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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.

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

Mr. Justice Brewer delivered the opinion of the court:

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 and Mexican mining law confined the owner of a mine to perpendicular lines on every side.

Notwithstanding that there was no general legislation on the part of Congress, the fact of explorers searching the public domain for 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. ComAs 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 U. S. 445, 449 [41: 221, 223].

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, suo ject 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."

form. Often they were like a broom, there
being around the discovery shaft an amount
of ground deemed large enough for the con-
venient 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. Some-
times 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 explora-
tions might show it to run.
And again,
where there were local rules giving to the
discoverer of a mine possessory rights in a
certain area of surface, the patent followed
those rules and conveyed a similar area.
Even under this statute, although its ex-
press purpose was primarily to grant the sin-
gle vein, yet the rights of the patentee be-
neath the surface were limited and con-
trolled 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 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 tak-the surface location. en to secure a patent and required the payment of $5 per acre for the land conveyed, added: "But said plat, survey, or description 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

The litigation in respect to the Flagstaff mine in Utah illustrates this. There was a local custom giving to the locator of a mine 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 surface 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 Flagstaff claimed the right to follow the vein on its course or strike to the full extent of 2,600

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31

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 stat-
In 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 exist-
versy 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
to this court. Flagstaff Silver Mining Com-vein into the territory of his neighbor, and ap-
If cases arise for
pany v. Tarbet, 98 U. S. 463 [25: 253]. In propriate it to his own use.
the course of the opinion (pages 467, 468) which Congress has made no provision, the
courts cannot supply the defect. Congress
[25:255] it was said:
"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 be-
the vein outside of his side lines. That would neath the surface of his territory. It is un-
subvert 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 minerals, and in the interpretation of the stat-
to the rights of those who have properly lo- ute this primary purpose must be recognized
cated on the lode. Their right to follow the and given effect. Hence, whenever a party
dip outside of their side lines cannot be inter- has acquired the title to ground within whose
fered with by him. His right to the lode only surface area is the apex of a vein with a few
extends to so much of the lode as his claim or many feet along its course or strike, a [67]
covers. If he has located crosswise of the right to follow that vein on its dip for the
lode, and his claim is only 100 feet wide, that same length ought to be awarded to him if it
can be done, and only if it can be done, under
100 feet is all he has a right to."
any fair and natural construction of the lan-
guage of the statute. If the surface of the
ground was everywhere level and veins con-
stantly pursued a straight line, there would
be little difficulty in legislation to provide for
all contingencies; but mineral is apt to be
found in mountainous regions, where great ir-

These decisions show that while the express
purpose of the statute was to grant the vein
for so many feet along its course, yet such
grant could only be made effective by a sur-
face location covering the course to such ex-
tent. This act of 1866 remained in force only
six years, and was then superseded by the
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 sur-
ing. 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 as equitably it would seem he ought to re-
ceive. We make these observations because
1872), reads:
we find in some of the opinions assertions by
the writers that they have devised rules which
will work out equitable solutions of all diffi-
culties. Perhaps those rules may have all
the virtues which are claimed for them, and
if so it were well if Congress could be per-
suaded 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 in-
herent necessity that the end lines of a min-
ing claim should be parallel, yet the statute
has so specifically prescribed. (§ 2320.) It

"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"

It needs no argument to show that if this is not within the province of the courts to igwere the only section bearing upon the question, patents for land containing mineral nore such provision, and hold that a locator, would, except in cases affected by local cus-failing to comply with its terms has all the toms and rules of miners, be subject to the rights, extralateral and otherwise, which he ordinary rules of the common law, and would would have been entitled to if he had comconvey title to only such minerals as were plied, and so it has been adjudged. Iron Silfound beneath the surface. We therefore ver Mining Company v. Elgin Mining & S. turn to the following sections to see what ex- Company, 118 U. S. 196 [30:98]. tralateral rights are given and upon what conditions they may be exercised. And it must 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:

This case, which is often called the "Horseshoe Case," on account of the form of the lo

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171 U. S.

[blocks in formation]

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

With these preliminary observations we pass to a consideration of the questions propounded. The first is:

Congress therein, is evident from the fact | United States, or with the laws of the state that, although they were announced in 1885 or territory in which the district is situated, and 1878, respectively, Congress has not seen governing the location, manner of recording, fit to change the language of the statute, or amount of work necessary to hold possession in any manner to indicate that any different of a mining claim, subject to the following remeasure of rights should be awarded to a quirements: The location must be distinctly mining locator. marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. On each claim located after the tenth day of May, eighteen hundred and

"May any of the lines of a junior-lode lo[70] cation be laid within, upon, or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extralateral rights not in conflict with any rights of the senior loca-seventy-two and until a patent has been istion?" sued therefor, not less than one hundred dol

By 2319, quoted above, the mineral de- lars' worth of labor shall be performed or imposits which are declared to be open to ex-provements made during each year. On all ploration and purchase are those found in claims located prior to the tenth day of May, lands belonging to the United States, and eighteen hundred and seventy-two, ten dolsuch lands are the only ones open to occu- lars' worth of labor shall be performed or impation and purchase. While this is true, it provements made by the tenth day of June, is also true that until the legal title has eighteen hundred and seventy-four, and each passed the public lands are within the juris- year thereafter, for each one hundred feet in diction of the Land Department, and, al-length along the vein until a patent has been though equitable rights may be established, issued therefor; but where such claims are Congress retains a certain measure of control. held in common, such expenditure may be Michigan Land & Lumber Company v. Rust, made upon any one claim; and upon a failure 168 U. S. 589 [42: 591]. The grant is, as is to comply with these conditions, the claim or often said, in process of administration. Pass- mine upon which such failure occurred shall ing to 2320, beyond the recognition of the be open to relocation in the same manner as governing force of customs and regulations if no location of the same had ever been and a declaration as to the extreme length made, provided that the original locators, and width of a mining claim, it is provided their heirs, assigns, or legal representatives, that "no location of a mining claim shall be have not resumed work upon the claim after made until the discovery of the vein or lode failure and before such location." within the limits of the claim located. The end lines of each claim shall be parallel to each other."

Section 2325 provides for the issue of a patent. It reads:

"A patent for any land claimed and located Section 2322 gives to the locators of all for valuable deposits may be obtained in the mining locations, so long as they comply with following manner: Any person, association, laws of the United States, and with state, ter- or corporation authorized to locate a claim ritorial, and local regulations not in conflict under this chapter, having claimed and lotherewith, "the exclusive right of possession cated a piece of land *for such purposes who [72] and enjoyment of all the surface included has or have, complied with the terms of this within the lines of their locations, and of all chapter, may file in the proper land office an veins, lodes, and ledges throughout their en-application for a patent, under oath, showing tire depth, the top or apex of which lies in such compliance, together with a plat and side of such surface lines extended downward field notes of the claim or claims in common, vertically, although such veins, lodes, or made by or under the direction of the United ledges may so far depart from a perpendicu- States surveyor general, showing accurately lar in their course downward as to extend the boundaries of the claim or claims, which outside the vertical side lines of such surface shall be distinctly marked by monuments on locations. But their right of possession to the ground, and shall post a copy of such such outside parts of such veins or ledges plat, together with a notice of such applicashall be confined to such portions thereof as tion for a patent, in a conspicuous place on lie between vertical planes drawn downward the land embraced in such plat previous to as above described, through the end lines of the filing of the application for a patent, and their locations, so continued in their own di- shall file an affidavit of at least two persons rection that such planes will intersect such that such notice has been duly posted, and exterior parts of such veins or ledges. And shall file a copy of the notice in such land. nothing in this section shall authorize the lo- office, and shall thereupon be entitled to a [71]cator or possessor of a vein or lode which patent for the land, in the manner followextends in its downward course beyond the ing: The register of the land office, upon vertical lines of his claim to enter upon the the filing of such application, plat, field surface of a claim owned or possessed by an- notes, notices, and affidavits, shall publish a other." notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim; and he shall also post such no

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Section 2324 in terms authorizes "the miners of each mining district to make regulations not in conflict with the laws of the

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