man, 1 L. D. 61. (Overruled in Joseph Barker, 1 L. D. 83.)

68. The naturalization of an alien claimant to public land will relate back to the initiation of his right, in the absence of an intervening adverse claim. Phillips v. Sero, 14 L.

D. 568.

69. A declaration of intention to become a citizen by an alien who does not complete his naturalization during the minority of his chlld confers upon the child the status of one who has declared his intention. Meriam v. Poggi, 17 L. D. 579; Somers v. Heuer, 19 L. D. 507.

70. An unincorporated association of citizens owning separate and distinct interests may unite their means and expend the $500 required by the mining laws at one point, and thereafter secure patent. Dudley Chase, 2 C. L. O. 114.

71. An alien may neither locate nor hold a mining claim. Lee v. Justice M. Co., 29 Pac. Rep. 1020; Bohanon v. Howe, 2 Idaho, 417; 17 Pac. Rep. 583; Lee Doon v. Tesh, 68 Cal. 43; 8 Pac. Rep. 621; Territory v. Lee, 2 Mont. 124; 6 Mor. Min. Rep. 248; Anthony v. Jillson, 83 Cal. 296; 23 Pac. Rep. 419; Wulff v. Manuel, 9 Mont. 279; 23 Pac. Rep. 723; Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450.

72. An alien can acquire no rights under the mineral land laws. Chapman v. Toy Long, 4 Sawy. 28; 1 Mor. Min. Rep. 497.

73. No act by an alien who has not declared his intention to become a citizen can confer upon him any right to public land. N. P. R. R. Co. v. Collins, 14 L. D. 484.

74. An alien cannot locate, possess, purchase or acquire title by patent to mineral land. Tibbitts v. Ah Tong, 4 Mont. 536.

75. An alien, though he may not locate nor enter public lands, may, until office found, hold a mining claim under possessory title as grantee of a qualified locator. Ferguson v. Neville, 61 Cal. 356.

76. The title of a claimant of the public mineral lands as locator of a mining claim may not be questioned on the ground of alienage by any one excepting the United States, or in proceedings to obtain a United States patent. (Adverse suit.) Billings v. Aspen M. & Sm. Co., 51 Fed. Rep. 338; 10 U. S. App. 1, 322; Wood v. Aspen M. & Sm. Co., 36 Fed. Rep. 25.

77. Alienage is not a disability that may be taken advantage of by a private person nor by any other than the sovereign to whom the property would revert or escheat upon declaration of forfeiture. Territory v. Lee, 2 Mont. 124; 6 Mor. Min. Rep. 248.

78. The alienage of a mineral claimant may be set up only by the United States or by the State, except in adverse proceedings under the mining law, when it may be shown by an adverse claimant for the purpose of defeating the application. Biliings v. Aspen M. & Sm. Co., 52 Fed. Rep. 250.

79. An alien may hold a mining claim as against every one but the United States or one claiming under it. Billings v. Aspen Con. M. Co., 51 Fed. Rep. 338; 10 U. S. App. 1, 322.

80. A location by one not a citizen, and who has not declared his intention to become a citizen, is invalid. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529.

81. A location by an alien is validated by his declaration of intention of becoming a citizen before the intervention of adverse rights. Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450.

82. Though a claim to public land may be initiated, under the law, only by a citizen or one who has declared his intention to become one, a subsequent declaration will relate back to date of initiation of his claim, if made before the intervention of any adverse rights. Man v. Huk, 3 L. D. 452; Ole Krogstad, 4 L. D. 564; Soustilie v. Lowery, 6 L. D. 15; Jacob H. Edens, 7 L. D. 229; Paul O. Brewster, 7 L. D. 471; Lyman v. Elling, 10 L. D. 474; Kirkpatrick v. Brinkman, 11 L. D. 71; Birtch v. Cuddigan, 11 L. D. 121; C. P. R. R. Co. v. Taylor, 11 L. D. 354; Croesus M. Co. v. Colorado Land & M. Co., 19 Fed. Rep. 78; North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529.

83. The defendant at the time of filing application for patent was an alien; his application was adversed, and on the day of trial defendant was naturalized. Held, that his act of naturalization could not retroact to his purchase or to his acquisition of possessory right to a mining claim upon the public domain. Wulff v. Manuel, 9 Mont. 279; 23 Pac. Rep. 723. (Reversed, S. C., 152 U. S. 505.)

84. A conveyance of a mining claim by a qualified locator to an alien does not operate as an abandonment of the claim, but the alien | may hold the claim as against all but the United States; and where the alienage of an applicant is set up by an adverse claimant, the declaration of intention to become a citizen, made by the applicant during the pendency of the adverse suit, but before judgment, will render his title good as far as citizenship is concerned. Manuel v. Wulff, 152 U. S. 505. (Reversing 9 Mont. 279; 23 Pac. Rep. 723. Citing Man v. Huk, 3 L. D. 452; Ole Krogstad, 4 L. D. 564; Lord v. Perrin, 8 L. D. 536; Jackson v. Beach, 1 Johns. Cas., 399; Goveneur v. Robertson, 11 Wheat. 332; Osterman v. Baldwin, 6 Wall 116.)

85. A claim to public land, illegally initiated by an alien, may not be validated by a subsequent declaration of intention to become a citizen in the face of an intervening adverse right. C. P. R. R. Co. v. Taylor, 11

L. D. 354.

86. A location by an alien is void and is not validated by a subsequent declaration of intention. Anthony v. Jillson, 83 Cal. 296; 23 Pac. Rep. 419.

87. An alien after declaration of intention may take advantage of previous acts under the mining law. Ole Krogstad, 4 L. D. 564; Croesus Co. v. Colorado Co., 19 Fed. Rep. 78.

88. An alien in actual possession of public land will be protected against a naked trespasser not claiming under government title. Courtney v. Turner, 12 Nev. 345.

89. An alien who has not declared his intention to become a citizen cannot hold mines as a locator against a citizen who shows title by complying with mining law. Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450; Territory v. Lee, 2 Mont. 124; 6 Mor. Min. Rep.

92. A mining claim passing into the possession of an alien, although located by a citizen, reverts to the government, and may be relocated. Tibbitts v. Ah Tong, 4 Mont. 536.

93. A mining claim sold to an alien cannot be patented, unless such alien declares his intention, by which his right will relate back to his purchase. William S. Wood, 3 C. L. O. 69.

94. Aliens cannot hold a mining claim prior to the issuance of patent therefor, and a purchaser from an alien of an unpatented mine acquires no title thereto. Beckner v. Coates, 3 C. L. O. 18.

95. A purchaser from an alien may relocate the claim and thereby acquire a possessory title. Beckner v. Coates, 3 C. L. O. 18.

96. If an alien locates and performs all acts necessary to a valid location, and then sells to a citizen, such citizen thereby acquires and holds a valid title as against all persons having no right therein before conveyance by the alien. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529.

97. Locators and intermediate owners of mining claims will not be presumed aliens in the absence of allegation to that effect prior to the issuance of patent. Wandering Boy Lode, 2 C. L. O. 2.

98. Where a location is made by a citizen his intention of becoming a citizen, the citiand an alien, and the alien thereafter declares zen cannot, by relocation, cut his co-owner out, on the ground that the original location was void so far as the alien is concerned. Sever v. Gregovich, 16 Nev. 325.

99. One who claims under a location may not defeat the right of one of the locators to a share of the proceeds of the mine by alleging alienage of such locator. Billings v. Aspen M. & Sm. Co., 52 Fed. Rep. 250.

100. The fact that one of several locators is an alien does not invalidate the location as to those qualified to locate. Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450.

101. Alienage of one of several locators who do not locate more than might have been located without the alien does not af fect the validity of the location as to those qualified to locate. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529.

102. A Territory cannot pass laws affecting the right of aliens to hold and work mining claims. Territory v. Lee, 2 Mont. 124; 6 Mor. Min. Rep. 248.

103. A Territory cannot declare or enforce a forfeiture of a mining claim located or held by an alien. Territory v. Lee, 2 Mont. 124; 6 Mor. Min. Rep. 248.

104. A patent issued to a citizen as trustee for an alien may not be attacked collaterally (by third person). Justice M. Co. v. Lee, 40 Pac. Rep. 444.

105. Alien tenure act approved March 3, 1887 (24 Stat. 476), applies to mines. Opinion of Attorney-General, May 20, 1887, 14 C. L. O. 126. 106. An entry made by a Chinaman, even though he were naturalized, is void, and will be canceled, because such naturalization was contrary to the plain provisions of section 2169, United States Revised Statutes, as amended by the act of February 18, 1875 (18 Stat. 818). Chung Choy, 15 C. L. O. 147.

107. A mineral entry made by an alien is not void, but voidable, and while of record the land covered thereby is segregated from the public domain. Ole Krogstad, 4 L. D. 564; Leary v. Manuel, 12 L. D. 345.

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. 13 Stat. 441; 17 Stat. 91; 19 Stat. 52; secs. 910 and 2322, U. S. Rev. Stat. See, also, sec. 2336, U. S. Rev. Stat.

II. REGULATIONS.

with regard to their extent along the lode or width of surface.

L. D. 345.

vious locations are, however, enlarged by 3. Mining rights acquired under such presuch Revised Statutes in the following respect, viz.: The locators of all such previously taken veins or lodes, their heirs and assigns, so long as they comply with the laws of Congress and with State, Territorial, or

SURFACE GROUND, APEX, DIP.

I. THE STATUTES. II. REGULATIONS.

IIL DECISIONS.

1. Surface Ground. 2. Apex, Dip.

I. THE STATUTE.

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 seventytwo, so long as they comply with the laws

governing mining claims, are invested with the exclusive possessory right of all the surface included within the lines of their locations, and of all veins, lodes, or 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 locations at the surface, it being expressly provided, however, that the right of possession to such outside parts of said veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward, as aforesaid, through the end-lines of their locations so continued in their own direction that such planes will intersect such exterior parts of such veins, lodes, or ledges; no right being granted, however, to the claimant of such outside portion of a vein or ledge to enter upon the surface loca tion of another claimant.

4. It is to be distinctly understood, how-| ever, that the law limits the possessory right to veins, lodes, or ledges, other than the one named in the original location, to such as were not adversely claimed on May 10, 1872, and that where such other vein or ledge was so adversely claimed at that date, the right of the party so adversely claiming is in no way impaired by the provisions of the Revised Statutes.

7. Rights under patents for veins or lodes heretofore granted under previous legislation of Congress are enlarged by the Revised Statutes so as to invest the patentee, his heirs or assigns, with title to all veins, lodes, or ledges throughout their entire depth, the top or apex of which lies within the end and side boundary lines of his claim on the surface, as patented, 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 the claim at the surface. The right of possession to such outside parts of such veins or ledges to be confined to such portions thereof as lie between vertical planes drawn downward through the end-lines of the claims at the surface, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges; it being expressly provided, however, that all veins, lodes, or ledges, the top or apex of which lies inside such surface locations, other than the one named in the patent, which were adversely claimed on the 10th May, 1872, are excluded from such conveyance by patent.

8. Applications for patents for mining claims pending at the date of the act of May 10, 1872, may be prosecuted to final decision in the General Land Office, and where no adverse rights are affected thereby, patents will be issued in pursuance of the provisions of

the Revised Statutes.

9. From and after the 10th May, 1872, any person who is a citizen of the United States, or who has declared his intention to become

a citizen, may locate, record, and hold a mining claim of fifteen hundred linear feet along the course of any mineral vein or lode subject to location; or an association of persons, severally qualified as above, may make joint lo. cation of such claim of fifteen hundred feet, but in no event can a location of a vein or lode made subsequent to May 10, 1872, exceed fifteen hundred feet along the course thereof, whatever may be the number of persons composing the association.

sary; the end-lines of such claims to be in all cases parallel to each other. Said lateral measurements cannot extend beyond three hundred feet on either side of the middle of the vein at the surface, or such distance as is allowed by local laws. For example: 400 feet cannot be taken on one side and 200 feet on the other. If, however, 300 feet on each side are allowed, and by reason of prior claims but 100 can be taken on one side, the locator will not be restricted to less than 300 feet on the other side; and when the locator does not determine by exploration where the middle of the vein at the surface is, his discovery shaft must be assumed to mark such point.

11. By the foregoing it will be perceived that no lode-claim located after the 10th May, 1872, can exceed a parallelogram fifteen hundred feet in length by six hundred feet in width, but whether surface-ground of that width can be taken, depends upon the local regulations or State or Territorial laws in force in the several mining-districts; and that no such local regulations or State or Territorial laws shall limit a vein or lode claim to less than fifteen hundred feet along the course thereof, whether the location is made by one or more persons, nor can surface rights be limited to less than fifty feet in width, unless adverse claims existing on the 10th day of May, 1872, render such lateral limitation necessary.

III. DECISIONS.

1. Surface Ground.

feet on each side of the middle of the vein at the surface, and that no such surface rights shall be limited by any mining regulations to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the 10th May, 1872, may render such limitation neces

There is no language in the acts that requires the diagram to be in the form of a parallelogram or in any particular form." Wolfley v. Lebanon M. Co., 4. Colo. 112; 13 Mor. Min. Rep. 282.

5. The mere right to mine does not carry any right to the surface for any other purpose. Dietz v. Mission Transfer Co., 25 Pac. Rep. 423.

6. A location is valid only to the extent of the lode included therein, as the surface is held in connection with the lode. Terrible M. Co. v. Argentine M. Co., 5 McCrary, 639. 7. The right to surface ground of a lode claim is dependent on the presence (discovery) of the lode which is really the basis of the location. Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542; Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282. 8. A patent includes all veins having their tops or apexes within the surface patented. Iron S. M. Co. v. Cheesman, 2 McCrary, 191; 9 Mor. Min. Rep. 552.

9. "The line of location includes the surface ground and the vein or lode, and measures the extent of the miner's right." A location is of surface ground as well as of the vein or lode. McCornick v. Varnes, 2 Utah, 355; 9 Mor. Min. Rep. 505.

10. The surface ground and the lode are not independent grants. It is not the purpose of the act to grant surface ground without a discovered lode. The lode is the principal thing, and the surface ground incident thereto. Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282; Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429.

11. It is well settled that the rights of the miner to the surface ground of his location are dependent upon his discovery, and upon the relation which the vein in its course and direction bears to the surface as it has been located. The grant of the vein has always been held to be the principal thing, and the surface but an incident, which, as to its extent, is entirely determined by the course of the principal thing granted, to wit, the vein. Colorado Midland Ry. Co. v. Croman, 16 Colo. 381; Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542.

12. Surface ground is simply an adjunct to the lode and must be coterminous therewith. Engineer Mining & Developing Co., 8 L. D. 361; Plevna Lode, 11 L. D. 236.

13. The end line of a junior claim may not be established within a senior excluded claim beyond the point where the junior lode enters the senior claim. Circular, Dec. 4, 1884, 3 L. D. 540, as amended by Circular of Nov. 7, 1895, 21 L. D. 411.

14. A location of surface ground which does not include any part of the lode claimed to have been discovered therein is invalid. Surface ground is an incident of the lode. Branagan v. Dulaney, 2 L. D. 744.

15. "When one has discovered a vein and has complied fully with the law in locating a claim thereon, the territory inclosed within his surface boundaries is segregated from the public domain in so far as all parties except the government, are concerned. prospector cannot go within such surface boundaries to prospect for mineral veins, and his act, if he do so, is as much trespass as though the land was patented." Armstrong

. . The

v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.)

16. A vein can only be located by means of a surface claim, and held only to the extent that it is included within the surface lines(except rights to follow it on the dip). Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429.

17. A formal exclusion from an application for patent of conflict with another claim will not have any effect if it is shown that, as a matter of fact, no such conflict exists. Steamboat Lode, 13 L. D. 163.

18. Although the act of 1872 enlarges theright of a locator by a grant of all veins, lodes and ledges the top or apex of which lie within his surface lines, his rights to surface ground and to other lodes is dependent upon the principal lode, the one forming the basis of the location. Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542.

19. A valid location must be so made that, upon compliance with the law, a patent might be issued, embracing the surface evidences of the location, excepting, perhaps, one or more boundary stakes. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.)

20. The lode located constitutes the measure of the locator's right to surface ground, and if it terininates at any point within the location or departs from the claim, the location beyond that point is defeasible if not void.