that the vein in dispute does not have its apex outside of plaintiff's premises, then there should be no dispute, but plaintiff should recover. I have considered this case upon the hypothesis that the facts set forth in the answer are substantially true. I am fully aware that the position taken in this case leaves a portion of a vein or lode in such a condition that it can not be taken up by location, under the mineral act of the United States, but this portion of the vein can not be said to belong to no one. It belongs to the Government of the United States, and, by appropriate legislation, it can provide for the sale of the same.

There is no question presented upon the pleadings as to the appropriation of any portion of this vein or lode by taking actual possession of the same. I should not dispute but that an actual possession of portions of this vein or lode will give a right to the same as against an intruder—a stranger —that is, one who could not show a prior actual possession or a grant from the United States to the same.

The motion for judgment on the pleadings is overruled. ON THE MERITS.

KNOWLES, J.

This case has been divested of much of the difficulty presented to the mind of the court from a consideration of the pleadings. It did seem that the legal title to a portion of the Drum Lummon lode might be so involved as to require that the same should be settled in an action at law. As the case is presented by the evidence, no conflict as to title appears. It is admitted that the plaintiff owns the Drum Lummon lode claim and the Marble Heart lode claim, and that the defendants own the Hopeful lode claim; that the Drum Lummon lode or vein passed out of that claim into the Hopeful claim, and runs across the same in a southerly direction about sixty-six feet, when it enters the Marble Heart claim; that plaintiff has dug and has an undisputed title to a tunnel called the "Cruse Tunnel," which runs along the aforesaid vein or lode, and across the Drum Lummon lode claim, into the Marble Heart claim; that plaintiff is or was in the actual possession of this tunnel; that it is necessary to the working and mining of said lode or vein in

the Marble Heart claim; that by means of this tunnel plaintiff is in the actual possession of a portion of the aforesaid vein or lode, which has its top or apex in defendants' claim. It also appears that defendants are extending an incline which they started on the apex of the aforesaid lode or vein in their own ground, and were and still are threatening to extend the same down along said vein, within the side lines of the Marble Heart claim, in such a direction as to cut the aforesaid Cruse tunnel at a point where the same is wholly within that portion of the Drum Lummon lode or vein owned wholly by plaintiff; that in their operations they have already loosened the rock in the roof of said tunnel at the point where said incline, if extended, would enter the same. Although the defendants have sixty-six feet of the apex of the said lode or vein, owing to the fact that they located their claim in such a manner as to have no parallel end lines thereto, they have no legal right to follow their vein or lode beyond their side lines, never having received a grant to that portion of said lode beyond these, although owning the apex. It sufficiently appears from the evidence, if defendants are permitted to extend their incline it will wholly destroy the said Cruse tunnel for the use to which plaintiff is putting the same. The defendants do not deny that it was their purpose to extend this incline into and through this tunnel, and into the Drum Lummon vein beyond, in their search for ore; and the evidence shows that when extended beyond this tunnel, the incline will be wholly within that portion of the said vein or lode owned by plaintiff. It is true that the evidence shows that plaintiff might dig another tunnel around this incline at a cost of about $1,000. This would be in part a new tunnel, and would be on a curve. A curved line is not as short as a straight one, and cars run upon a curved track encounter greater friction than on a straight one. The plaintiff, if compelled to abandon its old line of tunnel, would also be enforced to abandon for some distance its possession of a portion of the said vein or lode which has its apex in defendants' premises. The defendants, in extending their incline beyond the tunnel, would be within the undisputed premises of plaintiff, and would be compelled in their work

ings to remove vein matter, and perhaps ore, from plaintiff's premises, concerning the title to which there is no dispute in this action. The defendants, as to this tunnel and the vein matter and ore beyond the same, come as strangers-trespassers. They are clothed with no right whatever to destroy plaintiff's tunnel, or to disturb its possession of any portion of said vein along the line of said tunnel. If the defendants had any legal right to explore the said vein or lode beyond said tunnel, a plea for an accommodation in this matter would come with great force. But no ground exists for such plea. It would seem that no action for damages would afford adequate relief under such circumstances. The remedy for the wrongs threatened can be awarded only in a court of equity.

For these reasons, I think the plaintiff is entitled to the relief asked. It is therefore ordered that an injunction issue restraining and enjoining the defendants from extending their incline so as to cut the tunnel of plaintiff.

1. A patent gives the right to follow the vein on the dip where the apex is within the surface lines. Iron Silver Co. v. Cheesman, 116 U. S. 530. See Duggan v. Davey, 26 N. W. 887, cited ante, p. 54. 2. Location on part of apex held to carry the dip. Eureka Co., 11 Pac. 515 (Utah). Boreman, J., dissents.

Bullion Co. v.

3. Where two veins unite in going down, the oldest location, not the oldest patent, takes the ground. Champion M. Co. v. Cons. Wyoming Co., 16 M. R—.

4. Dip is always at right angles to the strike. Gilpin v. Sierra Nev. Co., 23 Pac. 547.

APPEAL OF ERWIN.

(12 Atlantic Reporter, 149. Supreme Court of Pennsylvania, 1887.) 'Dump containing ores not demised. The lessee of premises to work for iron ore discovered that the tailings from the washing of the ore contained ochre and other minerals of value in the manufacture of paint, and proceeded to extract and remove the same. Held, that he was entitled only to clean merchantable iron ore and should be enjoined from working the dump for the chrome.

Appeal from the Court of Common Pleas, Berks County.

Bill for injunction, filed by Hannah Hoch against Henry Erwin and others, to restrain them from taking and carrying away certain minerals from the complainant's land. The facts of the case appear to be as follows:

The complainant leased to one James F. Dunner, for a term of years, the exclusive right to take iron ore from certain land owned by her. The lessee was to enjoy the privilege of washing the ore on the premises, and to do all other things necessary to a successful operation of the mines, as if he owned the land. This lease passed by successive assignments to the defendant, Henry Erwin. After the mine had been operated several years, Erwin discovered that the refuse matter from the washing process, which was deposited in the slush dam, was rich in ochre and other substances used in the manufacture of paints. He proposed so to use this refuse matter, and was removing the same from the dam for that purpose when this suit was brought. It appeared that the deposit in the slush dam contained some iron, although it could not be profitably worked as an iron ore. The court below held that, considering the knowledge of the parties when they entered into the contract, the proper construction would be that by "iron ore" they meant only clean, merchantable iron ore, to be used in the manufacture of iron, and that it was not intended that anything else should be removed from the land. A decree was accordingly entered granting the injunction, and the defendant, Erwin, appeals.

1 Doster v. Friedensville Zinc Co., 21 Atl. 251.

JEFF. SNYDER and GEO. F. BAER, for appellant.

ERMENTROUT & RUHL, for appellee.

STERRETT, J.

In construing the article of agreement under which this contention has arisen and holding that under its provisions appellant, as assignee of the contract, has no right to dispose of the refuse deposited in the mud dam, we think the learned judge of the Common Pleas was clearly right, and for reasons given in his opinion, accompanying the record, the decree should be affirmed.

Decree affirmed, and appeal dismissed, at the costs of appellant.

GORDON, J., absent.

1. Contract concerning, not within statute of frauds. Smart v. Jones, 15 C. B. (N. S.) 717.

2. Contract as to marl dump. Lacustrine Co. v. Lake G. Co., 82 N. Y. 484.

3. Dumping ground rights may be lost by a hostile adverse possession. McLaughlin v. Del Re, 16 Pac. 881.

4. The refuse of zinc ore mined under lease was found to have value for concrete. Held, that it was the property of the lessor, and the lessee was not permitted to keep it as parcel of the ore on payment of the same royalty as was due for pure ore. Doster v. Friedensville Zinc Co., 21

Atl. 251.