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31

feet. This was denied by the supreme courting of any local customs or rules affecting the
of Utah. McCormick v. Varnes, 2 Utah, 355. rights defined in and prescribed by the stat-
In that case the controversy was with the lo- ute, and beyond the terms of the statute
cation on the west of the Flagstaff. The de- courts may not go. They have no power of
cision of that court in respect to the contro- legislation. They cannot assume the exist-
versy with the location on the east of the ence of any natural equity, and rule that by
Flagstaff is not reported, but the case came reason of such equity a party may follow
to this court. Flagstaff Silver Mining Com-vein into the territory of his neighbor, and ap-
If cases arise for
pany v. Tarbet, 98 U. S. 463 [25: 253]. In propriate it to his own use.
the course of the opinion (pages 467, 468) which Congress has made no provision, the
courts cannot supply the defect. Congress
[25:255] it was said:
"It was not the intent of the law to allow a having prescribed the conditions upon which
person to make his location crosswise of a vein extralateral rights may be acquired, a party
so that the side lines shall cross it, and there- must bring himself within those conditions, or
by give him the right to follow the strike of else be content with simply the mineral be-
the vein outside of his side lines. That would neath the surface of his territory. It is un-
subvert the whole system sought to be estab-doubtedly true that the primary thought of
lished by the law. If he does locate his claim the statute is the disposal of the mines and
in that way, his rights must be subordinated minerals, and in the interpretation of the stat-
to the rights of those who have properly lo- ute this primary purpose must be recognized
cated on the lode. Their right to follow the and given effect. Hence, whenever a party
dip outside of their side lines cannot be inter- has acquired the title to ground within whose
fered with by him. His right to the lode only surface area is the apex of a vein with a few
extends to so much of the lode as his claim or many feet along its course or strike, a [67]
covers. If he has located crosswise of the right to follow that vein on its dip for the
lode, and his claim is only 100 feet wide, that same length ought to be awarded to him if it
can be done, and only if it can be done, under
100 feet is all he has a right to."
any fair and natural construction of the lan-
guage of the statute. If the surface of the
ground was everywhere level and veins con-
stantly pursued a straight line, there would
be little difficulty in legislation to provide for
all contingencies; but mineral is apt to be
found in mountainous regions, where great ir-

These decisions show that while the express
purpose of the statute was to grant the vein
for so many feet along its course, yet such
grant could only be made effective by a sur-
face location covering the course to such ex-
tent. This act of 1866 remained in force only
six years, and was then superseded by the
act of May 10, 1872 (17 Stat. at L. 91), found regularity of surface exists, and the course or
in the Revised Statutes, §§ 2319 and follow-strike of the veins is as irregular as the sur-
ing. This is the statute which is in force to-face, so that many cases may arise in which
[66] day, and under which the controversies in statutory provisions will fail to secure to a
this case arise. Section 2319, Revised Stat- discoverer of a vein such an amount thereof
utes (corresponding to § 1 of the act of as equitably it would seem he ought to re-
ceive. We make these observations because
1872), reads:
we find in some of the opinions assertions by
the writers that they have devised rules which
will work out equitable solutions of all diffi-
culties. Perhaps those rules may have all
the virtues which are claimed for them, and
if so it were well if Congress could be per-
suaded to enact them into statute; but be
that as it may, the question in the courts is
not, What is equity? but, What saith the
statute? Thus, for instance, there is no in-
herent necessity that the end lines of a min-
ing claim should be parallel, yet the statute
has so specifically prescribed. (§ 2320.) It

"All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to oc cupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the law of

the United States"

It needs no argument to show that if this is not within the province of the courts to igwere the only section bearing upon the question, patents for land containing mineral nore such provision, and hold that a locator, would, except in cases affected by local cus-failing to comply with its terms has all the toms and rules of miners, be subject to the rights, extralateral and otherwise, which he ordinary rules of the common law, and would would have been entitled to if he had comconvey title to only such minerals as were plied, and so it has been adjudged. Iron Silfound beneath the surface. We therefore ver Mining Company v. Elgin Mining & S. turn to the following sections to see what ex- Company, 118 U. S. 196 [30:98]. tralateral rights are given and upon what conditions they may be exercised. And it must be borne in mind in considering the cation, is instructive. The following diaquestions presented that we are dealing sim-gram, which was in the record in that case, ply with statutory rights. There is no show- 'illustrates the scope of the decision:

This case, which is often called the "Horseshoe Case," on account of the form of the lo

77

The locator claimed in his application for a patent the lines 1, 14 and 5, 6, as the end lines of his location, and because of their parallelism, that he had complied with the letter of the statute, but the court ruled against him, saying in the opinion (page 208 [30: 102]):

"The exterior lines of the Stone claim [68] formed a curved *figure somewhat in the shape of a horseshoe, and its end lines are not and cannot be made parallel. What are marked on the plat as end lines are not such. The one between numbers 5 and 6 is a side line. The draughtsman or surveyor seems to have hit upon two parallel lines of his nine-sided figure, and apparently for no other reason than their parallelism called them end lines.

the ground, were not parallel, and that this defect could not be obviated by calling that which was in fact a side line an end line. This is made more clear by the observations of the Chief Justice, who with Mr. Justice Bradley, dissented, in which he said:

"I cannot agree to this judgment. In my opinion the end lines of a mining location are to be projected parallel to each other and crosswise of the general course of the vein within the surface limits of the location, and whenever the top or apex of the vein is found within the surface lines extended vertically downwards, the vein may be followed outside of the vertical side lines. The end lines are not necessarily those which are marked on the map as such, but they may be projected at the extreme points where the apex leaves the location as marked on the surface."

"We are therefore of opinion that the objection that, by reason of the surface form of the Stone claim, the defendant could not fol- In other words, the court took the location low the lode existing therein in its downward as made on the surface by the locator, decourse beyond the lines of the claim, was well termined from that what were the end lines, taken to the offered proof." and made those surface end lines controlling [69] *It is true the court also observed that if upon his rights, and rejected the contention the two lines named by the locator were to that it was proper for the court to ignore the be considered the end lines, no part of the surface location and create for the locator a vein in controversy fell "within vertical new location whose end lines should be crossplanes drawn down through those lines, con- wise of the general course of the vein as tinued in their own direction." But notwith- finally determined by explorations. That standing this observation the point of the de- this decision and that in the Tarbet Case, cision was that the lines, which were the end supra, were correct expositions of the statute, lines of the location as made on the surface of and correctly comprehended the intent of

With these preliminary observations we pass to a consideration of the questions propounded. The first is:

Congress therein, is evident from the fact | United States, or with the laws of the state that, although they were announced in 1885 or territory in which the district is situated, and 1878, respectively, Congress has not seen governing the location, manner of recording, fit to change the language of the statute, or amount of work necessary to hold possession in any manner to indicate that any different of a mining claim, subject to the following remeasure of rights should be awarded to a quirements: The location must be distinctly mining locator. marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. On each claim located after the tenth day of May, eighteen hundred and

"May any of the lines of a junior-lode lo[70] cation be laid within, upon, or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extralateral rights not in conflict with any rights of the senior loca-seventy-two and until a patent has been istion?" sued therefor, not less than one hundred dol

By 2319, quoted above, the mineral de- lars' worth of labor shall be performed or imposits which are declared to be open to ex-provements made during each year. On all ploration and purchase are those found in claims located prior to the tenth day of May, lands belonging to the United States, and eighteen hundred and seventy-two, ten dolsuch lands are the only ones open to occu- lars' worth of labor shall be performed or impation and purchase. While this is true, it provements made by the tenth day of June, is also true that until the legal title has eighteen hundred and seventy-four, and each passed the public lands are within the juris- year thereafter, for each one hundred feet in diction of the Land Department, and, al-length along the vein until a patent has been though equitable rights may be established, issued therefor; but where such claims are Congress retains a certain measure of control. held in common, such expenditure may be Michigan Land & Lumber Company v. Rust, made upon any one claim; and upon a failure 168 U. S. 589 [42: 591]. The grant is, as is to comply with these conditions, the claim or often said, in process of administration. Pass- mine upon which such failure occurred shall ing to 2320, beyond the recognition of the be open to relocation in the same manner as governing force of customs and regulations if no location of the same had ever been and a declaration as to the extreme length made, provided that the original locators, and width of a mining claim, it is provided their heirs, assigns, or legal representatives, that "no location of a mining claim shall be have not resumed work upon the claim after made until the discovery of the vein or lode failure and before such location." within the limits of the claim located. The end lines of each claim shall be parallel to each other."

Section 2325 provides for the issue of a patent. It reads:

"A patent for any land claimed and located Section 2322 gives to the locators of all for valuable deposits may be obtained in the mining locations, so long as they comply with following manner: Any person, association, laws of the United States, and with state, ter- or corporation authorized to locate a claim ritorial, and local regulations not in conflict under this chapter, having claimed and lotherewith, "the exclusive right of possession cated a piece of land *for such purposes who [72] and enjoyment of all the surface included has or have, complied with the terms of this within the lines of their locations, and of all chapter, may file in the proper land office an veins, lodes, and ledges throughout their en-application for a patent, under oath, showing tire depth, the top or apex of which lies in such compliance, together with a plat and side of such surface lines extended downward field notes of the claim or claims in common, vertically, although such veins, lodes, or made by or under the direction of the United ledges may so far depart from a perpendicu- States surveyor general, showing accurately lar in their course downward as to extend the boundaries of the claim or claims, which outside the vertical side lines of such surface shall be distinctly marked by monuments on locations. But their right of possession to the ground, and shall post a copy of such such outside parts of such veins or ledges plat, together with a notice of such applicashall be confined to such portions thereof as tion for a patent, in a conspicuous place on lie between vertical planes drawn downward the land embraced in such plat previous to as above described, through the end lines of the filing of the application for a patent, and their locations, so continued in their own di- shall file an affidavit of at least two persons rection that such planes will intersect such that such notice has been duly posted, and exterior parts of such veins or ledges. And shall file a copy of the notice in such land. nothing in this section shall authorize the lo- office, and shall thereupon be entitled to a [71]cator or possessor of a vein or lode which patent for the land, in the manner followextends in its downward course beyond the ing: The register of the land office, upon vertical lines of his claim to enter upon the the filing of such application, plat, field surface of a claim owned or possessed by an- notes, notices, and affidavits, shall publish a other." notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim; and he shall also post such no

Section 2324 in terms authorizes "the miners of each mining district to make regulations not in conflict with the laws of the

These are the only provisions of the statute which bear upon the question presented.

tice in his office for the same period. The | pay for his portion of the claim, with the claimant, at the time of filing this applica- proper fees, and file the certificate and detion, or at any time thereafter, within the scription by the surveyor general, whereupon sixty days of publication, shall file with the the register shall certify the proceedings and register a certificate of the United States judgment roll to the Commissioner of the surveyor general that five hundred dollars' General Land Office, as in the preceding case, worth of labor has been expended or improve- and patents shall issue to the several parties ments made upon the claim by himself or according to their respective rights. Nothgrantors; that the plat is correct, with such ing herein contained shall be construed to [74] further description by such reference to nat-prevent the alienation of the title conveyed ural objects or permanent monuments as by a patent for a mining claim to any person shall identify the claim, and furnish an ac- whatever." curate description, to be incorporated in the patent. At the expiration of the sixty days of publication the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during such period of publication. 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 shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim ex[73]ists; and thereafter no *objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter."

The stress of the argument in favor of a negative answer to this question lies in the contention that by the terms of the statute exclusive possessory rights are granted to the locator. Section 2322 declares that the locators "shall have the exclusive right of pos session and enjoyment of all the surface included within the lines of their locations," and negatively, that "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." Hence, it is said that affirmatively and negatively is it provided that the locator shall have exclusive possession of the surface, and that no one shall have a right to disturb him in such possession. How, then, it is asked, can anyone have a right to enter upon such location for the purpose of making a second location? If he does so he is a trespasser, and it cannot be presumed that Congress intended that any rights should be created by a trespass.

Section 2326 is as follows: "Where an adverse claim is filed during the period of publication it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the con- We are not disposed to undervalue the troversy shall have been settled or de- force of this argument, and yet are concided by a court of competent jurisdiction, strained to hold that it is not controlling. It or the adverse claim waived. It shall must be borne in mind that the location is be the duty of the adverse claimant, the initial step taken by the locator to indiwithin thirty days after filing his claim, to cate the place and extent of the surface which commence proceedings in a court of compe- he desires to acquire. It is a means of giving tent jurisdiction to determine the question notice. That which is located is called in § of the right of possession, and prosecute the 2320 and elsewhere a "claim" or a "mining same with reasonable diligence to final judg- claim." Indeed, the words "claim" and "loment; and a failure so to do shall be a waiver cation" are used interchangeably. This loof his adverse claim. After such judgment cation does not come at the end of the proshall have been rendered, the party entitled ceedings, to define that which has been acto the possession of the claim, or any portion quired after all contests have been adjudithereof, may, without giving further notice, cated. The location, the mere making of a file a certified copy of the judgment roll with claim, works no injury to one who has acthe register of the land office, together with quired prior rights. Some confusion may the certificate of the surveyor general that arise when locations overlap each other and the requisite amount of labor has been ex-include the same ground, for then the right pended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees whereupon the whole proceedings and the judgment roll shall be certified by the reg ister to the Commissioner of the Genera It will also be noticed that the locator is Land Office, and a patent shall issue there- not compelled to follow the lines of the gov on for the claim, or such portion thereof, as ernment surveys, or to make his location in the applicant shall appear, from the decision any manner correspond to such surveys. The of the court, to rightly possess. If it ap- location may, indeed, antedate the public surpears from the decision of the court that sev- veys, but whether before or after them, the eral parties are entitled to separate and dif-locator places his location where, in his judgferent portions of the claim, each party mayment, it will cover the underlying vein. The

of possession becomes a matter of dispute,
but no location creates a right superior to [75]
any previous valid location. And these pos-
sessory rights have always been recognized
and disputes concerning them settled in the
courts.

law requires that the end lines of the claim | what is called a mining camp, and the conshall be parallel. It will often happen that tiguous territory is prospected and locations locations which do not overlap are so placed are made in every direction. In the haste of as to leave between them somnie irregular par- such locations, the eagerness to get a prior cel of ground. Within that, it being no more right to a portion of what is supposed to be than one locator is entitled to take, may be a valuable vein, it is not strange that many discovered a mineral vein and the discoverer conflicting locations are made, and, indeed, in desire to take the entire surface, and yet it every mining camp where large discoveries be impossible for him to do so and make his have been made locations, in fact, overlap end lines parallel unless, for the mere pur- each other again and again. McEvoy v. Hyposes of location, he be permitted to place man, 25 Fed. Rep. 596-600. This confusion those end lines on territory already claimed and conflict is something which must have by the prior locators. been expected, foreseen,-something which in the nature of things would happen, and the legislation of Congress must be interpreted in the light of such foreseen contingencies. Still again, while a location is required by the statute to be plainly marked on the surface of the ground, it is also provided in § 2324 that, upon a failure to comply with certain named conditions, the claim or mine shall be open to relocation. Now, although [77] a locator finds distinctly marked on the surface a location, it does not necessarily follow therefrom that the location is still valid and subsisting. On the contrary, the ground may be entirely free for him to make a location upon. The statute does not provide, and it cannot be contemplated, that he is to wait until by judicial proceedings it has become established that the prior location is invalid or has failed before he may make a location. He ought to be at liberty to make his location at once, and thereafter, in the manner provided in the statute, litigate, if necessary, the validity of the other as well as that of his own location.

Again, the location upon the surface is not made with a view of getting benefits from the use of that surface. The purpose is to reach the vein which is hidden in the depths of the earth, and the location is made to measure rights beneath the surface. The area of surface is not the matter of moment; the thing of value is the hidden mineral below, and each locator ought to be entitled to make his location so as to reach as much of the unappropriated, and perhaps only partially discovered and traced vein, as is possible. Further, Congress has not prescribed how the location shall be made. It has simply provided that it "must be distinctly marked on the ground so that its boundaries can be readily traced," leaving the details, the manner of marking, to be settled by the regulations of each mining district. Whether such location shall be made by stone posts at the four corners, or by simply wooden stakes, or how many such posts or stakes shall be placed along the sides and ends of the location, or what other matter of detail must be pursued in order to perfect a location, is left to the Congress has in terms provided for the setvarying judgments of the mining districts. tlement of disputes and conflicts, for by Such locations, such markings on the ground, § 2325, when a locator makes application for [76] are not always made by experienced survey- a patent (thus seeking to have a final deterors. Indeed, as a rule, it has been and was to mination by the Land Department of his be expected that such locations and mark- title), he is required to make publication and ings would be made by the miners them- give notice so as to enable anyone disputing selves,―men inexperienced in the matter of his claim to the entire ground within his losurveying, and so in the nature of things cation to know what he is seeking, and any there must frequently be disputes as to party disputing his right to all or any part whether any particular location was suffi- of the location may institute adverse proceedciently and distinctly marked on the surface ings. Then by § 2326 proceedings are to be of the ground. Especially is this true in lo- commenced in some appropriate court, and calities where the ground is wooded or the decision of that court determines the relabroken. In such localities the posts, stakes, tive rights of the parties. And the party or other particular marks required by the who by that judgment is shown to be "entirules and regulations of the mining district tled to the possession of the claim, or any pormay be placed in and upon the ground, and tion thereof," may present a certified copy of yet, owing to the fact that it is densely wood- the judgment roll to the proper land officers ed, or that it is very broken, such marks may and obtain a patent "for the claim, or such not be perceived by the new locator, and his portion thereof, as the applicant shall appear, own location marked on the ground in ignor- from the decision of the court, to rightfully ance of the existence of any prior claim. possess." And that the claim may be found And in all places posts, stakes, or other mon- to belong to different persons, and that the uments, although sufficient at first and clear-right of each to a portion may be adjudicatly visible, may be destroyed or removed, and ed, is shown by a subsequent sentence in that nothing remain to indicate the boundaries same section, which provides that "if it apof the prior location. Further, when any pears from a decision of the court that sevvaluable vein has been discovered, naturally eral parties are entitled to separate and difmany locators hurry to seek by early loca- ferent portions of the claim, each party may tions to obtain some part of that vein, or to pay for his portion of the claim discover and appropriate other veins in that patents shall issue to the several parties acvicinity. Experience has shown that around cording to their respective rights." So it disany new discovery there quickly grows up tinctly appears that, notwithstanding the 171 U. S. U. S., Book 43.

and

81