William F. Blake v. The Butte Silver Mining Company.

order and refusing an injunction. The facts as agreed upon by stipulation were as follows, to-wit:

The Butte mining claim, now owned by the respondents, was located on the 19th of August, 1870.

The Oregon mining claim, now owned by the appellant, was located September, 1871. Both claims were worked by their respective claimants as required by law. The Butte claim was conveyed by United States patent to its claimants on the 17th of October, 1874. The Oregon claim has not been patented.

The Oregon claim was located across the Butte claim on the surface, but there was no protest or adverse claim filed when the Butte party applied for a patent, and the whole surface, as claimed by the Butte party, is included in the patent issued to the respondents, with a provision in the patents as follows: "That the grant hereby made is restricted to the land hereinbefore described as lot No. 42, with twenty-four hundred (2400) linear feet of the Butte mine, vein, lode, ledge or deposit, for the length aforesaid, throughout its entire depth, as aforesaid, together with all other veins, lodes. ledges or deposits throughout their entire depth as aforesaid, the tops or apexes of which lie inside of the exterior lines of said survey, as against all persons claiming under locations made upon such other veins, lodes, ledges, or deposits, subsequent to May 10, 1872; but subject to the right of other parties to follow any other vein or lode, with its dips, angles and variations, legally held under a location made prior to such date." It is further stipulated and agreed that the vein or lode upon which the Butte location was made is different from that found in the area in conflict; and that the Oregon location was made on the vein or lode which is found in the area in conflict, but several hundred feet east of the Butte surface ground; and that the course of the vein is westerly from the Oregon location or discovery, and in its course enters and nearly crosses the Butte patented ground.

The appellant disclaims any right to the surface area in con

William F. Blake v. The Butte Silver Mining Company.

flict, but insists that he has the right to follow his vein on its course, to the extent claimed by him, under his location notice, which would take it nearly across the patented ground of the repondents. On the contrary, the respondents insist that, as the appellant did not protest or file an adverse claim against respondents' application for a patent, and as he confessedly has no right to the surface included within respondents' patent, the easterly side line of the Butte mine becomes the western end line of the Oregon claim, and the appellant has no right to follow his vein on its course or strike beyond the eastern side line of respondents' mine.

*

By the act of Congress, approved July 26, 1866, it is provided in Section 1, "That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States," etc. Section 2, "That whenever any person or association of persons claim a vein or lode of quartz, or other rock, in place, bearing gold, silver or copper, having previously occupied and improved the same and having expended in actual labor and improvements thereon not less than $1,000, and in regard to whose possession there is no controversy or opposing claim, it shall be lawful for the claimant to file, in the local land office, a diagram of the same * and to enter such tract and receive a patent therefor, granting such mine, together with the right to follow such vein or lode, with its dips, angles and variations, to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition."

Section 3 provides, That upon filing such diagram, and posting the same in a conspicuous place on the claim, together with a notice of intention to apply for a patent, the register shall publish notice for ninety days in a newspaper, and at the expiration of that time, if no adverse claim shall have been filed, it shall be the duty of the Surveyor General, upon application, to survey the premises and make a plat thereof, indorsed with his approval, etc. And upon payment for the land and

William F. Blake v. The Butte Silver Mining Company.

expenses of survey, etc., and proof that the diagram and notice had been posted, a patent shall issue for the same. "But said plat, survey or description shall in no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued."

Section 6 of the same act provides, act provides, "That whenever any adverse claimants to any mine located or claimed as aforesaid, shall appear before the approval of the survey, as provided in the third section of this act, all proceedings shall be stayed until a final settlement and adjudication in the courts of competent jurisdiction, of the rights of possession of such claim, when a patent may issue as in other cases."

By the act of 1872, section 2325, Revised Statutes of the United States, the time of notice is limited to sixty days, etc., and then it provides that "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 will be assumed that the applicant is entitled to a patent upon payment," etc., "and that no adverse claim exists, and thereafter no objection from third parties to the issuance of the patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter."

Patents issued since the passage of the act of 1872 convey, under that act, to the grantees, all the surface included within the lines of their location, and all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines, where no adverse rights existed on the 10th of May, 1872. §§ 2322 and 2328, Revised Statutes of United States.

Under the act of 1866, the discoverer could locate on but one lode or vein, and if he extended his surface location over more than one lode or vein, any other competent person might make a location on the vein or lode other than the one discovered and actually located by the first locator, and that would give him an opposing claim to such part of the prior location as covers or embraces the latter vein or lode, and he would

William F. Blake v. The Butte Silver Mining Company.

thereby become an adverse claimant to that extent; but if he neglected or refused to appear and file and prosecute his adverse claim, as required by statute, he cannot claim any right to enter the patented ground of the first locator after the patent has issued. If he had any right to do so before the patent issued, it was waived by his failure to file his adverse claim. The clause in the patent above quoted is no exception or reservation in favor of such adverse claimant, and could not be, under the law, for the reason that at the time the patent issued he had no right to follow such vein or lode, under his his location made prior to 1872. It is hard to conceive a state of facts under which this clause in the patent would be of any force or effect, as all adverse claims had to be adjusted or were waived before the patent could lawfully issue, and after the patent issued no third party could impeach it, except for the reason that the applicant had failed to comply with the terms of the law, or had committed fraud in obtaining the patent. § 2325, Revised Statutes of United States.

It is true that, under the act of 1866, the surface land taken

up in connection with a linear location on the vein or lode, was not required, in the first step to secure the title, to be marked or staked on the surface, and was intended mainly for the convenient working of the mine; but that act also required the applicant for a patent to file in the land office a diagram of his claim, and such diagram was evidently intended to embrace the surface claimed, and gave notice to the public of the extent to which the applicant claimed the vein or lode discovered by him. The act of 1872 grants to the locator the exclusive right to the possession of a limited amount of surface ground, and not only the particular vein or lode located, but all veins or lodes the top or apex of which lies within the surface lines of his location. This act recognizes the preexisting rule applied by miners to a single vein or lode, and makes it applicable to all veins or lodes found within the surface lines.

In the Eureka Case, 4 Sawyer, 324, the court says: "Our

William F. Blake v. The Butte Silver Mining Company.

opinion, therefore, is that both the defendant and the plaintiff, by virtue of their respective patents, whether issued upon locations made under the act of 1866 or under the act of 1872, were limited to veins or lodes lying within planes drawn vertically downwards through the end lines of their respective locations; and that each took the ores found within those planes at any depth, in all veins or lodes the top or apex of which lay within the surface lines of its location." In the same case, page 319, the court say: "A patent of the United States for land, whether agricultural or mineral, is something upon which its holder can rely for peace and security in its possession. In its potency it is ironclad against all mere speculative inferences." The appellant has no right to enter the patented ground on the course or strike of his vein. The restraining order was properly dissolved, and the injunction was properly refused, and these orders should be affirmed. I, therefore, cannot concur with the majority of this court in reversing the order of the district court herein.