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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 propriate it to his own use. If cases arise for the course of the opinion (pages 467, 468) which Congress has made no provision, the (25:255] it was said: 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 minerals, and in the interpretation of the statto 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 100 feet is all he has a right to." 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 for tent. 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."

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 conditions they may be exercised. And it must be borne in mind in considering the questions presented that we are dealing simply with statutory rights. There is no show171 U. S.

as equitably it would seem he ought to re-
ceive. 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 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
is not within the province of the courts to ig-
has so specifically prescribed. (§ 2320.)
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 com-
plied, and so it has been adjudged. Iron Sil-
ver Mining Company v. Elgin Mining & S.
Company, 118 U. S. 196 [30:98].

It

This case, which is often called the "Horseshoe Case," on account of the form of the location is instructive. The following diagram, which was in the record in that case, 'illustrates the scope of the decision:

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[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:

"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
whatever."

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

courts.

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

and

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