Louis company refused to convey. A suit for specific performance was brought, resulting in a decree directing the execution of the conveyance.1

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The conveyance as executed to the Montana company described the thirty-foot strip by metes and bounds, together with all the mineral therein contained, together with all the dips, spurs, and angles, and also "all the metals, ores, gold and silver-bearing quartz "rock and earth therein."

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Subsequently a controversy arose over certain ore bodies found underneath the surface of the thirty-foot strip, the St. Louis company contending that they be

'Montana M. Co. v. St. Louis M. and M. Co., 20 Mont. 394, 51 Pac. 824, S. C. on writ of error, St. Louis M. and M. Co. v. Montana M. Co., 171 U. S. 650, 19 Sup. Ct. Rep. 61.

longed to a vein (the secondary, or Drum Lummon vein, shown on figure 122) having its apex within the St. Louis claim. The Montana company claimed that the ore bodies passed to it under its deed to the thirtyfoot strip. The circuit court of appeals sustained the contention of the St. Louis company, basing its conclusions on the following grounds:

"In interpreting the conveyance in question, regard "must be had not only to its terms, but to the subject"matter involved and the surrounding circumstances. "The language used is to be construed with reference ""to the peculiar property about which the parties were "'contracting.' Richmond M. Co. v. Eureka M. Co., "103 U. S. 846. . . . If the adverse action which was "brought by the owners of the Nine Hour claim had gone to trial, and had resulted in a judgment fully "sustaining their contention, the result would have "been to fix a surface line of division between the two "claims without affecting rights to ores beneath the sur"face otherwise than as they are controlled by the "mining laws of the United States. The owners of the "St. Louis claim would still have retained the right to "follow their vein extralaterally on its dip beneath the "surface of the strip of land which was the subject of "the conveyance. It is not to be supposed that the owners of the St. Louis claim intended by the compromise contract not only to surrender the whole of "their contention concerning the true location of the "boundary line, but also to divest their claim of its "extralateral rights,-rights that had not been in liti"gation, and had not been assailed by the owners of the "adjoining claim. To manifest such an intention, the "terms of the contract and of the conveyance would, "under the circumstances, need to be clear and explicit. The use of the words 'together with all the ""minerals therein contained' is not sufficient."1

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The question under present discussion was given full consideration by the supreme court of Montana in the

1 Montana M. Co. v. St. Louis M. and M. Co., 102 Fed. 430, 432, S. C. on cross-writ of error, 104 Fed. 664.

case of Montana Ore Purchasing Co. v. Boston and Montana Cons. C. and S. Co.,1 the facts of which may be best explained by the use of diagrams.

Figure 123 represents the Johnstown lode claim as patented, containing a series of veins substantially as there shown. By the application of the rules discussed in the preceding articles, there is no difficulty in ascertaining the extent of the extralateral right in each of the

veins flowing from the patent. There can be no question but that the patentee could grant any part of the claim or of its extralateral right on any of the veins. Parties contracting with reference to this class of property may fix such boundaries as they choose, and if they do so explicitly the courts are relieved from embarrassment. It is only where they fail to expressly define the (Mont.), 70 Pac. 117.

extent of the grant that the courts are compelled to ascertain what the parties intended to convey by reference to the surrounding circumstances and the nature and character of the property which is the subject of the transaction.

In the case under consideration, the parties failed to make such explicit definition of the extent of the grant. After the issuance of the patent to the Johnstown, the patentee executed a deed conveying the surface A-B-C-D-E-F, which surface may be called the "con"veyed portion." This subsequently passed by mesne conveyances to the Montana Ore Purchasing Company under a deed which described it by metes and bounds, omitting all reference to metals, ores, quartz-bearing rock, etc., frequently found in such conveyances.

This company also owned the Rarus, a senior location coincident with the conveyed portion of the Johnstown, to the extent shown on figure 123. The patent, however, having been issued to the Johnstown, the junior claim covering the area in conflict apparently without protest, the Rarus as a separate claim lost its identity so far as the conflict was concerned. The questions at issue, therefore, were considered without regard to any right under the Rarus title. The Boston and Montana company owned the unconveyed portion of the Johnstown, also a part of the Pennsylvania lying to the south of the Johnstown. The controversy involved the ownership of the ore bodies underneath this portion of the Pennsylvania, the Montana Ore Purchasing Company claiming apex rights originating within the conveyed portion of the Johnstown. The case involved the position and course of the Pennsylvania veins, the identity of the veins, an alleged union in depth, and the usual complications of a structural character. The findings of fact as to these issues supported the contention of the Montana Ore

Purchasing Company. The remaining question was as to the extralateral right pertaining to that company by virtue of its ownership of the conveyed portion of the Johnstown. It was contended by that company that its extralateral right should be defined by the two planes,one through the east end-line of the Johnstown claim, A-F-G, the other through the west end-line of the part conveyed, C-D-R. The trial court fixed the limit toward the east by passing planes through the points where the veins depart from the conveyed portion-e. g. H-I and J-K, parallel to the east end-line of the Johnstown. Toward the west the limit was fixed by a plane passing in the direction of the line C-R until it meets the plane of the west end-line of the Johnstown produced, and thence in the direction of that line extended. These planes had been previously adopted by Judge De Haven, sitting as circuit judge, on an injunction application in previous litigation between the same parties.1 The supreme court of Montana, however, directed a modification of the decree of the trial court, declining to accept Judge De Haven's views. It directed that the decree should be modified so as to fix the west endplanes in the direction of the line L-O (figure 123) parallel to the west end-line of the Johnstown at the points where the different veins pass through the line C-D, the west boundary of the conveyed premises, leaving the east end-line planes fixed by the trial court undisturbed.2

1Boston and Montana C. and S. M. Co. v. Montana O. P. Co., 89 Fed. 529.

*In the case of Butte and Boston M. Co. v. Société Anonyme des Mines de Lexington, 23 Mont. 177, 58 Pac. 111, the supreme court of Montana had before it an instruction of the court which followed Judge De Haven's opinion, above noted, defining the extralateral right boundary by a vertical plane drawn through the conveyed boundary, regardless of the course of the original end-line planes. This question, however, was not urged before the supreme court, and its opinion does not refer to it in any way other than by a mere recital of the instruction.

Lindley on M.-72