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 owner. justment 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 tempo- In that aspect of the question the decisions rary possession, which, in accordance with referred to, although the language employed the rules and regulations of mining districts, is general and broad, do not sustain the conhas always been recognize.l.

tention 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 "As a mining location can only be carved which, standing alone, seems to sustain the out of the unappropriated public domain, it contention. Thus, in Belk v. Meagher, 104 necessarily follows that a subsequent locator U.S. 279, 284 [26: 735, 737], it is said: may not invade the surface territory of his

“Mining claims are not open to relocation neighbors and include within his boundaries until the rights of a former locator have come any part of a prior valid and subsisting locato an end. A relocator seeks to avail him- tion. But conflicts of surface area are more self of mineral in the public lands which an-than frequent. Many of them arise from honother has discovered. This he cannot do un est mistake, others from premeditated design. til the discoverer has in law abandoned his In hoth instances the question of priority of claim, and left the property open for another appropriation is the controlling element which to take up. The right of location upon the determines the rights of the parties. Two lomineral lands of the United States is a privi- cations cannot legally occupy the same space lege granted by Congress, but it can only be at the same time. These conflicts sometimes exercised within the limits prescribed by the involve a segment of the same vein, on its grant. A location can only be made where strike; at others, they involve the dip boundthe law allows it to be done. Any attempting planes underneath the surface. More freto go beyond that will be of no avail. Hence quently, however, they pertain to mere overa relocation on lands actually covered at the lapping surfaces. The same principles of law (80] time by another valid and subsisting location apply with equal force to all classes of cases. is void; and this not only against the prior Such property rights as are conferred by a locator. but all the world, because the law al. valid prior location, so long as such location lows no such thing to be done.”

remains valid and subsisting, are preserved And again, in Gwillim v. Donnellan, 115 from invasion, and cannot be infringed or imU. S. 45, 49 (29 : 348, 349]:

paired by subsequent locators. To the ex. "A valid and subsisting location of mineral tent, therefore, that a subsequent location inlands, made and kept up in accordance with cludes any portion of the surface lawfully apthe provisions of the statutes of the United propriated and held by another, to that ex. States, nas the effect of a grant by the United | tent such location is void.” States of the right of present and exclusive pos. It will be seen that while the author denies session of the lands located. If, when one enters the right of a second locator to enter upon tho on land to make a location, there is another ground segregated by the first location, he location in full force, which entitles its owner recognizes the fact hat overlapping locations to the exclusive possession of the land, the are frequent, and declares the invalidity of first location operates as bar to the second.” the second location so far as it affects the

The question presented in each of those rights vested in the prior locator, and in that cases was whether a second location is effect- he follows the cases from which we have ual to appropriate territory covered by a prior quoted.

subsisting and valid location, and it was held The practice of the Land Department has (79) it is * noť. 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 ex: in 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 har. ance 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 dato 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 tho location.” In other words, in order to com. I surveyor general has no jurisdiction in the

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

"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 sional enactments.

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.

It may be said that the statute gives to the first locator the right of exclusive possession; 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 distate 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 onę 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]:

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:

"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 settlements are made, to invite forcible invasion of the premises of another, in order to 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 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."

"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 Emeralding 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, for the reason that the quarter section is open, uninclosed, and neither party interferes with the actual possession of the other.

"I cannot see how you can give your approval to such survey. No reason exists why [82] the survey lines should not conform *directly

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. 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

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

"2. The intersections of the lines of the survey, with the lines of conflicting prior surveys, 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:

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emptor, or it may not be known that the set. I 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 converg. its 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 an

his 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 ig- neath 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 New York claim, extended downward into lines are to any extent upon territory cov. the earth will at a certain distance pass to ered by a prior valid location--go through the south of the line r 8, and a triangle of the form of making a relocation simply works the vein will be formed between the two delay and may prevent him, as we have seen, lines, which does not pass to the owners of from obtaining an amount of surface to which the New York. The question is not dishe is entitled, unless he abandons the under tinctly presented whether that triangular ground and extralateral rights which are portion of the vein up to the limits of the secured only by parallel end lines.

south end line of the Last Chance, b c, 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 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 New York, and to that extent only is the such a way as to secure not exceeding 1,500 question answered. The junior locator is en. feet of the length of a discorered vein, and titled to have the benefit of making a locait was expected that the locator would so tion with parallel end lines. The extent of place it as in his judgment would make the that benefit is for further consideration. location lengthwise cover the course of the The second question needs no other answer vein. There is no command that the side than that which is contained in the discussion lines shall be parallel, and the requisition that we have given to the first question, and wo the end lines shall be parallel was for the therefore pass it. purpose of bounding the underground extra- The third question is also practically an. lateral rights which the owner of the location swered by the same considerations, and in may exercise. He may pursue the vein down-I 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 is

the locator are the only lines that will be rec"If the apex of a vein crosses one end ognized; 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 lining Company v. Tarbet, 08 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. plorations disclose that the location has been S. 196 (30:96); Argentine Mining Company made, not along the course of the vein, but v. Terrible Mining Company, 122 U. S. 478 across it, the side lines of the location become [30: 1140]; King v. Amy & 8. Consol. Min. in law the end lines. Nothing was said in ing Company, 152 U. S. 222 (38 419].

either of these cases as to how much of the Two of these cases have been already no- j apex of the vein must be found within the ticed in this opinion. In Flagstaff Silver surface, or what rule obtains in case the vein 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 Chance Mining Company v. Tyler Mining been made. This location was so made on Company, 157 U. S. 683, 696 (39: 859, 865), the supposition that it followed lengthwise was before us (in which the question here the course of the vein, and the claim was of stated was presented but not decided, the the ownership of 2,600 feet in length of such case being disposed of on another ground) we vein, Subsequent explorations developed said, after referring to the prior cases, “but that the course of the vein was at right an. there has been no decision as to what extragles to that which had been supposed, and territorial rights exist if a vein enters at an that it crossed the side lines, so that end and passes out at a side line.” 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

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 dis187) *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 to make the end lines parallel, that by such was contended that this side line should be parallel end lines he places limits, not merely considered an end line, and this although the to the surface area, but limits beyond which vein did not pass through such side line. below the surface he cannot go on the course But the court refused to recognize any such of the vein, that it must be assumed that he contention and held that the end lines were will take all of the length of the vein that he those which were in fact end lines of the can, we find from § 2322 that he is enclaim as located, and that as they were not titled to "all veins, lodes, and ledges throughparallel there was no right to follow the vein out their entire depth, the top or apex of on its dip beyond the side lines. In Argen- which lies inside of such surface lines extine Mining Company v. Terrible Mining tended downward vertically.” Every vein Company the claims of the plaintiff and de. whose apex is within the vertical limits of his fendant crossed each other, and in its decision surface lines passes to him by virtue of his the court affirmed the ruling in Flagstaff location. He is not limited to only those Silver Mining Company v. Tarbet, saying veins which extend from one end line to (p. 45 (30: 1142]):

another, or from one side line to another, or "When, therefore, a mining claim crosses from one line of any kind to another, but he the course of the lode or vein instead of being is entitled to every vein whose top or apex ‘along the vein or lode,' the end lines are lies within his surface lines. Not only is he those which measure the width of the claim entitled to all veins whose apexes are within as it crosses the lode. Such is evidently the such limits, but he is entitled to them meaning of the statute. The side lines are throughout their entire depth, "although those which measure the extent of the claim such veins, lodes, or ledges may so far depart on each side of the middle of the vein at the from a perpendicular in their course downsurface."

ward as to extend outside the vertical side In King v. Amy & 8. Consol. Mining Com. lines of such surface locations." In other pany the prior cases were reaffirmed and words, given a vein whose apex is within his those lines which on the face of the location 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 later

vides that the "right of possession to such ally its inclination shall carry it ever so far [89]putside * parts of such veins or ledges shall from a perpendicular." Flagstaft Silver Jlin.

be 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 These conclusions find support in the follocations, so continued in their own direction lowing decisions: Stevens v. Williams, 1 Mcthat such planes will intersect such exterior Crary, 480, 490, in which is given the charge of parts of such veins or lodes."

Mr. Justice Miller to a jury, in the course of This places a limit on the length of the which he says: “You must take all the evi. vein beyond which he may not go, but it does dence together; you must take the point not say that he shall not go outside the verti- where it ends on the south, where it ends on cal side lines unless the vein in its course the north, where it begins on the west and is reaches the vertical planes of the end lines. lost on the east, and the course it takes; and Nowhere is it said that he must have a vein from all that you are to say what is its genwhich either on or below the surface extends eral course. The plaintiff is not bound to lay from end line to end line in order to pursue his side lines perfectly parallel with the course that vein in its dip outside the vertical side or strike of the lode, so as to cover it exactly. lines. Naming limits beyond which a grant His location may be made one way or the does not go is not equivalent to saying that other, and it may so run that he crosses it nothing is granted which does not extend to the other way. In such. event his end lines those limits. The locator is given a right to become his side lines, and he can only pursue pursue any vein, whose apex is within his sur- it to his side lines, vertically extended, as face limits, on its dip outside the vertical side though they were his end lines, but if he haplines, but may not in such pursuit go beyond pens to strike out diagonally, as far as his the vertical end lines. And this is all that side lines include the apex, so far he can purthe statute provides. Suppose a vein enters sue it laterally." Wakeman v. Norton, de at an end line, but terminates half way across cided by the supreme court of Colorado, June the length of the location, his right to follow 1, 1897, 49 Pac. 283, in which Mr. Justice Godthat vein on its dip beyond the vertical side dard, whose opinions, by virtue of his long lines is as plainly given by the statute as experience as trial judge in the mining disthough in its course it had extended to the tricts of Leadville and Aspen, as well as on farther end line. It is a vein, “the top or the supreme bench of the state, are entitled apex of which lies inside of such surface lines to great consideration, said, p. 286: "In inextended downward vertically" and the same structing the jury that, in order to give any is true if it enters at an end and passes out at extralateral rights, it was essential that the a side line.

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 che exertent of rights below the surface. Second, the cise of such right in any of the adjudicated end lines, as he marks them on the sur cases.” Fitzgerald v. Clark, 17 Mont. 100 face, with the single exception hereinafter no- [30 L. R. A. 803], a case now pending in this ticed, place the limits beyond which he may court on writ of error. Tyler Mining Com. not go in the appropriation of any vein or pany v. Last Chance Mining Company, court veins along their course or strike. Third, of appeals, ninth circuit, decided by Circuit every vein "the top or apex of which lies in Judge McKenna, now a justice of this court, side of such surface lines extended downward Circuit Judge Gilbert and District Judge vertically” becomes his by virtue of his Hawley, 7 U. S. App. 463. Consolidated Wylocation, and he may pursue it to any oming Gold Mining Company v. Champion depth beyond his vertical side lines, al Mining Company, circuit court northern disthough in so doing he enters beneath the trict California, decided by Hawley, District surface of some other proprietor. Fourth, the Judge, 63 Fed. Rep. 540. Tyler Mining Com. only exception to the rule that the end lines pany v. Last Chance Mining Company, cir.

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of the location as the locator places them es- cuit court district of Idaho, decided by Beat(90) tablish the *limits beyond which he may notty District Judge, who in the

go in the appropriation of a vein on its course of his opinion pertinently observed: "What or strike is where it is developed that in fact reason under the law can be assigned the location has been placed, not along, but why these rights shall not apply when across, the course of the vein. In such case his location is such that his ledge passes the law declares that those which the locator through it in

other called his side lines are his end lines, and from end to end? The law does not say those which he called end lines are in fact that his ledge must min from end to end, but side lines, and this upon the proposition that he is granted this right of following ‘all veins, it was the intent of Congress to give to the lo- lodes, and ledges throughout their entire .cator only so many feet of the length of the depth, the top or apex of which lies inside of vein, thať length to be bounded by the lines his surface lines.' Upon the fact that an apex which the locator has established of his loca-l is within his surface lines, all his underground



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