provision in reference to the rights of the locators to the possession of the surface ground within their locations, it was perceived that [78] *locations would overlap, that conflicts would arise, and a method is provided for the adjustment of such disputes. And this, too, it must be borne in mind, is a statutory provision for the final determination, and is supplementary to that right to enforce temporary possession, which, in accordance with the rules and regulations of mining districts, has always been recognize..


ply with the statute, which requires that the end lines of a claim shall be parallel, and in order to secure all the unoccupied surface to which it is entitled, with all the underground rights which attach to possession and ownership of the surface, may a junior locator place an end line within the limits of a prior location?

"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

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 recogThis question is not foreclosed by any de-nized in the text books. Thus in 1 Lindley cisions of this court as suggested by counsel. on Mines, § 363, the author says: 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 un til 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, nas 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 quoted.

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 the surveyor general of Colorado, of date senior location for the purpose of defining or November 5, 1874, reported in 1 Copp's Land securing "underground or extralateral rights Owner, p. 133, are these instructions: not in conflict with any rights of the senior "In this connection I would state that the location." In other words, in order to com-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

"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│[24: 733]: should be represented on the plat of survey "It is not to be presumed that Congress inand in the field notes. tended, 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 confer the gratuitous right of preference of represented upon the plat. 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 extended a standing invitation to the strong, the daring, and the unscrupulous to dispossess by *force the weak and the timid from ac- [83] tual improvements on the public lands, in order that the intentional trespasser may secure by these means the preferred right to buy the land of the Government when it comes into market."

"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.

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]):

"The survey of the claim made by the deputy surveyor cuts off a portion of the right "Undoubtedly there have been cases, and end, shown to be in conflict with the Emerald may be cases again, where two persons maklode, the easterly end line of the Emerald ing settlement on different parts of the same claim thus becoming one of the boundary quarter section of land may present conflictlines of the said 'Grand Dipper,' and not par- ing claims to the right of pre-emption of the allel to the easterly end line of the Grand Dip-whole quarter section, and neither of them be per survey. 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." the two may be bona fide for many reasons. It is true that on December 4, 1884, a cir- The first party may not have the qualificacular letter was issued by the Land Depart-tions necessary to a pre-emptor, or he may ment which slightly qualifies the general in- have pre-empted other land, or he may have structions previously issued. So that it may, permitted the time for filing his declaration perhaps, be truthfully said that the practice to elapse, in which case the statute expressly of the Land Department has not been abso- declares that another person may become pre

emptor, or it may not be known that the set- | wards outside the side lines of his location, tlements are on the same quarter." but the limits of his rigut are not to extend The distinction thus suggested is pertinent on the course of the vein beyond the end lines here. A party who is in actual possession of projected downward through the earth. His a valid location may maintain that possession rights on the surface are *bounded by the sev- [85] and exclude everyone from trespassing there- eral lines of his location, and the end lines on, and no one is at liberty to forcibly disturb must be parallel in order that going downhis possession or enter upon the premises. At wards he shall acquire no further length of the same time the fact is also to be recog- the vein than the planes of those lines exnized that these locations are generally made tended downward inclose. If the end lines upon lands open, uninclosed, and not subject are not parallel, then following their planes to any full actual occupation, where the lim- downward his rights will be either convergits of possessory rights are vague and uncer-ing and diminishing or diverging and increastain and where the validity of apparent loca-ing the farther he descends into the earth. tions is unsettled and doubtful. Under those In view of this purpose and effect of the circumstances it is not strange on the con- parallel end lines, it matters not to the prior trary it is something to be expected, and, as locator where the end lines of the junior locawe have seen, is a common experience that tion are laid. No matter where they may be, conflicting locations are made, one overlap- they do not disturb in the slightest his ping another, and sometimes the overlap re-surface or underground rights. peated by many different locations. And For these reasons, therefore, we are of while in the adjustment of those conflicts the the opinion that the first question must be rights of the first locator to the surface with answered in the affirmative. [84] in his location, as well as to veins *beneath It may be observed in passing that the anhis surface, must be secured and confirmed, swer to this question does not involve a dewhy should a subsequent location be held ab-cision as to the full extent of the rights besolutely void for all purposes and wholly igneath the surface which the junior locator nored? Recognizing it so far as it establishes acquires. In other words, referring to the the fact that the second locator has made a first diagram, the inquiry is not whether the claim, and in making that claim has located owners of the Last Chance have a right to parallel end lines, deprives the first locator of pursue the vein as it descends into the ground nothing. Certainly, if the rights of the prior south of the dotted line r s, even though they locator are not infringed upon, who is preju-should reach a point in the descent in which diced by awarding to the second locator all the rights of the owners of the New York, the benefits which the statute gives to the the prior location, have ceased. It is obmaking of a claim? To say that the subse-vious that the line e h, the end line of the quent locator must-when it appears that his lines are to any extent upon territory covered by a prior valid location-go through the form of making a relocation simply works delay and may prevent him, as we have seen, from obtaining an amount of surface to which he is entitled, unless he abandons the underground and extralateral rights which are secured only by parallel end lines.

New York claim, extended downward into the earth will at a certain distance pass to the south of the line r s, and a triangle of the vein will be formed between the two lines, which does not pass to the owners of the New York. The question is not distinctly presented whether that triangular portion of the vein up to the limits of the south end line of the Last Chance, bc, In this connection it may be properly in- extended vertically into the earth, belongs quired, What is the significance of parallel to the owners of the Last Chance or not, end lines? Is it to secure the locator and therefore we do not pass upon it. in all cases a tract in the shape of a paral- Perhaps the rights of the junior locator lelogram? Is it that the surveys of mineral below the surface are limited to the land shall be like the ordinary public surveys length of the vein within the surface of the in rectangular form, capable of easy adjust- territory patented to him, but it is unnecesment, and showing upon a plat that even sary now to consider that matter. All that measurement which is so marked a feature comes fairly within the scope of the question of the range, township and section system? before us is the right of the owners of the Clearly not. While the contemplation of Last Chance to pursue the vein as it dips into Congress may have been that every location the earth westerly between the line a d t and should be in the form of a parallelogram, not the line r s, and to appropriate so much of exceeding 1,500 by 600 feet in size, yet the it as is not held by the prior location of the [86] purpose also was to permit the location in such a way as to secure not exceeding 1,500 feet of the length of a discovered vein, and it was expected that the locator would so place it as in his judgment would make the location lengthwise cover the course of the vein. There is no command that the side lines shall be parallel, and the requisition that the end lines shall be parallel was for the purpose of bounding the underground extralateral rights which the owner of the location may exercise. He may pursue the vein down

New York, and to that extent only is the question answered. The junior locator is entitled to have the benefit of making a location with parallel end lines. The extent of that benefit is for further consideration.

The second question needs no other answer than that which is contained in the discussion we have given to the first question, and we therefore pass it.

The third question is also practically answered by the same considerations, and in the view we have taken of the statutes the

easterly side of the New York lode mining | were apparently side lines were adjudged end claim is not the end line of the Last Chance lines because the vein on its course passed lode mining claim. through them, the location being not along The fourth question presents a matter of the course of the vein but across it. But importance, particularly in view of the in-in neither of these cases was the question now ferences which have been drawn by some before us presented or determined. All that trial courts, state and national, from the can be said to have been settled by them is, decisions of this court. That question first, that the lines of the location as made by isthe locator are the only lines that will be rec"If the apex of a vein crosses one endognized; that the courts have no power line and one side line of a lode mining claim, to establish new lines or make a new locaas located thereon, can the locator of such tion; second, that the contemplation of the vein follow it upon its dip beyond the verti- statute is that the location shall be along the cal side line of his location?" course of the vein, reading, as it does, that a The decisions to which we refer are Flag-mining claim "may equal, but shall not exstaff Silver Mining Company v. Tarbet, 98 ceed, 1,500 feet in length along the vein or U. S. 463 [25: 253]; Iron Silver Mining Com-lode;" and, third, that when subsequent expany v. Elgin Mining & S. Company, 118 U. S. 196 [30:98]; Argentine Min:ng Company v. Terrible Mining Company, 122 U. S. 478 [30: 1140]; King v. Amy & S. Consol. Min ing Company, 152 U. S. 222 [38 419].

plorations disclose that the location has been made, not along the course of the vein, but across it, the side lines of the location become in law the end lines. Nothing was said in either of these cases as to how much of the apex of the vein must be found within the surface, or what rule obtains in case the vein

Chance Mining Company v. Tyler Mining Company, 157 U. S. 683, 696 [39: 859, 865], was before us (in which the question here stated was presented but not decided, the case being disposed of on another ground) we said, after referring to the prior cases, “but there has been no decision as to what extraterritorial rights exist if a vein enters at an end and passes out at a side line."

Two of these cases have been already noticed in this opinion. In Flagstaff Silver Mining Company v. Tarbet a surface loca-crosses only one *end line. So, when Last [88] tion, 2,600 feet long and 100 feet wide had been made. This location was so made on the supposition that it followed lengthwise the course of the vein, and the claim was of the ownership of 2,600 feet in length of such vein. Subsequent explorations developed that the course of the vein was at right angles to that which had been supposed, and that it crossed the side lines, so that there was really but 100 feet of the We pass, therefore, to an examination of length of the vein within the surface the provisions of the statute. Premising area. It was held that the side lines that the discoverer of a vein makes the lowere to be regarded as the end lines. In cation, that he is entitled to make a location Iron Silver Mining Company v. Elgin Mining not exceeding 1,500 feet in length along the & 8. Company the location was in the form of course of such vein and not exceeding "300 a horseshoe. The end lines were not parallel. feet on each side of the middle of the vein at The location was quite irregular in form, and the surface," that a location thus made dis[87] *inasmuch as one of the side lines was sub-closes end and side lines, that he is required stantially parallel with one of the end lines it was contended that this side line should be considered an end line, and this although the vein did not pass through such side line. But the court refused to recognize any such contention and held that the end lines were those which were in fact end lines of the claim as located, and that as they were not parallel there was no right to follow the vein on its dip beyond the side lines. In Argentine Mining Company v. Terrible Mining Company the claims of the plaintiff and defendant crossed each other, and in its decision the court affirmed the ruling in Flagstaff Silver Mining Company v. Tarbet, saying (p. 45 [30: 1142]):

"When, therefore, a mining claim crosses the course of the lode or vein instead of being 'along the vein or lode,' the end lines are those which measure the width of the claim as it crosses the lode. Such is evidently the meaning of the statute. The side lines are those which measure the extent of the claim on each side of the middle of the vein at the surface."

In King v. Amy & 8. Consol. Mining Company the prior cases were reaffirmed and those lines which on the face of the location

to make the end lines parallel, that by such parallel end lines he places limits, not merely to the surface area, but limits beyond which below the surface he cannot go on the course of the vein, that it must be assumed that he will take all of the length of the vein that he can, we find from § 2322 that he is entitled to "all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically." Every vein whose apex is within the vertical limits of his surface lines passes to him by virtue of his location. He is not limited to only those veins which extend from one end line to another, or from one side line to another, or from one line of any kind to another, but he is entitled to every vein whose top or apex lies within his surface lines. Not only is he entitled to all veins whose apexes are within such limits, but he is entitled to them throughout their entire depth, "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." In other words, given a vein whose apex is within his surface limits, he can pursue that vein as far

as he pleases in its downward course outside [tion. "Our laws have attempted to establish the vertical side lines. But he can pursue a rule by which each claim shall be so many the vein in its depth only outside the vertical feet of the vein, lengthwise of its course, to side lines of his location, for the statute pro-any depth below the surface, although latervides that the "right of possession to such ally its inclination shall carry it ever so far [89] outside parts of such veins or ledges shall from a perpendicular." Flagstaff Silver Minbe confined to such portions thereof as lie be- ing Company v. Tarbet, 98 U. S. 463, 468 tween vertical planes drawn downward as [25: 253, 255]. 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 lodes."

This places a limit on the length of the vein beyond which he may not go, but it does not say that he shall not go outside the vertical side lines unless the vein in its course reaches the vertical planes of the end lines. Nowhere is it said that he must have a vein which either on or below the surface extends from end line to end line in order to pursue that vein in its dip outside the vertical side lines. Naming limits beyond which a grant does not go is not equivalent to saying that nothing is granted which does not extend to those limits. The locator is given a right to pursue any vein, whose apex is within his surface limits, on its dip outside the vertical side lines, but may not in such pursuit go beyond the vertical end lines. And this is all that the statute provides. Suppose a vein enters at an end line, but terminates half way across the length of the location, his right to follow that vein on its dip beyond the vertical side lines is as plainly given by the statute as though in its course it had extended to the farther end line. It is a vein, "the top or apex of which lies inside of such surface lines extended downward vertically" and the same is true if it enters at an end and passes out at a side line.

These conclusions find support in the following decisions: Stevens v. Williams, 1 McCrary, 480, 490, in which is given the charge of Mr. Justice Miller to a jury, in the course of which he says: "You must take all the evidence together; you must take the point where it ends on the south, where it ends on the north, where it begins on the west and is lost on the east, and the course it takes; and from all that you are to say what is its general course. The plaintiff is not bound to lay his side lines perfectly parallel with the course or strike of the lode, so as to cover it exactly. His location may be made one way or the other, and it may so run that he crosses it the other way. In such event his end lines become his side lines, and he can only pursue it to his side lines, vertically extended, as though they were his end lines, but if he happens to strike out diagonally, as far as his side lines include the apex, so far he can pursue it laterally." Wakeman v. Norton, decided by the supreme court of Colorado, June 1, 1897, 49 Pac. 283, in which Mr. Justice Goddard, whose opinions, by virtue of his long experience as trial judge in the mining districts of Leadville and Aspen, as well as on the supreme bench of the state, are entitled to great consideration, said, p. 286: "In instructing the jury that, in order to give any extralateral rights, it was essential that the apex or top of a vein should on its *course pass [91] Our conclusions may be summed up in these through both end lines of a claim, the court propositions: First, the location as made on imposed a condition that has not heretofore the surface by the locator determines the ex-been announced as an essential to the exertent of rights below the surface. Second, the end lines, as he marks them on the surface, with the single exception hereinafter noticed, place the limits beyond which he may not go in the appropriation of any vein or veins along their course or strike. Third, every vein "the top or apex of which lies in side of such surface lines extended downward vertically" becomes his by virtue of his location, and he may pursue it to any depth beyond his vertical side lines, al-Mining Company, circuit court northern disthough in so doing he enters beneath the surface of some other proprietor. Fourth, the only exception to the rule that the end lines of the location as the locator places them es[90]tablish the limits beyond which he may not go in the appropriation of a 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 the law declares that those which the locator called his side lines are his end lines, and those which he called end lines are in fact side lines, and this upon the proposition that it was the intent of Congress to give to the locator only so many feet of the length of the vein, that length to be bounded by the lines which the locator has established of his loca

cise of such right in any of the adjudicated
cases." Fitzgerald v. Clark, 17 Mont. 100
[30 L. R. A. 803], a case now pending in this
court on writ of error. Tyler Mining Com-
pany v. Last Chance Mining Company, court
of appeals, ninth circuit, decided by Circuit
Judge McKenna, now a justice of this court,
Circuit Judge Gilbert and District Judge
Hawley, 7 U. S. App. 463. Consolidated Wy-
oming Gold Mining Company v. Champion


trict California, decided by Hawley, District
Judge, 63 Fed. Rep. 540. Tyler Mining Com-
pany v. Last Chance Mining Company, cir-
cuit court district of Idaho, decided by Beat-
ty District Judge, who in the
of his opinion pertinently observed: "What
reason under the law can be assigned
why these rights shall not apply when
his location is such that his ledge passes
through it in some other way than
from end to end? The law does not say
that his ledge must run from end to end, but
he is granted this right of following 'all veins,
lodes, and ledges throughout their entire
depth, the top or apex of which lies inside of
his surface lines.' Upon the fact that an apex
is within his surface lines, all his underground

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