United States Court of Appeals For the Ninth Circuit . y Judge Knowles in Blue Bird vs. Largey, supra: As to what is the top or apex of a vein isalso a question of fact and not of law. . .There is an issue it appears as to whether or notthe apex of the Blue Bird vein is cut by the endline or side line of the Blue Bird claim. This isan issue of fact to be determined by the evidence. The finding of the trial Court upon a question offact would, generally speaking, be accepted by thisCourt as final in the absence of a showing that therewas no evidence upon which the finding could bebased. Bu
United States Court of Appeals For the Ninth Circuit . y Judge Knowles in Blue Bird vs. Largey, supra: As to what is the top or apex of a vein isalso a question of fact and not of law. . .There is an issue it appears as to whether or notthe apex of the Blue Bird vein is cut by the endline or side line of the Blue Bird claim. This isan issue of fact to be determined by the evidence. The finding of the trial Court upon a question offact would, generally speaking, be accepted by thisCourt as final in the absence of a showing that therewas no evidence upon which the finding could bebased. But we apprehend that the gravamen of Appellantscontention in this behalf is that the Court misappliedthe law to the conceded facts of the case. We willproceed to discuss this aspect of the case. WHAT CONSTITUTES AN APEX. If we may assume an ideal vein outcropping at thesurface, descending into the earth on its downwardcourse, and an abrasion of the side of the mountain so II as to expose the vein, we would have the result illus-trated upon Figure Figure 4. There can certainly be no question as to which partof the exposed vein shown on Figure 4 is the exposure A-B is obviously not an apex, but aside edge. Locations might be made along A-B and the endlines given such a direction as to enable the locatorto pursue the vein in a downward direction, but thiswould not constitute the exposure A-B an apex, orconfer any extralateral right. It would still be a sideedge. As determined by the trial Court in the causesat bar, and by the State Courts in the Ontario suit,there is presented a state of facts parallel to those ex-hibited on Figure 4. Of all the definitions as to what constitutes an apex,we think the well known presentation of the questionby Mr. Ross E. Browne is most instructive. The num-bering of illustrations accompanying the presentationof Mr. Brownes views is here changed so as to followthe consecutive numbering of illustrations in this brief. 12 In other respects
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