There may be a license to take all of a certain mineral in a designated tract, which is an incorporeal right, of which the dis tinguishing character is that it does not car ry with it a possession exclusive of the own er of the soil ; Barr. & Ad. Mines 53. It must be created by deed ; Kamphouse v. Gaff ner, 73 Ill. 453 ; and it is not revocable ex cept after breach of covenant ; Boone v. Sto ver, 66 Mo. 430. It carries the right of prop erty in the minerals only after they are sev ered ; East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248 ; it is termed a license irrevo cable and the word "all" describes the extent to which it may be exercised, not its exclu siveness ; Grubb v. Bayard, 2 Wall. Jr. 81, Fed. Cas. No. 5,849.
A mere parol license is a personal privi lege, unassignable, concurrent with a right of the licensor to mine, revocable at will, and vests no title to the minerals until severed; Barr. & Ad. Mines 67; Williams v. Morri son, 32 Fed. 177 ; Huff v. McCauley, 53 Pa. 206, 91 Am. Dec. 203 ; Cahoon v. Bayaud, 123 N. Y. 298, 25 N. E. 376.
Opening new mines by a tenant is waste, unless the demise includes them ; Co. Litt. 53 b; 2 Bla. Com. 282 ; 'but if the mines be already open, it is not waste to work them even to exhaustion ; 1. Taunt. 410 ; Appeal of Eley, 103 Pa. 307 ; Crouch v. Puryear, 1 Rand. (Va.) 258, 10 Am. Dec. 528; Billings v. Taylor, 10 Pick. (Mass.) 460, 20 Am. Dec. 533; Coates v. Cheever, 1 Cow. (N. Y.) 460. See Smith, Landl. & T. 192, 193, n. In a suit for redemption of a mortgage, the mortgagee was allowed for large sums expended in working a mine which he had a right to work ; 25 L. J. Ch. I21; but in another case, expenses incurred in opening a mine were disallowed; 18 Sim. 445.
In California, the occupant of public lands, who holds them for agricultural purposes merely, holds them subject to the right of any person to dig for gold; Stoakes v. Bar rett, 5 Cal. 36 ; but the miner must take them as he finds them, subject to prior rights of the same character ; Mitchell v. Hagood, 6 Cal. 148 ; a miner cannot take private lands ; Henshaw v. Clark, 14 Cal. 460.
An injunction lies for interference with mines ; 6 Ves. 147.
Mineral deposits are usually divided into what are termed lode or vein and placer deposits. The terms lode and vein are gen erally used interchangeably '(see Lona), but they are usually "found together in the stat utes and both are intended to indicate the presence of metal in rock ; yet a lode may, and often does, contain more than one vein; Field, J., in U. S. v. Mining Co., 128 U. S. 673, 9 Sup. Ct. 195, 32 L. Ed. 571.
A placer is a superficial deposit occupying the bed of an' ancient river. Barr. & Ad. Mines 476. In federal legislation it is defin ed to include "all forms of deposit excepting veins and quartz or other rock in place." U. S. R. S. § 2329. These statutes divide all deposits into two classes, veins or lodes, and placers, and the former being well defined, the latter is made to include all others; Barr. & Ad. Mines 476. See LANDS, PUBLIC.
The dip of a vein is its downward course, and this the locator may follow indefinitely even though it take him beneath the ground of another and outside of his own vertical side lines ; Barr. & Ad. Mines 441.
The strike of a vein is "its onward course, its direction or trend across and through the country" ; id.
The apex of a vein is the highest point where it approaches nearest to the surface of the earth, and where it is broken at its edge so as to appear to be the beginning or end of a vein. Stevens v. Williams, 1 Mc Crary 480, Fed. Cas. No. 13,413. If a vein at its highest point turns over and pursues its course downward, then such point is mere ly a swell in the mineral matter and not a true apex ; id. This is a term used in min ing law in what is known as the apex rule, as to which see LANns, PUBLIC, subt. Miner al Lands.
Where two or more veins apex in a claim, the court must decide which is the principal vein, and fix the end lines of the claim by reference to that principal vein. (2) Those end lines as defined by the principal vein are the end lines for all other veins apexing in the claim. (3) The locator owns all the veins having any part of their apexes in his claim, from the apexes downward throughout the entire depth of the veins, within the vertical planes drawn through the ascertained end lines of the claim extended in their own direction ; Walrath v. Mining Co., 171 U. S. 293, 18 Sup. Ct. 909, 43 L. Ed. 170.
A miner whose location is on the apex of a lode may follow it to any depth, although in its downward course it may enter the ad joining land; but no location made on the middle of a lode or otherwise than at the top or apex, will enable the locator to go be yond his line ; Iron Silver Min. Co. v. Mur phy, 3 Fed. 368. The apex is not necessarily a point, but often a line of great length and any portion of it, if found within the limits of a claim, is sufficient to entitle the locator to obtain title. He may follow his vein into the territory of another beyond his side lines, but not further than his own end lines, be yond which it is subject to further discov ery and appropriation ; Larkin v. Upton, 144 U. S. 19, 12 Sup. Ct. 614, 36 L. Ed. 330 ; Colorado Cent. Consol. Min. Co. v. Turck, 50 Fed. 888, 2 C. C. A. 67 ; but where the apex which intersects an end line passes out of the claim across one of the side lines, the owner may still follow so much of the lode on the dip as lies between the end line, through which the vein passed, and its point of divergence from the claim ; Del Monte Mining & Milling Co. v. Mining Co., 66 Fed. 212. Where two claims are so located that to follow the dip beyond the side lines would cause a conflict, that having priority of lo cation must prevail ; Tyler Min. Co. v. Swee ney, 54 Fed. 284, 4 C. C. A. 329. See U. S. R. S. § 2336.