located thereon, the locator of such vein can follow it upon its dip beyond the vertical side line of his location.

5. The location as made on the surface by the locator determines the extent of his rights below the surface.

from the general purview of the act which confers it. A municipality is a governmental agency-its functions are for the public good, and the powers given to it and to be exercised by it must be construed with reference to that good and to the distinctions which are recog: 6. Every vein the top or apex of which lies innized as important in the administration of public affairs.

Easements in the public streets for a limited time are different and have different consequences from those given in perpetuity. Those reserved from monopoly are different and have different consequences from those fixed in monopoly. Consequently those given in perpetuity and in monopoly must have for their authority explicit permission, or, if inferred from other powers, it is not enough that the authority is convenient to them, but it must be indispensable to them. Decree affirmed.

Mr. Justice Shiras did not hear the argument, and took no part in the decision.

PANY, Appt.,



side the surface lines of a lode mining claim extended downward vertically belongs to the locator, and may be pursued by him to any depth beyond his vertical side lines, although in doing so he enters beneath the surface of some other proprietor.

The only exception to the rule that the end

lines of a location as the locator of a lode mining claim places them establish the limits beyond which he may not follow the vein on its course or strike is where it is developed that in fact the location has been placed, not along, but across, the course of the vein. In such case what he called his side lines are his end lines, and what he called end lines are in fact side lines.

[No. 147.]

Argued December 8, 9, 1879. Decided May 23, 1898.

ON A CERTIFICATE from the United States Circuit Court of Appeals for the Eighth Circuit certifying certain questions to be an

LAST CHANCE MINING & MILLING swered in this case between the Del Monte


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of the senior location.

8. The easterly side of the New York Lode mining claim, in this case, is not an end line of the Last Chance Lode mining claim within

the meaning of U. S. Rev. Stat. §§ 2320, 2322, 4. If the apex of a vein crosses one end line and one side line of a lode mining claim, as

NOTE.-A8 to ownership of mines; United States statute as to; right to support of surface, see note to United States v. Castillero, 17: 448.

As to title to water by appropriation; common-law rule; rule of mining state, see note to Atchison v. Peterson, 22:414.


Mining & Milling Company, and the Last Chance Mining & Milling Company, in regard to the rights of conflicting mining claims. First and fourth questions answered in the affirmative the third in the negative; the second and fifth are not answered.

Statement by Mr. Justice Brewer: This case is before this court on questions certified by the court of appeals for the eighth circuit. The facts stated are as follows: The appellant is the owner in fee of the Del Monte Lode mining claim, located in the Sunnyside mining district, Mineral County, Colorado, for which it holds a patent bearing date February 3, 1894, pursuant to an entry made at the local land office on February 27, 1893. The appellee is the owner of the Last Chance Lode mining claim, under patent dated July 5, 1894, based on an entry of March 1, 1894. The New York Lode mining claim, which is not owned by either of the parties, was patented on April 5, 1894, upon an entry of August 26, 1893. The relative situation of these claims, as well as the course and dip of the vein, which is the subject of controversy, is shown on the following diagram:

As to conveyance of mineral beneath surface of land; rights of owner of surface and of mineral,-see note to Lillibridge v. Lackawanna Coal Co. (Pa.) 13 L. R. A. 627.

171 U. &

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Both in location and patent the Del Monte location until it reaches the eastern side line claim is first in time, the New York second, of the New York, into which latter territory and the Last Chance third. When the own-it enters, continuing thence southerly with a ers of the Last Chance claim applied for their southeasterly course on the New York claim patent, proceedings in adverse were instituted until it crosses its south end line. No part against them by the owners of the New York of the apex of the vein is embraced within claim, and an action in support of such ad- the small triangular parcel of ground in the verse was brought in the United States cir- southwest corner of the Last Chance location, cuit court for the district of Colorado. This which was patented to the Last Chance as [58] action terminated *in favor of the owners of aforesaid, and no part of the apex is within the New York and against the owners of the the surface boundaries of the Del Monte minLast Chance, and awarded the territory in ing claim. The portion of the vein in conconflict between the two locations to the troversy is that lying under the surface of New York claim. The ground in conflict be- the Del Monte claim and between two verti tween the New York and Del Monte, except cal planes, one drawn through the north end so much thereof as was also in conflict be- line of the Last Chance claim extending westtween the Del Monte and Last Chance loca-erly, and the other parallel thereto and starttions, is included in the patent to the Deling at the point where the vein leaves the Monte claim. The New York secured a pat- Last Chance and enters the New York claim, ent to all of its territory, except that in con- as shown on the foregoing diagram. Upon flict with the Del Monte, and the Last Chance these facts the following questions have been in turn secured a patent to all of its territory, certified to us: except that in conflict with the New York, in "1. May any of the lines of a junior lode which last-named patent was included the location be laid within, upon, or across the {59] triangular surface *conflict between the Del surface of a valid senior location for the purMonte and Last Chance. which, by agree-pose of defining for or securing to such junior ment, was patented to the latter. The Last location underground or extralateral rights Chance claim was located upon a vein, lode, not in conflict with any rights of the senior or ledge of silver and lead bearing ore, which crosses its north end line and continues southerly from that point through the Last Chance


"2. Does the patent of the Last Chance Lode mining claim, which first describes the

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?

It is incumbent upon a junior locatcı, 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

"3. Is the easterly side of the New York Lode mining claim an 'end line' of the Last Chance Lode mining claim, within the mean-earlier one, which must stand as to him as ing of §§ 2320 and 2322 of the Revised Stat- though it had never been abandoned. utes of the United States? Lindley, Mines, § 363. [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 vertical side line of his location?

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 com

pletely from the public territory as though the government had executed and delivered to him a patent therefor. It is his private property upon which no other citizen may intrude except to follow a vein underneath its surface which outcrops somewhere else.

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

"5. On the facts presented by the record herein, has the appellee the right to follow its vein downward beyond its west side line and under the surface of the premises of apder the terms of the grant. pellant ?"

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.


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.

By an exception the grantor withdraws from the operation of the conveyance something which is in existence and included un

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 the vein," and these, to justify a departure from its vertical boundary, must be parallel.

Flagstaff Silver Min. Co. v. Tarbet, 98 U. S. 463 (25:253); Argentine Min. Co. v. Terrible Min. Co. 122 U. S. 478 (30: 1140); Iron Silver Min. Co. v. Elgin Min. & Smelting Co. 118 U. S. 196 (30: 98); King v. Amy & S. Consol. Min. Co. 152 U.S. 222 (38: 419); 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.

Iron Silver Min. Co. v. Campbell, 17 Colo. 267; Stevens v. Williams (Colo.) 1 Mining Gwillim V. Donnellan, 115 U. S. 45 Rep. 557; Iron Silver Min. Co. v. Cheesman, (29: 348); Upton v. Larkin, 5 Mont. 600; 2 McCrary, 191; Iron Silver Min. Co. v. Armstrong v. Lower, 6 Colo. 393; Golden Murphy, 3 Fed. Rep. 368; Hyman Terra Min. Co. v. Mahler (Dak.) 4 Mining | Wheeler, 29 Fed. Rep. 347.


171 U. S.

Messrs. Joel F. Vaile and Edward O. | Flagstaff Silver Mining Company v. Tarbet (98 U. S. 463, 468 [25:253,255]; 1 Lindley Wolcott, for appellee: 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.

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.

Mr. Justice Brewer delivered the opinion of the court:

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 statute providing for the conveyance of mines 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 Smelt-circuit court for the district of Nevada, in 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 convey ing 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 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

Notwithstanding that there was no general


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.

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. & Smelting 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.

Iron Silver Min. Co. v. Elgin Min. & ing Co. 118 U. S. 206 (30: 102.)

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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 of ground deemed large enough for the convenient working of the mine, and a narrow strip extending therefrom as the handle of the broom. This strip might be straight or in a curved or irregular line, following, as was supposed, the course of the vein. Sometimes the surface claimed and patented was a tract of considerable size, so claimed with the view of including the apex of the vein, in whatever direction subsequent explorations might show it to run. And again, where there were local rules giving to the discoverer of a mine possessory rights in a those rules and conveyed a similar area. certain area of surface, the patent followed Even under this statute, although its express purpose was primarily to grant the sin

The act of 1866 was, however, as we have [63] said, the first *general legislation in respect to the disposal of mines. The first section provided "that the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, suoject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States."

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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.

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 samegle
and to enter such tract and receive
a patent therefor, granting such mine, to-
gether with the right to follow such vein or
lode with its dips, angles and variations, to
any depth, although it may enter the land ad-
joining, 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 tak-
en to secure a patent and required the pay-
ment of $5 per acre for the land conveyed, mine in Utah illustrates this. There was a
The litigation in respect to the Flagstaff
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 ex-
pressed 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 2,500

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