Zane, C. J.:
This is an appeal from a judgment rendered in the first district court on a cross-complaint filed by respondents. Reversal of the judgment is asked on account of alleged errors in every stage of the proceedings. The alleged errors that are deemed most important, and those upon which chief reliance was placed during the hearing will be separately considered.
The appellant alleged in its complaint ownership in fee and lawful possession of lot No. 76, (describing it;) and appellant further alleged that there was in said lot a lode of rock in place, bearing silver and other valuable minerals, having its apex wholly within the surface lines thereof; that on and subsequently to the third day of January, 1883, and before the institution of this suit, the defendant company, claiming to be in the possession of the Eureka mine, adjoining plaintiff’s claim on the east, had extended its underground workings into the claim of the plaintiff, and had taken therefrom 2,000 tons of ore of the value of $150,000; that the defendant company was still working, and threatening to continue, and is thereby committing waste and irreparable injury upon plaintiff’s property, which is valuable for its ore alone; and plaintiff asked for judgment, for an injunction during the pendency of the suit, and for a perpetual injunction upon the trial.
Answering the foregoing complaint, the defendant company admitted that it claimed to be a corporation, and that it was in the possession of the Eureka Hill mining-claim, lying immediately east of lot No. 76, but denied all the other material allegations. The defendant company also filed a cross-complaint, and alleged ownership of the [37]*37Eureka Hill ruining claim known as lot No. 39, (describing it); and further alleged that it claimed a lode of rock in place therein, bearing silver and other precious metals for its entire width; that it was older in location and title than the Bullion claim; that the Eureka lode was very wide, and dipped westerly; that a small and comparatively unimportant part of the width thereof was west of the westerly surface line of lot No. 39; that the main part of the width of the vein, and its apex for the entire length of the lot, was within lot No. 39; that for more than one year past apxiellant had been in possession of lot No. 76, claiming to own it, and asserting an adverse claim to about 700 feet of the northerly end of the Eureka lode, and claiming that the same was part of the appellant’s claim; that in pursuance of such adverse claim, and in the assertion thereof, the plaintiff had sunk a shaft in the surface of lot No. 76, near the defendant company’s side line, and had extended it into defendant company’s lode, and had taken therefrom a large quantity of valuable ores, carrying silver and other metals, and had appropriated the same to its own use, thereby wasting and causing irreparable damage to defendant company’s property; that plaintiff continued, by said work, and by this action and otherwise, to assert its adverse, claim, and, as defendant company was informed and believed, threatened to continue and would continue said work, and would further waste defendant company’s property, unless restrained by injunction; and the defendant company prayed that plaintiff’s action be dismissed; that its adverse claiin to said lode, or any part thereof, be adjudged invalid; that the title and possession of the defendant company to such lode, for the entire length of the lot and width of the lode, although some part thereof be in lot No. 76, be quieted and confirmed; that appellant be enjoined pending the action, and upon trial perpetually; and that defendant company have such other and further relief as might be proper.
To this cross-complaint the appellant interposed a general demurrer, alleging that the facts stated did not -constitute a cause of action, and also answered fully.
The court overruled the demurrer, and the appellant as[38]*38signs tbat ruling as error. In the cross-complaint an attempt was made to describe the property affected, the right of the defendant company to it, and the wrong committed by appellant. Are these three facts sufficiently alleged? and, if so, do they, with the other allegations, show a cause of action?
First As to the description of the property. The property consists--First, of the lot, and secondly, of the lode. The term “lot” has one signification; the term “lode” another. The lot consists of a certain number of feet in length and breadth, and is easily ascertained by measurement on the surface. There is no contention as to the description of the lot in this case. The lode consists of aggregations of peculiar matter, and its form can only be found, and its limits determined, by discerning and identifying the qualities and appearances of its composition. In some cases the apex of a vein crops out on the surface; in others it is found a hundred feet or more beneath the surface, and in such a case it can be known with certainty only by the expenditure of time, much labor, and large sums of money. The law does not require impossibilities in describing the subjects of litigation, but reasonable certainty in view of the difficulties. We hold, therefore, that the description of the property is sufficient on a general demurrer. When we reach the question of variance, we will have occasion to consider the allegations of description further. We will defer the consideration of the question raised by the demurrer as to the respondent company’s right to that part of the lode in question, and will consider it with respondent company’s right, as the same appears from the evidence; because, if no variance between the allegation and proofs are found, the legal questions will be identical, and it will be more convenient to consider them together.
With respect to the wrong complained of for which a remedy is sought by the cross-complaint, the appellant affirms that it is not shown that the wrong affected the property to which the plaintiff’s action relates: Section 305, Code Civil Proc., (Laws Utah, 1884), is as follows: “Whenever the defendant seeks affirmative relief against [39]*39any party, relating to or depending npon the contract or transaction upon wbicb the action is sought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court, subsequently, a cross-complaint. . . .”
The appellant instituted the original action to recover damages of respondent for alleged trespass upon the lode or ore bodies described in its complaint, and to restrain further trespass thereon. The respondent company alleged in its cross-complaint that plaintiff in the original action had set up an adverse claim to 700 feet, of its lode, and had asserted, and still was asserting, such claim by the original action, and otherwise. Both wrongs, as alleged, must have affected the same property. The contentions of the original and cross-actions relate-to the same property.
When this case was called for trial in the court below, the plaintiff was unwilling to proceed in the absence of certain witnesses necessary to prove the execution of a contract which it was claimed affected the rights of the parties to the property in dispute; and, to prevent an application for a continuance, the parties stipulated in writing, as we construe the paper, that any rights which the parties might have under that contract should not be litigated in this action, or in any way affected by any decision, finding, judgment, or decree therein, and to that extent (it was further stipulated) the pleadings should be modified. The rights of the parties remaining to be litigated and determined, were such as existed without regard to the contract, and the cross-cause of action was not stricken out as appellant claims.
The appellant also contends that the cross-complaint does not state a good equitable cause of action. By section 620 of the "Code of Civil Procedure, supra, “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.” The language used in this section is very comprehensive. In terms, it authorizes an action by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such ad[40]*40verse claim. Whether the action shall be legal or equitable must be determined by the facts of the case. In 1 Story, Eq. Jur., sec. 76, speaking of the concurrent jurisdiction of equity, the learned author says: “The concurrent jurisdiction, then, of equity, has its true origin in one of two sources; either the courts of law, although they have general jurisdiction in the matter, cannot give adequate, specific, and perfect relief, or, under the actual circumstances of the case, they cannot give any relief at all. The former occurs in all cases when a simple judgment for the plaintiff or for the defendant does not meet the full merits and exigencies of the case, but a variety of adjustments, limitations, and cross-claims are to be introduced and finally acted on, and a decree meeting all the circumstances of the particular case between the very parties is indispensable to distributive justice. The latter occurs when the object sought is incapable of being accomplished by the courts of laxo; as, for instance, a perpetual injunction' or a preventive process to restrain trespass, nuisance, or toaste. It may therefore be said that the concurrent jurisdiction of equity extends to all cases of legal rights when, under the circumstances, there is not a plain, adequate, and complete remedy at law.” The author, in the quotation, instances certain classes of cases in illustration of the application of the principles that he states. He mentions one class in which a simple judgment for the plaintiff or for the defendant would not meet the full - merits and exigencies of the case; another in which a variety of adjustments, limitations, and cross-claims are to be introduced; another in which a perpetual injunction or preventive process is necessary to restrain trespass, nuisance, or waste.
In the case of Livingston v. Livingston, 6 Johns. Ch. 497, iu delivering the opinion, Chancellor Kent said: “Lord Eldon repeatedly suggested the propriety of extending the injunction to trespass as well as waste, and on the ground of preventing irreparable mischief, and the destruction of the substance of the inheritance. The distinction on this point between waste and trespass, which was carefully kept up during the time of Lord [41]*41Hardwicke, was sliaken by Lord Thurlow in Flamang’s Case respecting a mine, and seems to be almost broken down and disregarded by Lord Eldon. This protection is now granted in case o£ timber, coals, lead ore, quarries, etc., and the present established course, as he observed in Thomas v. Oakley, 18 Yes., 184, was to sustain the bill for the purpose of injunction, connecting it with the account in both cases, and not to put the plaintiff to come here for an injunction, and to go to law for damages.” A number of cases are cited in this opinion in support of chancery jurisdiction. Among them, that of Rurder v. Jones, 17 Ves., 110 (where the title to boundary was disputed); Earl Cowper v. Baker, 17 Ves., 128 (against taking stones of a peculiar and valuable quality at the bottom of the sea within the limits of a manor); Cray v. Duke of Northumberland, 17 Ves., 281 (against digging-coal upon the estate of the plaintiff) ; Thomas v. Oakley, ubi supra (against exceeding a limited right to enter and take stone from a quarry). In all these cases the injury was considered a trespass, and in two it was strictly so; and th& principle of the jurisdiction was to preserve the estate from destruction. In this opinion Lord Eldon was represented as saying that the principle was well established that the court of chancery, having jurisdiction for the purposes of the injunction, would not require the plaintiff to go to law for damages, but would retain it for both purposes, and do complete justice. Applying a rule familiar in cases where a bill is filed for the purpose of discovery and relief, the court of equity, having jurisdiction for the purpose of discovery, will retain it for the purpose of relief, and do complete justice between the parties, although the subject of relief might be cognizable in a court of law.
This cross-action was brought for the purpose of trying the appellant’s adverse claim to the right of possession and title to the lode in question, and to quiet the respondent’s title thereto, as well as for the purpose of enjoining the appellant from mining and removing ore therefrom. In order to try the case, and determine it for these purposes, it is necessary to ascertain the boundaries of the vein; for, when a judgment or decree is rendered for specific [42]*42property, or witli respect to it, whether tbe specific property be personal or real, it is necessary to identify the property, and to' that end to describe it. It would be idle to quiet the title to real estate generally, without describing it so that it could be identified. It would be vain to enjoin a party from committing waste on land, or from carrying away the ores from a mine, without describing* the land or the mine, and thereby identifying it. Without such identification the decree would be a vagrant.
The appellant makes no claim to the surface of lot No. 39, nor does the respondent make any claim to the possession or the title of the surface of lot No. 76. • The real oppugnancy in the case is concerning the description and identification of the apex of the lode, and as 'to whether the fact that a part of the apex is within the vertical side lines of the prior location carries the entire vein within the vertical end lines extended westerly. In view of the issue involved, and the relief sought by the cross-complaint, would a judgment at law for the plaintiff or for the defendant meet the full merits and exigencies of the case? The respondent company alleges in its cross-bill that it is in possession of the entire vein; therefore ejectment could not be maintained. The only remedy, remaining would be trespass. Such a judgment would settle the right of possession at the time and place of trespass, and it might or might not determine the title. That would depend upon the issues, the findings, and the judgment. Such a judgment could not ascertain the limits of the apex of the lode, and identify it by metes and bounds, and restrain the appellant from mining and carrying away any portion thereof not identified. It is plain that an action of trespass would .not furnish a plain, adequate and complete remedy.
In the case of Mercedes Min. Co. v. Fremont, 7 Cal., 321, the court says: “But when the alleged trespass is taking away that which cannot be replaced, and which constitutes the substance of the mine itself so as to diminish its value when' restored to the owner, it constitutes a very different case. . . . The only value of a [43]*43gold mining claim, in most cases, consists in the mineral.. For timber, for cultivation, and for other purposes they are generally valueless. If a party removes the gold, he removes all that is of any value in the estate itself. It is emphatically taking away the entire substance of the estate. Another material circumstance is the impossibility of-making any certain estimate of the amount of injury done. In the case of a coal mine or stone quarry, the amount removed can be substantially ascertained by ad-measurement. So, in the case of timber trees, their size, number, and value can be substantially ascertained. But in reference to gold mines this is not the case. There is no mode of estimation approaching substantial accuracy, and hence the greater necessity for preventing that injury which you cannot estimate, and therefore cannot compensate adequately.”
We are of the opinion that the cross-complaint states an equitable cross-cause of action. This view is supported by the following cases: Holland v. Challen, 110 U. S., 15; Central Pac. R. Co. v. Dyer, 1 Sawy., 641; Curtis v. Sutton, 15 Cal., 260; Reynolds v. Crawfordsville Bank, 112 U. S., 405; McMahon v. Henning, 1 McCrary, 516; S. C., 3 Fed. Rep., 353; 3 Pom. Eq. Jur., secs. 1396, 1397, and notes.
The next question raised, in the order in which we are considering them, is one of fact. Does the evidence show one broad lode, or two veins? The respondent claims that the ore found in the two claims constitutes one broad lode, and towards the north end of the Eureka it extends beneath the surface under a portion of the surface of the Bullion. The appellant claims, on the contrary, that there are two veins or lodes. To this question, men of science, of wide reputation and great eminence, as well as skillful and practical miners, were called as witnesses. After a careful inspection and observation of all the workings of the mines, they enumerated their observations, described what they had seen, and reached opposite conclusions.
The following is a question propounded to Dr. T. Sterry Hunt, and his answer thereto:
“Question. ” From your examination of the property in [44]*44tbe Eureka, Montana and Bullion lodes, o£ wliicli you have testified, tbe facts wbicli you observed there, and a description of those facts, which you have now given to the court, I will thank you to state to the court whether or not it is your opinion that all of those workings are in one and the same lode? Answer. Most undoubtedly, as I have defined, that it is all one and the same zone impregnation, and I do not see how it is possible to divide it into two parts unless you divide it into a hundred parts. In many cases, as I have described, you have three or four parallel courses, which are, as I have endeavored to explain, like so many parallel avenues, cut off, continued through, and, so to speak, stair-like. You have lodes and bands, and bands between bands, and all those connected with one another, forming a net-work, which makes, to my mind, an absolute- unity throughout the whole mass. I confess, if I were asked to divide it, I don’t see how.it would be possible to make any distinction between one part and another. They are all indissolubly connected with one another, having a common origin and a unity throughout.-”
The following is a question asked Prof. J. E. Clayton, and his answer thereto:
“Question. From the facts which you have now stated to the court, and your study of the relation they bear to each other, and to this property, what are the general conclusions you draw from them?
Witness. My general conclusions are:
First. That the eruption of the vast body of trachyte or porphyry, immediately east of the Eureka Hill ore-bearing zone, was the primal cause of the fissuring, crushing and buckling of the lime beds.
Second. That the heat evolved by this immense mass of volcanic rock was an active agent in driving the hot gases and mineralized solutions up through the broken and fissured zone of limestone, now known as the ‘Eureka Hill Lode or Ore Zone.’
Third. That the character of the ore deposits shows that the heat was much greater along the east flank and center zone, next to the volcanic rocks, than it was along [45]*45the west flank of the ore deposits, and vastly greater at tbe beginning than at the close.
Fourth. That the whole zone of ore deposits shows beyond a possibility of a donbt that the ore and quartz was deposited by chemical solutions and substitution, mainly of quartz and ore in the place of the lime dissolved out, instead of the filling of open, fissures or other cavities made by the upheaval.
Fifth. That all the facts taken together show that the ore deposits throughout the entire zone were induced by one great cause, namely, the eruption of the volcanic rocks near by, and that all of the various forms and character of the ore deposits in the zone of impregnation are due to the various mechanical and chemical conditions present, and the differences of temperature during the earlier and later periods of the process of depositing the ore.
Sixth. That the Eureka Hill ore belt or lode presents a unity of cause and effect throughout; that its various ore bodies and impregnations had one common source that was continuous in its operations from its beginning to its close; that its ore bodies are all connected with .the central line of deposits in the zone, and cannot be segregated as separate and independent veins distinct from each other in origin or character. Hence the ivhole mineralized zone should be taken as a unity or as a lode.”
The following is a question put to Prof. William P. Blake, and his answer thereto:
“Question. Prom your examination, did you find more than one vein in the properties in controversy?
“Answer. I arrived at the conclusion that there are two veins in the hill.
“Q. Won’t you state,- in your own manner, your reasons for that conclusion, and any other facts or circumstances or authorities bearing upon it, and any observations which have a remote' or indirect bearing upon it that occur to, you.
“A. I have six reasons to give for arriving at that conclusion. Briefly stated, they are:
“First, That the veins are visible, distinct, and sep[46]*46arate. The surface exposures or croppings show it. There are two parallel lines of croppings, separated by strong outcrops of limestone.
“Second. The veins can be followed separately, not only upon the surface, but below the surface, for about 2,000 feet in two well-defined, distinct, and approximately parallel veins.
“Third. The two veins are marked by outcrops of quartz gangue or vein-stone, showing above and below the surface, and separated by strata of limestone between the two veins without quartz gangue.
“Fourth, The ores of the two veins differ in their composition and value.
“Fifth. The veins are separated geologically, being upon two distinct geological horizons.
“Sixth. They have been worked independently, and can be worked independently in the future.”
The following is the answer of Prof. Jenny to a similar question:
“Passing in conclusion upon the subject with respect to the question of whether the east and west veins, and the rock lying between them, is to be regarded as one lode, or is to be regarded as two separate veins, if I understand the question rightly, in assuming the position that the limestone and the veins contained within it — the east and the west veins — constitute one lode, there are upon a person so taking the position two undertakings, a positive and negative one. First, he must show that this whole rock — this country rock lying between the veins and lying on each side — is all really vein matter; and, really, beyond that, he must show further the negative that these mineral deposits are not capable of being separated into two veins; for, if they are capable of being separated into two veins it's unity is destroyed.”
After hearing the testimony of the various witnesses examined, and after making a personal examination of the workings with the consent of the parties, the court below found that the Eureka vein was one broad lode. Among the findings of the court on this point are the following:
[47]*47“The Eureka mining claim is located upon a mineral lode bearing silver and other metals, and in its length and course runs northerly and southerly from the discovery point. From the discovery point southerly the ground rises, the rock is denuded, and the outcrop of the lode is visible at the surface. From the discovery point northerly, the ground descends, and the rock is denuded, and the lode visible at the surface until within about 750 feet from the' northerly end line, and from thence to the northerly end line the lode and bed-rock are covered with sedimentary deposit, increasing in depth as lower ground is reached, and about 600 feet of the northerly part of the Eureka mining claim is covered by such deposit to the •depth of from 100 to 125 feet. Beneath this déposit the lode comes to the surface of the bed rock, is not visible at the surface, and could not be exposed without considerable exploration and expense, which would be useless in practical mining. The Eureka mining claim was located on and along the general strike and course of the Eureka lode, and included the apex of it, and its westerly boundary so far as the same was visible at the surface, and as it appeared to run in its northerly course. The ground northward of the discovery point of the Bullion lot (68) again rises to the northward. The lower ground, which includes the part of the lode in dispute, has been much shattered and disturbed by cross-breaks, and there .appears to have been a westward push or throw of the ground at and near the point of the most prominent cross-break, which is shown by curvature of the stratification, and which at this point has widened the lode and given it and especially the western limit of it, a bend to the westward. From the discovery point of the Eureka mining-claim, the Eureka lode runs northward, and crosses the northerly end line of the mining claim, and from thence to the discovery point of the Bullion mining claim, lot 68. The western boundary of the lode is within the surface ground of the Eureka mining- claim from the discovery point northward, until it reaches the point where the westerly side line of the Eureka mining claim intersects the easterly side line of the Bullion mining claim, lot 76, [48]*48and from thence to tbe northerly end line- of the Eureka mining claim the lode, in its width and on the apex, is partly within and under the surface ground of the Eureka mining claim, and partly within and under the surface ground of the Bullion mining claim, lot 76, and at no point does the whole width or apex of the lode depart from the side line of the Eureka mining claim. The dip of the ore bodies is westerly, and at varying angles from the horizon. The absence of explorations on the top of the lode, and the depth of the sedimentary deposit, renders it impossible to define the western limit of the lode at the apex, but the main shaft of the Eureka works is about 100 feet higher than the discovery point of the Bullion, lot 68, and the 300-foot level of the Eureka works nearly corresponds with the 200-foot level of the Bullion works, and on and from this level the western limit of that part of the lode in dispute can be proximately fixed, and the blue line on Exhibit A shows proximately the western boundary at this level.”
In view of the evidence, we cannot say that the court erred in its findings on this point.
Counsel for appellant also claim that there was a material variance between the allegations of the cross-complaint and the evidence, and that the court erred in not so holding, and in not granting a non-suit. As we have before stated, the description of respondent company’s surface claim is perfect, but the difficulty arises in describing the lode. The evidence shows a larger portion of the apex to be west of the west surface side line of the respondent company’s claim than would appear from the allegations of the complaint. It is, however, alleged in the complaint that the main part of the apex is east of the line, and it is evident from the allegations of the cross-complaint that the respondent company undertook to describe and claimed the lode in its entire width, the part west as well as east. The practice in chancery is, when there has been a full investigation of all the evidence, to permit the parties to amend the pleadings so as to make the allegations correspond to the proofs.
The Code of Civil Procedure of this territory provides [49]*49tliat “no variance between tbe allegations in a pleading and tbe proof is to be deemed material, unless it bas actually misled tbe adverse party to bis prejudice in maintaining bis action or defense upon tbe merits. Whenever it appears tliat a party bas been so misled, tbe court may order tbe pleading to be amended upon sucb terms as may be just.” And section 342: “Where, however, tbe allegation of tbe claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within tbe last two sections, but a failure of' proof:” Laws Utah, 1884, p. 211.
Any variance between tbe allegations and proofs in this case ought not to have misled tbe appellant to its prejudice. We do not find that tbe cross-complaint is unproved in its general scope and meaning.
Tbe court found that tbe western boundary of tbe lode in question is within tbe surface ground of tbe respondent company’s claim until it reached a point about 600 feet south of tbe north end of tbe claim, and from tlience to tbe north end line tbe lode, in its width and on tbe apex, is partly within and under tbe surface ground of tbe Eureka claim, and partly within and under tbe surface ground of tbe Bullion claim, and at no point does tbe whole width or apex depart from tbe side line of tbe Eureka claim; and tbe court held that 'the respondent was entitled to tbe whole lode. In this ruling tbe appellant claims that tbe court erred.
This brings us to tbe legal proposition whether tbe first locator, having tbe apex of a vein entirely within tbe surface lines of bis claim for a portion of its length, and tbe remaining portion partly within and partly without, and within tbe surface lines of another claim, owns tbe whole lode within tbe end lines of tbe claim. We have been referred to but few authorities on this point, and those few are not in entire accord. It is therefore necessary to carefully consider tbe provisions of tbe law providing for tbe location and entry of tbe mineral lands of tbe United States, in order tliat wo may discern therein the intent of Congress,
[50]*50The respondent company’s claim was located under the act of July 26, 1866, and patented under the act of May 10, 1872.
The first section of the former act declares the mineral lands of the public domain, surveyed and unsurveyed, to be free and open to exploration and occupation, etc. The fourth section gives an additional claim for discovery to the discoverer,
The act of 1872 is entitled “An act to promote the development of the mineral resources of the United States.” Its first section declares all valuable mineral deposits of the public domain tobe free and open to exploration, etc. The second section forbids a location without a discovery of a vein or lode. The fourth section provides that where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners thereof shall have the right of possession of all veins or lodes within 3,000 feet of the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line thereof, not appearing on the surface, made by other parties after the commencement of the tunnel, and while being prosecuted'with reasonable diligence, shall be invalid. And other, parts of the act require a certain amount of development work for each year, and, in case of failure to perform such development work, the claim is to be open for re-location. The fourteenth section provides that, where two or more veins intersect or cross each other, the prior locator shall be entitled to all ore or mineral contained within the space of intersection; and, where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection.
These mining laws unmistakably discover an intention to favor and reward diligent discoverers and developers of mines. Letters patent protect the man who invents a new machine for the application of the forces of nature to the uses of man, for the reason that his intelligence, his labor, and his enterprise have conferred a benefit upon society. The public good, as well as justice, demands that the in[51]*51ventor should be encouraged. So the prospector who climbs the mountains, and digs and toils, and discovers a valuable mine, ought to be protected, encouraged, and rewarded for his enterprise, his toil, and his skill. This, it is believed, the public good, as well as justice, demands, and justice and the public good are the chief ends of this law.
Section 2 of the act of 1866 provides “that when any person or association of persons claim a vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, or copper, having previously occupied and improved, etc., . . . it shall and may be lawful for said claimant . . . to file in the local land office a diagram of the same, so extended laterally or otherwise as to conform to the local laws, customs, and rules of mines, and to enter such tract, and receive a patent therefor granting such mine, together with the right to follow such vein or lode, with its dips, angles, and variations, to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition.” The claim to be secured is that to a lode or vein, and the grant is of the mine (which appears to be synonymous in its meaning with the terms “vein” or “lode”), together with the dips, angles, and variations, to any depth, and the right to follow the lode into land adjoining.
The third section requires the surveyor general to designate in his survey the value of the labor and improvements, and the character of the vein exposed, and declares that the survey shall in no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued. This section regards the vein as the valuable subject of the patent.
Section 4 makes provision for the adjustment of government surveys to the limits of mining claims previously located, and provides that no location thereafter made shall exceed 200 feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, to-[52]*52getter witb a reasonable quantity of surface for the convenient working of the same as fixed by local rules; and provides, further, that no person may make more than one location on the same lode, and not more than 3000 feet shall be taken in any one claim by any association of persons. While this section limits the right of a person to a lode longitudinally, it does not limit such right in the direction of the width of the lode. The right as to the width of the surface ground is limited, but not the right as to the width of the vein.
Section 2 of the act of 1872 provides “that mining claims upon veins or lodes shall be governed, as to length, along the vein or lode, by the customs, regulations, and laws in force at the date of their location. And mining claims located after the passage of the act shall not exceed one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor be limited to less than twenty-five feet on each side of the 'middle of the vein at the surface.”
Section 3 declares “that the locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge, . . . shall have the exclusive right of possession and enjoyment of all the surface ground included within the lines of their locations, and of all veins, lodes, and ledges throughout .their entire depth, the top or apex of which lies inside of such surface lines extended downwards vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downwards as to extend outside of the vertical side lines of said surface locations.” And the longitudinal rights of locators are limited by vertical plalb.es drawn downward through the end lines of their claims. The proviso to this section limits the locator’s rights on the surface to the surface lines of his claim, but recognizes his right to the entire vein beneath the surface find downwards.
This section gives the exclusive right of possession and [53]*53enjoyment of the surface of a claim, and to all reins tbe apexes of wbicb are found within planes extended downwards vertically through the surface lines. Does this language mean that the apex must be entirely within those lines, or that it must not be entirely without? When the apex lies partly within and partly without, was it the intention to segregate the rein, or, so to speak, to split it laterally?
The fourteenth section gives the prior locator the entire vein within the space of ihtersection; and, where two or more veins unite, the oldest or prior location takes the whole below the point of union, including the space of intersection. These provisos recognize no division. The point of union may be beneath the surface of the junior claim, and that claim may have the larger vein, but that makes no difference— the first discoverer takes the entire vein below the point of union. The point of union must be regarded as in fact the apex of the united vein, or the tops of the veins which form it must be its apexes; but the apex of the vein first discovered is the legal apex of the united vein, and gives the right to the whole. By complying/with the law the first discoverer takes it all as the reward for his diligence and enterprise, and this would be so notwithstanding that the united lode might be under the surface ground of the junior claim. In a case where a number of veins have so united, if the ore indications had been such as to authorize the conclusion that there was buit one broad vein or lode, then each locator would have been confined to so much as was beneath the surface, and the vein at last might be found beneath the surface of the junior claim, in which case the first discoverer would lose all but a fraction, and the junior discoverer would have almost all that is valuable.. If the law is as claimed by appellant, such would be the result; and when the apex is found, as in this case, a hundred feet beneath the surface, the first discoverer may lose the main body of the vein, if he does not, before locating, take time to explore the entire top of the vein by sinking shafts; and he must lose more or less in any case where the apex is so broad that the law and the rules of miners will [54]*54not permit Mm to make bis surface claim wide enough to cover it.
Tbe lode in question was located under the law of 1866, and section 16 of the act of 1872 declares that nothing contained in that act shall be construed to impair in any way rights or interests under existing laws. Under the law of 1866 the surface ground was merely for the convenient working of the lode. The discoverer and first locator took the lode in its entirety. The law contemplated its segregation in its length, not in its width. It refers to lodes between the end lines, not to a part of a lode. No expression can be found in it indicating an intention to limit the rights of the locator to a portion of the lode in its width. The discovery of any part of the apex of a vein is regarded by it as a discovery of the entire apex. And we think that the law of 1872, when all of its provisions are considered together, and in connection with the former law on the subject, as it should be, evinces the same intent. Under this law the discoverer of any part of the apex gets the right to its entire width, despite the fact that a portion of the width may be outside of the surface side lines of his claim extended downwards vertically. While he has no right to the extra-lateral surface he has a right to the extra lateral lode beneath the surface.
This view is in harmony with the case of Flagstaff Silver Min. Co. v. Tarbet, 98 U. S., 463. In that case the patent of the defendant was for 2,600 feet in length and 100 feet in width, and the location was across the vein. The court held that the side lines became the end lines; that a party could not locate across the vein, and then claim the full length of his claim on the strike, nor could he follow the vein longitudinally entirely outside of his surface lines vertically extended. The court said: “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 it 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 [55]*55continued substantially to correspond witb it. Of wbat use would a location be for any purpose ijf defining tbe rights of tbe parties if it could be thus made to cover a lode or vein which runs entirely away from it?”
In the case before us the apex of the vein did not run off in a different direction, and not return to the location. According to the findings in this case, the location of the claim was along the apex of the vein, and the southerly portion of the apex was entirely within it, but the northerly end of the apex widened out'so that the lode was partly within and partly without.
The circuit court, district of California, used the following language in its charge to the jury in a mining case: “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 which lies to the eastward or outside of and beyond any claim the title to which you find to be in the 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, and your verdict will be for’defendant.” North Noonday Min. Co. v. Orient Min. Co. 6 Sawy., 299; S. C. 1 Fed. Rep., 522.
To the same effect is the case of Rosie v. Richmond Min. Co., 17 Nev., 25, although there the point seems to have been conceded by counsel on both sides. The United States circuit court of Colorado held, however, that a right to an entire lode cannot be asserted under a location covering a part only of its width, and is only good for the part within the lines extended vertically downwards: Hall v. Equator Mining & Smelting Co.
Other decisions upon the point were mentioned by counsel on the argument, but we are unable to obtain any authentic report of them.
The ruling of the court admitting in evidence the patent from the United States to the Eureka Mining Company, which was the source of respondent, company’s title, is [56]*56assigned as error. The laws of the United States require all patents from the general land office to be recorded in that office, and the commissioner is required to furnish exemplifications thereof when required by interested parties, and such exemplifications, authenticated by the seal and certificate of the commissioner, are made evidence equally with the originals thereof. Rev. St., U. S., secs. 454, 458, 461, 891, 2469, 2470. We are of the opinion that section 1198 of the Utah Code of Civil Procedure does not apply to a patent so exemplified.
Numerous other errors are assigned on this record, none of which, in the opinion of this court, are sufficient to authorize a reversal.
Finding- no error in the. record, we affirm the. decree of the trial court.
POWERS, J., concurred.