which was within the surface lines of said Silver King. The court below ruled out this defense, and kept it away from the jury, for the reason-and for the sole reason-that in the original location of the Silver King the end lines were not parallel. There is no pretense, as we understand it, that the location was not sufficient, or that it did not comply with mining customs and the laws of congress, in every other respect. Neither is there any claim that the location was of more surface ground than the law allows. As a matter of fact, it was less than 1,500 feet along the ledge, and considerably less than 600 feet in width. And it cannot be contended that the location was of such a shape that the end lines could not be readily distinguished from the side lines. It had only four lines,-two longer ones, running with and on either side of the course of the vein, and two shorter ones, running across it. It was evidently intended to be in the usual shape of a quartz location, that is, a rectangular figure, with greater length than breadth; but T. C. Warden, who discovered and located the mine in April, 1881, failed to get the end lines parallel. The divergence from a parallel was about 250 feet; that is, for instance, the southerly end of the westerly end line should have been about 250 feet further east, in order to have been exactly parallel with the easterly end line. Moreover, defendants offered to prove that in March, 1882, less than a year after the original location by Warden, their west end line was "drawn in" so as to make it parallel with the east end line; that since then they were in the peaceable possession of the mining claim within the lines as they were after said west end line had been so made parallel; that the ore which they took from within the surface lines of the Oriental was part of the vein which had its apex within the surface lines of the Silver King after said west end line had been so made parallel; and that said ore was taken out after the said change of said west end line. The plaintiff objected to the offered evidence, and to any similar evidence, "on the ground that by reason of the surface form and shape of the Silver King claim, as testified to by said Warden, defendants have no rights, under the laws of the United States, or otherwise, to follow the lode in its downward course [beyond] the lines of the Silver King claim, and under the other claims; the end lines of such location testified to by said Warden not being parallel, but divergent." The court sustained the objection, in these words: "The objection to any proof of justification or otherwise, under the location by Mr. Warden, as shown by map No. 1, of defendants to take subterraneous ore from within the vertical side lines of the Oriental No. 2 and the Oriental No. 7 mining claims, extended downward, is sustained." Defendants excepted. And so the court held that the location of the Siver King made by Warden in April, 1881, was totally invalid and void, so far as any right under it is claimed to pursue a vein outside its vertical side lines, because its end lines were not parallel, and that such invalidity was not overcome by the said rectification of the west end line in March, 1882. The same ruling was made at many other stages of the trial, and the only matters submitted to the jury concerned the entry of defendants within the lines of plaintiff's ground, and the amount and value of the ore extracted; and in making these rulings we think that the court below erred. For another purpose evidence was admitted which showed that at the time-in March, 1882-when the west end line was made parallel with the east end line, as aforesaid, the owners of the Silver King had made application for an official survey of their mine preparatory to applying for a United States patent; that J. C. Dunlap, a mining engineer and surveyor, at the request of the United States surveyor general, had made such survey, and that finding the end lines not parallel he ran a new west end line, commencing at the north-west corner of the original Warden location, and drawing it in easterly to the original southerly side line so as to make the two end lines parallel, as before stated; that in doing so he kept along and within the original lines, so as to make the surface ground less, and not more, than the original; and that he placed permanent monuments on the new south-west corner, and on the end line. There was also evidence admitted tending to show that from that time the new line run by Dunlap was recognized as the west end line, although there was also some evidence tending to show that some of the owners of the mine were, at first, dissatisfied with that line. But in 1885 an application for a United States patent was made, based on said survey made by Dunlap. None of this evidence, however, was allowed to be considered as a justification of defendant in following their vein outside of their side line. The defendants also offered to amend their answer so as to aver and prove that on July 20, 1887, less than one month after the commencement of this action, defendants made mineral entry and purchase of the Silver King, according to said Dunlap survey in the United States land-office of the district where the claim is situated. This offer was denied by the court. The following diagram shows the shape of the Silver King surface ground: The four outside lines are those originally made by Warden. The dotted line shows the alteration of the west end line made by Dunlap, who followed all the other lines made by Warden. The points at which defendants drifted under the Oriental are near the center of the southerly line of the Silver King. tain some provisions about that right which are important. By that section a vein can be followed outside of the side lines only, and not outside of the end lines. And so a surface location might be made in such an irregular and many-sided shape as to destroy the right to go beyond the surface lines. That consequence, however, would not be because the end lines were not exactly parallel, but because it would be difficult, if not impossible, to tell which were side lines and which were end lines. In the Flagstaff Case, 98 U.S. 467, in Elgin M. & S. Co. v. Iron Silver Min. Co., 14 Fed. Rep. 377, and in other decisions, it has been held that the provisions of the federal statutes relating to lode claims were passed with the understanding, founded upon the general practice of miners, that the surface locations of such claims will be made lengthwise along the general direction of the lode or vein in the general form of a parallelogram, with the side lines along the lode, and the end lines across it. But suppose that a surface location should be made, for instance in the shape of an octagon, (and such was nearly the shape of the location in the case reported in 118 U. S. Rep. 196, 6 Sup. Ct. Rep. 1177, hereinafter mentioned.) In such a case there would be no end lines and no side lines, and if the locator could go outside his lines in one direction he could do so in eight directions, and encroach upon his neighbors from every point of the compass. If, however, a location is made in substantial The theory of respondent, upon which the case was tried in the court below, is based on the last line of section 2320 of the Revised Statutes of the United States, which is as follows: "The end lines of each claim shall be parallel with each other;" and his position is that, as the end lines of the Silver King, as originally located, were not parallel, therefore its owners could not follow a vein beyond the vertical side lines of the location. We do not understand respondent to contend that such a location as that of the Silver King is void for all purposes. Indeed, we understand his counsel to admit that it is good for all purposes, except only for the purpose of going under ground outside of the surface lines. But if the question were important here it would be difficult to logically maintain that distinction. Section 2320, which provides for the parallel end lines, does not give the right to follow a vein beyond the | surface lines. It does not provide that if the end lines are parallel the vein may be followed, and if they are not then the vein may not be followed. It deals merely with locations generally,—with locations for all purposes. But section 2322, which does give the right to so follow a vein, (and which is lit-compliance with the intent of the statute,tle more than a declaration of a previous mining custom,) says nothing about parallel lines. If, therefore, the provision of section 2320 about end lines is to receive the strict, literal, narrow, mandatory construction contended for by respondent, it is difficult to see why a location like that of the Silver King is not totally void for all purposes or for any purpose. But we do not think such a construction of section 2320 is admissible in any view, or for any purpose. It would include absolute mathematical parallelism, for, if the divergence of a few feet in a distance of 600 feet would not vitiate a location, why should any reasonable divergence, which does not materially change the figure of the location from that of a parallelogram? The intention of the statute was to make the valuable property rights of lode miners to depend upon things more substantial and important than the mere trick of a perfectly correct measurement of surface ground, or a mathematically accurate survey. A substantial compliance with section 2320 is all that is required. the Eureka Case, 4 Sawy. 302, Mr. Justice FIELD says: "In the second place, the provision of the statute of 1872, [the same as section 2320, Rev. St.,] requiring the lines of each claim to be parallel to each other, is merely directory, and no consequence is attached to a deviation from its direction." But section 2322, which gives the right to follow veins beyond surface lines, does con In that is, where there are two side lines running along the course of the vein, and two shorter end lines running across it, so that the two sets of lines are distinct and apparent, such a location is not void, but gives the right to follow a vein laterally, although the original end lines may not be exactly parallel, or although they may differ from a true parallel as much as they did in the case of the Silver King. In the case at bar it is not pretended by respondent that the place in the Oriental where the ore in question was taken by appellants was not "between vertical planes drawn downward" through the end lines of the Silver King, and "continued in their own direction," or that such would have been the fact if said end lines had been perfectly parallel, or that he was injured in any way on account of said end lines not being parallel, or that the situation and state of facts between the two claims, so far as this issue involved is concerned, would not have been just the same if said end lines had been exactly parallel. What he contends for is the mere technical advantage of denynying appellants' right of working their lode in the usual way on account of the said manner in which the end lines of the Silver King were originally located. His counsel argue as if the right of a quartz or lode miner to follow his vein laterally is a piece of extraordinary legislative grace and favoritism, different from the usual dominion which men have over their property, and therefore to be STONE LODE. EXHIBIT A Scale 500-1: RLINE contracted and circumscribed in every direction by strict construction. But this is a mistaken view of the subject. That which a lode miner locates, that which he seeks to secure, that which constitutes his valuable property in the mine, is the lode itself, and the right to mine it wherever it may go under ground between the end points of his location. This right was not given, in the first instance, by the act of congress. Of course, as the United States government owned the land, and the right to mine was a mere license from that government, congress might have greatly changed that right, or might have withdrawn the license entirely. But it did not do so. The statutes of congress up- Here is a surface location with nearly a on the subject, except so far as they provid-dozen exterior lines; with no distinguishable ed for patents, were little more than mere formal legislative declarations of what had before rested in unwritten consent. They followed mainly the customs which miners exercising the license had established among themselves, and which fixed the character and incidents of mining property. And one of the inherent and most valuable qualities of property in a lode mine, as fixed by those customs, was the right to mine the lode to indefinite depths, although it might so far depart from a perpendicular in its downward course as to extend outside the vertical side lines of the surface location. side lines or end lines; made in extreme violation of the usages and principles of location recognized by the statutes; and which, if it gave any right to follow a vein at all, would give the right to follow veins in nearly a dozen different directions. The lines which are designated as end lines are not end lines at all. The one designated as the south end linefrom the figure 6 to the figure 5—would, if extended, run through the center of the location; and, as stated in the opinion, the ore taken from the Gilt Edge was not within planes drawn through the asserted end lines. As was said by the learned judge of the circuit court who tried the case: "With superficial attention to the letter of the law, and in utter ignorance and disregard of its principles, the two lines were made in equal length, and parallel with each other, but so arranged that they can never perform the office assigned to them in the law." It is true that in the opinion of the supreme court of the United States rendered in this case the language of the statute about end lines being parallel is restated; but the meaning of that language, as applied to a case like the one at bar, different entirely in its facts from the one then before the court, was not given, and was not before the court. And it may be noticed that the opinion of the court was delivered by the same learned justice who said in the Eureka Case that the said provision was only directory. A comparison of the two diagrams above given, of the Silver King and the Stone, will clearly show the difference between the two, and that the principle upon which the Stone Case was decided does not apply at all to the case at bar. Of course, where end lines diverge to any considerable extent from a perfect parallel they might, when extended in their own direction, include, on one side at least, greater length of ledge outside the side lines than within them; and in such case, if the owner undertook to mine outside ore on or near the diverging end line, some difficulty might arise. And it was, no doubt, the purpose of section 2320 to prevent a party from claiming more outside his lines than within them. But no such question arises in this case. Counsel for respondent, in support of their main contention, cite the case of Iron Silver Min. Co. v. Elgin M. & S. Co., 118 U. S. Rep. 196, 6 Sup. Ct. Rep. 1177. The language of the opinion of the court in that case must be considered with reference to the facts of the case, and the points which were before the court for decision. The question involved was the right of the defendants therein, who were the owners of a lode location called the "Stone Claim," to follow a vein, the apex of which was within the surface lines of said claim, into an adjoining claim owned by plaintiffs, called the "Gilt-Edge Claim." When defendants offered evidence to prove their right to follow their vein into the Gilt-Edge ground, the plaintiffs objected, because, "by reason of the surface form or shape of the Stone claim, its owners had no right" to follow, etc., and because "no part of the Gilt-Edge claim or the mineral or lode within it was within vertical planes drawn downward through the end lines of the Stone claim, and continued indefinitely in their own direction." Pages 202, 203, 118 U. S., and 1181, 6 Sup. Ct. Rep. The objection there was not that the end lines of the Stone claim were out of parallel, and as a matter of fact what were claimed to be the end lines were parallel. The objection rested on the general "form or shape" of the Stone surface location, and on the fact that the disputed ore in the Gilt Edge was not within vertical planes drawn through the end lines of the Stone claim. The objection was very properly sustained, as a glance at the Stone surface location will at once show. The following is a diagram of that location, copied from page 203 of the report: Moreover, we think that defendants should have been allowed to show, as a part of their defense, that in March, 1882,-less than a year after the original location,-they rectified their west end line, by means of an oflicial survey, so as to make it parallel with the east line; and that in 1885 they applied for a patent upon that official survey, provided that no injury was done thereby to plaintiff. And it is difficult to see how there could have been any such injury; because by such rectification defendants had less ground within their surface lines, and the vertical end lines extended in their own direction over plaintiff's claim included less of the ledge, than they did before, although both before and after the rectification they included the place where the disputed ore was taken out. Is it possible that a prospector, discovering a lode mine on a wild and rugged mountain side, and locating it in substantial compliance with mining customs and congressional laws, must inevitably lose what may be the most valuable part of his discovery simply because he failed, in the first instance, to run his end lines on a perfect parallel? Such a locator has the right, and perhaps it is his duty, to make such change as is necessary to parallel his end lines, the next day, or the next month, or within any reasonable time, if such change interferes with the substantial property rights of no other person. Any different rule would be a disgrace to justice, and an impeachment of the common sense of lawmakers. For the foregoing reasons the judgment must be reversed; and, in looking again over the transcript, we see no other points made by appellants which seem to need special mention, or that will create any difficulty, if there shall be another trial of the case. The judgment and order are reversed, and cause remanded for a new trial. of a road made after the expiration of a prior lease for 10 years, is not a gift of the purchase price, within the meaning of Const. Cal. art. 4, § 31, which provides that the legislature shall have no "power to make any gift, or authorize the making of any gift, of any public money or thing of value, to any individual, municipal, or other corporation, whatever." PATERSON, J., dissenting. Commissioners' decision. In bank. Application for writ of mandate. Lloyd & Wood, for petitioner. Johnson, Atty. Gen., for respondent. Geo. A. FOOTE, C. This is an application for a writ of mandate to compel the comptroller of the state to draw his warrant upon the state treasurer for the sum of $8,000 in favor of the petitioner. The comptroller refuses to draw the warrant, because, as he alleges, the legislature had no power, under the constitution, to pass the law by virtue of which the petitioner claims the right to draw the $8,000 from the treasury. It is contended by the counsel for the respondent that the money voted to the petitioner by the act in question is a gift, and, as such, is inhibited by article 4, § 31, of the state constitution. The portion of the constitution under consideration is: "Sec. 31. The legislature shall have no power; * * ** nor shall it have power to make any gift, or authorize the making of any gift, of any public money or thing of value, to any individual, municipal or other corporation, whatever." The Civil Code, § 1146, says: "A gift is a transfer of personal property made voluntarily, and without consideration." To be a gift, this voluntary transfer must be gratuitous, —a handing over to the donee something for nothing. Upon the face of the act of the legislature upon which the petitioner's contention is made, it appears that the legislature appro We concur: THORNTON, J.; SHARPSTEIN, J. priated $8,000 to purchase from the "YosemHearing in bank denied. (83 Cal. 264) YOSEMITE STAGE & TURNPIKE Co. v. DUNN, Comptroller. (No. 13,357.) (Supreme Court of California. Feb. 28, 1890.) GIFT BY STATE-PURCHASE OF ROAD-FRANCHISE. * * 13 U. S. St. at Large, 325, provides "that there shall be, aud is hereby, granted to the state of California the cleft or gorge in the granite peak of the Sierra Nevada mountains, situated in the county of Mariposa, in the state aforesaid, ** with the stipulation, nevertheless, that the said state shall accept this grant upon the express condition that the premises shall be held for public use, resort, and recreation; shall be inalienable for all time, but leases not exceeding ten years may be granted for portions of said premises. All incomes derived from leases of privileges to be expended in the preservation and improvement of the property, or the roads leading thereto; * the premises to be managed by the governor of the state, with eight other commissioners to be appointed by the executive." The second section of the act, on like terms and conditions, grants the land, not to exceed four sections, embracing what is known as the "Mariposa Big Tree Grant." Held, that roads laid out in the grant are not subject to the general road law of the state, which provides that when a franchise for a road has expired the road becomes a free public highway, and the purchase by the state, under an act of the legislature, of the interest of one holding an unexpired lease v.23p.no.7-24 ite Stage & Turnpike Company its road," running from the line of the grant to the floor of the valley, by Inspiration and Artists' points, a distance of eight miles, and known as the "Yosemite and Wawona Road." Acts 1889, p. 142. It is clear, therefore, that, so far as the legislature was concerned, its intention was to purchase a road in which it believed the petitioners had an interest at least worth purchasing, and that no gratuitous donation was intended to be made. Was one in fact made? The agreed facts in the case are: "(1) That heretofore, and on the 1st day of January, 1875, the commissioners to manage the Yosemite Valley & Mariposa Big Tree Grove made and entered into a contract and agreement with Washburn, Chapman & Co., hereto attached, and made part hereof, marked Exhibit A.' (2) That said Washburn, Chapman & Co. complied with their part of said contract or agreement, and fully performed the same, and constructed the road therein mentioned, and expended thereon the sum of $16,000, or thereabout, and collected and received the tolls therein mentioned. (3) That the petitioner, the Yosemite Stage & Turnpike Com. pany, has succeeded, by assignments and conveyances from Washburn, Chapman & Co., to all and every their rights and privileges under the lease and contract aforesaid; and said Washburn, Chapman & Co., and Yosemite Stage & Turnpike Company, have at all times since its completion been in the possession of said road, and using the same, in accordance with the terms of the several leases or contracts herein set forth. (4) That on December 17, 1885, and before the expiration of the aforesaid lease, the commissioners to manage the Yosemite Valley & Mariposa Big Tree Grove passed a resolution extending the terms of said lease, a copy whereof is hereto attached, marked Exhibit B;' and on June 6, 1888, said commissioners made and entered into the contract or lease hereto attached, marked Exhibit C.' (5) That said Yosemite Stage & Turnpike Company fully performed its part of said contracts or agreements, and is now in possession and use of said road therein mentioned, and has heretofore maintained, and is now maintaining, the same. (6) That after the passage of the act of the legislature in the petition mentioned, said Yosemite Stage & Turnpike Company made, executed, and tendered its deed for said road, and its release of said contract, to the State of California, in due form of law, and the board of examiners of said state thereupon accepted said tender, and audited, allowed, and ordered paid to said Yosemite Stage & Turnpike Company the sum of money appropriated by said act. (7) That, upon demand being made thereafter, said John P. Dunn, comptroller of the state of California, refused to draw the warrant mentioned in said act." It is contended by the counsel for the respondent that the petitioner had no right or interest whatever in the road attempted to be purchased and paid for by the legislature; that, having nothing to sell, or which could be bought from them, the voting to them of $8,000 by legislative act was a gift pure and simple, and nothing else. The first point which he makes in support of his contention is that, as the first 10-year lease expired in 1885, the turnpike road in possession of the lessees at once became, by operation of section 2619 of the Political Code, a free public highway. We do not think this view of the matter is correct, as no portion of the Yosemite grant is subject to the general road laws of the state. The act of congress under which the land included in the grant was made to the state of California is in this language: "That there shall be, and is hereby, granted to the state of California the cleft or gorge in the granite peak of the Sierra Nevada mountains situated in the county of Mariposa, in the state aforesaid, with the stipulation, nevertheless, that the said state shall accept this grant upon the express conditions that the premises shall be held for public use, resort, and recreation; shall be inalienable for all time; but leases not exceeding ten years may be granted for * * * portions of said premises. All incomes derived from leases of privileges to be expended in the preservation and improvement of the property, or the roads leading thereto; * * ** the premises to be managed by the governor of the state, with eight other commissioners, to be appointed by the executive of California, and who shall receive no compensation for their services." 13 U. S. St. at Large, 325. The second section of the act, on the like terms and conditions, grants the land, not to exceed four sections, embracing what is known as the "Mariposa Big Tree Grant." Thus it will be seen that by the terms of that act the grant was made to the state of California, to be put to a specific public use, and no other. It was to be managed by a board of commissioners, to whom were given certain defined and specific powers, to be exercised consistently with the conditions named in the grant. The roads laid out within the grant, being under the charge and supervision of the board of commissioners, were not to be managed as by a board of supervisors of a county, or a county and city; and the board of commissioners is not controlled by the state laws applicable to boards of supervisors. Hence the argument made for the respondent, that the commissioners "could not abandon the free public highways in the grant to any corporation," is without force; for the commissioners are expressly given the power, by the act of congress, to lease portions of the premises or grant for a period of time not exceeding 10 years; and they are not confined by the act to the leasing of portions for any specific purpose named in the act. The power to lease portions of the premises for a period not exceeding 10 years is a general one, so far as the purpose of the lease is concerned. The roads laid out in the grant by authority of the commissioners are not subject to the jurisdiction of boards of supervisors. They are the property of the state, and subject to the jurisdiction and control of a particular body, viz., the board of commissioners, whose action is controlled by the provisions of the act of congress authorizing their appointment. The state could not, under the terms of the act of congress, making the grant for a special public use, commit its management to any other body than the board of commissioners. Ashburner v. California, 103 U. S. 575, 578, 579. If the commissioners are authorized to lease portions of the grant, and are not limited as to what use the leased premises may be allowed by them to be put, it is not perceived but what they had the power to make the leases in controversy. If they possessed this power, then it appears to us that the legislature might very well, if it desired to do so, in the interests of the state, buy out the interests of the petitioners under an unexpired lease, and that the purchase money voted for that purpose was not a gift. It appears, therefore, that the prayer of the petitioners should be granted; and we advise that a peremptory writ of mandate issue, commanding |