rectangular claim by metes and bounds, and then excepts and excludes therefrom the premises previously granted to the New York Lode mining claim, convey to the patentee anything more than he would take by a grant specifically describing only the two ir regular tracts which constitute the granted surface of the Last Chance claim?

"3. Is the easterly side of the New York Lode mining claim an 'end line' of the Last Chance Lode mining claim, within the meaning of §§ 2320 and 2322 of the Revised Statutes of the United States? [60] *"4. If the apex of a vein crosses one end line and one side line of a lode mining claim, as located thereon, can the locator of such vein follow it upon its dip beyond the verti cal side line of his location?

Rep. 390; McGinnis v. Egbert, 8 Colo. 54; filler v. Girard, 3 Colo. App. 278; Girard v. Carson, 22 Colo. 345.

It is incumbent upon a junior locator, if he would avail himself of any advantage to be gained by the forfeiture or abandonment of a conflicting senior location, to appropri ate the ground in conflict by relocating it. Failing to do so, he must stand or fall by the merits of his junior location as against the earlier one, which must stand as to him as though it had never been abandoned. Lindley, Mines, § 363.

Whatever may pass by words of grant may be excepted by like words, and the same consequences attach to such an exception as would have attached had it been a grant. 3 Washb. Real Prop. 435.

"5. On the facts presented by the record By an exception the grantor withdraws herein, has the appellee the right to follow from the operation of the conveyance someits vein downward beyond its west side line thing which is in existence and included unand under the surface of the premises of ap-der the terms of the grant. pellant?"

1 Devlin, Deeds, 221; Whitaker v. Brown, 46 Pa. 197; Randall v. Randall, 59 Me. 338.

The end lines of a lode claim are those which lie "crosswise of the general course of from its vertical boundary, must be parallel. the vein," and these, to justify a departure

Messrs. Charles S. Thomas, William H. Bryant, and Harry H. Lee, for appellant: One who discovers a lode on the national domain and locates a claim therein, in accordance with the law, segregates the premises included within his boundaries as comFlagstaff Silver Min. Co. v. Tarbet, 98 pletely from the public territory as though U. S. 463 (25: 253); Argentine Min. Co. v. the government had executed and delivered Terrible Min. Co. 122 U. S. 478 (30: 1140); to him a patent therefor. It is his private Iron Silver Min. Co. v. Elgin Min. & Smeltproperty upon which no other citizen may in- ing Co. 118 U. S. 196 (30: 98); King v. Amy trude except to follow a vein underneath. its& S. Consol. Min. Co. 152 U. S. 222 (38: 419); surface which outcrops somewhere else. The statutory right of patent is permissive merely. He may avail himself of it or not. If he does not his tenure continues, provided he shall annually expend $100 in labor or improvements thereon. Failing to do this, his location lapses, and the ground which it covers reverts to the government, after which it becomes open to relocation.

Oscamp v. Crystal River Min. Co. 19 U. S. App. 18, 58 Fed. Rep. 293, 7 C. C. A. 233; Belk v. Meagher, 104 U. S. 279 (26: 735); Lockhart v. Rollins (Idaho) 21 Pac. 413; Garthe v. Hart, 73 Cal. 541; Harris v. Equator Min. & Smelting Co. 8 Fed. Rep. 863; McFeters v. Pierson, 15 Colo. 201; Keller v. Trueman, 15 Colo. 143.

One who enters upon ground staked and claimed by another under an assertion of discovery, and attempts to institute a claim of his own, is a wrongdoer simply, and can be ousted by action of ejectment.

Erhardt v. Boaro,113 U.S. 527 (28: 1113); Craig v. Thompson, 10 Colo. 517; Thompson v. Spray, 72 Cal. 528; North Noonday Min. Co. v. Orient Min. Co. 6 Sawy. 299, Weese v. Barker, 7 Colo. 178; Omar v. Soper, 11 Colo.


Last Chance Min. Co. v. Tyler Min. Co. 157
U. S. 683 (39:859).

But if the appellee should successfully contend that the line of crossing is not an end line, or that its lines of shadow beyond it are lines of substance for the purpose of its claim, we have then presented the question whether a claim, the vein within which crosses an end and a side line, has any right to go beyond its boundaries in the pursuit of its vein. There are a few cases arising under the act of 1872 in which such a right has been recognized.

Colorado C. Consol. Min. Co. v. Turck, 4 U. S. App. 290, 50 Fed. Rep. 888, 2 C. C. A. 67, 12 U. S. App. 85, 54 Fed. Rep. 262, 4 C. C. A. 313; Del Monte Min. & Mill. Co. v. New York & L. C. Min. Co. 66 Fed. Rep. 212; Last Chance Min. Co. v. Tyler Min. Co. 15 U. S. App. 456, 61 Fed. Rep. 557, 9 C. C. A. 613; Consolidated Wyoming Gold Min. Co. v. Champion Min. Co. 63 Fed. Rep. 540; Carson City Gold & 8. Min. Co. v. North Star Min. Co. 73 Fed. Rep. 598.

Wherever a mine owner asserts the right to enter into the land of his neighbor by following the dip of his vein, the burden of proof is upon him to establish the existence And if the point of discovery or the dis-of all conditions made necessary to such covery shaft of a lode claim is located upon a right by the statute. previous valid and subsisting location the former is invalid.

Gwillim v. Donnellan, 115 U. S. 45 (29:348); Upton v. Larkin, 5 Mont. 600; Armstrong v. Lower, 6 Colo. 393; Golden Terra Min. Co. v. Mahler (Dak.) 4 Mining

Iron Silver Min. Co. v. Campbell, 17 Colo. 267; Stevens v. Williams (Colo.) 1 Mining Rep. 557; Iron Silver Min. Co. v. Cheesman, 2 McCrary, 191; Iron Silver Min. Co. v. Murphy, 3 Fed. Rep. 368; Hyman Wheeler, 29 Fed. Rep. 347.


What are the "end lines" of a lode mining claim is to be determined, not by the lines of patented surface, but by the lines of the claim as located.

Messrs. Joel F. Vaile and Edward O. | Flagstaff Silver Mining Company v. Tarbet Wolcott, for appellee: (98 U. S. 463, 468 [25:253,255]; 1 Lindley on Mines, § 13). The peculiarities of the Mexican law are discussed by Lindley at some length in the section referred to. It is enough here to notice the fact that by the Mexican, as by the common, law, the surface rights limited the rights below the surface.

Flagstaff Silver Min. Co. v. Tarbet, 98 U. S. 468 (25: 255); Iron Silver Min. Co. v. Elgin Min. & Smelting Co. 118 U. S. 205 (30: 101)

If the apex of a vein enters a location across one end line thereof, the locator will own as much of the vein at any depth as he owns of its apex, subject only to superior rights of other apex claimants.

In the acquisition of foreign territory since the establishment of this government, the great body of the land acquired became the property of the United States, and is known as their "public lands." By virtue of this ownership of the soil the title to all mines and minerals beneath the surface was also vested in the government. For nearly a century there was practically no legislation on the part of Congress for the disposal of mines or mineral lands. The statute of July 26, 1866 (14 Stat. at L. 251), was the first general

Del Monte Min. & Mill. Co. v. New York & L. C. Min. Co. 66 Fed. Rep. 212; Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683, 695 (39: 859, 861); Flagstaff Silver Min. Co. v. Tarbet, 98 U. S. 463, 468 (25: 253, 255); Iron Silver Min. Co. v. Elgin Min. & Smelt-statute providing for the conveyance of mines ing Co. 118 U. S. 196, 207 (30: 98, 102); Tyler Min. Co. v. Sweeney, 7 U. S. App. 463, 54 Fed. Rep. 284, 4 C. C. A. 329.

Where several overlapping claims are located along the apex of the vein, the senior claimant holds as much of the vein at any depth as he holds of the apex within his location. The next in rank holds as much of the vein at any depth as there is of its apex within his location, except as to the portion thereof owned by the first in rank; and so on with subsequent claimants.

or minerals. Previous to that time it is true that there had been legislation respecting leases of mines, as, for instance, the act of March 3, 1807 (2 Stat. at L. 448, § 5), which authorized the President to lease any lead mine in the Indiana territory for a term not exceeding five years; and acts providing for the sale of lands containing lead mines in special districts (4 Stat. at L. 364; 9 Stat. at L. 37, 146, 179) also such legislation as is found in the act of February 27, 1865 (13 Stat. at L. 440) providing for a district and

Iron Silver Min. Co. v. Elgin Min. & Smelt-circuit court for the district of Nevada, in ing Co. 118 U. S. 206 (30: 102.)

Mr. Justice Brewer delivered the opinion of the court:

which it was said, in § 9, "that no possessory action between individuals in any of the courts of the United States for the recovery of any mining title, or for damages to any The questions thus presented are not only such title, shall be affected by the fact that important but difficult, involving, as they do, the paramount title to the land on which the construction of the statutes of the United such mines are, is in the United States, but States in respect to mining claims. As lead- each case shall be adjudged by the law of ing up to a clearer understanding of those possession;" *that of May 5, 1866 (14 Stat. at [62] statutes it may be well to notice the law in L. 43), concerning the boundaries of the state existence prior thereto. The general rule of of Nevada, which provided that "all possesthe common law was that whoever had the sory rights acquired by citizens of the United fee of the soil owned all below the surface, States to mining claims, discovered, located, and this common law is the general law of and originally recorded in compliance with the states and territories of the United States, the rules and regulations adopted by miners and, in the absence of specific statutory pro- in the Pah-Ranagat and other mining disvisions or contracts, the simple inquiry as to tricts in the territory incorporated by the the extent of mining rights would be, Who provisions of this act into the state of Neowns the surface? Unquestionably at com- vada, shall remain as valid subsisting minmon law the owner of the soil might conveying claims; but nothing herein contained his interest in mineral beneath the surface shall be so construed as granting a title in without relinquishing his title to the sur- fee to any mineral lands held by possessory face, but the possible fact of a separation be- titles in the mining states and territories;" tween the ownership of the surface and the and the act of July 25, 1866 (14 Stat. at L. ownership of mines beneath that surface, 242), which, granting to A. Sutro and his asgrowing out of contract, in no manner signs certain privileges to aid in the construcabridged the general proposition that the tion of a tunnel, conferred upon the grantees owner of the surface owned all beneath. It the right of pre-emption of lodes within is said by Lindley, in his work on Mines (vol.2,000 feet on each side of said tunnel. Two 1, § 4,) that in certain parts of England and laws were also passed regulating the sale and [61] Wales so-called local customs were recog. disposal of coal lands; one on July 1, 1864, nized which modified the general rule of the and one on March 3, 1865. (13 Stat. at L common law, but the existence of such excep- 343, 529.) tions founded upon such local customs only Notwithstanding that there was no general accentuates the general rule. The Spanish legislation on the part of Congress, the fact and Mexican mining law confined the owner of explorers searching the public domain for of a mine to perpendicular lines on every side. I mines, and their possessory rights to the

mines by them discovered, was generally rec- | further, That no person may make more than ognized, and the rules and customs of min- one location on the same lode, and not more ers in any particular district were enforced than three thousand feet shall be taken in as valid. As said by this court in Sparrow any one claim by any association of persons." v. Strong, 3 Wall. 97, 104 [18: 49, 50]: "We Obviously the statute contemplated the patknow, also, that the territorial legislature enting of a certain *number of feet of the par- [64] has recognized by statute the validity and ticular vein claimed by the locator, no matbinding force of the rules, regulations, and ter how irregular its course, made no provicustoms of the mining districts. And we sion as to the surface area or the form of the cannot shut our eyes to the public history, surface location, leaving the Land Departwhich informs us that under this legislation, ment in each particular case to grant so much and not only without interference by the of the surface as was "fixed by local rules," national government, but under its implied or was, in the absence of such rules, in its sanction, vast mining interests have grown judgment necessary for the convenient workup, employing many millions of capital, and ing of the mine. The party to whom the contributing largely to the prosperity and vein was thus patented was permitted to folimprovement of the whole country.' See low it on its dip to any extent, although also Forbes v. Gracey, 94 U. S. 762 [24: 313] thereby passing underneath lands to which Jennison v. Kirk, 98 U. S. 453-459 [25:240-the owner of the vein had no title. 243]; Broder v. Natoma Water & Min. Com- As might be expected, the patents issued pany, 101 U. S. 274-276 [25: 790,791]; Man-under the statute described surface areas uel v. Wulff, 152 U. S. 505-510 [38:532-very different and sometimes irregular in 534]; Black v. Elkhorn Mining Company, 163 form. Often they were like a broom, there U. S. 445, 449 [41: 221, 223]. being around the discovery shaft an amount The act of 1866 was, however, as we have of ground deemed large enough for the con[63] said, the first general legislation in respect venient working of the mine, and a narrow to the disposal of mines. The first section strip extending therefrom as the handle of provided "that the mineral lands of the pub- the broom. This strip might be straight or lic domain, both surveyed and unsurveyed, in a curved or irregular line, following, as are hereby declared to be free and open to was supposed, the course of the vein. Someexploration and occupation by all citizens of times the surface claimed and patented was the United States, and those who have dea tract of considerable size, so claimed with clared their intention to become citizens, suo- the view of including the apex of the vein, ject to such regulations as may be prescribed in whatever direction subsequent exploraby law, and subject also to the local customs tions might show it to run. And again, or rules of miners in the several mining dis- where there were local rules giving to the tricts, so far as the same may not be in con- discoverer of a mine possessory rights in a flict with the laws of the United States." certain area of surface, the patent followed those rules and conveyed a similar area. Even under this statute, although its express purpose was primarily to grant the single vein, yet the rights of the patentee beneath the surface were limited and controlled by his rights upon the surface. If, in fact, as shown by subsequent explorations, the vein on its course or strike departed from the boundary lines of the surface location, the point of departure was the limit of right. In other words, he was not entitled to the claimed and patented number of feet of the vein, irrespective of the question whether the vein in its course departed from the lines of the surface location.

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The second section gave to a claimant of a vein or lode of quartz, or other rock in place, bearing gold, etc., the right "to file in the local land office a diagram of the same and to enter such tract and receive a patent therefor, granting such mine, together with the right to follow such vein or lode with its dips, angles and variations, to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition." The purpose here manifested was the conveyance of the vein, and not the conveyance of a certain area of land within which was a vein. Section 3, which set forth the steps necessary to be taken to secure a patent and required the pay- The litigation in respect to the Flagstaff ment of $5 per acre for the land conveyed, mine in Utah illustrates this. There was a added: "But said plat, survey, or descrip-local custom giving to the locator of a mine tion shall in no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued." Nowhere was there any express limitation as to the amount of land to be conveyed, the provision in § 4 being: "That no location hereafter made shall exceed two hundred feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, together with a reasonable quantity of surface for the convenient working of the same as fixed by local rules: And provided


50 feet in width on either side of the course
of the vein, and the Flagstaff patent granted
a superficies *100 feet wide by 2,000 feet long, [65]
with the right to follow the vein described
therein to the extent of 2,600 feet. It turned
out that the vein, instead of running through
this parallelogram lengthwise, crossed the
side lines, so that there was really but 100
feet of the length of the vein within the sur-
face area. On either side of the Flagstaff
ground were other locations, through which
the vein on its course passed. As against
these two locations the owners of the Flag-
staff claimed the right to follow the vein on
its course or strike to the full extent of 2,600

feet. This was denied by the supreme courting of any local customs or rules affecting the of Utah. McCormick v. Varnes, 2 Utah, 355. rights defined in and prescribed by the statIn that case the controversy was with the lo- ute, and beyond the terms of the statute cation on the west of the Flagstaff. The de- courts may not go. They have no power of cision of that court in respect to the contro- legislation. They cannot assume the existversy with the location on the east of the ence of any natural equity, and rule that by Flagstaff is not reported, but the case came reason of such equity a party may follow a to this court. Flagstaff Silver Mining Com-vein into the territory of his neighbor, and appany v. Tarbet, 98 U. S. 463 [25: 253]. In the course of the opinion (pages 467, 468) (25:255] it was said:

propriate it to his own use. If cases arise for which Congress has made no provision, the courts cannot supply the defect. Congress "It was not the intent of the law to allow a having prescribed the conditions upon which person to make his location crosswise of a vein extralateral rights may be acquired, a party so that the side lines shall cross it, and there- must bring himself within those conditions, or by give him the right to follow the strike of else be content with simply the mineral bethe vein outside of his side lines. That would neath the surface of his territory. It is unsubvert the whole system sought to be estab-doubtedly true that the primary thought of lished by the law. If he does locate his claim the statute is the disposal of the mines and in that way, his rights must be subordinated to the rights of those who uave properly located on the lode. Their right to follow the dip outside of their side 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 100 feet wide, that 100 feet is all he has a right to."

minerals, and in the interpretation of the statute this primary purpose must be recognized and given effect. Hence, whenever a party has acquired the title to ground within whose surface area is the apex of a vein with a few or many feet along its course or strike, a [67] right to follow that vein on its dip for the same length ought to be awarded to him if it can be done, and only if it can be done, under These decisions show that while the express any fair and natural construction of the lanpurpose of the statute was to grant the vein guage of the statute. If the surface of the for so many feet along its course, yet such ground was everywhere level and veins congrant could only be made effective by a sur-stantly pursued a straight line, there would face location covering the course to such ex- be little difficulty in legislation to provide tor This act of 1866 remained in force only all contingencies; but mineral is apt to be six years, and was then superseded by the found in mountainous regions, where great ir act of May 10, 1872 (17 Stat. at L. 91), found regularity of surface exists, and the course or in the Revised Statutes, §§ 2319 and follow strike of the veins is as irregular as the suring. This is the statute which is in force to-face, so that many cases may arise in which [66] day, and under which the controversies in statutory provisions will fail to secure to a this case arise. Section 2319, Revised Stat- discoverer of a vein such an amount thereof utes (corresponding to § 1 of the act of 1872), reads:


"All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to oc cupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the law of

the United States."

as equitably it would seem he ought to receive. We make these observations because we find in some of the opinions assertions by the writers that they have devised rules which will work out equitable solutions of all difficulties. Perhaps those rules may have all the virtues which are claimed for them, and if so it were well if Congress could be persuaded to enact them into statute; but be that as it may, the question in the courts is not, What is equity? but, What saith the statute? Thus, for instance, there is no inherent necessity that the end lines of a mining claim should be parallel, yet the statute is not within the province of the courts to ighas so specifically prescribed. (§ 2320.) It nore such provision, and hold that a locator, failing to comply with its terms has all the rights, extralateral and otherwise, which he would have been entitled to if he had complied, and so it has been adjudged. Iron Silver Mining Company v. Elgin Mining & S. Company, 118 U. S. 196 [30:98].

It needs no argument to show that if this were the only section bearing upon the ques: tion, patents for land containing mineral would, except in cases affected by local customs and rules of miners, be subject to the ordinary rules of the common law, and would convey title to only such minerals as were found beneath the surface. We therefore turn to the following sections to see what extralateral rights are given and upon what This case, which is often called the "Horseconditions they may be exercised. And it shoe Case," on account of the form of the lomust be borne in mind in considering the cation, is instructive. The following diaquestions presented that we are dealing sim-gram, which was in the record in that case, ply with statutory rights. There is no show- 'illustrates the scope of the decision:

171 U. S.


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The locator claimed in his application for a patent the lines 1, 14 and 5, 6, as the end lines of his location, and because of their parallelism, that he had complied with the letter of the statute, but the court ruled against him, saying in the opinion (page 208 [30: 102]):

"The exterior lines of the Stone claim [68] formed a curved *figure somewhat in the shape of a horseshoe, and its end lines are not and cannot be made parallel. What are marked on the plat as end lines are not such. The one between numbers 5 and 6 is a side line. The draughtsman or surveyor seems to have hit upon two parallel lines of his nine-sided figure, and apparently for no other reason than their parallelism called them end lines.

the ground, were not parallel, and that this defect could not be obviated by calling that which was in fact a side line an end line. This is made more clear by the observations of the Chief Justice, who with Mr. Justice Bradley, dissented, in which he said:

"I cannot agree to this judgment. In my opinion the end lines of a mining location are to be projected parallel to each other and crosswise of the general course of the vein within the surface limits of the location, and whenever the top or apex of the vein is found within the surface lines extended vertically downwards, the vein may be followed outside of the vertical side lines. The end lines are not necessarily those which are marked on the map as such, but they may be projected at the extreme points where the apex leaves the location as marked on the surface."

"We are therefore of opinion that the objection that, by reason of the surface form of the Stone claim, the defendant could not fol- In other words, the court took the location low the lode existing therein in its downward as made on the surface by the locator, decourse beyond the lines of the claim, was well termined from that what were the end lines, taken to the offered proof." and made those surface end lines controlling [69] *It is true the court also observed that if upon his rights, and rejected the contention the two lines named by the locator were to that it was proper for the court to ignore the be considered the end lines, no part of the surface location and create for the locator a vein in controversy fell "within vertical new location whose end lines should be crossplanes drawn down through those lines, con- wise of the general course of the vein as tinued in their own direction." But notwith- finally determined by explorations. That standing this observation the point of the de- this decision and that in the Tarbet Case, cision was that the lines, which were the end supra, were correct expositions of the statute, lines of the location as made on the surface of and correctly comprehended the intent of

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