LOCATION OF LODE CLAIMS.

(Ch. 12

And they say that the shaded ground, which is the land more than 300 feet from the center of the vein, is subject to a valid hostile discovery and location.115 This is giving a very literal interpretation to the provisions of section 2320, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1424), that "no claim shall extend more than 300 feet on each side of the middle of the vein at the surface," but is supported by two of the three local courts that have passed on the point.116 With all deference, however, it appears to be erroneous doctrine.117 The whole history of American mining law is opposed to such a strict construction of that statute. If under the act of 1866, or under district rules prior to the act of 1872, there had been such a provision, it would doubtless have received the construction which Messrs. Morrison and De Soto favor, because at that time the lode was everything, and the surface only a necessary incident. But since the act of 1872 the surface is as essential as the lode-indeed, the surface is so essential that no lode may be located unless there is unappropriated surface which may be so staked as to include the lode118—and, in consequence, surface can properly be taken away from a locator only where the statute necessarily so requires. While land is located for the sake of the vein, it still remains true that "the location is of a piece of land including the vein," 119 and that the locator who substantially complies with the statute and who acts in good faith is to be protected. The soundness. of this conclusion may be demonstrated by considering the difficulties of the other view.

118

115 Morrison's Mining Rights (13th Ed.) pp. 20, 21.

116 PATTERSON v. HITCHCOCK, 3 Colo. 533; SOUTHERN CALIFORNIA R. CO. v. O'DONNELL, 3 Cal. App. 11, 85 Pac. 932. See, also, Armstrong v. Lower, 6 Colo. 393, 400; Colorado M. Ry. Co. v. Croman, 16 Colo. 381, 27 Pac. 256; Wakeman v. Norton, 24 Colo. 192, 49 Pac. 283. That the claim is void only as to the excess, see McElligott v. Krogh, 151 Cal. 126, 90 Pac. 823. 117 See WATERVALE MIN. CO. v. LEACH, 4 Ariz. 34, 33 Pac. 418. 118 Traphagen v. Kirk, 30 Mont. 562, 77 Pac. 58, and cases cited. See Heil v. Martin (Tex. Civ. App.) 70 S. W. 430.

"There is no provision in the mining laws which authorizes the issue of two patents for the same mineral land, the patent to one claimant to embrace only the surface of the land, and the patent to the other to embrace only the veins or lodes beneath the surface. plation of the mining statutes that vein or lode deposits may be claimed, It is not within the contemlocated, and patented independently of the surface ground connected with and containing or overlying them." Lellie Lode Mining Claim, 31 Land Dec. Dep. Int. 21, 23.

119 Gleeson v. Martin White Min. Co., 13 Nev. 442, 457. "Under the original statute, the miner located the lode. Under the later and present law he locates a definite piece of land containing the apex of the lode." Pilot Hill and Other Lodes, 35 Land Dec. Dep. Int. 592, 594.

Everybody knows that veins almost never have a straight line for a center-their course is irregular-and yet the side lines of a location are always straight. If, however, the statute above quoted is to be taken. 'literally, a claim which has the center of its vein in its center should be represented as follows:

FIGURE NO. 8.

DISCOVERY VEIN

A claim having a variable vein would be represented thus:

FIGURE No. 9.

DISCOVE

VEIN

Surely Congress did not intend such absurd shapes for locations, but simply intended that there should be a substantial compliance with the statute. A literal interpretation is no more required in the case of this statute than in the case of the statute forbidding a location until discovery.120

But it is with reference to extralateral rights that the most serious consequences of Messrs. Morrison and De Soto's contention might ensue. It is well established that where end lines are parallel, and the discovery vein comes in through an end line and departs through a side line, there are extralateral rights. But take a case where the vein departs more than 300 feet from the other end line and there are diffi

120 Creede & C. C. Min. & Mill. Co. v. Uinta Tunnel Min. & Transp. Co., 196 U. S. 337, 25 Sup. Ct. 266, 49 L. Ed. 501.

culties, if Messrs. Morrison and De Soto's contention that the claim is excessive is to stand. Take figure No. 10.

FIGURE No. 10.

DISCOVERY VEIN

If the literal interpretation of the act of 1872 be correct, the black lines other than the vein represent the legal shape of the claim. The dotted lines represent the part actually marked on the ground, but void for excess. Can it be said that the end lines are parallel, so as to permit of extralateral rights, or must the lines which Messrs. Morrison and De Soto insist are the legal end lines determine that there are no extralateral rights, since those actual end lines are not parallel? We allow end lines to be thrown over on previous locations in order to facilitate the acquisition of extralateral rights; but we permit that on the theory that, if the previous locations were not there, the land would legally be included in the new location. But what about this case, where by supposition it is apparent that it cannot legally so be included? Every instinct leads one to help out the locator here; but on a literal interpretation of the statute how can it be done? Is it not wrong to say that the legal end line, which is not parallel to the other, may be disregarded? Certainly, on Messrs. Morrison and De Soto's theory, that would seem to be wrong, and on their theory extralateral rights would have to be denied to such a location.

Other difficulties with the literal interpretation might be suggested; but the above are sufficient for our purpose. Now, what does the statute mean? Any one familiar with mining knows that it may take months, and often years, to ascertain the true course of a vein.121 The

121 See CONSOLIDATED WYOMING GOLD MIN. CO. v. CHAMPION MIN. CO. (C. C.) 63 Fed. 540, where, though a vein had been worked extensively for 40 years, it was difficult to tell where it actually ran. At page 548 the court says: "The Wyoming vein has been located and at different times worked upon during the past 40 years, and it is still a disputed and closely contested question as to where the lode actually runs; and in addition to all the regular workings of the mine it has required the expenditure of money, time, and labor in order to enable the witnesses to testify with

framers of the federal mining law knew that, and, in consequence, it is impossible to impute to Congress the intention that acts of location, which require only superficial investigations, should be subject to partial defeat by the ascertainment, years after the location, that the vein located runs in a direction other than that supposed at the time of location. The locator's surface is given him to put his buildings and surface works on, and if he does not exceed the number of surface feet allotted to one location, and acts in good faith he should retain the surface located, even if in fact the vein wanders in a direction he did not foresee. He does not locate merely a vein, but instead "a piece of land including a vein." 122 Knowledge at the time the property right is acquired is the great test as to the acquisition of mineral under agricultural and townsite patents.123 So here, if at the time of the location the locator honestly believed that his location corresponded with the course of the vein, the ground located should all be his, even though the location turns out to lie across, instead of along, the strike of the vein.124 The only cases on the subject that seem to be distinctly contrary to this view are Patterson v. Hitchcock,125 Southern California

any degree of certainty to the 'true course and direction of the vein.' Every practical miner knows the difficulty that is often experienced in ascertaining these facts. The truth is that the miner is often compelled by the law to make his lines of location upon the surface ground before such facts can be ascertained. There is a limit to the time he can take before marking the boundaries of his claim. He is required to exercise his best judgment from the developments he has been able to make, and he is, of course, confined to his surface location, whether his judgment was right or wrong. The statute should be so construed as to give to the locator what he actually locates; no more and no less. It should be liberally construed in his favor, so as to give him the full benefit of the statute, in its true spirit and intent, in order to carry out the wise and beneficent policy of the general government in opening up the mineral lands for exploration and development." 122 GLEESON v. MARTIN WHITE MIN. CO., 13 Nev. 442, 457.

123 DAVIS v. WIEBBOLD, 139 U. S. 507, 11 Sup. Ct. 628, 35 L. Ed. 238. 124 WATERVALE MIN. CO. v. LEACH, 4 Ariz. 34, 33 Pac. 418. Compare Beik v. Nickerson, 29 Land Dec. Dep. Int. 662; Van Horn v. State, 5 Wyo. 501, 40 Pac. 964. But, if the location is fraudulently made, a different situation is presented. Compare Walsh v. Mueller, 16 Mont. 180, 40 Pac. 292.

125 3 Colo. 533. See, also, Zollars v. Evans (C. C.) 5 Fed. 172; Terrible Min. Co. v. Argentine Min. Co. (C. C.) 89 Fed. 583; Meydenbauer v. Stevens (D. C.) 78 Fed. 787. The case of Taylor v. Parenteau, 23 Colo. 368, 48 Pac. 505, seems to have been a case where the parties knew the course of the vein at the time of the location. Prima facie the vein is co-extensive in length with the lode location, Armstrong v. Lower, 6 Colo. 393; even when the lode location conflicts with a placer location, San Miguel Consol. Gold Min. Co. v. Bonner, 33 Colo. 207, 79 Pac. 1025. See Wakeman v. Norton, 24 Colo. 192, 49 Pac. 283.

LOCATION OF LODE CLAIMS.

Lumber Ry. Co. v. O'Donnell,126 and McElligott v. Krogh.127 (Ch. 12 Against them is the doctrine of Watervale v. Leach.128

After patent, of course, the fact that a regular sized location includes ground extending more than 300 feet on one side of the lode does not render the patent invalid as to that ground.129

CHANGING BOUNDARIES.

55b. The markings may be changed from time to time to change boundaries, so long as intervening rights of third parties are not infringed, and so long as the proper amended notices and certificates are posted and recorded, as required by local rules and statutes.

Even though a locator has marked his boundaries and recorded his certificate, he may change the boundaries, so as to accord with subsequent information as to the course of the vein, and thus take in new ground,150 or so as to make his end lines parallel,131 or so as to get rid of excess ground located,182 provided that no intervening rights of others are interfered with in so doing 133 Amended certificates must,

126 3 Cal. App. 382, 85 Pac. 932. This case was decided on the extraordinary idea that, where side lines become end lines for extralateral right purposes, they do so for all purposes.

127 151 Cal. 126, 90 Pac. 823.

128 "The statute, as we understand it, only intends to prescribe the limit along the course of the lode that the locator may claim, not that he shall locate so that the greatest dimension of his claim shall coincide with the course of the lode. * Of course, Congress expected that the miner

would avail himself of the privilege accorded him, and locate along the course of the lode; but it does not require him to do so. of not so locating is that the locator gets less, in extent of the lode, than The only result he otherwise would have located, and that, if the side lines, instead of the end lines, cross the course of the lode, in order to define the locator's rights to pursue the lode on its dip, the side lines will be treated as end lines." WATERVALE MIN. CO. v. LEACH, 4 Ariz. 34, 60, 61, 33 Pac. 418, 421. 129 PEABODY GOLD MIN. CO. v. GOLD HILL MIN. CO. (C. C.) 97 Fed. 657; Argonaut Consol. Min. & Mill. Co. v. Turner, 23 Colo. 400, 48 Pac. 685, 58 Am. St. Rep. 245.

130 Tonopah & S. L. Min. Co. v. Tonopah Min. Co. (C. C.) 125 Fed. 389; Seymour v. Fisher, 16 Colo. 189, 27 Pac. 240.

131 Doe v. Sanger, 83 Cal. 203, 23 Pac. 365; Last Chance Min. Co. v. Tyler Min. Co., 61 Fed. 557, 9 C. C. A. 613.

132 Credo Mining & Smelting Co. v. Highland Mining & Milling Co. (C. C.) 95 Fed. 911.

133 See Croesus Mining, M. & S. Co. v. Colorado Land & M. Co. (C. C.) 19 Fed. 78; Golden Fleece Gold & Silver Min. Co. v. Cable Consol. Gold & Silver Min. Co., 12 Nev. 312.