Messrs. Matthew G. Reynolds and charges. Nothing seems to have been done John K. Richards, Solicitor General, for ap-on this purchase until 1849, when title papers pellant. Mr. Rochester Ford for appellees. Mr. Justice Brewer delivered the opinion of the court: were issued by the substitute treasurer general of the state of Sonora. Without repeating the discussion contained in the foregoing opinion, we think that the grant should be sustained for the four sitios purchased, petitioned and paid for, and for no more. As the grant was confirmed in toto we are compelled to order that the decree of the Court of Private Land Claims be reversed, and the case remanded to the court for further proceedings. This case resembles that of Ainsa v. United States just decided, 171 U. S. 220 [ante, 142]. The proceedings for the sale were had in 1820 and 1821 and before the same intendant. We deem it unnecessary to add anything to what was stated in that opinion as to the law controlling. It is sufficient to say that while the claim now made is for 46,696.2 acres, WILLIAM FAXON, Jr., Trustee, et al [244] the application for purchase was for four sitios (17, 353.84 acres). All the proceedings Appts., v. et al. (See S. C. Reporter's ed. 244-260.) contemplated a sale of only that amount of UNITED STATES and George W. Atkinson land. Thus the appraisers staid that "from their examination they said that each sitio should be valued at thirty dollars, taking into consideration that none of them had running water or natural standing water, but that water facilities might be obtained by means of a well." The first of the three final auctions was reported in these words: Court of private land claims—power of treas 1. 2. In order to the confirmation of any claim, the court of private land claims must be satisfied of the regularity in form of the proceedings, and that the official body or person mak ing the grant was vested with authority, or that the exercise of power, if unwarranted, was subsequently lawfully ratified. The treasurer of the department of Sonora did not in 1844 have the power to determine by his sole authority that abandoned pueblo and mission lands belonged to the class of the temporalities, and that their value was not over $500, and to sell and grant them independently of other officials. 3. Pueblo and mission lands in Mexico when abandoned seem to have become, under the laws existing in 1844, a part of the public domain of the nation, to the disposal of which only the laws of the nation applied, and which could not be granted by the treasurer of a department. [No. 119.] Decided May 31, "In the city of Arizpe, on the 13th day of December, 1821, there met as a board of auction the provisional intendant, as president, and the other members that compose it, to hold the first auction of the lands to which these proceedings refer, and they caused the people to be assembled at this office by the [243]*beating of the drum, and many persons gathered at the office of the intendant, when the auctioneer, Loreto Salcido, in their presence was ordered to ask for a bid, which he did in a loud and clear voice, saying: 'Here before this board of the treasury are being sold four sitios of public land for the raising of cattle situated at the place called San Ygnacio de la Canoa,within the jurisdiction of the military post of Tubac, surveyed in favor of Tomas and Ygnacio Ortiz, residents of that same town, and appraised in the sum of one hundred and twenty dollars, being at the rate of thirty dollars for each sitio, it being necessary to dig a well to make the land Argued March 18, 1898. useful. Whosoever wishes to make a bid upon this land, let him come forward and do so in the manner established by law before this board, where his bid will be heard, notice being given that the Rev. Father Fray Juan Bano, minister of the mission of San Xavier del Bac, in the name of Ygnacio Sanches and Francisco Flores, resident citizens of the same town, had bid for said land the amount of two hundred and ten dollars; and with the understanding that on the third auction, Statement by Mr. Chief Justice Fuller: which is to take place on the day after toThree separate petitions were filed in the morrow, the sale shall be settled upon the court of private land claims for the confirhighest bidder.' As no bidder appeared, the mation of what was commonly called and board adjourned, and the minutes were signed known as the Tumacacori, Calabazas, and by the president and members of this board." Huebabi grant, situated in the valley of the At the third auction a bid of $250 was Santa Cruz river, Pima county, Arizona, the made, and on that bid the property was petitioners in each claiming under the origistruck off to Tomas and Ygnacio Ortiz, who nal grantee. The causes were consolidated subsequently paid into the treasury the full NOTE. As to Missouri private land claims, amount of the purchase price with all see note to Les Bois v. Bramell, 11: 1051. 1898. APPEAL from a decree of the Court of Private Land Claims, rejecting the claim of William Faxon, Jr., trustee, for the confirmation of his title to land known as the Tumacacori, Calabazas, and Huebabi grant, situated in the valley of the Santa Cruz river, Pima county, Arizona. Affirmed. same. and tried under the petition of William | dependencies; that the alleged grant was ever Faxon, Jr., trustee, and others. The located and recorded as provided by the sixth petition alleged that the claimants were article of the treaty of Mesilla (Gadsden purthe owners in fee of the tract of land in chase); that the original grantee or grantees question under and by virtue of a certain were ever owners of the property as against instrument in writing, dated April 19, 1844, the Republic of Mexico, or are now the own"made and executed by the treasury depart-ers thereof as against the United States or ment of Sonora in compliance with the law its grantees; that the grantee Aguilar, in of the Mexican Congress of the 10th of Feb- the year 1844, went into actual possession ruary, 1842, providing for the denouncement and occupation of the grant, and erected and sale of abandoned pueblos," running to monuments thereon, or that he and his repreDon Francisco Alejo Aguilar, to whom said sentatives have continued ever since in the treasury department sold the tract April 18, actual possession, use, and occupation of the 1844, for the sum of $500. That in the year 1806, the governor of the The answer averred that the proceedings 245]Indian pueblo of Tumacacori petitioned Don for sale were never taken under the express Alejo Garcia Conde, intendente of the prov-order or approval of the general government, ince, etc., etc., to issue to the Indians of the pueblo a grant of lands for the "fundo legal" and also for the "estancia" of the pueblo to replace ancient title papers which had been lost or destroyed; that in accordance with that petition the lands mentioned were ordered to be surveyed, which was done, and the boundary monuments established, by Don Manuel de Leon, commandante of the presidio of Tubac; that on April 2, 1807, the said intendant Conde is sued a royal patent or title to the Indians of the pueblo of Tumacacori for the lands, as set forth in the proceedings of the survey thereof and in the copy of the original expediente. That under the law of the Mexican Congress of February 10, 1842, Don Francisco Aguilar, on April 18, 1844, became the owner by purchase, as before mentioned, "of the four square leagues of agricultural and grazing lands of the 'fundo legal' of the abandoned pueblo of Tumacacori and the sitios of the estancia (stock farm) of Calabazas, and the other places thereunder pertaining." It was averred that all the steps and proceedings in the matter of the grant and sale were regular, complete, and legal and vested a complete and valid title in fee in the grantee; and that the grantee at the time went into actual possession, use, and occupation of the grant and erected the proper monuments thereon, and that he and his legal representatives have continued ever since and until the present time in the actual possession, use, and occupation of the same, and are now possessed and seised in fee thereof. The United States answered alleging that the alleged sale to Aguilar was without warrant or authority of law and void; that, if these lands had been theretofore granted to the pueblo of Tumacacori, they were abandoned about 1820, and by virtue thereof became public lands; that the title to said property, if any passed in 1807, was purely usufructuary, and vested no estate, legal or equitable, in the said pueblo. or mission, but that the same and the right of disposition were reserved to and remained in the national government. The answer denied that Aguilar became the owner by purchase or otherwise of any lands [246]included in the alleged grant *of 1807 to the pueblo, or of any land of that mission or its and never submitted to said general government for ratification or approval; that the lands claimed far exceeded those contained in the original survey; that the sale was by quantity and limited; and that the alleged grant was so indefinite and uncertain as to description as to carry no title to any land. On the hearing the testimonios of the grants of 1807 and of 1844 were put in evidence. Evidence was adduced to the effect that Aguilar, the original grantee, never took or had possession of the lands; that he was the brother-in-law of Manuel Maria Gandara, who was the Governor of Sonora in 1842, and in 1845 to 1853, except a few months; to whom Aguilar conveyed in 1856, and, more formally, in 1869; that Gandara was in possession in 1852, 1853, 1854, and 1855, through his herdsmen; and that, as contended by counsel for petitioner, the money for the purchase was furnished by Gandara, and Aguilar took the title as trustee for him. Apparently the expedientes were not in the archives, nor was there any note of the grant in the book of toma de razon for 1844. A translation of the titulo of 1844 is given in the margin.† Seal Treasury of the Department of Sonora, 1844. Title of sale, transfer, and adjudication of agricultural lands which include the 4 leagues of the fundo legal of the deserted pueblo of Tumacacori and the 2 sitios of its estancia (stock ranch) of Calabasas and the other places thereto annexed, the same being situated in the jurisdiction of the District of San Ignacio, issued by the said departmental Treasury in compliance with the supreme decree of the 10th of February, 1842, in favor of Don Francisco Alejandro Aguilar, a resi dent of the port and village of San Fernando de Guaymas. Second Seal. Four Dollars. Eighteen hundred and forty-four and eighteen hundred and forty-five. Ignacio Lopez, captain of cavalry retired to the infantry, honorary intendant of the army and treasurer of the Department of Sonora. 1842, provides for the sale, on account of the Whereas the supreme decree of February 10, critical condition of the public treasury, of the properties pertaining to the department of temand the lands for breeding cattle and horses reporalities, of which class are the farming lands spectively of the 4 leagues of the town site of the depopulated town of Tumacacori and the 2 sitios of the stock farm of the same at the points of Huebabi, Potrero, Cerro de San Cayetano, and Calabazas, whose areas, boundaries, monuments, and conterminous tracts are stated cuted in the year 1807 by the commissioned sur in the corresponding proceedings of survey exe In the year 1884 the complainant and his co-owners objected to the overlap, and demanded of the Champion Mining Company that it abandon all claims to the surface and lode to the south of the Providence boundary line, above described. Thereupon, in the month of November, 1884, John Vincent, the superintendent of the defendant, the Champion Mining Company, under the authority and by the direction of the said company, relocated the New Years Extension Mine by a notice of relocation, in which the fact of the overlap under the original location was particularly recited, and the lines were readjusted so as to avoid the overlap and to conform to said line f-g of the Providence Mine, as shown on figure 1. crosscut was run back to the Contact vein The claims of the respective parties will be The portion of the Contact vein in dispute is that upon the dip of the ledge lying between the line marked "Line claimed by Providence" and the line marked "Line claimed by Champion." The apex of the Contact vein is represented by the dotted line x-x, and shows the vein as far as exposed in both the Champion and Providence ground. South of the course of the vein in the Providence The line f-g is the same line as that desig nated A-B by some of the witnesses. In the notice of relocation the lode line was particularly described as follows: "The lode line of this claim as originally located, nd which I hereby relocate, is described as follows: Commencing at a point on the north-ground is unknown. erly bank of Deer creek, which point is 60 feet S., 11 degrees 45 minutes east of the month of the New Years tunnel and running thence along the line of the lode towards the N. E. corner of the Providence mill, about S. 46 degrees 15 minutes east, 200 feet, more or less, to a point and stake on the northerly line of the Providence Mine, patented designated as Mineral Lot No. 40 for the south end of said lode line." It also contained the following statement: "And whereas, part of this claim, as originally described and as hereby relocated, conflicts with the rights granted by letters patent of said Providence Mine, said lot No. 40, now, therefore, so much of this claim, both for lode and surface ground, as originally conflicted or now conflicts with any portion of the surface or lode claims or rights granted by said patent, is and are hereby abandoned, which portion of this claim so abandoned is described as follows: All that portion of the above-described New Years Extension Claim for surface and lode which lies south of the [299]northern boundary line of said *Providence Mine, which runs north 43 degrees 10 minutes east, across the southeastern corner of this claim." Upon the trial the circuit court held that there could be but one end line for each end of the Providence location, and that the lines g-h and a-p constituted such end lines; that *such lines constituted the end[300] lines of not only the originally discovered Providence lode, but also of every other vein that might be discovered within the surface lines of the location. But, notwithstanding this holding, in entering the decree the line f-g was also established as an end line of the Contact vein, but for its length only, and then that from "g" the line g-h, and that line extended indefinitely eastwardly, constituted another end line for the same end of the lode, and constituted the line through which the plane determinative of all extralateral rights in the vein must be drawn. From this decree the appellant here was allowed an appeal to the circuit court of appeals. The latter court established the line g-h-h1 as the sole line of the Contact vein, and reversed the decree of the circuit court in so far as it fixed the line f-g as an end line. As a result of this decree the complainant was not only shut out of all extralateral rights in the Contact vein north of the line The New Years Extension as relocated is conterminous with the Providence Mine on the northerly boundary line designated as the line f-g, running south 43 degrees west.g-h-h', but also of that portion of the vein (Fig. 1.) That line is the only boundary between the two properties, and the only boundary of the Providence location which is crossed by the Contact ledge. lying vertically beneath the surface lines of The first workings of the appellee involved court. There are nine assignments of error. The The work done by the Providence was car- first eight attack so much of the decree as ried on through a shaft sunk on the Provi- establishes the line g-h as an end line, for dence or Granite ledge, from which shaft al the purpose of determining the extralateral Messrs. R. R. Bigelow, Daniel Titus, and James F. Smith for appellant. Messrs. Curtis H. Lindley and Lindley & Eickhoff for appellee. right, or fails to establish the line f-g, and | It lay across the lode, not with it, and the that line produced indefinitely in the direc- company contended, notwithstanding that, tion of g' as such end line. The last two as it had a right to the lode for the length of sail so much of the decree as awards to ap- the location. In other words, the contention pellee the right to pursue the vein on its was that it was the lode which was granted, downward course underneath the parallelo- and that the surface ground was a mere ingram h-i-k-h1. cident for the convenient working of the lode. The contention was presented and denied by the instructions which were given and refused by the lower court. That court instructed possession of the claim, describing it, holdthe jury that if they found Tarbet "was in ing the same in accordance with the mining laws and the customs of the miners of the mining district, and that the apex and course of the vein in dispute is within such surface, then, as against one subsequently entering, he is deemed to be possessed of the land within his boundaries to any depth, and also of the vein in the surface to any depth on ite (2) Is appellant entitled to that portion dip, though the vein in its dip downward of the Contact vein within the Providence passes the side line of the surface boundary boundaries which lies north of the north end and extends beneath other and adjoining line fixed by the court, and which is de-lands, and a trespass upon such part of the scribed upon figure 1 as the parallelogram bounded by the lines marked h-i-k-h? Mr. Justice McKenna delivered the opinion of the court: There are two questions presented by the assignment of errors: (1) What are the extralateral rights of the appellant on the Contact vein? (1) The appellant contends that the patent of the Providence ledge was conclusive evidence of his title to 3,100 feet in length of that vein. If true, this carried the northern end of the ledge 30 feet beyond the line fixed by either the circuit court or the circuit court of appeals. It was truly said at bar: "If it is not the end line of the Providence location, then certainly there is no reason for holding it to be the end line of the Contact vein." vein on its dip, though beyond the side surface line, is unlawful to the same extent as a trespass on the vein inside of the surface boundary. This possession of the vein outside of the surface line, on its dip, is limited in two ways-by the length of the course of the vein within the surface; and by an extension of the end lines of the surface claim vertically, and in their own direction, so as to intersect the vein on its dip; and the right of a possessor to recover for trespass on the vein is subject to only these restrictions." Again: "The defendant (plaintiff in error) The language of the patent is: "It being has not shown any title or color of title to the intent and meaning of these presents to any part of the vein, except so much of its convey unto the Providence Gold & Silver length on the course as lies within the FlagMining Company, and to their successors staff *surface, and the dip of the vein for tha(303 and assigns, the said vein or lode in its en-length; and it has shown no title or color of tire width for the distance of thirty-one hundred (3,100) feet along the course thereof." The patent was issued under the act of 1866, and it is necessary, therefore, to some extent to consider that act. By it, the appellant urges, the principal thing patented was the lode, and that the northern limit of that, and hence of his rights on that, was 30 feet north of the line fixed by the circuit court of appeals; and hence it is further contended that as the northern and southern surface lines (g-h and a-p) did not determine or limit his right to the lode under the act of 1866-in other words, did not become end lines they do not become end lines upon the Contact ledge (x-x”) acquired under the act of 1872, but that the surface line [302]which crosses the strike of that ledge must be held to be the end line, and the line which fixes the rights of the parties. This line is f-g. Fig. 1, and, if appellant is correct, determines the controversy in his favor. The extent of the right passing under the act of 1866 has been decided by this court. In Flagstaff Silver Mining Co. v. Tarbet, 98 U.S. 463 [25: 253], known as the Flagstaff Case, the superficial area of the Flagstaff Mine was 100 feet wide by 2,600 feet long. title to any of the surface of the South Star and Titus mining claim, except to so much of No. 3 as lies within the patented surface of the Flagstaff mining claim." And the following instructions propounded by the owner of the Flagstaff: "By the act of Congress of July 26, 1866, under which all these locations are claimed to have been made, it was the vein or lode of mineral that was 'ocated and claimed; the lode was the principal thing, and the surface area was a mere incident for the con venient working of the lode; the patent granted the lode, as such, irrespective of the surface area, which an applicant was not bound to claim; it was his convenience for working the lode that controlled his location of his surface area; and the patentee under that act takes a fee-simple title to the lode, to the full extent located and cla.med under said act." Commenting on the instructions, Mr. Justice Bradley, speaking for the court, said: "These instructions and refusals to instruct indicate the general position taken by the court below, namely, that a mining clai secures only so much of a lode or vein as it covers along the course of the apex of the vein on or near the surface, no matter how far the location may extend in another direc-|S. 222 [38:419]. The locations passed upon tion." in these cases were made under the act of 1872, *but we have seen that the intent of that act[305] and the act of 1866, "as it respects end lines and side lines," was the same. And after stating that the act of 1872 was more explicit than that of 1866, but the intent of both undoubtedly the same, as it respects lines and side lines, and the right to follow the dip outside of the latter, he proceeded as follows: But appellant urges that "those cases are not in point here." We think that they are. The patent in the Flagstaff Case appears to "We think that the intent of both statutes have been the same as here, and besides, whatis, that mining locations on lodes or veins ever the patent here it must be confined to the shall be made thereon lengthwise, in the gen-rights given by the statute which authorizes eral direction of such veins or lodes on the it. was surface of the earth where they are discover- In the Flagstaff Case the lode was claimed, able; and that the end lines are to cross the and hence the right to follow it beyond the lode and extend perpendicularly downwards, surface boundaries of the location and to be continued in their own direction claimed. Here the lode is claimed and the either way horizontally; and that the right right to follow it outside of the surface to follow the dip outside of the said lines is boundaries, that is, beyond the line f-g to the based on the hypothesis that the direction of point 1. In that case the right contended 04* these lines corresponds substantially with for was denied on the principle applicable to the course of the lode or vein at its apex on end and side lines. In this case the or near the surface. It was not the intent of right contended for must be denied by the apthe law to allow a person to make his loca- plication of the same principle. tion crosswise of a vein so that the side lines shall cross it, and thereby give him the right to follow the strike of the vein outside of his said lines. That would subvert the whole system sought to be established by the law. If he does locate his claim in that way his rights must be subordinated to the rights of those who have properly located on the lode. Their right to follow the dip outside of their said lines cannot be interfered with by him. His right to the lode only extends to so much of the lode as his claim covers. If he has located crosswise of the lode, and his claim is only one hundred feet wide, that one hundred feet is all he has a right to. This we consider to be the law as to locations on lodes or veins. "The location of the plaintiff in error is thus laid across the Titus lode, that is to say, across the course of its apex at or near the surface; and the side lines of the location are really the end lines of the claim, considering the direction or course of the lode at the surface. But, appellant asks, admitting for the argument's sake that it (the line g-h) does constitute an end line of the location within the meaning of the law of May 10, 1872, does it constitute the end line of the Contact vein? And in answering the question he says: "The end line of a lode is the boundary line which crosses it regardless of whether it was originally intended as an end line or side line. Four times has this principle been sustained by this court." He then cites the cases we have cited and claims that they "are of course conclusive of this controversy if they are in point." Under the law of 1866 a patent could be issued for only one vein. 14 Stat. at L. 251. The act of 1872 gave to all locations theretofore made, as well as to those thereafter made, all veins, lodes, and ledges the top or apex of which lie inside of the surface lines. Section 3 of the act, which is also § 2322 of the Revised Statutes, is as follows: "The locators of all mining locations heretofore made, or which shall hereafter be "As the law stands, we think the right to made, on any mineral vein, lode, or ledge, follow the dip of the vein is bounded by the situated on the public domain, their heirs end lines of the claim, properly so called; and assigns, where no adverse claim exists which lines are those which are crosswise of on the tenth day of May, eighteen hundred the general course of the vein on the surface. and seventy-two, so long as they comply The Spanish mining law confined the owner with the laws of the United States, and with of a mine to perpendicular lines on every state, territorial, *and local regulations not[306] side, but gave him greater or less width ac- in conflict with the laws of the United States cording to the dip of the vein. See Rockwell, governing their possessory title, shall have pp. 56-58 and pp. 274, 275. But our laws the exclusive right of possession and enjoyhave attempted to establish a rule by which ment of all the surface included within the each claim shall be so many feet of the vein, lines of their locations, and of all veins, lengthwise of its course, to any depth below lodes, and ledges throughout their entire the surface, although laterally its inclination depth, the top or apex of which lies inside of shall carry it ever so far from a perpendicular. such surface lines extended downward_vertiThis rule the court below strove to carry out, and all its rulings seem to have been in accordance with it." This law was followed and applied in Argentine Mining Company v. Terrible Mining Company, 122 U. S. 478 [30: 1140]; and in Iron Silver Mining Company v. Elgin Min. & S. Co. 118 U. S. 196 [30: 98]; King v. Amy & Silversmith Consol. Min. Co. 152 U. cally, although such veins, lodes, or ledges |