or tunnel, a distance of approximately 400 feet, westerly upon this drift about 100 feet Is ano ther raise leading to the surface, a distance of about 300 feet, tile opening being about 150 feet east of the Star easterly end lines projected. It would serve no good purpose to anaylze the assays of these workings in detail. It will suffice to say that sampling sim ilar lo that upon the other series of raises to the west gives similar re sults, the variations and averages be ing closely analogous. With one or two exceptions a lead content is shown in every sample. Zinc is not quite so uniform in percentage as lead, and sil ver, as in the other raises, is much more irregular. It may be added that below the No. 5 tunnel level at this point, both to the east and for a con siderable distance to the west, the ore has been pretty well stoped out to a depth of nearly 1500 feet. We thus got a fair conception of the nature and extent of the min eralization of what is referred to as the Morning vein, which, it is reason able to conclude, is continuous in its course from the easterly end of the Morning claim in a northwesterly dir ection to and beyond the first series of raises described, .and in its dip reaches all of the defendant's stopes, levels, shafts, and raises, Including those beneath the surface of the Eve ning Star, with Its apex, or at least a portion of its apex, substantially in the position claimed for it by the de fendant, as already stated. Now whut of the mineralization dis closed In the openings made or caused to be made by the plaintiff to the north? Its properties have never been operated. To the west development work of considerable magnitude had been prosecuted, prior to the com mencement of this suit, but practical ly nothing had been done In the east erly part of the Evening Star. A tunnel had been driven near the sur face In the southwesterly corner of this claim, and through a main tun nel driven In from the south, west of the Iron Crown claim, extensive drifts hud been made on a level about 100 feet below the Morning No. 4 tunnel level, and these drifts were connect ed by a raise with drifts from a cross-, cut from the westerly end of Morning No. 5 tunnel level. In some places stuping ore had been disclosed, but the evidence Is very indefinite as to the amount thereof. Chiefly for the purpose of the trial of this case, as I understand, the drift upon the Star main tunnel level was continued in an easterly direction to approximately the easterly end and near the south erly side of the Star claim, with sev eral crosscuts therefrom, both long and short. Also for the purpose of dis closing the geology in the section re ferred to, plaintiff caused six cross cuts to be driven northerly from the defendant's workings, the one which I shall refer to ns No. 1 west, being from the No. 4 tunnel level, three, re ferred to as numbers 1, 3, and 5, be sides a short drift, frojn No. 5 tunnel level, and two from the raise herein before described as connecting No. 6 tunnel level with No. 5; also a tunnel referred to as "B," near the surface, from a point a short distance southerly from the southeast corner of the Eve ning Star along the easterly end line, for a distance of about 200 feet. It will be observed that the lowest and most westerly of these crosscuts, from the defendant's workings, are the two driven from the raise between No. 6 and No. 5 For these I find no as says among the defendant's exhibits, and it is not entirely clear just what significance should be attached to the plaintiff's assays. The first crosscut Is about 200 feet above No. 6 tunnel level, and the second 200 feet further up. The lower one Is 140 feet In length, and the upper one 180. Four samples were taken by the plaintiff upon each, at the points, and, as I un derstand, the only points, where it was thought there was any mineralization. In tiie lower or shorter one the two samples taken within the first 70 feet disclosed no silver, lead or zinc. The third one, taken for a width of 13 feet along the crosscut, out about 75 feet from the mouth, showed no silver, .7 per cent of lead, and 1.1. per cent zinc. And the last one, out about 130 feet, covering a distance along the crosscut of two feet, showed 1.9 ounces silver, 4.6 per cent lead, and .8 per cent zinc. It will thus appear that for an aggregate of 125 feet of Its length the cut is wholly barren. No sample was taken of the last TOO feet of the upper crosscut; presumably for the reason that in that part it was barren. A sample taken for a width of two Inches close to the mouth, pre sumable covering a small seam, show ed .9 of an ounce of silver, 3.1 per cent lead, and 13.8 per cent zinc. One taken out 25 feet further, covering a width of three feet, shows .1 of an ounce of silver, no lead, and only .2 of 1 per cent of zinc. One of the same width, taken out 30 feet further, shows the same in silver, and a little higher in lead and zinc. The other one, cov ering only two inches, doubtless an other seam, shows 5.3 ounces of sil ver, 12 per cent lead, and 22.6 per cent zinc. It will be observed that no sub stantial mineralization is shown in the entire 180 feet, except for the aggre gate of four Inches. Almost vertically above these two crosscuts is No. 5 crosscut, extending from No. 5 tunnel level at the foot of No. 5 inclined raise, for a distance to the north of 245 feet, passing from beneath the ^surface of the Iron Crown into the Evening Star. In the first 17 feet from the north wall of the drift there is about .4 of an ounce sil ver, over 2 per cent lead, and 2 (4 per cent zinc; for the next 200 feet the as sayed samples show an average of a little more than .1 of an ounce silver, and a little less than .9 of 1 per cent lead, and .8 of 1 per cent zinc. For the first 30 feet of the 200 there is no trace of any of these metals; then 60 feet a little richer than the average; then 80 feet without a trace of silver, with lead less than .3 of 1 per pent, and zinc less than .1 of 1 per cent. Most of the mineral content is found in a few small seams. At a distance of about 20 feet from the face there Is what appears to be an isolated bunch of good ore. and for the last 18 or 20 feet there Is no trace of silver, lead or zinc. Extending southerly from the main Star drift approximately 400 feet above crosscut No. 5. Just discussed, Is Star crosscut No. 6, about 140 feet In length, the face of it being almost vertically over No. 5 tunnel. The most northerly 10 feet shows .2 of an ounce sliver, 1 per cent lead, and .6 of 1 per cent zinc; the next 10 feet nothing; the next 10 feet no silver, a trace of lead, and .6 of T per cent of zinc: and the whole of the remaining distance of 110 feet nothing at all. In another crosscut, referred to on one of the models ns "Star 8," about 200 feet westerly, on the same level, a little longer than the one Just de stribed, and extending northerly from the Star drift, which, at this (mint, by bending to the south, comes into close proximity with defendant's No. 5 in dined raise, practically the same dearth of mineralization is shown, Likewise, no substantial mineraliza tion is shown In the drift for approx imately 125 feet northwest from the mouth of this crosscut. Substantial mineralization is shown in the Cun theiningham tunnel, a little further west, and near the aurface, but It la over 200 feet northerly from the Iron Crown raise and cut, and there are no works to disclose the intervening geo logical conditions, or to show connec tlon of the admitted apex in the Iron Crown with the mineralization In this tunnel. The course of the Star drift running easterly from the northerly portion of No. 8 Star crosscut, is lr regular, but, generally speaking, it lies northerly from the Morning works, a distance f»f between 100 feet and 200 feet, approaching them a lit* tle more closely as it proceeds in an easterly direction, and, as already stated, it 1 b between 400 and 500 feet hlgher than defendant's No. 5 tunnel level, and between 50 and 100 feet be low its No. 4 tunnel level. In its southeasterly course It passes under neath crosscut No. 1 west from the No. 4 tunnel level, which will be re-j ferred to later. From No. 8 Star crosscut easterly to a point a little beyond Star crosscut No. 6, a distance of about 175 feet, the drift shows no mineralization at all, except a small percentage of lead and zinc in one sample taken about 40 feet from the starting point; then for a distance of a little over 100 feet there is an erage of .2 of an ounce silver, approx tmately 3 per cent lead, and a little over 3 per cent zinc, and then nothing for about 125 feet; then about 2 per! cent lead for 30 feet and 1 per cent zinc; and practically nothing for the next 150 feet. So also with two cross cuts running in a southerly direction, one 50 feet in length and the other 100 feet, and one In a northerly direction about 75 feet, they are pretty nearly barren. The longer of the two south erly ones shows no silver and only a trace of zinc, and less than .4 of 1 per cent lead, with nothing at all in the last 25 feet. This drift, as I under stand, was being extended at the time of the trial, and reaches pretty nearly the eastern end of the Evening Star, For the extreme easterly 300 feet, passing underneath crosscut No. 1. west, the defendant has supplied no assays. For about 150 feet west of the point where it passes beneath the No. 1 west crosscut. It shows consid erable mineralization, if I rightly in terpret the plaintiff's assays, the erage of eight samples taken at com paratively regular intervals being! about 1.3 ounces silver, 8.3 per cent, lead, and 4.6 per cent zinc. The lead average is increased very much by one sample showing 28.6 per cent, a percentage so high, as compared with the general run, as to suggest the probability of error — especially in! the light of assays upon crosscut No. 1 west above and crosscuts 1 and 3 beneath the drift. Or it is possible that the sample was taken upon a seam cutting across ruther than run ning in the direction of the drift. In No. 3 crosscut, extending north-l erly from No. 5 tunnel level to a length of approximately 100 feet, a short distance westerly from the oc currence referred to as the Mule Sta ble Horse, and between 200 and 250 feet westerly from the easterly end line of the Evening Star, there is- an average of a little more than .1 of an ounce silver, 1.3 per cent lead, and 1.5 per cent zinc. In NO. 1 crosscut, extending about 50 feet northerly from the branch of the No. 5 tunnel running north of the mule stable horse, about 150 feet easterly from No. 3 crosscut, there is no silver, no lead, and but little more than a trace of zinc. In a drift from No. 5 tunnel inter mediate between these two crosscuts, extending for about 60 feet in a northwesterly direction, the metal content for the whole distance is small, and for the last 40 feet neglt gible. Of crosscut No. 1 west, extending northerly about 210 feet from No. 4 tunnel level, at a point about 50 feet west of the most northerly stope up on that level beneath the surface of the Grouse and Evening Star claims, about 150 feet westerly from the east end line of the Evening Star, the de fendant produces not only a table of assays, but a plat upon a large scale, exhibiting the mineral occurrences. A section of the tunnel level (about 10 feet in width), at the mouth of the crosscut, shows substantial mineralization for the greater part of the width, in parallel bands or streaks running with the tunnel, the bands being differentiated by the kind or quality of mineral content. The assay for the entire cross section shows 1.8 ounces silver, 3.6 per cent lead, and 22 per cent zinc. The first 10 feet of the crosscut shows no silver, and but a trace of lead and zinc. In the next 10 feet there is a zone about 5 feet In width very substantially mineralized, the average for the entire 10 feet be ing 1 ounce silver, 5.1 per cent lead, and 4.9 per cent zinc. In the next 10 feet there are several narrow seams, and one about a foot, in width, the average assay being 1.2 ounces sil ver, 2.9 per cent lead, and 3.3 per cent zlnc. Then for a little over 50 feet there are widely separated small seams—and one about five inches in width carrying a high percentage of zinc—the average for the entire dl.v tance^belng about .1 qf an ounce all ver, .7 per cent lead, and 2.4 per cent zinc. Then follows a space of over 100 feet, where a few small seams yield a negligible average—silver be ing found in only one of the 10-foot sectlons, lead in for or five of them, but nowhere as high as 1 per cent, and nothing more than a trace of zinc in any of them. In the next to the last 10-foot section there are two small seams, giving an average of 1.2 per cent lead, and .2 of 1 per cent of zinc, The last section is entirely barren. It will thus be seen that with the excep tion of the first part of the crosscut— say 40 feet at the most—the mineral ization is so light as to be of no sub stantial value. It should be added that all of the mineralized seams *e ferred to run in the general direction of the tunnel or drift, but not always parallel therewith. A comparison of the plaintiff's as says of this cross-section is not with out interest. In the first 40 feet four mineralized sect ons were found, In width and of values as follows: a | cross Width in Feet 6.5 9 .1 .1 .1 .3 .2 It will be observed that all of these samples are of what must have been narrow seams only aggregating a to tal width of only 7 of a foot leavln* barren 29.3 feet. In the next 85 nr on feet no samples were taken presum ably for the reason that nomlnerali zation was observed feet, four sample* Silver Lead Zinc .1 3.5 5.7 2 r . 1.7 6.6 T LI 6 1.1 3.4 40.2 It will be observed that the last sample Is of a small seam, and that the aggregate of the mineralized tions is 17.6 feet, leaving totally bar ren 22.4 feet. There follows a barren space of about 15 feet, and then In a segment of about 30 feet, four sam ples were taken, assaying as follows: Width see. In Feet Sliver Lend Zinc .9 2,5 8.6 .9 4.1 22.7 .0 .7 1.1 7.6 23.3 7.9 In the last 35 were tak«p, all upon narrow seams aggregating a to tal width of only .8 of a foot, the min eralization in such seams running high In silver and lead, but, if com puted to cover the intervening barren'some ground as well, almost negligible in percentage. Manifestly, insofar plaintifT relies upon continuity of mineralization, this exhibit makes even a poorer showing than that of the defendant. The position of the "B" tunnel, near the surface, along the easterly end line of the Star, gives it the character of a crosscut. It was assayed by the de fendant throughout its entire length of 207 feet to its face. The assays'of disclose no lead at all, excepting .7 per cent in the 7-foot section at the face, and .4 per cent in the 10-foot section next thereto. No zinc at all is shown, and silver in but five of the sections. It has a low percentage of iron throughout, averaging not much higher than in other places conceded to be outside the vein. The analysis it Is thought demon strates the fact that upon the average mineralization of the ground immedi 'ately to the north of defendant's works is meager, irregular in the extreme, generally is found in small isol ated seams. And when we look upon the broad apex as painted upon the plaintiff's surface map, and undertake by scientific inference to coordinate it with the known conditions under ground, we find that so much is left tc conjecture that In the main the de picted boundaries must be deemed to be fanciful or arbitrary. What sub tsantial reason, for example, can be adduced for putting the northern limit of the apex at the eastern end of the Star, where it is, rather than a hundred or two hundred feet further north or a hundred or two hundred 'feet further south'.' If Star tunnel "B" proves anything, it proves that it is either altogether within or alto gether without the vein, and yet the northern limit of the apex as painted upon the map Intersects it and ex eludes the northerly 25 feet, the only section assaying either of the two most valuable vein minerals. Some witnesses for both plaintiff and de fendant testified that it was wholly in sheared zone, and is at least 600 feet to the nearest working below from which even a remote inference could be drawn touching the apex, And why, it may be asked, if we are to adopt the broad apex theory, is the northern boundary not pushed far enough north to take in the Star dis covery, which is only about 100 feet northerly from the face of the tunnel, wind thus possibly connect the min eral occurrences in the Star workings with the Star discovery vein? As showing that such an inquiry is not fanciful, reference may be made to the testimony of one qf the plaintiff's ex pert witnesses, who, after describing "B" tunnel and certain openings near ifs mouth, said: "I am unable to say as to the width of the vein. The work ings appear to be wholly within it." It is but little further from one end of the tunnel to the Star discovery than from the other end to the ad mitted apex in the Grouse, and like wise it is about the same distance lat erally from the main Star drift to the apex of the Grouse as to the apex of the Star discovery vein, assuming for it a northwesterly and southeasterly course. Upon the whole I am inclin ed to reject the broad apex theory. It Involves too many conjectures and on ly substitutes new difficulties for old. Under the assumption that the vein is of such character and branches, no one can say even approximately where upon any level the branching takes place; it Is a guess and nothing more. For many years, during a per iod when there could have been little thought other than of finding the ore and extracting it, the Morning miners pushed their work to great length and depth, but within a narrow compass, not unerringly, it is true, but if now and then they went astray they soon came back to the narrow zone. I am inclined to give weight to this fact, and to hold that in the main the Mor ning vein does not greatly exceed the width of the workings. It strongly suggests that while the vein is with out well defined walls, by some means the miners have, in workings of great magnitude, distinguished between that which they have mined and that which they have left undisturbed. It isn't a sufficient answer to say that their op erations have been limited to commer dal ore; such is not the case. Stop able ore Is not continuous either up on the strike or the dip, and it was often necessary for them to drive or sink through barren ground to find new ore hodies. It is not a case merely of finding the pay ore within a narrow compass at one point upon a broad vein; here it has been sought for and frequently found in alignment for great distances both longitudinally and vertically, and if there is a broad vein two or three hundred feet in width, generally, though not uniform ly, mineralized, the commercial ore being now on this side and now on that, it is difficult to understand why, upon exhausting one ore body, the miners have not, in seeking another, crosscut to the limit of the vein, in stead of driving along its course, un less, as already suggested, in some way they have been able to distinguish the narorw zone which they have fol lowed, from the formation upon both sides. The discussion has perhaps already exceeded reasonable bounds, and I make no attempt to review the decided cases. The following either directly or remotely throw light upon the principles Involved, and are not thought to be out of harmony with the conclusion I have reached. Iron Silver Mining Co. v. chessman, 116 U. S. 537, Lawson v. Mining Co., 207 U. S. 1; s. c. 134 Fed. 769. Htevens v. Williams, 1 McCreary, 488 and 572. Eureka Conn. v. Richmond M. Co., 4 Sawyer, 302, (see also comment on this case in Lindley on Mines, Vol. 1. Sec 292, p. 655). Bunker Hill, etc. v. Empire State, 134 Fed. 273. Migeon v. Mont. Cent. Ky. Co., 77 Fed. 249. Doe Waterloo M. Co., 54 Fed. 935. Cheesman v. Shreve, 40 Fed. 787. Chark-Montana v. Butte Sup., 233 Fed. 547. Hyman v. Wheeler, 29 Fed. I 347. Book v. Justice M. Co., 58 Fed. 106 ' | While I have little hesitation in holding that the evidence is insuffl- j clent to warrant a recognition of the j broad vein theory, and that therefore | is not a case of bisected apex, it is be admitted there still remains much difficulty in formulating a de- I scription sufficient for a decree quiet-I ing the defendant's title. In general hold that both upon its course and dip the vein lies within the plane the defendant's drifts or tunnels and raises, with little lateral exten sion either way therefrom. The southern limit is of course unneces sary to determine. In the main I am inclined to regard the mineral occur rerees shown in the crosscuts to the north as being without the vein; they chiefly small seams accompanying, ut the same time distinct from and Independent of, the Morning vein. Be- i cause of their extent and close prox- , lmity to the defendant's workings, two ! the occurrences are involved in I much doubt. The one is the No. 5 crosscut from No. 5 tunnel level, be tween the mouth of the crosscut and dike 16 or 18 inches from the north 25 feet from the south wall of the drift. I find that the south side of the at thlB point marks the limits of vein. The other occurrence is about 16 inches from the m ® ut J ®| crosscut No. 1 west_OB No. 4 tunnai level. The geology of thisi sector. Dot .upon this level and upon No. 5, and to extent upon lower levels, is in* measure unusual, and, it is to be aa aslmitted, strongly suggests a close re latlon of some character between tne ore occurrences in the Morning vein and those In the Star drift. wnue there is no clear evidence of a fissure departing from the Morning vein as a branch or strand thereof, a com plexity and irregularity In the fractur ing has resulted in bringing the min ieral occurrences of the Star raise and the Morning vein into close prox Unity, if not into actual union, i discussing the situation at that point, | Professor Leith, one of the experts ; for the plaintiff, after'eeferrlng to the 1 main. Star drift, especially the eastern j section, testified: "It is necessary, then, to find out where this Star vein belongs in the scheme of things to project, to use the best inferences possible. The nearest point at which the Star tunnel lode reaches parts of the lode which have been definitely identified as the Morn ing lode Is near the easterly end line of the Star tunnel, which is about 100 feet below the north crosscut in the No. 4 tunnel area, about which so much has been said, crosscut 368 feet there is mineralization and shearing of substantially the same type as found 100 feet below in the easterly exten sion of the Star. There can be no question of that so far as the mineral composition, the structure and cleavage or those two things are es sentially alike. Note that that does not involve the conception of the Star vein coming into the Morning at an angle—a direct connection due <o the Introduction of a distinct vein coming in and splitting at a definite point from another distinct vein. In other words, one does not find in this east end of the Star a definite vein with a strike and dip which would bring it down into this position at the place painted No. 4 level, "One does not crosscut on the No. 4 level such a con dition. But one does find a minerallz ed zone coming through here to the east similar in all respects to that mineralized zone occurring 100 above, in this relationship to Morning vein. Some of these minor fissures may come in, I think very likely will come in, to the Morning vein. Some of them very likely will not. I do not lay any stress on any individual fissure. I simply take the general mineralization and the struc ture. "Now, as to whether or not that is a real and substantial connection it is perhaps hard to be dogmatic when we are discussing indefinite terms like structures, mineralization, and so on. There may be honest differences of opinion in the matters observed in things of that sort. Though I purpose a moment later to take the assay sheets of this territory in order to show how some quantitative measures can be applied to that question as to whether this is a real and substantial connection." In view of these conditions, it is thought that in this sector the defend ant should be limited to what, in the actual conduct of its mining opera tions, it seems to have decided was the width of the vein, and accordingly it is held that within all the ground vertically beneath the surface of the Evening Star claim, the northerly limit of the Morning vein is five feet northerly from the plane of the north walls of the defendant's tunnels or drifts, its raises and other workings, upon the direction of the strike and dip. Granted that such a boundary is wanting in geologic accuracy; it is a fair approximation, and no suggest ed limit is free from a similar objeo tion. Strictly speaking, the conclusion thus reached upon the first general In quiry makes it unnecessary to find upon the question of priority of de covery, but it will not be amiss also to state my findings upon that branch of the case. The Grouse was located September 14, 1886, and patent issued January 8, 1897. The Evening Star was located January 1, 1887, and pat ent issued July 21, 1904. The iron Crown was originally located Septem her 1, 1884, and "relocated" by the same parties August 14, 1888, and pat ented January 8, 1897. As already noted, both the Grouse and Iron Crown overlap the Evening Star, but the owners of the latter did not ad verse, and accordingly the patents for the Grouse and Iron Crown cover the entire claims, including the area in conflict. II is not disputed that "a patent is conclusive that the patentee has done all required by law as a condition of the issue, and that it re lutes to the Initiation of the patentee's right, and cuts off all intervening claims." Mining Co. v. Tunnel Co., 196 U. lb 337, 345; or, putting it in an other way, that upon the issuance of a patent a conclusive presumption arises that there is a discovery vein within the ground patented, that the claim was properly located thereon, and that all precedent acts necessary to auth orize the issuance of a patent had been performed. Steward Mining Co. v. Bourne, 218 Fed. 327. It is also conceded that discovery, if seasonably followed by the requisite acts of loca tion, constitutes the initial fact. But upon the question whether the patent concludes the right of third parties later to raise an issue as to the time when discovery was made and the acts of location performed, the parties are not in agreement, the defendant .contending that the patent proceed ings amount to an adjudication that a valid location, including discovery, was made at the date of the certlti cate of location, and the palintiff that the estoppel extends only to the fact of a valid location, but not to the time thereof. If the question Is not entire ly foreclosed, it is at least reduced to a very narrow compass by the follow ing comparatively recent decisions' Mining Co. v. Tunnel Co., 196 U 8 337 Lawson v. United States Min. Co 134 Fed. 769, s. c. (affirmed) 207 U. S. 1. El Paso Brick Co. v. Mcknight, 233 U. 8. 250. Butte & Superior Co. v. Clark Montana R. Co., (9th C. C. 8.), decl sion filed February 18, 1918. These cases undoubtedly settle the proposl tion that where there is an area of conflict the putent Is a conclusive de termination In favor of the patentee, not only of the surface rights, but also of the extralateral rights following or incident to the ownership of such area; also, if the time of discovery location was actually put In issue or was necessarily involved, all parties are included. As I read them, how ever, taken together, they do not speak with entire clearness upon the precise question under consideration. In the Tunnel company case, Involving a con troversy between a lode claimant and tunnel claimant, the following lan gunge is used: "Undoubtedly, so far as the question of .time Is essential to the right, the patent is conclusive, but Is beyond that?'. . . So when the owner of a lode claim makes applica tion for a putent and the owner of an other seeks to challenge the former's priority of right on account of the date of discovery, it is his duty to bring an adverse suit, and if he fails do so that question will be as to him concluded. Such is the purpose and effect of the adverse proceedings," The Brick company case was an ad verse brought by McKnlght, the holder In In that north from No. 4 level the find In the north feet the 8 or of a conflicting placer claim, against the Brick company, upon a second ap plication for patent, it having been decided by the land department, after issuing a final receipt upon its first application, to which there was no ad verse, that the proceedings were fatal ly defective because of an irregularity in giving notice. The court, imputing to such final receipt substantially the same force as a patent, said of it: "The entry by the local land officers issuing the final receipt was in the na ture of a judgment in rent (Wright v. Tiubols, 21 Fed. 693), and determined that the brick company's original lo cations were valid, and that every thing necessary to keep them in force, including the annual assessment work, had been done. It also adjudicated that no adverse claim existed, and that the brick company was entitled t,o a patent." But in the Lawson case it is apparently held that where there is a longitudinally bisected apex, such as the plaintiff contends we have here, the patent, does not foreclose the question of priority. Where the claims are adjacent and there is no surface conflict, manifestly neither party is concluded by the other's pat ent proceedings, for without a surface conflict there can be no adverse. Such a case is in principle not unlike one where there is an underground union between two veins apexing in two ad joining. but not conflicting, claims. Upon the other hand, inasmuch as an adverse will lie where there is a sur face conflict covering a portion of the bisected apex, there is much force in the argument that the patent proceed ings should be deemed to constitute an adjudication of the patentee's superior right to the entire vein; otherwise it, would be practically without effect even as to surface rights, for the en tire surface of the conflict area might be upon the apex. But I am unable to distinguish the substantial facts of the Lawson case from those here involved, and accordingly, upon the authority of that case, it is held that the question of priority of discovery is not con cluded by the defendant's patent. There still remain the question whe ther the patent proceedings have any probative value. I am inclined to the view that under the circumstances they should be held to raise a rebut tal presumption or to furnish basis for an inference of fact sufficient to make a prima facie case of priority. Thom as v. South Butte Co., 211 Fed. 105, 107. More than twenty-five years have elapsed since the Grouse and Evening Star were located. Even though few of the witnesses may have died or disappeared, the available sources for proofs are far from satis factory. As is abundantly illustrated In the argument, oral testimony touch ing the details of the discovery and location of a claim of such age is in herently weak. The very fact that a witness attempts to relate just how a claim was located that long ago, or to state positively that the discovery was in one year rather than another, is seized upon as evidence that either he has fabricated his story or he is the unconscious victim of mental sugges tion. Grouse conflict, the locators Evening Star doubtless knew of the location or attempted location of the Grouse at the time they made their locution. Of record it appeared to have priority when the patent pro ceedings were taken, and in such pro ceedings it was manifest that priority was claimed for it. Neither here nor in the record of the patent proceedings is there any intimation of a reason why the owners of the Evening Star failed to adverse, unless it be that they conceded priority to the Grouse, if, in those years when the evidence was more accessible, they did not be lieve that the Groues held the prior right, it is for them to furnish an ex planatiorT* why they failed to assert their rights, for men do not abandon their property without a reason. The natural and almost unavoidable infer ence • Is that they then conceded the Grouse's priority, and, in giving reas onable weight, to such inference, 1 am* inclined to find such priority. In or der that the question decided may be clearly defined especially in the event of a review by an appellate court, it is proper to add that if, under the cir cumstances, no Inference can be drawn from the failure of the owners of the Star to adverse, my finding must be the other way. Some of the testi mony on each side is highly im probable, and I am unable to say that it preponderates for the defend ant. Other questions touching de tails of location must be ruled against the plaintiff, upon the authority of Yosemlte M. Co. v. Emerson, 208 U. S. 30, the Lawson case, and the Butte & Superior company case, supra. The Iron Crown I find relates back only to its "relocation,' 'and it is held to be subsequent in time and inferior in right to the Star. Counsel for the defendant are direct ed to prepare a decree In harmony with the views herein expressed. Considering separately the of the TARBOX. Recent 8amplet From the Mine Assay 15 Ounce* in Silver. A number of Wallace men have vis ited the Tarbox, near Saltese, Mont ana, during the past week or two and all have returned most favorably im pressed with the great body of ore that has been developed on the 800 level. All agree that the future of the property Is now assured, but in order to prove the ore at further depth It is stated that the management contem plates sinking a winze on the ore 200 feet further from the 800. Already the company is planning for a mill which is expected to be built this Considerable copper has summer. made Its appearance along with lead and zinc on the 800 level, which is a Samples new feature In the Tarbox. this copper ore, representing about feet in width, were assayed here this week and in addition to commer cial values in lead, zinc and copper, returned 15 ounces in silver. a new silver record In Tarbox ore and a feature of very great Import ance, considering the present price of silver. This MOVE CLOCK8 AHEAD. Don't Forget That Saving Dayilght B*gin* on April 1. All time pieces are to be Het ahead one hour on April 1 to conform to the provisions of law just passed by con gress, for the purpose of saving day light. On November 1 the clocks will turned back one hour for the same It is important that all purpose. people should bear this change of time in mind, otherwise it may be the cause of much confusion and possible loss. Turn your watch or clock ahead one hour when you go to bed Sunday evening.