Hallett, J.,
(charging jury.) The part which I have to perform in this extended discussion is very brief. I will read to you first section 2322 of the Revised Statutes of the United States, upon which the controversy in this suit is founded:
“The locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, oi ledge situated on the public domain, their heirs and assigns, where no adverse claim exists on tho tenth day of May, 1872, so long as they comply with the laws of the United Slates, and with state, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of tlieir loealions, and of all veins, lodes, and ledges throughout tlieir entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vortical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward, as above described, through the end lilies of their locations, so continued in tlieir own direction, that such planes will intersect such exterior parts of such veins or ledges. ”
Tho proposition asserted by the plaintiff under that statute is well stated in an instruction asked by the defendants, which I will read to you:
“ The proposition asserted by the plaintiff in his complaint is that there is a vein or lode within the limits of the Durant mining claim, which commences at the north end line, near the center of the claim, the top or apex of which extends thence, in a southerly direction, approximately through tho center of the claim; that this vein or lode, as shown by the workings of tlie Durant claim, extends on its dip in a westerly direction, through the Durant claim, and to and beyond the west side line of said claim, thence into the Emma claim, and that tho said vein or lode is the part of the vein or lode which they allege exists in the said Emma claim; that the plaintiff may recover, it is essential that every one of his propositions be maintained by a preponderance of evidence in the case. Unless it shall appear to you, by a preponderance of the evidence, that wliat is asserted by the plaintiff to be his vein extends to and across the west side line of the Durant claim, he cannot [352]*352recover; and unless it shall be made to appear by a preponderance of the evidence that the alleged Durant vein or lode extends into and is a part of the vein or lode existing in the Emma claim, then he cannot recover; and unless it shall appear to you that the alleged vein has its apex extending from the Durant incline, in a southerly direction, through the Durant claim, at least so far as the so-called apex cuts have been excavated, then he cannot recover. ”
The last clause is modified by a statement in what I have written to the effect that it is necessary that the existence of the outcrop and apex .should be co-extensive with the Emma location; that is, it should appear as far south as the Emma location goes.
Upon the general propositions contained in that instruction, I have the following to say:
Within the limits to which the investigation of facts before a jury is necessarily confined, this case has been fully and elaborately presented for your consideration. Every fact which may aid you in the decision of the matters in issue is brought to your attention as fully and completely as possible. With models and views of the mountain, and maps of all openings in the mine, with ores from the mine and rocks of the different strata, and assays and analyses showing their value and composition, and by the testimony of many witnesses, the parties have done all in their power to enlighten you in respect to the nature of the controversy. The number of witnesses called by the parties was governed by rule of court, so that one could have no advantage over the other in that respect; and the witnesses are arrayed in point of numbers on party lines, half on one side and half on the other, so as to produce an embarrassing conflict of testimony. Such conflict is not an unusual feature of testimony in a mining suit. They have become so common and general that many thoughtful men entertain doubts as to the value and efficiency of trial by jury in such cases. If a given number of witnesses of fair character and intelligence can be produced at the will of the parties for or against any proposition that may arise in a mining controversy, without reference to the truth of the matter, of course the result of such an investigation cannot be very satisfactory. But if we look to the circumstances upon which such conflicts arise, we shall find that they are not wholly due to partisan zeal. To determine the contents of a mountain from what may be seen on the surface, and in some slight explorations underground, is a matter of such difficulty that differences of opinion, even as to facts open to observation, are to be expected. Openings underground, however extensive, when considered in their relation to the great recesses of a mountain, are scarcely more than a vestibule or point of entrance to the unexplored interior. And in openings under-ground, investigation proceeds slowly and laboriously, with many tests which often fall short of the truth. Every one understands the liability to error and mistake in inspecting under-ground works, and how the rock or ore which appears to one to be of a certain class may to another present a different aspect; so that, in the field of observation, there is ample scope for differences of opinion which in themselves do not impeach the candor and fairness of witnesses. These conflicts of testimony, and the [353]*353possibility or probability of error in the testimony of any witness, are worthy of attention, in any effort that may be made to harmonize the testimony, and determine the controlling facts.
In the hooks, and among miners, veins and lodes are invested with many characteristics,-—as that they lie in fissures or other openings in the country rock; that they contain materials differing, or in some respects corresponding, with the country rock; that they are of tabular form, and of a banded structure; that some one or several things are commonly associated with the valuable ores; that they have selvages and sliekensides in the fissures and openings, and the like. It is not necessary to enumerate all the features by which they are known. Some of these characteristics are said to be common to all lodes and veins, and others of rare occurrence; but, in general, witnesses will take up one or more of them as essentiaL features of a lode or vein, and declare the fact upon the presence or absence of such elements. A party seeking to prove the existence of a lode or vein will naturally rely on any such characteristic that he can find in the ground in dispute, and call Witnesses, who will accept that feature as establishing the fact. The party opposed will seek to disprove the proposition advanced against him, and, in addition, lo show that all other characteristics of a lode or vein are in the case under consideration entirely wanting. In this way a fierce conflict of testimony is waged as to the existence of one or another distinguishing feature of a lode or vein, and the jury is asked to return a verdict upon the issue thus made. It is apparent, however, that, upon any issue touching the existence of a lode or vein in a place designated, a question whether it has one characteristic or another is a part only of the main question, and, in the presence of other unquestioned elements establishing the existence of a lode or vein, an issue of that kind becomes immaterial. To illustrate that matter, it may be said that, with ore in mass and position in the body of a mountain, no other fact is required to prove' the existence of a lode of the dimensions of cho ore. As far as it prevails, the ore is a lode, whatever its form or structure may be, and it is not at all necessary to decide any question of fissures, contacts, selvages, sliekensides, or other marks of distinction, in order to establish its character. As was said in another ease in this court:
“A body of mineral or mineral-bearing rock, in the general mass of the mountain, so far as it may continue unbroken, and without interruption! may be regarded as a lode, whatever the boundaries may be. In the existence of such body, and to the extent of it, boundaries are implied.”
If, therefore, we look only to the body of ore developed in the Emma location, the existence of which is not denied, and assume it to be of the form and extent developed in the works, there is no difficulty in recognizing it as a lode. Whether it is in the form of a broken mass of blue and brown lime, between regular wails of the same rocks, or a part of such strata in solid formation, mineralized by replacement of some of their constituents with valuable metals, the result is the same, and the name which science may apply to it is of no importance. An impregnation, to the extent to which it may be traced as a body of ore, is as [354]*354fully within the broad terms of the act of congress as any other form of deposit. In discussions at the bar, and in the opinions of witnesses, it was assumed that the character of a body of ore, as coming within or falling without the act of congress, could be determined by classifying it as a segregated or contact fissure vein, or as a bed or impregnation of ore; and thatit was a matter of importance to ascertain whether the ore was separated from the country roclr by planes or strata of that rock visible to the eye. I see no reason for such distinctions.- It is true that a lode must have boundaries, but there seems to be no reason for saying that' thej must be such as can be seen. There may be other means of determining their existence, and continuance, as by assay and analysis; and certainly the form and mode of occurrence of valuable ore, however controlling and influential in determining its geological character, is not a matter upon which it can be excluded from the terms of the act of congress. All that- is said on this point proceeds on the theory that the ore developed in the Emma location is of the form and extent there appearing, as distinguished from the mass of limestone in which it is found; that it is upon the line of contact between blue and brown lime, and that such line of contact marks its presence and continuance throughout the works. There is much in the testimony to support that view. That, however, is for your consideration, to be decided upon the weight of evidence.
If, as contended by defendants, the ore of that mountain is distributed throughout the blue and brown limestones somewhat unequally, but nevertheless generally, and the occurrence of rich ore in the Emma works is fortuitous and accidental, other considerations arise of which it is not necessary to speak at length. In that case the entire body of blue and brown limestone is taken to be ore-bearing rock, and the plaintiff can assert no claim to it outside his own location. If you accept that view, your verdict should be for defendants. Bearing in mind what has been said, if you decide on the evidence that there is a lode in the Emma ground, you have then to consider whether it is practically continuous from thence to and into the Durant location, with an apex or outcrop in that location. That the- body of ore, as shown by the works, whatever its character may be, extends through the Washington No. 2 to an outcrop on the Spar location, seems to be clearly established. Some witnesses expressed doubt on the subject, but the weight of testimony supports that conclusion. Testimony as to the appearance and extent of the ore in the Washington and Spar claims was received to explain its general character, and as having some bearing upon the question of its existence and extension into the territory of the Durant location to the south.
The character of a vein or lode, and the country adjoining, can be better and more satisfactorily shown through extensive works than in a small area. What weight shall be given to the fact of the persistence of the ore throughout these claims is to be determined by the jury. Without something in the plaintiff’s claim to show a crevice or continuous oré or mineralized rock, it would be of little value. In connection with ev[355]*355idonco showing, or tending to show, some such fact, it may be of considerable value. If you find from the evidence that the ore in the several works is in the form of a brecciatod vein in a fissure between walls, the extension and continuance of such fissure throughout the territory mentioned by the witnesses may be more readily predicated than the same fact as to the ore or mineralized rock only. Upon that point a part of the charge in the case before mentioned is fully applicable to this case:
“To determine whether a lode or vein exists, it is necessary to define those terms; and as to that it is enough to say that a lode or vein is a body oí mineral or mineral bearing rock, within defined boundaries, in the general mass of the mountain. In this definition the elements are the body o£ mineral or mineral bearing rock, and the boundaries. With either of these things well established, very slight evidence, may be accepted as to the existence of the other. A body of mineral or mineral bearing rock in the general mass of the mountain, so far as it may continue unbroken and without interruption, may be regarded as a lode, whatever the boundaries may be. In the existence of such body, and to the extent of it, boundaries are implied. On the other hand, with well-defined boundaries, very slight evidence of ore within such boundaries will prove the existence of a lode. Such boundaries constitute a fissure, and if, in such fissure, ore is found, although at considerable intervals and in small quantities, it is called a lode or vein.”
In that view of the evidence, it may be important to consider and determine whether there is a fissure exposed in the several openings of the mine as asserted by the plaintiff; and, if you find that such fissure exists, whether it is practically continuous and unbroken between strata of blue and brown lime from an outcrop in the Durant claim to the Emma ground below. With such a fissure extending in that way, even if it bo narrow, and carry ore only slight in quantity, and at considerable intervals, the case of the plaintiff may be regarded as established. If, however, you find that the body of ore developed in the several works constitutes a lode, as already defined, but without a fissure inclosing it, your only guide in ascertaining its extent will be the mineralized rock, which in that view of the testimony is taken to be ore. I have explained to you fully that the strata lying along the plane of contact between the blue and brown lime, if mineralized to the extent of showing value in silver, and distinguishable from other parts of the mountain by carrying ore, and by association with the plane of contact, may constitute a mineralized zone. In that state of facts, the contact of blue and brown lime ■furnishes a guide for the miner in his search for ore, in so far as the strata forming the contact arc mineralized. Such a zone is clearly a lode, within the moaning of the law, extending as far as the strata lying on and near the contact may show ore in appreciable quantities.
If the evidence proves the existence of such a lode, the question will be whether it extends throughout the Durant incline, manifested by ore in appreciable amounts in the strata of the contact. A barren contact between blue and brown lime will not suffice to establish a lode in that incline; it must carry ore to some extent, and of some value. To sum up briefly the matters before you, the body of ore exposed in the works of the mine is to bo regarded as a lode, within the meaning of the law, [356]*356unless the whole mass of limestone in which it is found has been mineralized in the same way as the body of ore, and to some extent, and this is a casual concentration of unusual richness.
If it is a “lode,” under this definition, its existence in the Durant claim, and extension therefrom to the Emma ground, is the next question in order. That question may be considered, in the first instance, with reference to the existence or absence of a fissure in the Durant incline and elsewhere, marking the course and continuance of the lode. Secondly, if there is no fissure, is the contact between blue and brown lime mineralized in the manner and to the extent before explained? The affirmative of. the first and second or third of these propositions establishes the plaintiff’s case. The negative of the first, or of the second and third, determines the case for defendants.
Much comment has been made at the bar on the testimony relating to an outcrop or apex of a lode in the Durant location. The plaintiff must show an apex or outcrop within his claim as far south as the Emma claim extends, which is, I believe, about 750 feet. Upon the testimony of the defendants’ witnesses alone, there is scarcely room for doubt as to the presence of an outcrop or apex in the mouth of the Durant incline; and it is said that the ore extends down the incline for a distance of 50 or 60 feet. Whether the apex and outcrop extends further south in the Durant claim is for your consideration, upon all the evidence.
There are certain propositions offered by defendants touching the previous suit of Wheeler v. Marked and others which appear to be correct. The court has admitted, for the consideration of the jury, the bill of complaint, the order of the court, and certain affidavits offered in behalf of the plaintiff, in the case of J. B. Wheeler (one of these defendants) v. C. Markell (one of these defendants) et al. That controversy was one between the Spar and the Washington No. 2 mining claims, adjoining the Durant mining claim upon the north, and they were admitted as giving ,evidence of some admissions upon the part of the defendant Wheeler of the existence of a vein within the Spar lode mining claim. You are specially instructed that the same cannot be considered by you, nor can they have any weight against any of the defendants, except defendant Wheeler, and therefore can be admitted only as admissions against him. In order to construe them correctly, you .should consider the character of the ground, and the amount of openings, at the time of the filing of these affidavits, and the much larger amount of ground opened at the present time; and you will also consider that said Wheeler did not prosecute the suit to a final termination, but dismissed the same of his own volition.
In the matter of the admission of the bill of complaint, the order of the court, and the affidavits of W. B. Devereux and others in behalf of the plaintiff Herein, the same were admitted as admissions made by J.. B. Wheeler, in 1883, upon the subject of the existence of a vein in the Spar- claim and in the Durant. These affidavits are not to be taken as evidence given in this case by those who made the affidavits in support of the claim of the plaintiff that there is a vein in the Durant ground [357]*357which extends into, and is a part of, the body of mineral in the Emma claim; but, grouping them all together, they amount simply to the admission by J. B. Wheeler himself of the existence of a vein in the parts of the territory mentioned in the bill of complaint and affidavits, and this admission is not at all conclusive of the proposition contained in the bill of complaint and affidavits, but they are to be taken as evidence so far as such an admission may bo considered important in determining the affirmative or the negative of the question in dispute in this suit, and m determining whether or not a vein exists in the Durant as claimed by the plaintiff, and extends into the Emma ground, and is part of the lode or vein claimed to exist there. The said admissions of the defendant Wheeler can only be considered in connection with all the other evidence in the case, and, unless the plaintiff shall establish everything essential to his recovery by a preponderance of the evidence, the said admissions being a part of the evidence in his behalf, it will be your duty to render a verdict for the defendants.
Upon the testimony, gentlemen, I do not intend to make any observations. It has been fully discussed by counsel before you. But the position of the witness Thompson in this controversy which he assumed when on the stand seems to call for some notice in a public way. It is most extraordinary that any witness of fair intelligence and ability should put himself in the position which he assumed on the stand, and, had it appeared to me to be a case in which the act was criminal, I certainly should have taken steps to cause him to bo punished for it. But, under the circumstances of this case, and so far as it may affect the issues in this case, you will know how to apply the remedy. I can scarcely believe that any jury would be willing to accept the testimony of a witness who would declare upon the stand that he had made statements in a general way, and for business purposes, outside of the court-room, and with a view to defraud people with whom he was carrying on negotiations, in opposition to his testimony upon the stand. It certainly is a very remarkable instance of the impudence and courage of a man who is destitute of principle.
Upon the other testimony in the case I have, as I said before, no observations to make. You have given patient attention and consideration to it so far, and I trust that in the decision of the case it will receive the consideration to which the importance of the case entitles it.
The verdict was for the plaintiff.