shall therefore proceed to consider the case as trialable de novo in this court.

The appellant insists that the court erred in sustaining a motion to strike out a part of an amendment to the answer, but a careful examination of the pleading convinces us that the portion struck out might be regarded as redundant; and we think the motion was properly sustained.

The first branch of the equitable defense set up by the defendant is that the contract in question does not express the true intent of the parties, but that the design was to put into the agreement "that defendant, or his assignees, should have the right to prospect said land, and see if there was any coal thereunder, and, if it was proven there was not, there should be no royalty or money paid;" that this was the intention at the time the contract was made, but that it was "omitted from the written agreement by mistake or oversight. Defendant therefore asks that the written agreement or conveyance be reformed so as to express the real intent of the parties at the time as indicated above." It is an old and well-established rule that, before a court can disturb the provisions of a written agreement for the purpose of reforming it, there should be clear and convincing evidence (1) that the written instrument did not, at the time of its execution, set forth the true intent of the parties; (2) that the failure to make the instrument express such intent arose from oversight or mistake in drafting the instrument.

It does not seem to us clear from the evidence that there was any intent, at the time of the execution of the writing, that any such provision, as claimed by defendant, was intended to be inserted. On the contrary, all the negotiations proceeded in the belief that there was coal on the premises, and the writing was drawn in accordance. with such negotiations. There was not sufficient evidence to warrant the court in disturbing the provisions of the contract.

It appears very clear, however, from the evidence, that the lease or conveyance was executed, delivered, and received under the belief that there was coal underlying the premises, and that the same could be mined. It is equally clear from the testimony that there is no coal there. The lease was therefore entered into by the parties through a material honest mistake of fact, of vital importance to the validity of the contract. Both parties were dealing in regard to something they supposed to be in existence so far as either had any knowledge. Against such a mistake equity will grant relief. 1 Story, Eq. Jur. 142-144; Allen v. Hammond, 11 Pet. 71; 2 Kent, Comm. (10th Ed.) 643. There being, therefore, a total failure of consideration arising out of mutual mistake, the plaintiff is not entitled to recover of the defendants.

Reversed.

'ARGENTINE MINING Co. v. TERRIBLE MINING CO.

(122 U. S. 478. Supreme Court. May 27, 1887.)

Waiver of Replication. A new party having been substituted in the case, amended complaint and answer substantially the same as the original were thereupon filed but no new replication was filed. Trial was had without objection on this point: Held that it was too late to be taken advantage of in the Appellate Court.

The refusal of instructions though sound in law becomes immaterial when the jury find the facts upon which they were predicated against the party asking them.

When there are surface outcroppings from the same vein within the boundaries of two claims, the one first located necessarily carries the right to work the vein.

"When a mining claim crosses the course of the lode or vein instead of being "along the vein or lode," the end lines are those which measure the width of the claim as it crosses the lode; and thus the lines which separate the locations of the parties in this case are end lines across which, as they are extended downward vertically, the defendant cannot follow a vein, even if the apex or outcropping is within its surface boundaries.

'An earlier location though its survey lies across instead of with the strike will hold all the vein within its lines against a later location on the same vein.

Error to the Circuit Court of the United States for the District of Colorado.

The following is the statement of the case made by the

court.

This is an action to recover certain mining ground, being part of what is known as the Adelaide Lode in Lake County, Colorado, lying within the California Mining District. It was originally brought in the name of Frederick S. Van Zandt, who

'Part of the litigation belowover same property is found in VanZandtv.Argentine Co. 4 M. R. 441; 7 Id. 634. Terrible Co. v. Argentine Co. 80 Fed.853. 'King v. Amy Co. 18 M. R. —.

The text is not the initial case to hold that no extralateral rights belong to a claim whose discovery vein crosses both side lines: that was the Flagstaff case which it cites.

But it is the leading case of the converse of the proposition, to wit: that such a location or patent owns all of the vein which it encloses between its vertical planes, against any later location.

It is true that the defending lode, the Pine, was in no better situation as the plat shows that its location was also across the strike of the vein; but

claimed to be the owner of the lode. Subsequently he transferred his interest to a corporation, created under the laws of New York, known as the Terrible Mining Company, and by consent of parties that company was substituted as plaintiff in the action. To the original complaint an answer was filed by the defendant, the Argentine Mining Company, a corporation created under the laws of Missouri, to which a replication was made. To the complaint, amended by the substitution of the Terrible Mining Company as plaintiff, a new answer, substantially the same as the one to the original complaint, was filed, but it does not appear from the record that any replication was made to it. The parties seem to have considered the replication to the original answer as sufficient, for the trial was had without any reference to this omission. Its following the text case in Last Chance Co. v. Tyler Co. 18 M. R. —. the same court extends the same ruling and protects the prior location against a claim patented on the strike which did have extralateral rights.

The following plat shows the situation of both claims as to the apex and the ore bodies.

absence cannot be made in this court, for the first time, a ground of objection to the subsequent proceedings. Nor do we consider counsel of the plaintiff in error as making any point upon the omission, although he calls our attention

to it.

The plaintiff below, defendant in error here, is the owner of the Adelaide mining claim. The defendant below, plaintiff in error, is the owner of three other mining claims, called, respectively, the "Camp Bird," the "Pine," and the "Charlestown" lode claims. All these claims lie in the same mining district. The Adelaide claim was located in 1876. The other claims were located in 1877. The Adelaide claim occupies on the surface longitudinally a northeast and southwest direction. The Pine, Camp Bird, and Charlestown claims occupy a position nearly north and south, with end lines practically east and west, thus crossing diagonally the Adelaide claim. During the summer of 1880, the defendant below carried its mining operations through its own ground into the Adelaide claim, and it justifies its action in this respect by asserting that in doing so it followed a vein which has its outcrop, or apex, within the surface of its own locations. It cites Section 2322, Revised Statutes, in support of its position. That section provides that locators of mining claims previously or subsequently made, on any mineral vein, lode, or ledge on the public domain, to which no adverse right existed on the 10th of May, 1872, "so long as they comply with the laws of the United States and with state, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as