The appellant, owner of the Evening Star, Evening Star Fraction, and Mary R. Fraction patented lode mining claims, brought this suit in the court below to enjoin the defendant thereto (the appellee here) from extracting ore from beneath the *882 surface of the Evening Star and Mary R. Fraction claims, and for an accounting of the ore theretofore extracted therefrom; the defendant to the suit claiming and asserting the right thereto by reason of its alleged right to follow a vein apexing in the patented lode claims,. Grouse and Iron Crown, owned by it, it being also the owner of the patented lode claims, Morning1 and Noonday Fraction. All of the claims mentioned are situated in the great Coeur d’Alene mining district of the state of Idaho, the valuable ores of which district are largely composed of lead, zinc, and silver. The case involving a very large amount of money, a number of the most eminent geologists and mining engineers of the country were employed by the respective parties to the suit, who made examinations of the ground and testified at great length. The result of the trial was a decree in favor of the defendant, from which decree the present appeal comes.

The bill alleged, among other things, the complainant’s ownership of the Evening Star and Mary R. Fraction claims, within each of which there was a vein or lode of rock in place bearing lead, silver, zinc, and other valuable metals, extending lengthwise thereof, of which claims the complainant was in the exclusive possession, except as interfered with by the acts of the defendant complained of; that the defendant owned the Morning mine, adjoining the Evening Star on the east, and had by means of underground workings therein secretly and without the knowledge of the complainant penetrated at great depth under the surface of the Evening Star and Mary R. Fraction, and into and upon the ore bodies therein, and extracted large quantities of ore therefrom, exceeding in value $500,000; that in the month of January, 1913, in connection with an option which the defendant then secured from the stockholders of the complainant upon their stock, the complainant and defendant entered into a contract by the terms of which the latter was allowed to make certain developments in the ground of the complainant, agreeing, however, that it would not remove any ore therefrom, except such as was occasioned by the development work; that the only development work so made by the defendant, of which the complainant was aware, was at and above No. 5 tunnel level of the Morning mine, and that the complainant had no knowledge of the alleged surreptitious work done by the defendant, and extraction pf ores, until November, 1916, which work and extraction the defendant threatens to continue.

The defendant in its answer, after making certain denials of the allegations of the bill, alleged in substance that it had made excavations and extracted ore from beneath the surface of the Evening Star and Mary R. Fraction claims, but within a vein apexing within the Grouse and Iron Crown lode mining claims owned by it, and that its patent from the government for the Grouse and Iron Crown claims was issued prior to the patent issued to the complainant for the Evening Star claim, and that the conflict area (shown upon the plats hereinafter inserted) between the Grouse and Evening Star claims was included within the prior patent to the Grouse, and that the conflict area *883 between the Iron Crown claim and the Evening Star was included within the patent to the Iron Crown; and, as affirmative matter, the defendant alleged its ownership of the Grouse and Iron Crown claims* and alleged that within each of them there is a vein or lode of rock in place, of which it is the owner, extending lengthwise of and through the said Iron Crown claim for a distance of about 1,000 feet east from the west line of the Grouse claim, where it passes through the north boundary line thereof; that the apex of such vein or lode is within the surface boundaries of the Grouse and Iron Crown claims to that extent, and has a downward course northerly, and on such downward course extends outside of and indefinitely beyond the northern boundary side line of the Grouse and Iron Crown claims, into and beneath the surface of the Evening Star and Mary R. Fraction claims, and that all of the work and extraction of ores beneath the surface of the Evening Star and Mary R. Fraction claims was made by the defendant upon and within the vein apexing within the Grouse and Iron Crown claims, in pursuance of the defendant’s alleged extralateral rights. Those alleged rights on the part of the defendant to the suit were put in issue by the complainant’s reply to the cross-bill.

On the trial the contention of the defendant was that the work done and the ore extracted by it from beneath the surface of the Evening Star and Mary R. Fraction claims was upon a vein which apexed within its Grouse and Iron Crown claims, crossing their lines in such a way as conferred upon the defendant the extralateral rights defined by section 2322 of the Revised Statutes (Comp. St. § 4618); while the contention on behalf of the complainant was that the vein upon which the work in question was done and from which the ore in controversy was extracted was a broad lode bisected upon the surface by the common side line of the Evening Star and. Grouse, and by the common side line of the Evening Star and Iron Crown claims, and that as to both the Grouse and the Iron Crown the Evening Star claim has priority, and therefore carried the ownership of all of the ore of the lo'de or vein beneath the surface of the Evening Star and Mary R. Fraction to the west end line of the Evening Star.

The court below adjudged and decreed, among other things, that by virtue of its ownership of the Grouse and Iron Crown claims the defendant is the owner of the vein in controversy and entitled to the possession thereof; that the hanging wall or northern limit of the said vein, to the extent that it has been worked vertically beneath the surface of the Evening Star, Evening Star Fraction, and Mary R. Fraction claims, is “5 feet northerly from the existing levels, winzes, raises, inclines, and stopes heretofore excavated by the defendant in its working beneath the surface of said claims”; that the Grouse claim was located prior to the location of any of the complainant's said claims, and is senior in date of location and superior in mining rights accruing by reason thereof over any and all of the said claims of the complainant; that the Iron Crown claim was located prior to the location of the Evening Star Fraction and the Mary R. Fraction claims, *884 and subsequent to the location of thé Evening Star claim, and is superior in mining rights accruing by reason of location to said Evening Star Fraction and Marj R. Fraction claims, and inferior to the Evening Star claim, and further adjudged and decreed that all claims of the complainant and of all persons claiming or to claim by, through, or under it, to any portion of the’vein adjudged by the decree to be the property of the defendant, are invalid and groundless; and that the defendant’s title to such portions thereof, and to all ores and minerals therein contained, be quieted against the complainant, and perpetually enjoining it from asserting any claim thereto, or from entering into or . upon any portion thereof.

The court found that the decision of the case did not require the determination of the limits of the vein to the south, and accordingly did not undertake to fix them — the dip being northerly. It is undisputed that from a lode, the apex of which crosses the east line of the Morning claim of the defendant, about 200 feet from its northeast corner and running thence westerly towards its southwest corner, an aggregate amount stated to be from $25,000,000 to $30;000,000 had been taken during the many years it had been worked, prior to the commencement of the present suit. That the defendant was then pursuing the same lode beyond the west end line of the Morning claim, and extracting ore therefrom, beneath the surface of the Evening Star and Mary R. Fraction claims of the complainant, we can but conclude from a most careful consideration of the evidence in the case.

We do not, of course, overlook the insistence of the defendant that the oi-e extracted by it from' beneath the surface of the complainant’s claims is a part of the vein apexing within the boundaries of the Grouse and Iron Crown claims of defendant. That the learned trial judge was not entirely satisfied with the conclusions reached by him tó that effect clearly appears, we think, from his opinion. Referring to the above-mentioned work of the defendant, he said:

The court below very properly said — citing the decision of this court in Migeon v. Montana Central Railway Co., 77 Fed. 249 , 23 C. C. A. 156 — that the definition of a vein must always have special reference to the formation and particular characteristics of the particular district, and further that the question of width often presents considerations entirely different from those involved in the issue of continuity upon course or dip, adding:

Exactly so. Exhibit 38 of the complainant, here inserted, will illustrate the lines of the respective claims and the lode or vein as complainant contends it courses through the Morning claim and therein westerly:

*886

*887 The following exhibit of the defendant shows more distinctly the conflicting areas of the Evening Star, Grouse, and Iron Crown claims:

*888 As an illustration of what the court below said respecting the inconsistencies and conflicts in the testimony of the respective expert geologists, we insert this excerpt from the testimony of Professor Barrell, of Yale, a witness for the defendant:

Une of the veins of the Bunker Hill and Sullivan mine, referred to in the foregoing report of the United States Geological Survey, was: involved in the case before us of Last Chance Min. Co. et al. v. Bunk *889 er Hill & S. Min. & Con. Co., 131 Fed. 579 , 66 C. C. A. 299 , where the findings of the master, which were adopted by this court, thus described that vein or lode of the Coeur d’Alene district:

The great Fureka Fode of Nevada (Eureka Case, 4 Sawy. 312 , Fed. Cas. No. 4,548, many times referred to in subsequent cases) was bounded on its south side by a wall of quartzite several hundred feet in thickness, and on its north side by a belt of clay or shale ranging in thickness from less than an inch to 70 or 80 feet. Not so in the present case, nor in any of the lodes of the Cceur d’Alene district that have been brought to the attention of this court in preceding cases. In the present one it is undisputed that all of the mineral in the area in, question is found in a formation of quartzite more or less sheared by the forces of nature, but without any fixed walls susceptible of identification. The portion of the sheared zone to which the term vein or lode can he rightly applied is strenuously contested. Its greatest width that we find stated by any of the witnesses is about 300 feet. The court below by its judgment, as will have been seen, fixed its limit on the only side on which its limit was involved at 5 feet northerly from the 'existing levels, winzes, raises, inclines, and stopcs heretofore excavated by the defendant in its working beneath the surface of the Evening Star, Evening Star Fraction, and Mary R. Fraction claims.

It is obvious that such action, while no doubt the best “guess” the court felt able to make, was purely arbitrary, and such as, in our opinion, cannot be sustained upon the .record. It is always to be remembered in the consideration of all such cases that, where there are well-defined walls, they determine the bounds of the vein or lode, but that, where there are no walls, continuous ore bodies determine the width; such continuity, however, not being destroyed or affected by subsequent interruption through the forces of nature. Few, if any, veins or lodes of any substantial length are composed of but one solid body of pay ore; and certainly the vein or lode here in question cannot be *890 considered one of the exceptions, if there be any. Indeed, the evidence shows, we think, beyond doubt, that much of the substantially mineralized portions of this lode have not been worked, because the prices óf its minerals were at the.time too low to make it profitable to do so. But sürely neither a variation in prices, which it is a matter of common knowledge frequently occurs, nor any change in working conditions, constitute a true test of the question as to the extent of the vein or lode.

Sufficient reference has already been made to the inconsistent testimony and opinions of the distinguished geologists, of the respective parties, the nature of which confirms us in the opinion that in the consideration and decision of such cases it is safer, and consequently more satisfactory, to rely upon the testimony of expert mining engineers, who are familiar with the mineral formations and deposits of the particular district, and upon the actual work and observations of experienced mining superintendents who have active charge of the work in such mines. It is, of course, practically impossible to refer in detail to the.very voluminous evidence in the case, including the very numerous assays, a number of which are referred to in the opinion of the court below; but we insert a description of the lode given by one of the defendant’s experienced engineers, who was not only familiar with the lodes of the district, but was, from December, 1907, to December 31, 1909, superintendent of the Morning mine, and also a description thereof, given by one of the experienced engineers of the complainant, who was also familiar with the Coeur d’Alene lodes and veins:

The first of these, William B. Fisher, a'witness on behalf of the defendant, being asked by its counsel to describe the Morning vein, said:

One of the complainant’s engineers, of much experience and distinction and familiar with the lodes of the Cceur d’Alene district, Mr. Horace V. Winchell, in answer' to a question of counsel to state in his own way the character, extent, and situation of the lodes, veins, and ore bodies in the Morning and Star mines, making reference to such documents, maps, and exhibits as he wished, said:

[1] Taking and considering the evidence as a whole, we cannot avoid the conclusion that the lode pursued by the appellee in its work heneath the surface of the Evening Star and Mary R. Eraction claims of the appellant is the same great lode it followed and worked by virtue of its ownership of the ■Morning- claim, which lode, after coursing westerly through tjiat claim, enters the Evening Star and Grouse claims across the easterly end line of the Evening Star, and still coursing westerly branches at a point underground not definitely fixed by the evidence, the northerly and larger branch passing through the Evening Star claim and across the northeasterly corner of the Mary R. Fraction claim, and the southerly branch across the westerly end line of the Grouse, and for about 500 feet into the Iron Crown claim, and, further, that the outcrop of the lode is bisected by the common side lines of the Grouse and Evening Star claims and of the Iron Crown and Evening Star.

[2] That a lode or vein so bisected by the lines of two adjoining claims belongs to the one having priority is well established. Lawson v. United States Min. Co., 207 U. S. 1, 12, 13 , 28 Sup. Ct. 15, 52 L. Ed. 65 . It is, of course, not contended that any extralateral rights appertain to the Morning claim, b.ut the strenuous contention of the appellant is that the vein or lode that crosses the northerly side line of the Grouse claim, and across its end line and into the Iron Crown, is a separate and distinct vein, the extralateral rights to which be *897 long lo the appellant by reason of its ownership of the Grouse and Iron Crown, and that it is upon that separate and independent vein or lode in aud upon which the appellee entered and from which it extracted ore, and. claims the right so to do beneath the surface of the Evening Star and Mary R. Fraction claims of the appellant.

[3] Even if it be conceded that the vein or lode last referred to— that is to say, that crossing the northerly side line and westerly end line of the Grouse, and into its adjoining Iron Crown claim — be 1he vein from which the appellee extracted the one in question, we are of the opinion that the extralateral rights thereto claimed, as against the Evening Star and Mary R. Fraction claims, do not exist. The Grouse was located September 14, 1886, and the patent therefor was issued January 8, 1897. The Evening Star was located January 1, 1887, and the patent therefor was issued July 21, 1904. The Iron Crown was originally located September 1, 1884, and relocated by the same parties August 14, 1888, and patent therefor was issued January 8, 1897.

[4] In respect to the latter claim the court below properly held that the patent thereto related back only to its relocation, and accordingly that it is subsequent in time and inferior in right to the Evening Star claim. Although both the Grouse and Iron Crown claims overlapped to a small extent the Evening Star, as will have been seen from the diagrams heretofore inserted, the owners of the Evening Star did not contest in the Rand Office the issuance of patents for the Grouse and Iron Crown claims, which consequently covered those entire claims, including the area in conflict.

In the case of Bunker Hill & S. M. & C. Co. v. Empire State-Idaho M. & D. Co., 109 Fed. 538 , 48 C. C. A. 665 , this court held, among other things, that an application for a patent of a mining claim carries with it an implied, if not an express, allegation that the location was made upon ground at the time open to location, and was therefore prior to the location of any one else, and that the issuance hy the government of a patent therefor conclusively determines the priority of that location over any other, and confers upon the patentee, not only the title to the entire surface of the claim, but also all extralateral rights given hy statute, as against the owner of an unpatented conflicting claim, saying ( 109 Fed. at page 544 et seq., 48 C. C. A. 672 ), after referring to section 2326 of the Revised Statutes (Comp. St. § 4623):

One of the authorities upon which this court based that decision -was the case of Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co., 171 U. S. 55, 75 , 18 Sup. Ct. 895, 903 ( 43 L. Ed. 72 ), decided May 23, 1898, in which the Supretae Court declared:

Some years later, in the case of Lawson v. United States Min. Co., 207 U. S. 1 , 28 Sup. Ct. 15 ( 52 L. Ed. 65 ) the court held that, while one in possession of the surface of a mining claim under a patent from the United States is presumably in possession of all beneath the surface, and may sue to quiet title to a vein beneath such surface and to enjoin the removal of ore therefrom, if in the proceeding in the land office for the procuring of such patent no adverse claim was made, the patent carries no presumption that anything was considered or determined except the question of the right to the surface, saying ( 207 U. S. at page 16 , 28 Sup. Ct. 20, 52 L. Ed. 65 ):

In the late case in this court of Butte & S. Copper Co. v. Clark-Montana Realty Co., 248 Fed. 609 , 160 C. C. A. 509 , this court, as in duty bound, followed the decision of the Supreme Court in Dawson v. United States Min. Co. supra, saying:

Therefore we must now take the law to be that the question of priority of discovery as between the Evening Star claim Of the appellant and the Grouse claim of the appellee was not determined by the issuance to the latter of the patent for the Grouse claim, and, the question of priority of discovery not being thus determined, we are unable to see how the Grouse patent can he held to carry any presumption or inference respecting the question of priority of discovery as between the Evening Star and thg Grouse claims, for in the Dawson Case, as has been seen, the Supreme Court distinctly adjudged that the government patent to such claims carries “no pre *899 sumption that anything was considered or determined except the question oí the right to the surface.”

Yet, but for a presumption or inference, in favor of the Grouse claim in that regard indulged by the court below, the latter- expressly declared it would find from the evidence (and we think rightly) that the statutory discovery was first made upon the Evening Star claim. The court below in its holding in that respect relied upon the decision of this court in the case of Vogel v. Warsing, 146 Fed. 949, 951 , 77 C. C. A. 199, 201 , where, one of the points relied upon by the appellant being that the record contained no proof of the discovery of gold in the ground in dispute, this court said, in answering the point:

Not only did the Supreme Court hold in the Lawson Case that no such presumption arises even by virtue of a patent, but at its present term, in the case of Cole et al. v. Ralph, 252 U. S. 286 , 40 Sup. Ct. 321, 64 L. Ed. -, it has held that, where there is much evidence tending'to show a discovery within the boundaries of a lode claim, as well as possession, working of and claim to the ground as such lode claim, prior to entry thereon by a placer claimant, no presumption of evidentiary character in favor of a valid discovery can come to the aid of the possessor and asserted owner of such a lode claim by virtue of section 2332 of the Revised Statutes (Comp. St. § 4631) or otherwise.

It results from what has been said that the judgment of the court below must be and hereby is reversed, with directions to enter judgment for the complainant as respects all ore beneath the surface of its Evening Star and Mary R. Fraction claims, with costs — -the ore beneath the surface of the Evening Star Fraction claim as to which the court below also gave the appellee judgment not being involved in this suit, since the pleadings in the case do not embrace that claim.

Reversed, with the directions ahove stated.