priated to each locator, the inclusion of a larger number of lineal feet than two hundred does not render a location, otherwise valid, totally void, but the excess may be rejected, and the claim held good for the remainder, unless it interferes with rights previously acquired. Richmond Min. Co. v. Rose, (1885) 114 U. S. 580. See also Taylor v. Parenteau, (1897) 23 Colo. 374, as to state statute limiting width of claims.

Surface lines. There is no command that the side lines shall be parallel, and the requisition that the end lines shall be parallel was for the purpose of bounding the underground extralateral rights which the owner of the location may exercise. Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., (1898) 171 U. S. 75.

When a mining claim crosses the course of the lode or vein instead of being "along the vein or lode," the end lines are those which measure the width of the claim as it crosses the lode. The side lines are those which measure the extent of the claim on each side of the middle of the vein at the surface. In this case the lines which separate the location of the plaintiff from the location of the defendant are end lines, across which, as they are extended down vertically, the defendant cannot follow a vein, even if its apex or outcropping is within its surface boundaries. Argentine Min. Co. v. Terrible Min. Co., (1887) 122 U. S. 484.

When the apex of the vein crosses the east and south lines of the boundary, the fact that the apex crosses the east line after the lode extends on its strike in the general course of the location does not make such east line an end line, and a locator is entitled to so much of the lode upon its dip as lies between the south end line and the point of divergence of the apex of the vein across the east line. Del Monte Min., etc., Co. v. New York, etc., Min. Co., (1895) 66 Fed. Rep. 212. See also Tyler Min. Co. v. Sweeney, (C. C. A. 1893) 54 Fed. Rep. 284.

A location in the form of the letter A, truncate, does not give end lines as required by the statute. Elgin Min., etc., Co. v. Iron Silver Min. Co., (1882) 14 Fed. Rep. 377.

A mining claim can have but two end lines, and end lines having been once established, they become the end lines for all veins found within the surface boundaries. St. Louis Min., etc., Co. r. Montana Min. Co., (C. C. A. 1900) 104 Fed. Rep. 664, citing Iron Silver Min. Co. v. Elgin Min., etc., Co., (1886) 118 U. S. 196; Walrath v. Champion Min. Co., (1898) 171 U. S. 293.

When a location as surveyed and certified is intercepted by another valid claim going through it, perpendicularly or obliquely, the end lines are not determined by the intersecting claim when there remains on either side of the intersecting claim unchallenged ground. Cheesman v. Hart, (1890) 42 Fed. Rep. 98.

The locator is not compelled to follow the lines of the government surveys, or to make his location in any manner correspond to such surveys. Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., (1898) 171 U. S. 75.

If the end lines are substantially parallel, that meets the requirement of the law. Cheesman v. Shreeve, (1889) 40 Fed. Rep. 787.

The provision requiring the lines of each claim to be parallel to each other is merely directory, and no consequence is attached to a deviation from its direction. Horswell v. Ruiz, (1885) 67 Cal. 111.

Overlapping claims. A location is the initial step taken by the locator to indicate the place and extent of the surface which he desires to acquire, and works no injury to one who has acquired prior rights. Some confusion may arise when locations overlap each other and include the same ground, for then the right of possession becomes a matter of dispute. "It will often happen that locations which do not overlap are so placed as to leave between them some irregular parcel of ground. Within that, it being no more than one locator is entitled to take, may be discovered a mineral vein and the discoverer desire to take the entire surface and yet it be impossible for him to do so and make his end lines parallel unless, for the mere purposes of location, he be permitted to place those end lines on territory already claimed by the prior locators." Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., (1898) 171 U. S. 75.

A party who is in actual possession of a valid location may maintain that possession and exclude every one from trespassing thereon, and no one is at liberty to forcibly disturb his possession or enter upon the premises. These locations are generally made upon lands open, unenclosed, and not subject to any full actual occupation, where the limits of possessory rights are vague and uncertain, and where the validity of apparent locations is unsettled and doubtful. Under these circumstances it is a common experience that conflicting locations are made, one overlapping another, and sometimes the overlap repeated by many different locations. While in the adjustment of these conflicts the right of the first locator to the surface within his location, as well as to the veins beneath his surface, is secure, a subsequent location is not void and cannot be ignored as to rights not covered by the first location. Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., (1898) 171 U. S. 83.

Town-site patent. A grant, by a town-site patent, issued prior to the Act of 1872, carried an absolute fee-simple title to the grantee and those claiming under it of all land in which "no gold, silver, copper, or cinnabar mine existed, or in which no valid mining claim or possession was had or held under local authority, or rules, or existing law. See sections 2386 and 2392, R. S. The owner of the lot under the patent holds all the ground save that in which the mine is located by fee-simple title, and no one can tunnel under the part of the lot held by this title in fee-simple, except by contract with the owner. On land embraced by such a grant a locator has no right to three hundred feet of ground on each side of a quartz ledge. Dower v. Richards, (1887) 73 Cal. 480.

the world, subject to the paramount authority of the United States, to hold and enjoy his possession. He may never apply for nor take out a patent, yet, so long as he does the acts required by section 2324, R. S., he may hold and enjoy perpetually his claim. Gillis v. Downey, (C. C. A. 1898) 85 Fed. Rep. 483. Mining claims are not open to relocation until the rights of the former locator have come to an end. A relocator cannot avail himself of mineral in the public lands which another has discovered until the discoverer has in law abandoned his claim, and left the property open for another to take it up. Belk v. Meagher, (1881) 104 U. S. 284.

After a locator has done all that is necessary, under the law, for the acquisition of an exclusive right to the possession and enjoyment of the ground, the claim is thenceforth his property. He needs only a patent of the United States to render his title perfect, and until the patent issues the government holds the land in trust for the locator or his vendee. The ground itself is not afterwards open to sale. Noyes v. Mantle, (18ʊʊ) 127 U. S. 351.

The possession of a tenant in common is the possession of the other cotenants. Union Consol. Silver Min. Co. v. Taylor, (1879) 100 U. S. 37.

Against trespass. The exclusive right of possession and enjoyment of all the surface included within the lines of the location given by this section forbids any trespass; that exclusive right is as much the property of the locator as the vein or lode by him discovered and located. Clipper Min. Co. v. Eli Min., etc., Co., (1904) 194 U. S. 226. See also Cheesman v. Shreve, (1888) 37 Fed. Rep. 36. From this section it is manifest that Congress intended the locator should hold, be entitled to, and enjoy the profits of all the surface included within the boundary lines of his claim, and, if in possession in person or by agent, no one has a right to enter upon and take therefrom mineral or other valuable substance. Actual possession is sufficient evidence of title to authorize the maintenance of an action to recover damages against a trespasser. Fuller v. Harris, (1887) 29 Fed. Rep. 814.

Cutting timber. While the location of a mining claim withdraws the land from the public domain so that no rival claimant can successfully initiate any right to it until such location has been avoided and entry canceled, it does not divest the legal title of the United States or impair its right to protect the land and its product, by either civil or criminal proceedings, from trespass or waste, and the occupant has no right to cut timber on the claim prior to the payment to the United States of the purchase price of the land. Teller v. U. S., (C. C. A. 1901) 113 Fed. Rep. 273.

A mere locator is entitled to an injunction against a trespasser. Allen v. Dunlap, (1893) 24 Oregon 229.

Actual possession of a mining claim is not necessary for the protection of the title acquired to such a claim by a valid location. Belk v. Meagher, (1881) 104 U. S. 284.

A party can show a right to the possession

of a mining claim, where no patent has been issued, only by showing an actual possessio pedis as against a mere wrongdoer, or by showing a compliance with the requisite of the statute. Section 2324, R. S. Patchen v. Keeley, (1887) 19 Nev. 413.

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An interest in real property. Mining claims are property in the fullest sense of the word, and may be sold, transferred, mortgaged, and inherited without infringing the title of the United States, and where a location is perfected, it has the effect of a grant by the United States of the right of present and exclusive possession. Manuel v. Wulff, (1894) 152 U. S. 510. See also Black v. Elkhorn Min. Co., (1896) 163 U. S. 449; Suessenbach v. Deadwood First Nat. Bank, (1889) 5 Dak. 477.

"The estate acquired by the locator of a mining claim is an interest in real property, and although the paramount title remains in the government, the courts have universally recognized such interest as a freehold; and in all controversies arising between the locator and other persons as to any right or claim thereto, he is treated as the owner in fee." Mt. Rosa Min., etc., Co. v. Palmer, (1899) 26 Colo. 56, citing Merced Min. Co. v. Fremont, (1857) 7 Cal. 317; Hughes v. Devlin, (1863) 23 Cal. 502; Merritt v. Judd, (1859) 14 Cal. 60; Roseville Alta Min. Co. v. Iowa Gulch Min. Co., (1890) 15 Colo. 29; Forbes v. Gracey, (1876) 94 U. S. 762.

A written conveyance is not necessary to the transfer of a mining claim. Union Consol. Silver Min. Co. v. Taylor, (1879) 100 U. S. 37. See also Kinney v. Consolidated Virginia Min. Co., (1877) 4 Sawy. (U. S.) 383. But see Moore v. Hamerstag, (1895) 109 Cal. 122, in which case the court said that the interest in a mining claim, given to a locator by this statute, cannot be transferred by parol, or otherwise than in accordance with the statute of frauds.

Right of dower. - The interest in a mining claim, prior to the payment of any money for the granting of a patent for the land, is nothing more than a right to the exclusive possession of the land based upon conditions subsequent, a failure to fulfil which forfeits the locator's interest in the claim. We do not think that under the federal statute the locator takes such an estate in the claim that dower attaches to it." Black v. Elkhorn Min. Co., (1896) 163 U. S. 450.

Not community property. - The property in a mining claim is the sole property of the locator, his heirs and assigns, and is not, therefore, community property. Phoenix Min., etc.. Co. v. Scott, (1898) 20 Wash. 48.

Lien of general judgment. - A locator's interest in an unpatented mining claim is not such an interest as will support the lien of a

general judgment. Phoenix Min., etc., Co. v. Scott, (1898) 20 Wash. 48.

Actions for the recovery of real estate apply to the interest of locators under this section. Tyee Consol. Min. Co. v. Langstedt, (1902) 1 Alaska 461. See Glacier Mountain Silver Min. Co. v. Willis, (1888) 127 U. S. 471. But see Duffy v. Mix, (1893) 24 Oregon 265, as to the right to recover possession in a justice's court under the state statute.

Limitation. "A person who retains the possession of any portion of the surface ground of such mining claim, and occupies the same continuously for a period of ten years or more after the location of such mining claim, and before patent issued therefor, may successfully plead the statute of limitations in resisting the mining claimant's action in ejectment or for possession, and may plead limitation in an action even after patent issued, though the ten years required to be pleaded by the statute of limitations have not expired since patent issued, but had in part run before patent and after location." Tyee Consol. Min. Co. v. Langstedt, (1902) 1 Alaska 467.

The apex of a vein, within the meaning of the statute, is the highest point of that vein where it approaches nearest to the surface of the earth, and where it is broken on its edge sc as to appear to be the beginning or end of the vein. If it is merely a swell in the mineral matter, and turns over and goes on down, it is not a true apex. Stevens v. Williams, (1879) 1 McCrary (U. S.) 480. As to what is the " top" or арех of a vein is a question of fact and not of law. Blue Bird Min. Co. v. Largey, (1892) 49 Fed. Rep. 289.

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Apex partly within and partly without. A locator having the apex of a vein entirely within the surface lines of his claim for a portion of its length and the remaining portion partly within, and partly without and within the surface lines of another claim, owns the whole lode within the end lines of his claim. Bullion, etc., Min. Co. v. Eureka Hill Min. Co., (1886) 5 Utah 3.

If both the end lines of a location cut a vein, but the apex, in the course of the vein from east to west, should pass out of a side line and then back into the claim, the locator would have no right to any part of the apex which is not within the surface boundaries. Waterloo Min. Co. v. Doe, (C. C. A. 1897) 82 Fed. Rep. 55.

When a secondary or accidental vein

crosses a common side line between two mining locations at an angle, and the apex of the vein is of such width that it is for a given distance partly within one claim and partly within another, inasmuch as neither statute nor authority permits a division of the crossing portion of the vein, and the weight of authority favors the senior locator, the entire vein must be considered as apexing upon the senior location until it has wholly passed beyond its side line. St. Louis Min., etc., Co. c. Montana Min. Co., (C. C. A. 1900) 104 Fed. Rep. 664.

All veins, lodes, and ledges. A locator is not confined to the vein upon which he based

his location and upon which the discovery was made, but is entitled to all other lodes having their tops or apexes within the surface boundaries. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., (1901) 182 U. S. 508. See also Campbell v. Ellet, (1897) 167 U. S. 119; Cheesman v. Shreeve, (1889) 40 Fed. Rep. 791; Gilpin v. Sierra Nevada Consol. Min. Co., (1890) 2 Idaho 662.

A discovery and location vests in the locator all the unappropriated public land within its limits, and every vein whose apex is found within the surface lines of the claim extended down vertically, whether the surface thus secured is all or only a part of the tract within the boundary lines of the claim. Crown Point Min. Co. v. Buck, (C. C. A. 1899) 97 Fed. Rep. 465.

The title to a vein depends on the right to the occupancy or the ownership of its apex within the limits of the right to the occupation of the surface. Gwillim v. Donnellan, (1885) 115 U. S. 49.

A lode, vein, or ledge containing a valuable mineral deposit is distinguished from the ground in which the same is found. Waterloo Min. Co. v. Doe, (C. C. A. 1897) 82 Fed. Rep. 45.

The end lines of the original veins are the end lines of all the veins found within the surface boundaries. Walrath v. Champion Min. Co., (1898) 171 U. S. 308.

Blind veins are not excepted; they are included in the description "all veins," and belong to the surface location. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., (1901) 182 U. S. 507.

The title to a horizontal vein or deposit, "blanket" vein as it is generally called, may be acquired under the sections concerning veins, lodes, etc. Iron Silver Min. Co. v. Mike, etc., Gold, etc., Min. Co., (1892) 143 U. S. 400.

Surface locations made prior to the Act of 1872. It is very clear that the language of the statute reaches the case of locators who had while the Act of 1866 was in force located claims the surface lines of which inIcluded the tops of more than one lode, and confirms their possession to all the surface, and all the lodes included within their lines. Mt. Diablo Mill, etc., Co. v. Callison, (1879) 5 Sawy. (U. S.) 439.

Side and end lines.. - Side lines, properly drawn, would run on each side of the course of the vein or lode. Lines marked as side lines, which cross the course of the strike of the vein and do not run parallel with it, are end lines. King v. Amy, etc., Min. Co., (1894) 152 U. S. 229. See also Last Chance Min. Co. v. Tyler Min. Co., (1895) 157 U. S. 683; Flagstaff Silver Min. Co. v. Tarbet, (1878) 98 U. S. 463; Montana Ore-Purchasing Co. v. Boston, etc., Min. Co., (C. C. A. 1898) 85 Fed. Rep. 867; New Dunderberg Min. Co. v. Old, (C. C. A. 1897) 79 Fed. Rep. 598; Parrot Silver, etc., Co. v. Heinze, (1901) 25 Mont. 139; Watervale Min. Co. v. Leach, (Ariz. 1893) 33 Pac. Rep. 418.

Where the strike of the vein passes perpendicularly through the end lines, the mere meanderings of the outcrop between the end

lines do not absolutely control the question of parallelism; the spirit and reason of the statute require that the settled and permanent course of the vein on its strike, as nature fixed it, should control. Cheesman v. Hart, (1890) 42 Fed. Rep. 98.

When a vein passes in and out of the same line of a location, such line constitutes an end line so as to cut off extralateral rights. Catron v. Old, (1897) 23 Colo. 433.

That the course of a vein is across a claim as located upon the surface instead of in the direction of its length, does not invalidate the patent as to any part of the territory included therein; the side lines become end lines and the end lines become side lines, so far as lateral rights are concerned. Argonaut Consol. Min. Co. v. Turner, (1897) 23 Colo. 400.

Extralateral rights. "Our conclusions may be summed up in these propositions: First, the location as made on the surface by the locator determines the extent of rights below the surface. Second, the end lines, as he marks them on the surface, with the single exception hereinafter noticed, place the limits beyond which he may not go in the appropriation of any vein or veins along their course or strike. Third, every veinthe top or apex of which lies inside of such surface lines extended downward vertically' becomes his by virtue of his location, and he may pursue it to any depth beyond his vertical side lines, although in so doing he enters beneath the surface of some other proprietor. Fourth, the only exception to the rule that the end lines of the location as the locator places them establish the limits beyond which he may not go in the appropriation of a vein on its course or strike is where it is developed that in fact the location has been placed not along but across the course of the vein. such case the law declares that those which the locator called his side lines are his end lines, and those which he called end lines are in fact side lines, and this upon the proposition that it was the intent of Congress to give to the locator only so many feet of the length of the vein, that length to be bounded by the lines which the locator has established of his location." Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., (1898) 171 U. S. 89.

In

The surface side lines extended downward vertically determine the extent of the claim, except when in its descent the vein passes outside of them, and the outside portions are to lie between vertical planes drawn downward through the end lines. This means the end lines of the surface location, for all locations are measured on the surface. “The difficulty arising from the section grows out of its application to claims where the course of the vein is so variant from a straight line that the end lines of the surface location are not parallel, or, if so, are not at a right angle to the course of the vein. This difficulty

inust often occur where the lines of the surface location are made to control the direction of the vertical planes. The remedy must be found, until the statute is changed, in carefully making the location, and in postponing the marking of its boundaries until explora

tions can be made to ascertain, as near as possible, the course and direction of the vein. In Colorado the statute allows for this purpose sixty days after notice of the discovery of the lode. Then the location must be distinctly marked on the ground, and thirty days thereafter are given for the preparation of the proper certificate of location to be recorded. Erhardt v. Boaro, (1885) 113 U. S. 527, 533. Even then, with all the care possible, the end lines marked on the surface will often vary greatly from a right angle to the true course of the vein. But whatever inconvenience or hardship may thus happen, it is better that the boundary planes should be definitely determined by the lines of the surface location, than that they should be subject to perpetual readjustment according to subterranean developments made by mine workings. Such readjustment at every discovery of a change in the course of the vein would create great uncertainty in titles to mining claims. The rule, whatever hardship it may work in particular cases, should be settled, and thus prevent, as far as practicable, such uncertainty." Iron Silver Min. Co. v. Elgin Min., etc., Co., (1886) 118 U. S. 206. See also Fitzgerald v. Clark, (1895) 17 Mont. 100.

When the owner is in possession of the surface and apex of a vein, he must be deemed to be in possession of all parts of the vein to which he has title, though it departs beyond his side lines, just as he is in possession of that portion of the earth vertically beneath his surface, and when he has followed it he commits no wrong, and is not a trespasser. Montana Ore Purchasing Co. v. Boston, etc.. Consol. Copper, etc., Min. Co., (1903) 27 Mont. 536.

The object of the Act of 1872 in requiring parallelism of end lines was to give to the claimant of the lode as much of the lode or vein in its downward course as he had at the surface, but no more. Carson City Gold, etc., Min. Co. v. North Star Min. Co., (C. C. A. 1897) 83 Fed. Rep. 658.

This section gives to a locator the right to follow outside of his lines and into adiacent claims all veins or lodes which have their apexes in his own claim. The statute gives the right to follow the vein but not the right to attempt to reach the vein by tunneling into an adjacent claim. St. Louis Min., etc., Co. v. Montana Min. Co., (C. C. A. 1902) 113 Fed. Rep. 900.

If the lode is somewhat below the plane of the horizon, it is within the meaning of the act, as one which may be pursued beyond the side lines of the claim in which its outcrop may be found. Leadville Min. Co. v. Fitzgerald, (1879) 15 Fed. Cas. No. 8,158.

The extralateral rights conferred by this section only apply to rights acquired before other parties acquire interests in the adjacent lands, and do not apply to adjacent agricul tural lands obtained before any rights had been acquired under a mining location. Amador Medean Gold Min. Co. v. South Spring Hill Gold Min. Co., (1888) 36 Fed. Rep. 668. "This statute undoubtedly introduced an important modification of the common-law