21. "Side lines properly drawn would run on each side of the course of the vein or lode distant not more than three hundred feet from the middle of such vein." If they are so drawn as to be intersected by the course of the lode, they are, in fact, end lines, and will be so considered in determining the right of the claimant to follow the lode outside the surface lines of his claim. King v. Amy & Silversmith M. Co., 152 U. S. 222.

22. The law contemplates a location to be made nearly parallel with the line of the vein, and if a locator, knowing the line of the vein, and wilfully and with fraudulent purpose, locate his claim in disregard of such line and course of the vein, and establish its length not along the vein but across it to an excess of several hundred feet or more beyond the three hundred feet limit allowed by Congress, for the fraudulent purpose of gaining and appropriating such excess of surface ground as his mining claim, this would be in deliberate violation of law, and the locator could gain no rights whatever thereby, but his location would be absolutely null and void, and he would be in the same position as if a location had never been attempted to be made. Walsh v. Mueller, 16 Mont. 180.

23. A reservation of the surface of a mining claim in favor of town site property rights declared void. Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep.

858.

24. A claimant under a town site patent which contained the usual exception of mining claims acquired no interest in a valid mining claim or in the surface thereof. Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858.

25. A mineral patent issued after May 10, 1872, could not convey more than three hundred feet of surface on each side of the lode applied for, even though the location was made under a law which allowed more than that width of surface ground. Lakin v. Roberts (Dolly), 7 U. S. App. 539. (On appeal from, 53 Fed. Rep. 333; and 54 Fed. Rep. 461, on review.)

26. The length of a location made under the act of 1866 may be that allowed by said act; but the width of surface ground patented may not exceed three hundred feet on

section 2320, United States Revised Statutés, act of 1872. Lakin v. Roberts (Dolly), 53 Fed. Rep. 331. (Affirmed on review, 54 Fed. Rep. 461; also 7 U. S. App. 539.)

27. A patent issued subsequent to 1872, of a claim exceeding a width of three hundred feet on each side of the middle of the vein, is void as to excess. Lakin v. Roberts (Dolly), 54 Fed. Rep. 461. (Affirming S. C., 53 Fed. Rep. 331, on review. Affirmed in 7 U. S. App. 539.)

28. The fact that a location embraces surface ground more than allowed by law does not invalidate the location except as to the excess. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607; Richmond M. Co. v. Rose, 114 U. S. 576; Rose v. Richmond Mining Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411; Atkins v. Hendree, 1 Idaho, 95; 2 Mor. Min. Rep. 328; Burke v. McDonald, 2 Idaho, 646; 33 Pac. Rep. 49; Stemwinder M. Co. v. Emma & Last Chance M. Co., 2 Idaho, 421; 21 Pac. Rep. 1040; Hansen v. Fletcher, 10 Utah, 266; 37 Pac. Rep. 480; Thompson v. Spray, 72 Cal. 528; 14 Pac. Rep. 182. (Questioned in Hauswirth v. Butcher, 4 Mont. 299; 1 Pac. Rep. 714.)

29. Where an extra amount of the lode is

claimed by right of discovery, and it is subsequently shown by development that the

locators were not the discoverers, the location

is void, if at all, only as to the excess. Rose v. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7. See 114 U. S. 576.

30. A patent for a lode claim purporting to convey more than three hundred feet on each side of the lode is, to the extent of the excess, void, and to that extent may be attacked collaterally. Lakin v. Dolly (Roberts), 53 Fed. Rep. 333. (Re-affirmed on review in 54 Fed. Rep. 461; also, 7 U. S. App. 539.)

31. The location of a mining claim containing more land than allowed by the laws of the mining district wherein it is situate renders the location invalid only as to the excess, not as to its entirety. Richmond M. Co. v. Rose, 114 U. S. 576.

32. The prior locator need not adverse to secure his rights to his vein at the point of intersection; but by failure to adverse he loses surface rights. When two veins join

33. The Land Department cannot except any part of the surface ground from the patent of a mining claim based on a prior location. If it does, its act to that extent is void, and it may be so declared in an action at law. Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574.

34. Under no law is the locator of a lode authorized to follow the same on its strike outside the lines of his location on the surface. McCornick v. Varnes, 2 Utah, 355; 9 Mor. Min. Rep. 505.

35. In the absence of a showing to the contrary it is presumed that the patentee of a claim has the right to any lode inside of his surface lines. Iron Silver M. Co. v. Campbell, 17 Colo. 267; 29 Pac. Rep. 513. See 135 U. S. 286.

36. The applicant for patent cannot waive an adverse claim by excluding from his application the area covered by the adverse claim, and so vest the Land Department with jurisdiction to patent the remaining portion of his claim. The adverse claim can be waived only by one setting it up. But if the Land Department does so proceed there is no cause of complaint by the adverse claimant, and it is only a question between the Land Department and the applicant for patent. Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683. (Reversing 7 U. S. App. 463; 54 Fed. Rep. 284; 9 U. S. App. 613; 61 Fed. Rep. 557.)

37. After issuance of a placer patent the owner of a lode therein, located with surface ground twenty-five feet in width on each side, may not so amend his location as to take in a greater amount of surface ground. Becker v. Sears, 1 L. D. 577.

38. A judicial award of the right of possession to an adverse placer claimant as against the applicant for patent for a lode claim does not preclude inquiry by the Land Department on an allegation by the lode claimant that the placer claim, as subsequently applied for, embraces a known lode, where it appears that the question was not

39. The limitation of the width of a lode claim within a placer, prescribed by section 2333, United States Revised Statutes, has no application to a case where a lode was covered by a valid location of the full legal extent prior to the application for placer patent, but the whole lode claim is excepted from the placer patent. Pike's Peak Lode, 10 L. D. 200. See South Star Lode, 20 L. D. 204.

40. The locator of a lode claim, who fails to adverse an application for a placer claim covering the same, by such failure loses his rights to surface ground in excess of twentyfive feet on each side of the middle of his lode. Shonbar Lode, 3 L. D. 388. (Modified in South Star Lode, 20 L. D. 204.) See Pike's Peak Lode, 10 L. D. 200.

41. Section 2333, United States Revised Statutes, carves out of a placer patent all lodes known to exist within the placer at date of application therefor, with twenty-five feet of surface ground on each side. Becker v. Sears, 1 L. D. 577.

42. Where it appears to the satisfaction of the Land Department that a lode was known at date of application for placer patent, the lode, with surface ground twenty-five feet on each side, may be patented, notwithstanding the issuance of the placer patent. Shonbar Lode, 1 L. D. 551; 3 L. D. 388. See Pike's Peak Lode, 10 L. D. 200; and South Star Lode, 20 L. D. 204.

43. An individual owner of a placer claim may not, by making a relocation or amended or additional location, increase the area of his claim more than twenty acres, and, if the additional area taken exceeds twenty acres, the additional location is void as to the excess. Joseph M. Knapp, 2 L. D. 763.

44. Where application for a placer patent was made and no adverse filed by a lode claimant, and subsequently the lode claimant applied for patent and was adversed by the placer applicant, who began suit and then dismissed it, it was held that the placer applicant had abandoned the conflict and that patent for the lode claim need not be confined to twenty-five feet on each side of the

45. A placer patent carries title to the surface ground as well as to the land beneath the surface. Deffeback v. Hawke, 115 U. S. 392.

46. A tunnel location five thousand feet long is not void because it covers more than three thousand feet in length, but would be good to the extent of three thousand feet at least. Glacier Mtn. S. M. Co. v. Willis, 127 U. S. 471.

47. Where a mining claim is located upon an Indian reservation and the locator is in possession at the date the reservation is thrown open, "with the requisite discovery, with the surface boundaries sufficiently marked, with the notice of location posted, and with a disclosed vein of ore, he could, by adopting what had been done, causing a proper record to be made, and performing the amount of labor or making the improvement necessary to hold the claim, date his rights from that day; and that such location and labor and improvements would give him the right of possession." Noonan v. Caledonia G. M. Co., 121 U. S. 393; 3 Dak. 189; 14 N. W. Rep. 426.

48. Entry should not be allowed when it is shown that the lode is not embraced within claimed ground, as the right to surface ground depends on the possession of a lode therein. Branagan v. Dulaney, 2 L. D. 744.

49. A judgment rendered on an adverse suit, awarding the surface of the ground involved to a placer claimant, and lodes therein contained to lode claimants, is without authority of law, and will not be followed by the Land Department, which will not issue a patent for a placer claim containing known lodes belonging to one other than the placer claimant. Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641.

50. "A location since the 10th day of May, 1872, based on a discovery made within the limits of a claim properly located, and not abandoned or lost by failure to perform the labor thereon required by law, is an invalid location; for by the provisions of section 2322, the locator of such claim has the exclusive right of possession and enjoyment of all the surface included within the lines of the location, 'and of all veins, lodes or ledges throughout their entire depth, the top or apex of

locator then has the exclusive right of the possession and enjoyment, how can a prospector go on such claim and make a valid discovery?" Branagan v. Dulaney, 2 L. D. 744.

51. The United States Surveyor General may not require a claimant to exclude land from the claim surveyed. Antediluvian Lode & Mill Site, 8 L. D. 602.

52. "A mining claim is the name given to that portion of the public mineral lands which the miner, for mining purposes, takes up and holds in accordance with the mining laws, local and statutory. It must, under the law of Congress of 1872 (sec. 2320, U. S. Rev. Stat.), be located upon at least one known vein or lode, but the vein or lode is not the whole claim.” “A mining claim is not merely a vein or lode, but that with a certain quantity of surface ground." Mt. Diablo M. & M. Co. v. Callison, 5 Sawy. 439; 9 Mor. Min. Rep. 616.

53. Surface ground is not given a locator simply for the working of the particular lode located, but to give him all other veins the apexes of which are found in the location. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.)

54. An adverse claim which alleges no surface conflict of claims will not be received as such, as the relative rights of the parties to work a lode on its dip must be determined by the courts. New York Hill Co. v. Rocky Bar

Co., 6 L. D. 318.

55. The location of a mining claim must be recorded before a survey thereof may be made. Com'r to Surveyor General of Nevada,

1 L. D. 581.

56. A miner has no right to surface ground in following his lode on the dip. BullionBeck & Champion M. Co. v. Eureka Hill M. Co., 5 Utah, 3; 11 Pac. Rep. 515.

57. When the lode line is defined, if the number of feet of surface ground on each side thereof is known, the location is sufficiently marked, as its boundaries can be readily ascertained. Mt. Diablo M. & M. Co. v. Callison, 5 Sawy. 439; 9 Mor. Min. Rep. 616.

58. A lode mining claim may not exceed fifteen hundred feet in length by six hundred feet in width. No markings of the location outside of those limits are to be considered, as no one is required to look beyond such

59. The width of a lode claim may be restricted to twenty-five feet on each side of the middle of the lode by local statute, regulation or custom. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411.

60. The Montana statute of 1864, allowing surface ground fifty feet on each side of the lode, construed as meaning fifty feet on each side the inclosing walls of the lode, allowing the width of the claim to be one hundred feet plus the width of the lode. Foote v. National M. Co., 2 Mont. 402; 9 Mor. Min. Rep. 605.

61. A patent to a mining claim passes whatever title the government had to the surface and all veins beneath the surface not otherwise granted, and its issue presumes a compliance with the mining laws. Kahn v. Old Telegraph M. Co., 2 Utah, 174; 11 Mor. Min. Rep. 645.

62. " Where a location of a vein or lode has been made under the law, and its boundaries have been specifically marked on the surface, so as to be readily traced, and notice of the location is recorded in the usual books of record within the district, we think it may safely be said that the vein or lode is known to exist, although personal knowledge of the fact may not be possessed by the applicant for a patent of a placer claim. The information which the law requires the locator to give to the public must be deemed sufficient to acquaint the applicant with the existence of the vein or lode." Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611.

63. After discovery the discoverer has a reasonable time within which to trace his lode and mark the surface lines of his claim. Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429.

a trespasser. Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240. See, also, Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482.

66. In an ejectment suit where plaintiff shows title by patent for a mining claim, and defendant admits possession for town site purposes, plaintiff is entitled to judgment without showing that the surface is necessary to the working of his mine. Abbott v. Primeaux, 16 Nev. 361.

67. The form of a lode mining location need not necessarily be that of a parallelogram. The formation of the mineral deposit must govern. Breece M. Co., 3 L. D. 11.

68. No survey of a lode discovered in a tunnel will be made until the exact surface ground is ascertained. William L. Campbell,

4 C. L. O. 102.

69. The development and possession of a lode is not interfered with by the waiver of a portion of the surface ground. Gustavus Hagland, 1 L. D. 593.

70. No patent can issue for a vein or lode without surface ground. William L. Campbell, 4 C. L. O. 102.

. 71. Surface ground cannot be claimed on account of a lode owned by other parties. Cons. Bobtail G. M. Co., 9 C. L. O. 113.

72. Where surface ground is not in conflict, a separate location undeveloped is not son, 7 C. L. O. 50. an adverse mining claim. Jacques v. Robin

73. A patent will be issued in which a reservation will be inserted, reciting the fact that the surface ground described is the estimated area of the lode, where there was no provision for the location of surface ground. 420 M. Co. v. Bullion M. Co., 2 C. L. O. 5.

2. Apex, Dip.

74. The apex of a vein is that end which approaches nearest the surface, but is not the highest part of a roll or swell of mineral mat

Mor. Min. Rep. 557. See Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Rep. 304.

(Also reported as Iron Silver M. Co. v. Murphy, 1 Mor. Min. Rep. 548.)

76. A vein need not necessarily crop out on the surface in order that a location may be properly laid upon it; but where the vein does crop out along the surface or is slightly covered by foreign matter so that the course of the apex can be readily ascertained, this course should be substantially followed in laying claims and locations upon it. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607.

77. A locator has all lodes the apexes of which are inside his location to which no right had attached at the date of his location, but does not own any veins the apexes of which are outside of his claim. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529.

78. The owner of a mining claim is to be regarded as the owner of all within his claim until some other person shows, by a preponderance of evidence, clear title to the apex of a lode dipping into the claim. Leadville M. Co. v. Fitzgerald, 4 Mor. Min. Rep. 380.

79. Section 2322, United States Revised Statutes, gives to the owner of the apex of a vein or lode not only all that is covered by the surface lines of his claim as those lines are extended vertically, but it gives him the right to possess and enjoy the lode or vein by following it on the dip when it passes outside of these vertical lines laterally. Iron Silver M. Co. v. Cheesman, 116 U. S. 529. See 1 McCrary, 191; 9 Mor. Min. Rep. 552; Iron Mine v. Loella Mine, 2 McCrary, 121; 3 Fed. Rep. 368; 1 Colo. Law Rep. 16. (Also reported as Iron Silver M. Co. v. Murphy, 1 Mor. Min. Rep. 548.)

80. The locator who has a vein extending through his claim owns all other veins whose apexes are within his claim, and may adverse an application for a conflicting claim located on one of such other veins. Freeland v. Hoffman, 13 Mor. Min. Rep. 289.

81. A miner has no right to follow a lode on its dip into the claim of another, unless he has the apex of the lode in his own claim. Gilpin v. Sierra Nevada Cons. M. Co., 2 Idaho, 662; 23 Pac. Rep. 547.

82. Where a vein outcrops in two mining claims, the first locator has the better right. Argentine M. Co. v. Terrible M. Co., 122 U. S. 478. See 5 McCrary, 639.

83. Unauthorized underground working of a lode will not prevent its location by the discoverer of the apex, as “The possession of a vein, recognized by the mining laws and to which protection is given, is by one who holds the surface where the vein makes its apex." Eilers v. Boatman, 3 Utah, 159; 1 West Coast Rep. 632; 2 Pac. Rep. 66; 15 Mor. Min. Rep. 462. (On appeal, 111 U. S. 356; 15 Mor. Min. Rep. 471.)

84. When a vein or lode located on the apex passes on the dip outside the plane of the side lines extended vertically, and encroaches on another's vein, it must be shown that the vein passing outside the side lines is a continuation of the vein located, in order to give the right to pursue it. Iron Silver M. Co. v. Cheesman, 116 U. S. 529. (See 2 McCrary, 191; 9 Mor. Min. Rep. 552.) Iron Mine v. Loella Mine, 2 McCrary, 121; 3 Fed. Rep. 368; 1 Colo. Law Rep. 16. (Also reported as Iron Silver M. Co. v. Murphy, 1 Mor. Min. Rep. 548.)

85. The top or apex of a vein must be found within the limits of a claim located to form the basis of a valid location; but such apex is not necessarily a point, but may be a line of great length, and if a portion of it is discovered within the claim, that is sufficient upon which to base a valid location. Larkin v. Upton, 144 U. S. 19. (Affirming 5 Mont. 600; 6 Pac. Rep. 66; 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404.)

86. In an action to quiet title to a vein or lode it is sufficient to describe such lode by its name if the lot or mining claim in which it has its apex is specifically described in the complaint. Bullion-Beck & Champion M. Co. v. Eureka Hill M. Co., 5 Utah, 3; 11 Pac. Rep. 515.

87. The lode or vein "which may thus be possessed and enjoyed outside of the limits of the surface side lines extended vertically must be the same vein or lode on the apex or outcrop of which the claim of the party has been located." Iron Silver M. Co. v. Cheesman, 116 U. S. 529.

88. The owner of a mining claim is prima facie owner of all minerals inside his surface lines; but if evidence is introduced going to show that the vein in controversy has its apex outside of the claim, he must prove his right to it by proving its apex to be inside. Jones v. Prospect Mtn. T. Co., 21 Nev. 339; 31