LAND OFFICE DECISIONS. Where there are no adverse interests, a patent will not be disturbed by proceedings to annul it, notwithstanding irregularities in issuing it. Antelope Lode, Copp, 171 (1875). Where full opportunity has been given for adverse interests to be heard, and the questions involved have been decided by the Secretary of the Interior, the institution of suit to set aside the patent will not be recommended upon a petition which rests upon allegations before considered, and where no fraud is shown. Thomas Starr, 2 L. D. 759 (1883). Application having been made for patent for a lode claim within the limits of a town site, protests were filed by the mayor and others, alleging that the land was non-mineral. They were abandoned and patent issued. Ejectments against the owners of the lode having been subsequently decided in their favor on the ground of the conclusiveness of the patent, application was made for the institution of suit to vacate the patent on the ground that the proofs, upon which it issued, falsely and fraudulently represented that the land was mineral, and that the requisite expenditure had been made thereon. The application was refused, because the applicants had been neglectful of their interests in failing to file adverse claims, and in failing to prosecute their protests. The vacation of the patent would also have vested the title not in the United States, but in the holders under the town site. Smoke House Lode, 4 L. D. 555 (1886). Suit to set aside a patent will be instituted by the government where it, though without interest, is under obligation to protect the title of third parties, who have no remedy except through such intervention. Where owners under a town-site patent called the attention of the Department to the non-mineral character of the land at the time of the application for a mineral patent, and the patent issued upon the neglect of the Department to make inquiry into the character of the land, a suit to vacate will be recommended upon proof of its non-mineral character. The Mountain Maid, 5 L. D. 28 (1886). Failure to comply with local regulations may be shown by protest or adverse claim, but does not afford ground for judicial proceeding against the patentee by the government, where no conflict with the general law appears. Robert Hawke, 5 L. D. 131 (1886). Under a mineral application for land partly included within a prior town-site patent, the claim must be restricted to the land not in conflict. In the absence of an allegation or offer to prove that the land in conflict was of known mineral character prior to the issuance of the townsite patent, the record will not justify proceedings against said patent, or adverse to rights claimed thereunder; but on due showing a hearing may be ordered to determine whether suit to vacate the patent should be advised. Thomas J. Laney, 9 L. D. 83 (1889). Suit to set aside a patent will not be advised by the Department in the absence of a specific showing of facts sufficient to justify such action. James G. Negus, 11 L. D. 32 (1890). On the allegation duly corroborated by affidavits that certain land patented to a railroad company was in fact excepted from the grant by reason of its known mineral character, a hearing may be directed to ascertain whether the facts justify judicial proceedings for the recovery of title. Bullock v. Cent. Pac. R. Co., 11 L. D. 590 (1890). Under an allegation properly corroborated that a tract, patented under a town-site entry, includes a mine of valuable ore, and that such mine was well known at the date of entry and issuance of patent, the Department may order a hearing to test the truthfulness of the charge with a view to subsequent judicial proceedings. Plymouth Lode, 12 L. D. 513 (1891). Land included within an outstanding town-site patent is not subject to mineral entry; but an opportunity may be afforded the mineral applicant in such case to show that the mineral character of the land was known at the date of the town-site entry and patent, with a view to subsequent judicial proceedings to vacate said patent. Protector Lode, 12 L. D. 662 (1891). An entry of a lode claim in conflict with a patented placer need not be cancelled, but may be properly suspended with due opportunity given for the institution of proceedings looking toward the vacation of the placer patent as to the land in conflict. Pike's Peak Lode, 14 L. D. 47 (1892). Judicial proceedings will be instituted for the vacation of a patent issued by inadvertence or mistake during the pendency on appeal of a contest involving the land in question. Lead City Townsite v. Mineral Claimants, 17 L. D. 291 (1893). Proceedings to vacate a patent will not be recommended without a clear and convincing showing that fraud was committed in procuring the issuance, especially when the ground is owned by bona fide purchasers and the application is not made until twelve years after patent. Butte & Boston M. Co., 21 L. D. 125 (1895). Where a mineral patent is based on an erroneous survey, suit will be instituted to vacate it. United States v. Rumsey, 22 L. D. 101. CHAPTER XV. DIFFERENT KINDS OF CLAIMS, THEIR SPECIAL FEATURES AND CHARACTERISTICS. I. Lode Claims. A. Definition of Lode; Apex Rule. B. Cross and Uniting Veins. II. Placer Claims. III. Lodes in Placers. VI. Water Right Claims. I. LODE CLAIMS. A. Definition of Lode; Apex Rule. THE" valuable mineral deposits in lands belonging to the United States" which, by Rev. Stats. 2319, are thrown open to exploration and purchase, are divided generally into lode or vein deposits and placer deposits, which two classes are located in distinct ways. Those plots of ground, which are known as "claims," are, when located, also subject to different rules. Lode claims are described in the statute as "mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, copper, or other valuable deposits" (Rev. Stats. 2320), and as "mining locations . . . on any mineral vein, lode, or ledge situated on the public domain" (Rev. Stats. 2322). The primary requisite of such a claim, therefore, "is that it shall be upon a lode or vein of mineral-bearing rock." The meaning of these terms hence becomes of vital importance. The definitions thereof adopted by the courts are not the definitions of the geologists. These words are used in the statutes in the signification which they convey, not to the scientific man, but to the practical miner. A lode, therefore, in the above clauses means a body of mineralbearing rock lying within walls (which should be well defined, but sometimes are not) of neighboring rock, usually of a different kind, but sometimes of the same kind,1 and extending longitudinally between those walls in a continuous zone or belt. The distance between the walls may decrease in places until the thickness of the vein is unappreciable, or until the vein matter entirely disappears between them; but usually there is a continuing crack or crevice, though even this is sometimes hardly appreciable. So long, however, as the walls remain reasonably well defined or the continuity of the mineral-bearing matter between them remains established, the vein exists.2 A lode was defined in the Eureka Case to be " any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. It includes all deposits of mineral matter found through a mineralized zone or belt coming from the same source, impressed with the same forms, and appearing to have been created by the same processes." This definition, which has received the approval of the highest courts, is, however, rather a general description than an accurate definition. It is not a conclusive test, but a guide by which to determine whether or not the mineral deposit in question is or is not to be treated as a vein or lode. The mineralized zone or belt may contain within its limits small subordinate veins in a geological sense, but this will not detract from its character as a lode. But very broad metalliferous zones between defined boundaries will not be allowed to swallow up true fissure veins existing within these boundaries, where the width of such a zone is, as compared with the legal width of a claim, unreasonably large; for in such a case to treat this as a lode would defeat the purpose of the statute. The only essential quality of the rock included within the boundaries is that it must contain a trace of valuable mineral. It may be loose and friable, or very hard. Still it is vein matter if it is enclosed within the country rock. Thus the two essential elements of a lode are (a) the mineral-bearing rock, which must be in place and have reasonable trend and continuity, and (b) the reasonably distinct boundaries on each side of the same.3 If either of these is well established, slight evidence will be accepted of the existence of the other. Whether or not a par 1 An example of this, which is frequently met with, is when the country rock is impregnated with ore along and often on both sides of a small fissure. 2 See Geological Preface. 8 See detailed discussion of the characteristics of true lodes, veins, contact deposits, etc., in the Geological Preface. ticular deposit conforms to the foregoing requirements, and is a lode or vein, is in each case a question of fact for determination by the jury. Rev. Stats. 2322 provides: "The locators of all mining locations heretofore made or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as they comply with the laws of the United States, and with State, Territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have 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 inside 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 locator 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." This statement of the locator's rights to follow upon its downward course that portion of any vein having its apex within the surface lines of the location, which lies between vertical planes drawn downward through the end lines, is called the apex rule. It is in conflict with the common law rule that the owner of the surface also owns the minerals under the surface. That rule, however, is entirely aside from the case. In a lode claim the principal thing is the lode. This it is that is granted by the government, and the surface ownership is for the purpose of holding the lode, and the surface only serves to define the locator's rights upon the lode. The important things in the application of the rule, therefore, are the identity of the apex and the position of the surface lines. The intention of the statute is that the claim should be located along the course of the discovered vein. The |
