In the case of the Champion Co. v. Cons. Wyoming Co. 16 M. R. 145, the two lodes in controversy so came together at about 500 feet in depth. The Wyoming lode was patented in 1874. The Philip lode claimed to be a location prior in date to the Wyoming, but was not able to prove such allegation, and therefore had no state of facts upon which the court could properly decide this point and interpret the statute. Still, they intimated that the older possessory title would hold without regard to patent. In the case of Lee v. Stahl, 16 M. R. 152, which involved the rights of cross lodes only, the court in argument lean to the same construction.

But the point has been since expressly decided and always to the same result, to wit: in favor of the older location.-Little Josephine Co. v. Fullerton, 58 Fed. 521; Cons. Wyoming Co. v. Champion Co. 63 Fed. 540.

Relation, Presumption.-Even if suspected, such union would rarely be provable in time to support an adverse claim, and even if known an adverse claim could not be brought because an adverse is allowed only where there is a surface conflict.-6 L. D. 320. The doctrine of relation back to discovery, therefore, applies, but the date of discovery and of the respective acts of location are open to parol proof. If the union becomes known or comes in contest, as it generally does after both lodes are patented, there exists a presumption in favor of each that it had a valid discovery and location at the date of entry, but there is no conclusive presumption that the date of discovery or of location claimed by the recorded location certificate upon which the patent issued is the true date. -St. Louis Co. v. Kemp, 104 U. S. 647; 2 Lindley, ? 730, 783; Last Chance Co. v. Tyler Co. 61 Fed. 557. Conclusive presumptions binding on all parties are fixed only where the party to be bound has had opportunity to have his day in court.

SIDE VEINS WITHIN LOCATION LINES BEFORE MAY 10, 1872.

Congressional Bounty or Confirmation.-R. S. 2328.-Applications for patents for mining-claims under former laws now pending may be prosecuted to a final decision in the General Land-Office; but in such cases where adverse rights are not affected thereby, patents may issue in pursuance of the provisions of this chapter; and all patents for mining-claims upon veins or lodes heretofore issued shall convey all the rights and privileges conferred by this chapter where no adverse rights existed on the tenth day of May, eighteen hundred and seventytwo.-Sec. 9, A. C. May 10, 1872.

Limited to Single Vein.—Under the original Congressional Act of 1866, no vein except the first claimed was covered by the location or conveyed by the patent.

A section of Colorado Territorial Act of February 9, 1866, attempted to donate to the locator all veins within twenty-five feet of the center of the first discovered lode; but that section is generally deemed to have been in excess of the power of the Territorial Legislature, in allowing to the claimant portions of the public domain which he had neither discovered nor appropriated.

A lode claim, therefore, located before May 10, 1872, originally covered but one vein, and a patent issued before that date covered but one vein.-Blake v. Butte Co. 9 M. R. 503; Eclipse Co. v. Spring, 59 Cal. 304.

Side Veins Donated to Old Claims Since 1872.— But by the A. C. of 1872, which gave to all new locations and future patents the benefit of everything between their side lines, it was added that all old locations and all patents under the old Act should have the same benefit, always saving any rights which had intervened before the passage of the Act of 1872.—R. S. ¿

The result of this Act is, that a location properly made before May 10, 1872, or a patent issued before that date, covers all side and other interfering veins practically to the same extent, and as fully as locations and patents under the present law; always saving the exception in the section last above cited.-Pardee v. Murray, 4 Mont. 234; 15 M. R. 515; Walrath v. Champion Co. 63 Fed. 552.

SIDE VEINS WITHIN LOCATION LINES SINCE MAY 10, 1872.

All Veins Apexing Within the Lines.-R. S. ? 2322.-The locators of all mining locations heretofore made or which shall hereafter be made, *** where no adverse claim exists *** 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, * *-Sec. 3, A. C. May 10, 1872.

*

Colorado Act Conforming to Above Section.-M. A. S. ? 3156.The location or location certificate of any lode claim shall be construed to include all surface ground within the surface lines thereof, and all lodes and ledges throughout their entire depth, the top or apex of which lie inside of such lines extended downward, vertically, with such parts of all lodes or ledges as continue by dip beyond the side lines of the claim, but shall not include any portion of such lodes or ledges beyond the end lines of the claim or the end lines continued, whether by dip or otherwise, or beyond the side lines in any other manner than by the dip of the lode.-Sec. 9, Feb. 13, 1874.

Surface Lines and Apex Within Them Define the Claim.-Under the law, as it has existed since May 10, 1872, with or without any State Statute like the above Colorado Act, which is only a concession to the admitted force of the higher law of Congress, it is clear that all veins whose tops or apices are within the lines of the claim go with the lode which gives the name to the claim; and the surface lines, rather than identity of the veins, are made to control the extent of

the claim, and to fix the boundaries between adverse parties.-Book v. Justice Co. 58 Fed. 109; Doe v. Waterloo Co. 54 Fed. 935.

The possible exceptions to this general assertion are: First-In regard to what are commonly called cross lodes; p. 125.

Second-Where the outcrops of two apparent veins appear on two separate lines at the surface, but in their downward course such veins dip into each other, unite and form a single vein; p. 128.

Third-Instances where a location on the dip may have cut off the right of a later appropriator on the apex to follow beyond his side lines extended vertically downward; p. 153.

Fourth-Locations and patents before May 10, 1872, where adverse rights had intervened so as to prevent them from taking the benefit of the grant of side veins under the Act of that date; p. 130.

Fifth-Lodes located before May 10, 1872, are apparently excepted from the grant of an overlapping patent.-Eclipse Co. v. Spring, 59 Cal. 304; but see Lee v. Stahl, 13 Colo. 177.

One Set of End Lines for Side Veins.-See p. 152.

DEPARTURE OF LODE FROM SIDE LINES.

Statement of the Point.-That the vein, and not the surface, is the material grant of a patent to a mining claim has never been disputed; nor can it be denied that it is the intention both of the purchaser in buying, and the Government in selling, to deal with the mineral deposit, the surface being, in itself, comparatively worthless to either. And if the case lay between the Government and the purchaser alone, this manifest intention might prevent any attempt to confine the party to an erroneous survey, giving him

only valueless surface, notwithstanding the material fact that it is the patentee, and not the United States, who has chosen the lines which produce the mischief. -Patterson v. Hitchcock, 5 M. R. 542.

But it is the rights of innocent third parties, holding claims beyond the located or patented side lines, which has rendered this question so important, and which must result in maintaining the consistent construction already given to the Act of Congress, confining every claim to its own lines; though even if it were a matter of indifference, this holding requires no forced construction of the Acts under ordinary rules of interpretation, and had been the constant ruling of the Appellate and Circuit Courts before its confirmation by the Federal Supreme Court.

Uniformity of Rulings on the Point.-This question, however, with singular unanimity has been set at rest by the decisions of many courts. It is now beyond controversy that the moment the apex of a vein leaves either side line of its survey the locator has no further claim thereto, on the strike, beyond such point of departure.-Wolfley v. Lebanon Co. 13 M. R. 282; Johnson v. Buell, 9 M. R. 502; The Flagstaff case, 9 M. R. 607; The Golden Fleece case (Nevada), 1 M. R. 120.

These decisions apply equally to patented and unpatented claims, and have been universally acceded to as the only construction which would give to a mining claim the same certainty of title which belongs to other classes of real estate which are free from the complications of dips and departures.

Facts of the Golden Fleece Case.-The case from Nevada is singularly illustrative of the injustice which would result from a contrary holding.

The Golden Fleece Lode was surveyed and staked in 1874, upon a vein supposed to run northwest and southeast. The location claiming 1,500 feet ran due northwest and southeast, with 600 feet width. Afterwards developments by its workings and on the