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

"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 location?"

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 seventy-two and until a patent has been issued therefor, not less than one hundred dolBy 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 2322 gives to the locators of all mining locations, so long as they comply with laws of the United States, and with state, territorial, and local regulations not in conflict therewith, "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies in side of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the lo[71]cator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another."

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

"A patent for any land claimed and located for valuable deposits may be obtained in the following manner: Any person, association, or corporation authorized to locate a claim under this chapter, having claimed and located a piece of land *for such purposes who [72] has or have, complied with the terms of this chapter, may file in the proper land office an application for a patent, under oath, showing such compliance, together with a plat and field notes of the claim or claims in common, made by or under the direction of the United States surveyor general, showing accurately the boundaries of the claim or claims, which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted, and shall file a copy of the notice in such land office, and shall thereupon be entitled to a patent for the land, in the manner following: The register of the land office, upon the filing of such application, plat, field notes, notices, and affidavits, shall publish a notice that such application has been made, Section 2324 in terms authorizes "the min- for the period of sixty days, in a newspaper ers of each mining district to make regula- to be by him designated as published nearest tions not in conflict with the laws of the' to such claim; and he shall also post such no

pay for his portion of the claim, with the
proper fees, and file the certificate and de-
scription by the surveyor general, whereupon
the register shall certify the proceedings and
judgment roll to the Commissioner of the
General Land Office, as in the preceding case,
and patents shall issue to the several parties
according to their respective rights. Noth-
ing herein contained shall be construed to [74]
prevent the alienation of the title conveyed
by a patent for a mining claim to any person

These are the only provisions of the statute which bear upon the question presented.

tice in his office for the same period. The claimant, at the time of filing this application, or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the United States surveyor general that five hundred dollars' worth of labor has been expended or improvements made upon the claim by himself or grantors; that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an ac-| curate description, to be incorporated in the patent. At the expiration of the sixty days of publication the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during such period of publication. If no adverse claim shall have been filed with the register and the receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dol-shall authorize the locator or possessor of a lars per acre, and that no adverse claim ex[73]ists; and thereafter no *objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter."

The stress of the argument in favor of a negative answer to this question lies in the contention that by the terms of the statute exclusive possessory rights are granted to the locator. Section 2322 declares that the locators "shall have the exclusive right of possession and enjoyment of all the surface included within the liues of their locations," and negatively, that "nothing in this section

vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another." Hence, it is said that affirmatively and negatively is it provided that the locator shall have exclusive possession of the surface, and that no one shall have a right to disturb him in such possession. How, then, it is asked, can anyone have a right to enter upon such location for the purpose of making a second location? If he does so he is a trespasser, and it cannot be presumed that Congress intended that any rights should be created by a trespass.

Section 2326 is as follows: "Where an adverse claim is filed during the period of publication it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the register of the land office, together with the certificate of the surveyor general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees whereupon the whole proceedings and the judgment roll shall be certified by the reg ister to the Commissioner of the General It will also be noticed that the locator is Land Office, and a patent shall issue there- not compelled to follow the lines of the govon for the claim, or such portion thereof, as ernment surveys, or to make his location in the applicant shall appear, from the decision any manner correspond to such surveys. The of the court, to rightly possess. If it ap- location may, indeed, antedate the public surpears from the decision of the court that sev-veys, but whether before or after them, the eral parties are entitled to separate and dif- locator places his location where, in his judgferent portions of the claim, each party may ment, it will cover the underlying vein.

We are not disposed to undervalue the force of this argument, and yet are constrained to hold that it is not controlling. It must be borne in mind that the location is the initial step taken by the locator to indicate the place and extent of the surface which he desires to acquire. It is a means of giving notice. That which is located is called in § 2320 and elsewhere a "claim" or a "mining claim." Indeed, the words "claim" and "location" are used interchangeably. This location does not come at the end of the proceedings, to define that which has been acquired after all contests have been adjudicated. The location, the mere making of a claim, works no injury to one who has acquired prior rights. Some confusion may arise when locations overlap each other and include the same ground, for then the right of possession becomes a matter of dispute, but no location creates a right superior to [75] any previous valid location. And these possessory rights have always been recognized and disputes concerning them settled in the



what is called a mining camp, and the contiguous territory is prospected and locations are made in every direction. In the haste of such locations, the eagerness to get a prior right to a portion of what is supposed to be a valuable vein, it is not strange that many conflicting locations are made, and, indeed, in every mining camp where large discoveries have been made locations, in fact, overlap

law requires that the end lines of the claim | shall be parallel. It will often happen that locations which do not overlap are so placed as to leave between them some irregular parcel of ground. Within that, it being no more than one locator is entitled to take, may be discovered a mineral vein and the discoverer desire to take the entire surface, and yet it be impossible for him to do so and make his end lines parallel unless, for the mere pur-each other again and again. McEvoy v. Hyposes of location, he be permitted to place those end lines on territory already claimed by the prior locators.

Again, the location upon the surface is not made with a view of getting benefits from the use of that surface. The purpose is to reach the vein which is hidden in the depths of the earth, and the location is made to measure rights beneath the surface. The area of surface is not the matter of moment; the thing of value is the hidden mineral below, and each locator ought to be entitled to make his location so as to reach as much of the unappropriated, and perhaps only partially discovered and traced vein, as is possible. Further, Congress has not prescribed how the location shall be made. It has simply provided that it "must be distinctly marked on the ground so that its boundaries can be readily traced," leaving the details, the manner of marking, to be settled by the regulations of each mining district. Whether such location shall be made by stone posts at the four corners, or by simply wooden stakes, or how many such posts or stakes shall be placed along the sides and ends of the location, or what other matter of detail must be pursued in order to perfect a location, is left to the varying judgments of the mining districts. Such locations, such markings on the ground, [76] are *not always made by experienced surveyors. Indeed, as a rule, it has been and was to be expected that such locations and markings would be made by the miners themselves, men inexperienced in the matter of surveying, and so in the nature of things there must frequently be disputes as to whether any particular location was sufficiently and distinctly marked on the surface of the ground. Especially is this true in localities where the ground is wooded or broken. In such localities the posts, stakes, or other particular marks required by the rules and regulations of the mining district may be placed in and upon the ground, and yet, owing to the fact that it is densely wooded, or that it is very broken, such marks may not be perceived by the new locator, and his own location marked on the ground in ignorance of the existence of any prior claim. And in all places posts, stakes, or other monuments, although sufficient at first and clearly visible, may be destroyed or removed, and nothing remain to indicate the boundaries of the prior location. Further, when any valuable vein has been discovered, naturally many locators hurry to seek by early locations to obtain some part of that vein, or to discover and appropriate other veins in that vicinity. Experience has shown that around any new discovery there quickly grows up 171 U. S. U. S., Book 43.

man, 25 Fed. Rep. 596-600. This confusion
and conflict is something which must have
been expected, foreseen,-something which in
the nature of things would happen, and the
legislation of Congress must be interpreted in
the light of such foreseen contingencies.
Still again, while a location is required by
the statute to be plainly marked on the sur-
face of the ground, it is also provided in
§ 2324 that, upon a failure to comply with
certain named conditions, the claim or mine
shall be open to relocation. *Now, although [77]
a locator finds distinctly marked on the sur-
face a location, it does not necessarily follow
therefrom that the location is still valid and
subsisting. On the contrary, the ground may
be entirely free for him to make a location
upon. The statute does not provide, and it
cannot be contemplated, that he is to wait
until by judicial proceedings it has become
established that the prior location is invalid
or has failed before he may make a location.
He ought to be at liberty to make his loca-
tion at once, and thereafter, in the manner
provided in the statute, litigate, if necessary,
the validity of the other as well as that of
his own location.

Congress has in terms provided for the set-
tlement of disputes and conflicts, for by
§ 2325, when a locator makes application for
a patent (thus seeking to have a final deter-
mination by the Land Department of his
title), he is required to make publication and
give notice so as to enable anyone disputing
his claim to the entire ground within his lo-
cation to know what he is seeking, and any
party disputing his right to all or any part
of the location may institute adverse proceed-
ings. Then by § 2326 proceedings are to be
commenced in some appropriate court, and
the decision of that court determines the rela-
tive rights of the parties. And the party
who by that judgment is shown to be "enti-
tled to the possession of the claim, or any por-
tion thereof," may present a certified copy of
the judgment roll to the proper land officers
and obtain a patent for the claim, or such
portion thereof, as the applicant shall appear,
from the decision of the court, to rightfully
possess." And that the claim may be found
to belong to different persons, and that the
right of each to a portion may be adjudicat-
ed, is shown by a subsequent sentence in that
same section, which provides that "if it ap-
pears from a decision of the court that sev-
eral parties are entitled to separate and dif-
ferent portions of the claim, each party may
pay for his portion of the claim
patents shall issue to the several parties ac-
cording to their respective rights." So it dis-
tinctly appears that, notwithstanding the



provision in reference to the rights of the lo- | ply with the statute, which requires that the cators to the possession of the surface ground end lines of a claim shall be parallel, and in within their locations, it was perceived that order to secure all the unoccupied surface to [78] *locations would overlap, that conflicts would which it is entitled, with all the underground arise, and a method is provided for the ad- rights which attach to possession and ownerjustment of such disputes. And this, too, it ship of the surface, may a junior locator place must be borne in mind, is a statutory pro- an end line within the limits of a prior loca vision for the final determination, and is sup- tion? plementary to that right to enforce temporary possession, which, in accordance with the rules and regulations of mining districts, has always been recognize.l.

In that aspect of the question the decisions referred to, although the language employed is general and broad, do not sustain the contention of counsel. This distinction is recognized in the text books. Thus in 1 Lindley on Mines, § 363, the author says:

"As a mining location can only be carved out of the unappropriated public domain, it necessarily follows that a subsequent locator may not invade the surface territory of his neighbors and include within his boundaries any part of a prior valid and subsisting location. But conflicts of surface area are more than frequent. Many of them arise from honest mistake, others from premeditated design. In hoth instances the question of priority of appropriation is the controlling element which determines the rights of the parties. Two locations cannot legally occupy the same space at the same time. These conflicts sometimes involve a segment of the same vein, on its strike; at others, they involve the dip bound

This question is not foreclosed by any decisions of this court as suggested by counsel. It is true there is language in some opinions which, standing alone, seems to sustain the contention. Thus, in Belk v. Meagher, 104 U. S. 279, 284 [26: 735, 737], it is said: "Mining claims are not open to relocation until the rights of a former locator have come to an end. A relocator seeks to avail himself of mineral in the public lands which another has discovered. This he cannot do until the discoverer has in law abandoned his claim, and left the property open for another to take up. The right of location upon the mineral lands of the United States is a privilege granted by Congress, but it can only be exercised within the limits prescribed by the grant. A location can only be made where the law allows it to be done. Any attempting planes underneath the surface. More freto go beyond that will be of no avail. Hence a relocation on lands actually covered at the time by another valid and subsisting location is void; and this not only against the prior locator. but all the world, because the law allows no such thing to be done."

And again, in Gwillim v. Donnellan, 115 U. S. 45, 49 [29: 348, 349]:

"A valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States, as the effect of a grant by the United States of the right of present and exclusive pos session of the lands located. If, when one enters on land to make a location, there is another location in full force, which entitles its owner to the exclusive possession of the land, the first location operates as bar to the second."

quently, however, they pertain to mere over-
lapping surfaces. The same principles of law [80]
apply with equal force to all classes of cases.
Such property rights as are conferred by a
valid prior location, so long as such location
remains valid and subsisting, are preserved
from invasion, and cannot be infringed or im-
paired by subsequent locators. To the ex-
tent, therefore, that a subsequent location in-
cludes any portion of the surface lawfully ap-
propriated and held by another, to that ex-
tent such location is void."

It will be seen that while the author denies
the right of a second locator to enter upon the
ground segregated by the first location, he
recognizes the fact hat overlapping locations
are frequent, and declares the invalidity of
the second location so far as it affects the
rights vested in the prior locator, and in that
he follows the cases from which we have

The question presented in each of those cases was whether a second location is effectual to appropriate territory covered by a prior subsisting and valid location, and it was held The practice of the Land Department has [79] it is *not. Of the correctness of those deci- been in harmony with this view. The patents sions there can be no doubt. A valid location which were issued in this case for the Last appropriates the surface, and the rights given Chance and New York claims give the entire by such location cannot, so long as it remains boundaries of the original locations, and exin force, be disturbed by any acts of third cept from the grant those portions included parties. Whatever rights on or beneath the within prior valid locations. So that on the face surface passed to the first locator can in no of each patent appears the original survey manner be diminished or affected by a subse- with the parallel end lines, the territory quent location. But that is not the question granted and the territory excluded. The inhere presented. Indeed, the form in which it structions from the Land Department to the is put excludes any impairment or disturb- surveyors general have been generally in harance of the substantial rights of the prior lo-mony with this thought. Thus, in a letter cator. The question is whether the lines of a from the Commissioner of the Land Office to junior-lode location may be laid upon a valid senior location for the purpose of defining or securing "underground or extralateral rights not in conflict with any rights of the senior location." In other words, in order to com

the surveyor general of Colorado, of date
November 5, 1874, reported in 1 Copp's Land
Owner, p. 133, are these instructions:
"In this connection I would state that the
surveyor general has no jurisdiction in the

matter of deciding the respective rights of parties in cases of conflicting claims.

lutely uniform, and yet the descriptions which are found in the patents before us show that, notwithstanding the circular of 1884, the former practice still obtains.

"Each applicant for a survey under the mining act is entitled to a survey of the entire mining claim, as located, if held by him in accordance with the local laws and congres-first locator the right of exclusive possession; sional enactments.

Again, in a general circular issued by the Land Department on November 16, 1882, found in 9 Copp's Land Owner, p. 162, it is said:

It may be said that the statute gives to the

that an entry upon that territory with a view "If, in running the exterior boundaries of a of making a subsequent location and marking claim, it is found that two surveys conflict, on the ground its end and side lines is a tresthe plat and field notes should show the ex-pass, and that to justify such an entry is to tent of the conflict, giving the area which is sanction a forcible trespass, and thus precipiembraced in both surveys, and also the dis- tate a breach of the peace. But no such con[81]tances from the established *corners at which clusion necessarily follows. The case of Aththe exterior boundaries of the respective sur- erton v. Fowler, 96 U. S. 513 [24: 732], illusveys intersect each other." trates this. It appeared that one Page was in lawful possession of certain premises claimed under a Mexican grant, though his title had not been confirmed by any act of Congress; that while so in possession a party of persons, who had no interest or claim to any part of the land, invaded it by force, tore down the fences, dispossessed those who occupied, and built on and cultivated parts of it under pretense of establishing a right of pre-emption to the several parts which they had so seized. It was held that such forcible seizure of the premises gave no rights under the pre-emption law, and it was said (p. 516 [24: 733]:

"The regulations of this office require that the plats and field notes of surveys of mining claims shall disclose all conflicts between such surveys and prior surveys, giving the areas of conflicts.

"The rule has not been properly observed in all cases. Your attention is invited to the following particulars, which should be observed in the survey of every mining claim: "1. The exterior boundaries of the claim should be represented on the plat of survey and in the field notes.

"It is not to be presumed that Congress intended, in the remote regions where these "2. The intersections of the lines of the sur- settlements are made, to invite forcible invey, with the lines of conflicting prior sur-vasion of the premises of another, in order to veys, should be noted in the field notes and represented upon the plat.

"3. Conflicts with unsurveyed claims, where the applicant for survey does not claim the area in conflict, should be shown by actual


"4. The total area of the claim embraced by the exterior boundaries should be stated, and also the area in conflict with each intersecting survey, substantially as follows."

Again, on August 2, 1883, in a letter from the acting commissioner to the surveyor general of Arizona, reported in 10 Copp's Land Owner, p. 240, it is said:

"You state, and it is shown to be so by said diagram, that the said Grand Dipper lode, so located, is a four-sided figure with parallel end lines, the provisions of U. S. Rev. Stat. 2320, being fully complied with.

"The survey of the claim made by the deputy surveyor cuts off a portion of the right end, shown to be in conflict with the Emerald lode, the easterly end line of the Emerald claim thus becoming one of the boundary lines of the said 'Grand Dipper,' and not parallel to the easterly end line of the Grand Dipper survey.

confer the gratuitous right of preference of
purchase on the invaders. In the parts of
the country where these pre-emptions are
usually made, the protection of the law to
rights of person and property is generally but
imperfect under the best of circumstances. It
cannot, therefore, be believed, without the
strongest evidence, that Congress has ex-
tended a standing invitation to the strong,
the daring, and the unscrupulous to dispos-
sess by *force the weak and the timid from ac- [83]
tual improvements on the public lands, in or-
der that the intentional trespasser may se-
cure by these means the preferred right to
buy the land of the Government when it
comes into market."

But while thus declaring that it cannot be presumed that Congress countenanced any such forcible seizure of premises, the court also observed (p. 516 [24:733]):

"Undoubtedly there have been cases, and may be cases again, where two persons making settlement on different parts of the same quarter section of land may present conflicting claims to the right of pre-emption of the whole quarter section, and neither of them be a trespasser upon the possession of the other, "I cannot see how you can give your ap- for the reason that the quarter section is proval to such survey. No reason exists why open, uninclosed, and neither party inter[82] the survey lines should not conform *directly feres with the actual possession of the other. to the lines of the location, they being prop-In such cases the settlement of the latter of erly run in the first instance."

It is true that on December 4, 1884, a circular letter was issued by the Land Department which slightly qualifies the general instructions previously issued. So that it may, perhaps, be truthfully said that the practice of the Land Department has not been abso

the two may be bona fide for many reasons. The first party may not have the qualifications necessary to a pre-emptor, or he may have pre-empted other land, or he may have permitted the time for filing his declaration to elapse, in which case the statute expressly declares that another person may become pre

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