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been developed by exploration, the point of discovery is presumed to be the middle of the vein for purposes of measurement. See L. O. Regs., pars. 9, 10, 11.

As some existing titles may be governed by the law as it stood previous to 1872, it is important to know that law. Until July 26, 1866, the length of lode claims was governed by district rules or State legislation. The act of Congress of July 26, 1866, sec. 4, which remained in force until May 10, 1872, provided that locations should not exceed two hundred feet along the lode for each locator, except that the discoverer might have an additional claim, and no association could appropriate more than 3,000 feet. The important cases upon the law previous to May 10, 1872, are collected below on page 261.

Jupiter M. Co. v. Bodie M. Co., 7 Sawy. 96 (1881), United States. C. C. D. Cal. Under the act of Congress a claim may be located one thousand five hundred feet along the length of the vein, and three hundred on each side of the middle of the vein. This may be limited to not less than twenty-five feet by a rule, regulation, or custom in force at the time of location. A claim having been located under the provision of the act of Congress as to extent, and a regulation having been set up, limiting the width to fifty feet on each side of the vein, if the jury find that such a regulation existed at the time of the location, the location is void as to the excess only.

Richmond Co. v. Rose, 114, 576 (1885). When the statutes of the United States and local laws of a mining district authorized a location on a vein of only two hundred feet by each locator, a location by mistake for more than two hundred feet was not thereby made entirely void, but was good for two hundred feet and void only as to the

excess.

Parley's Park Co. v. Kerr, 130, 256 (1889). Mining regulations of Blue Ledge District, adopted May 17, 1870, provided that the surface width of any location should not exceed one hundred feet on each side of the wall rock of the lode. At a meeting on May 4, 1872, held to amend the rules, it was enacted that the surface width should be governed by the laws of the United States. The width of claims in this district were consequently governed by the act of Congress of May 10, 1872, Rev. Stats. 2320.

Lakin v. Dolly, 53 Fed. 333 (1891), C. C. N. D. Cal. The Land Department has no jurisdiction, power, or authority to issue a patent for a lode to any surface ground exceeding three hundred feet in width on each side of the middle of the vein, and any patent which is issued for more than that amount of surface is null and void as to the excess over three hundred feet, and can be collaterally attacked in a court of law.

Lakin v. Roberts, 54 Fed. 461 (1893), C. C. App., 9th Circ., affirming last case. Under Rev. Stats. 2320 a patent cannot be issued for a

claim exceeding three hundred feet in width on each side of the vein, although the original location was wider, and was made under the law of 1866, by which the width of claims was regulated by the custom of miners. Where a patent is issued for the full width of such claim, it is void as to the excess, and Rev. Stats. 2328 cannot be construed to preserve a right to the full width located and covered by the patent. Thompson v. Spray, 72, 528 (1887). Upon the disCalifornia. missal of the action as to some of the plaintiffs, the defendant moved for a nonsuit as to the others, upon the ground that the dismissal left these claiming more than they were entitled to hold by law. But the location was held to be good for as much as the party was entitled to hold, and void as to the excess only. Richmond Co. v. Rose, 114 U. S. 576.

Doe v. Tyler, 73, 21 (1887). The inclusion of greater length than the law allows does not render a claim totally void. This may occur, and often must occur, by accident of the surveyor or other innocent mistake, where no intention exists to claim more than the amount allowed by law. There is no reason why the excess may not be rejected, and the claim be held good for the remainder.

Atkins v. Hendree, 1, 95 (1867). When a location is Idaho. made greater in extent than allowed by law, it is not entirely

void, but only as to the excess.

Foote v. National M. Co., 2, 402 (1876). Act of LegisMontana. lative Assembly of Dec. 26, 1864, sec. 3, provides, "Claims on any lead, lode, or ledge, either of gold or silver, hereafter discovered shall consist of not more than two hundred feet along the lead, lode, or ledge, together with all dips, spurs, and angles emanating or diverging from said lead, lode, or ledge, and also fifty feet on each side of said lead, lode, or ledge for working purposes."

Sides or walls being necessary to a lead, it follows that a statute giving to a locator fifty feet on each side of a lead for working purposes must be construed to mean fifty feet from each wall or side of the lead. The fifty feet on each side cannot include any of the lead.

Hauswirth v. Butcher, 4, 299 (1882). A claim of a mining location two thousand feet long will not protect the claimant against intervening claims of third persons for the five hundred feet more than the law allows. Whether the claim will be good for fifteen hundred feet or entirely void, undecided.

Leggatt v. Stewart, 5, 107 (1883). A location exceeding in extent the length allowed by law is void for uncertainty: "the defendants cannot claim to have sufficiently marked their boundaries if their stakes include seventeen hundred and sixty-three feet in length."

Overman S. M. Co. v. American M. Co., 7, 312 (1872). Nevada. Case of dispute as to boundary of two adjoining mining

claims. The court charged: "When boundaries have been established, defining and denoting the size and limits of the claim upon the surface, and for a long period have been recognized as such, the extent of the claim will be confined to the extent as manifested by such surface boundaries." The testimony was such that the instruction was apt to be understood to refer to a recognition of boundaries occurring after the consummation of the original location, and consisting merely

of the declarations of officers of the company not authorized to fix boundaries, and it was held to be erroneous.

Hanson v. Fletcher, 37 Pac. 480 (1894). The respondents Utah. included within their claim four hundred feet upon the east side line, two hundred feet upon the west side line, forty feet upon the north end line, and fifty feet upon the south end line, in excess of the amount allowed by law. This was due to an innocent mistake caused honestly by an inaccurate method of measurement, and without any intention to include a greater amount than that allowed. Plaintiff having actual notice of the location, having seen the monuments, attempted to relocate the ground. Held, respondents' location was valid. "We do not mean to be understood that any length, however great, in excess of the limit of the grant can be located without rendering the claim void for uncertainty. A mining claim may include so great an excess of ground as to render it absolutely void, depending upon the surrounding circumstances of each case. But what we do mean to say is, that under the particular circumstances of this case the excess within the boundaries of the Blue Rock does not render the same void."

LAND OFFICE DECISIONS.

Where the vein is developed below the surface, and the locator does not determine by any further prospecting that the nearest actual surface point is elsewhere, and the fact does not otherwise appear, the point of the vein so discovered must be assumed to be the middle of the vein for the purpose of lateral measurement under Rev. Stats. 2320. Copp, 231 (1878).

The middle of the vein must be ascertained by actual exploration and development, or the discovery shaft must, for executive purposes, be taken as the middle of the vein, and the lateral measurements made therefrom." Copp, 276 (1880).

An applicant for patent for a lode within a placer (the existence of the lode being known at the time of the placer application) failed to file an adverse claim to the placer application, and was restricted to twenty-five feet of surface on each side of the lode. (Rev. Stats. 2333). Shonbar Lode, 1 L. D. 551 (1883).

The twenty-five feet referred to in section 2333 U. S. Revised Statutes is to be measured from the centre of the vein or lode. Shonbar Lode, 3 L. D. 388 (1885).

Following the doctrine enunciated in Smelting Co. v. Kemp, an application for the survey of a claim embracing several contiguous lode locations is granted. Champion M. Co., 4 L. D. 362 (1886).

II. PLACER CLAIMS.

The extent of placer locations is fixed by Rev. Stats. 2330, 2331. The construction of these is thus clearly stated by the Land Office Regulations, par. 61.

"The foregoing provisions of law are construed to mean that after the 9th day of July, 1870, no location of a placer claim can

be made to exceed one hundred and sixty acres, whatever may be the number of locators associated together, or whatever the regulations of the district may allow; and that from and after May 10, 1872, no location made by an individual can exceed twenty acres, and no location made by an association of individuals can exceed one hundred and sixty acres, which location of one hundred and sixty acres cannot be made by a less number than eight bona fide locators; and no local laws or mining regulations can restrict a placer location to less than twenty acres, although the locator is not compelled to take so much."

A placer location may be in any shape, but should conform to legal subdivisions when the land has been surveyed. Rev. Stats. 2329.1

United States.

Smelting Co. v. Kemp, 104, 636 (1881). A defendant in ejectment claimed adversely to the title to a placer claim derived from a patent of the United States bearing date March 29, 1879, which described the premises by metes and bounds, containing one hundred and sixty-four acres and sixty one-hundredths of an acre, more or less. Held, that he could not put in evidence the proceedings in the Land Department for the purpose of showing that the patent was issued upon a single application, including several mining locations, some made after the passage of the act of July 9, 1870, ch. 235 (Rev. Stats. 2330), limiting the location of one person or an association of persons to one hundred and sixty acres, and others made after the act of May 10, 1872 (Rev. Stats. 2331), limiting a location to twenty acres for each individual applicant.

A patent issued subsequently to the passage of the act of 1870 may embrace a placer mining claim consisting of more than one hundred and sixty acres, and including as many locations as the patentee had purchased. The proceedings to obtain a patent therefor are the same as when the claim covers but one location.

Tucker v. Masser, 113, 203 (1885). A patent for a placer claim, composed of distinct mining locations, some of which were made after 1870, and together embracing over one hundred and sixty acres, is valid. Smelting Co. v. Kemp, 104 U. S. 636, was carefully considered and again affirmed.

Gird v. California Oil Co., 60 Fed. 531 (1894). Under Rev. Stats. 2331 a placer claim located by three persons must be limited to twenty acres when it appears that they are all in the employ and acting in the interest of a single company.

Mitchell v. Cline, 84, 409 (1890). A contract between California. several persons to locate for their joint benefit an amount of placer mining ground exceeding the limit of twenty acres for each individual, and to pretend to satisfy the law by using the names of additional locators who would without consideration convey their in

1 See also Chap. XIV., Div. II.

terests to the contracting parties jointly, is against public policy, and a court of equity will not enforce a trust founded on this contract in favor of one of the contracting parties against another of them who has procured a conveyance to himself individually from one of the sham locators.

Poire v. Wells, 6, 406 (1882). The restrictions upon Colorado. the size of locations contained in the acts of 1870 and 1872 do not prevent one from purchasing ground located by others and adding to his own, and a patent for land so acquired is good though it exceed the limit of a location.

LAND OFFICE DECISIONS.

Several placer claims, the possessory title to which is in one person or corporation, may be patented as a single entry, provided they are not situated at wide distances from one another in different land or mining districts, but are, though not contiguous, yet in the same neighborhood. Copp, 78 (1870).

Where an application for patent embraces a placer location properly made and assigned to the applicant, and also additional ground claimed by virtue of a relocation by himself of the original claim enlarging its boundaries, such additional ground must not exceed the amount of twenty acres. Knapp, 2 L. D. 763 (1883).

Owners of contiguous locations need not present separate applications. They may be embraced in one application. (Smelting Co. v. Kemp, 104 U. S. 636.) Harrison, 2 L. D. 767 (1884).

An application for placer patent may embrace more than one location of one hundred and sixty acres. Samuel E. Rogers, 4 L. D. 284 (1885).

It is the intention of the mining laws generally to permit persons to take a certain quantity of land fit for mining, and not compel them to take such a quantity irrespective of its fitness for mining. Pearsall & Freeman, 6 L. D. 227 (1887).

III. CASES ARISING PRIOR TO THE ACT OF 1872.1

Live Yankee Co. v. Oregon Co., 7, 40 (1857). It was California. not error to refuse to charge the jury that "any claim of a definite number of feet front and running back into the hill (without any local custom to the contrary), and bounded by an older claim on one side and by vacant ground on the other, will, by implication, run parallel with the line of the older claim; ""in the absence of mining rules, regulating the subject of claims, their courses, distances, etc., the fact that a party has located a claim bounded by another claim raises no implication or inference that the last located claim corresponds in size or in the direction of its lines with the former."

English v. Johnson, 17, 107 (1860). Possibly, if several distinct claims have been consolidated into one, and the rules of the locality allow but one claim to be taken by one man, and after this consolida

1 See above, p. 257.

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