Location and Discovery a No time is given by the statute in which to make a loca tion as distinct from the fact of discovery. The statute in effect makes discovery and loca tion a unit, and a location without a discovery is of no force. A vein does not always out crop on surface and time may be neces sary to discover the reanired valuable deposit. The statutes of most of the metal mining States have cured this defect in the United States statutes by giving a locator a stated and rea sonable time in which to make a discovery after otherwise perfecting his location, and in con sideration of this they require the to do certain specific work, such as the excavation a discovery shaft of a given circumference and depth. The purpose of such State statutes is to give the locator time to explore the vein and to find its true strike and thus enable him to lay his claim properly upon the surf ice. Such requirements are not in conflict with the United States statutes and are valid and recognized as beneficial.
Sufficiency of Discovery.— The statutory test of a valid mining claim is the discovery of valuable mineral deposits; but a prospector is not required to discover a profitable mine in order to validate his location. The statute is satisfied when minerals have been discovered and the evidence is sufficient to justify a per son of ordinary prudence in making an ex penditure of labor and money with reasonable prospect of success in developing a valuable mine.
Protection of Miner's Possessio A miner not infrequently marks out his sur face location without an actual discovery of minerals and to validate his claim by discovery he proceeds to make excavations in the hope of finding the required valuable mineral deposits. In such a case, where a controversy has arisen, the courts have kindly supplemented the mining statute and protected the miner in what is termed his possessio pedis, so long as he con tinued diligently in prosecuting his discovery work. The courts have not limited thi. bosses sio pedis to the miner's actual working place while seeking a discovery, but hold it to co extensive with his surface location.
Swinging a Claim.—A locator may on mak ing the explorations required by a State statute discover not only the required mineral deposit but may also discover the true strike of the vein and find that his surface location does not comply with the statutory requirements. In such case he may, within the period given by the State statute, swing his claim in any direc tion so as to extend along the strike of the vein within a circular area, the diameter of which is equal to the longest distance claimed from the point of discovery, and all conflicting locations made subsequent to the time of his surface location are invalid to the extent of any conflict.•
Extralateral Rights.— Locators of valid mining claims, on continued compliance with existing laws and regulations, are entitled to the exclusive possession of all ground within their surface lines and of all "veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of the 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 vertical side lines of such surface locations. But their right of pos session 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 lines of their locations so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges." This right to follow a vein beyond the ver tical planes of the side lines of a surface loca tion is known as the "extralateral right?' It is .sometimes referred to as the ((apex" law. The veins of mineral bearing ore in the West ern mining regions are usually in the form of thin and broadly extended sheets, standing or resting at a greater or less angle from the perpendicular. The upper edge of this sheet or vein frequently extends to and is ex posed at the surface and is variously denomi nated the aoutcrop,o ((apex* or "top' of the vein. The line of this outcrop or apex as it extends along, or more or less below, the sur face is called the "strike's and the downward course of the vein is known as its "dip.* Mining operations usually begin at the outcrop, the ore being taken from the vein as it ex tends downward on its dip. The miner in taking out the ore is given the right to follow the vein on its dip without reference to the side lines of his surface location; but he can only follow this dip within the section of the vein as. cut and bounded by the vertical planes of his end lines. The parallelism of the end lines operates to give him the same portion of the vein in following it on its dip. Gen erally, the veins have an identity and continu ity resembling in a degree that of the several roots of a tree and ordinarily can be followed on their dip with the same degree of cer tainty that a single or separate root of a tree could be followed and taken out.