covered at date of location of the tunnel claim, contingent on discovery of said lode in the tunnel on development. Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. Rep. 200.

538. All locations made within a tunnel claim subsequent to its location are subject to the inchoate rights of the tunnel claimant. Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. Rep. 200.

539. A statute (Colorado) limiting the

length of locations on tunnel discoveries to two hundred and fifty feet on each side of the tunnel is not in conflict with the United States laws. Rico-Aspen Cons. M. Co. v. Enterprise M. Co., 53 Fed. Rep. 321.

540. 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.

541. The first locator, having the apex of the vein entirely within the surface lines of his claim for a portion of its length, and for the remaining portion partly within and partly without his claim and within the surface lines of another claim, but never entirely departing from such first location, owns the entire lode within the end lines of his claim. Bullion-Beck & Champion M. Co. v. Eureka Hill M. Co., 5 Utah, 3; 11 Pac. Rep. 515.

542. "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.

543. The boundaries of a location may not be changed so as to interfere with prior acquired 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.

544. When a party has the means of ascertaining a boundary line he is guilty of negligence in not ascertaining its location if knowledge thereof is essential to the preservation of his rights. Maye v. Yappen, 23 Cal. 306 (1863).

545. Where parties show that they were not discoverers, only two hundred feet to each locator could be taken under the mining act of July 26, 1866. Shoo Fly Lode v. Mono Lode, 1 C. L. O. 135.

546. "The miner having located his claim, is to be treated as an express licensee of the United States and independent of a purchase from the government of his mining claim, he has, upon compliance with the terms of the act, a right to appropriate the minerals therein contained. A title in fee by patent is offered him, which he may at his pleasure accept or reject." There is no time prescribed within which he shall apply for a patent. Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282.

547. Locators of mining claims, so long as they comply with the law, have "the exclusive right of possession and enjoyment of all the surface included within the lines of their

locations." This is a right of property, and the claimant must protect himself from trespassers by proceedings in court. Lewis Smith,

1 L. D. 615.

548. One who makes a valid mining location acquires thereby a vested right (conditional on continued compliance with the law) to the exclusive right of enjoyment of all the surface included therein. Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep.

482; Merced M. Co. v. Fremont, 7 Cal. 317 (1857); Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240; Atkins v. Hendree, 1 Idaho, 95; 2 Mor. Min. Rep. 328; Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196; Hauswirth v. Butcher, 4 Mont. 299; 1 Pac. Rep. 714; Russell v. Chumasero, 4 Mont. 309; 1 Pac. Rep. 713; 15 Mor. Min. Rep. 508; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434; Wills v. Blain, 4 New Mex. 378; 20 Pac. Rep. 795; Blake v. Butte S. M. Co., 2 Utah, 54; 9 Mor. Min. Rep. 503; Fort Maginnis Case (Opp. Atty. Gen.), 1 L. D. 552; Lewis Smith, 1 L. D. 615; Branagan v. Dulaney, 2 L. D. 744; Cordell Placer, 4 L. D. 476; John U. Gabathuler, 15 L. D. 418; Piru Oil Co., 16 L. D. 117.

549. Under act of 1866 (14 Stat. 251) the locator of a gold or silver lode is its owner against everybody except the United States, and has a right to purchase- a pre-emption right. 420 Mining Co. v. Bullion M. Co., 3 Sawy. 634; 9 Nev. 240; 1 Mor. Min. Rep. 114; 11 Mor. Min. Rep. 608.

550. "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

551. A mineral location, under which all requirements of the law had been fairly met prior to the act of March, 1883, opening Alabama mineral lands to disposal as agricultural lands, confers a vested right that is not impaired by the provision of said act. Cordell Placer Mine, 4 L. D. 476.

552. Mining claims held by possessory title are property in the fullest sense of the word, and may be sold, transferred, mort gaged and inherited, and a location made in accordance with law has the effect of a grant by the United States of the right of present and exclusive possession. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183; Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510. (See 3 Mont. 65.) Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482; Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611; Manuel v. Wulff, 152 U. S. 505; Sullivan v. Iron Silver M. Co., 143 U. S. 431.

553. "A valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located." Gwillim v. Donnellan, 115 U.S. 45; 15 Mor. Min. Rep. 482; Wills v. Blain, 4 New Mex. 378; 20 Pac. Rep. 795; Branagan v. Dulaney, 2 L. D. 744.

554. The Land Department cannot include in a town site patent any mine, mining claim or possession. If such is included in the patent, the same to that extent is void. Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574.

555. 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.

556. A location of a mining claim in accordance with law confers a vested right of property which will except the land located from the operation of a subsequent reservation. John U. Gabathuler, 15 L. D. 418.

557. Lands of the United States in which

miners have vested rights cannot be taken for public use without just compensation.

Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196.

558. A legally made location of a mining claim gives the locator a perfect possessory title to the claim located. Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611.

559. Proof of a legal location of a mining claim and of possession thereof is proof of such title as may be overthrown only by proof of forfeiture of the claim by failure to make the required annual expenditure thereon. Hammer v. Garfield M. & M. Co., 130 U. S. 291.

560. "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 which lies inside of surface lines.' If the 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.

561. A valid location is the inception of a grant from the United States, the patent being the consummation, and the property located may not be sold by the United States unless forfeited. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153; 130 U. S. 291.

562. "It [the title of a locator] is a title given by an act of Congress, and hence equivalent to a patent of the United States." Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434.

563. Under the mining laws of Congress, every valid location of a mining claim is ac

564. A location excepts the mining claim from the public domain as by a grant. Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1076.

565. The right to occupy, explore and extract the precious metals in mineral lands of the United States becomes vested in the party who locates these lands according to the local rules and customs of the mining district in which they are situated. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196.

566. Mere possession of mineral lands not based on a location is good as against one having no better title; but such possession must be actual and will not extend constructively to the full extent of a mining claim. Zollars & Highland Chief Cons. M. Co. v. Evans, 2 McCrary, 39; 4 Mor. Min. Rep. 407.

567. The right to the exclusive possession of mineral land not actually held in possessio pedis may be acquired only by a legal location thereof. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.)

568. Ground actually held and possessed by right of discovery, even though not lo cated, is reserved from location by a subsequent discoverer. Faxon v. Barnard, 2 McCrary, 44; 4 Fed. Rep. 702; 1 Colo. Law Rep. 147; 9 Mor. Min. Rep. 515.

569. Mere possession of mining ground without location is good as against an intruder who made no location. English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202; Gregory v. Pershbaker, 73 Cal. 109; 14 Pac. Rep. 401; 15 Mor. Min. Rep. 602; Neuebaumer v. Woodman, 89 Cal. 310; 26 Pac. Rep. 900. 570. Mere possession of mineral land not based on a location is good title as against a mere intruder, but not against one who has made a location of the land in the manner prescribed by law, and the possession of such locator may prevail over such prior possession. Garthe v. Hart, 73 Cal. 541; 15 Pac. Rep.

2 Mor. Min. Rep. 75; English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202; Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217; Du Prat v. James, 65 Cal. 555: 3 West Coast Rep. 108; 4 Pac. Rep. 562; 15 Mor. Min. Rep. 341; Horswell v. Ruiz, 67 Cal. 111; 7 Pac. Rep. 197; 15 Mor. Min. Rep. 488; Neuebaumer v. Woodman, 89 Cal. 310; 26 Pac. Rep. 900; Hopkins v. Noyes, 4 Mont. 550; 2 Pac. Rep. 280; 15 Mor. Min. Rep. 287; Noyes v. Black, 4 Mont. 527; 2 Pac. Rep. 769; Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450; Patterson v. Tarbell, 26 Oreg. 29; 37 Pac. Rep. 76.)

571. Occupancy of land for mining purposes will prevent a valid location thereof. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299, 503; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Armstrong v. Lower, 6 Colo. 581; 15 Mor. Min. Rep. 458. (Affirming 6 Colo. 393; 15 Mor. Min. Rep. 631.) Weise v. Barker, 7 Colo. 178; 2 Pac. Rep. 919; 2 West Coast Rep. 108; Eilers v. Boatman, 3 Utah, 159; 2 Pac. Rep. 66; 1 West Coast Rep. 632; 15 Mor. Min. Rep. 462. See 111 U. S. 356; 15 Mor. Min. Rep. 471.

572. Possession under color of title for the period prescribed by the statute of limitations raises the presumption of a legal location, and an adverse location made during such possession is invalid. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 63; 12 Mor. Min. Rep. 178.

573. One in the actual possession of real estate may rely on possession alone until his adversary shows a better title. Hawxhurst v. Lander, 28 Cal. 331; 12 Mor. Min. Rep. 214.

574. Two kinds of possession of mining ground are recognized: 1st. That of mere actual occupation independent of a location, which is good as against one having no better title. 2d. That given by compliance with the law regarding location. In the first the occupation must be an actual possessio pedis; in the second it may be constructive. Armstrong v. Lower, 6 Colo. 581; 15 Mor. Min. Rep. 458. (Affirming 6 Colo. 393; 15 Mor. Min. Rep.

631.)

575. Mere possession of mineral lands is not equivalent to a location. Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153; 130 U. S. 291.

578. Discovery with possession but without location is not valid as against a subsequent peaceable location. Horswell v. Ruiz, 67 Cal. 111; 7 Pac. Rep. 197; 15 Mor. Min. Rep. 488; Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429. Contra, Phenix M. & M. Co. v. Lawrence, 55 Cal. 143; 12 Mor. Min. Rep. 261.

579. A possessio pedis of mining land is good as against a mere trespasser, but, in absence thereof, claimant must show a legal location to succeed in a suit against a trespasser. Funk v. Sterrett, 59 Cal, 613.

580. Possession of a mining claim, to be of effect, must be that arising from a compliance with the law.

Possession without

location carries no title, nor does possession under a location which has not been properly maintained. "The mere naked possession of a mining claim upon the public lands is not sufficient to hold such claim as against a subsequent location, made in pursuance of the law, and kept alive by compliance therewith." Hopkins v. Noyes, 4 Mont. 550; 2 Pac. Rep. 280; 15 Mor. Min. Rep. 287; McKinstry v. Clark, 4 Mont. 370; 1 Pac. Rep. 759; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153; 130 U. S. 291.

581. Long continued, undisputed possession of a mining claim may raise a presumption that it was based upon a valid location. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 63; 12 Mor. Min. Rep. 178; Atwood v. Fricot, 17 Cal. 38; 2 Mor, Min. Rep. 305; Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217.

582. A location made by a trespasser is invalid. Aurora Hill Cons. M. Co. v. 85 Mining Co., 12 Sawy. 355; 34 Fed. Rep. 515; 15 Mor. Min. Rep. 581.

v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65.

584. A location of land covered by a prior subsisting location is void. Souter v. Maguire, 78 Cal. 543; 21 Pac. Rep. 183.

585. Patent relates back to date of location. Taylor v. Brown, 5 Cranch, 234; Henshaw v. Bissell, 18 Wall. 266; Deffeback v. Hawke, 115 U. S. 392; Last Chance M. Co. v.

Tyler M. Co., 157 U. S. 683; 61 Fed. Rep. 557; 7 U. S. App. 463; 9 U. S. App. 613; 54 Fed. Rep. 284; Eureka Cons. M. Co. v. Richmond M. Co. (Eureka Case), 4 Sawy. 302; 9 Mor. Min. Rep. 578; Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345; Kahn v. Old Telegraph M. Co., 2 Utah, 174; 11 Mor. Min. Rep. 645.

586. A patent relates back to the location so as to cut off intervening adverse rights. Heydenfeldt v. Daney G. & S. M. Co., 93 U. S. 634; 13 Mor. Min. Rep. 204; Last Chance M. Co. v. Tyler M. Co., 15 U. S. App. 456; Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858.

586a. The issuance of patent evidences discovery, proper location, marking, posting of notice, recording thereof, requisite expenditure, notice of application, and that all other steps to acquire patent, required by law, were regularly taken. Stark v. Starr, 6 Wall. 418; Last Chance M. U. S. App. 456; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; Talbott v. King, 6 Mont. 76: 9 Pac. Rep. 434. (St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673, to the same effect.)

Co. v. Tyler M. Co., 15

586b. After issuance of patent to a mining claim, the sufficiency of the location notice cannot be questioned. Chambers v. Jones, 17 Mont. 156. (Citing and quoting approvingly Talbott v. King, 6 Mont. 131.)

587. A patent for a mining claim located by the register of a local land office may issue to his grantee who took in good faith and who has complied with the law. (No opinion expressed as to the legality of such a location.) Rust & Criteser, 2 L. D. 754.

Co. v. Defferrari, 62 Cal. 160; Stinchfield v. Gillis, 96 Cal. 33; 30 Pac. Rep. 839; S. C., 107 Cal. 84; 40 Pac. Rep. 98.

529.

589. One owning a lode claim is presumed to own all mineral therein till some one else shows good title thereto by virtue of a location on the apex of a lode dipping under the claim. Jupiter M. Co. v. Bodie M. Cons. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411.

590. The act of May 10, 1872, gives a locator the exclusive right to the surface of his claim, and "not only the particular lode or vein located, but to all other veins, lodes and

ledges, the top or apex of which lies within the surface lines of his location, with the right to follow such veins, lodes or ledges to any depth." Eureka Cons. M. Co. v. Richmond M. Co., 4 Sawy. 302; 9 Mor. Min. Rep. 578; Iron Silver M. Co. v. Cheesman, 2 McCrary, 191; 9 Mor. Min. Rep. 552.

591. "When one has discovered a lode upon the unappropriated public domain, and has, within the proper time, in good faith, performed all the subsequent acts essential to a valid location, as provided by law, he is entitled to the presumption that his lode extends throughout the full length of the claim" (as against another lode claimant). The burden of disproving this is upon the one denying it. Armstrong v. Lower, 6 Colo. 581; 15 Mor. Min. Rep. 458. (Affirming 6 Colo. 393; 15 Mor. Min. Rep. 631.) Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542.

592. A prior locator of a mining claim on the banks of a stream has the right to use the bed for working his claim, and any subsequent embankment or dam which interferes with his use is an encroachment upon his rights, and he is entitled to recover. Sims v. Smith, 7 Cal. 148 (1857).

593. The rules and customs which point out the manner of locating mining claims are conditions precedent, which must be substantially complied with. King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480.

594. The grantor of a mining claim is estopped from alleging that he had no legal

595. The grantor of a mining claim may be called as a witness to prove the invalidity of the location of the claim sold. Johnson v. Parks, 10 Cal. 446; 4 Mor. Min. Rep. 316.

596. Possession is sufficient to maintain title during the period necessary to perfect the location. Erhardt v. Boaro, 113 U. S. 527; 4 Mor. Min. Rep. 432; Crossman v. Pendery, 2 McCrary, 139; 1 Colo. Law Rep. 496; 4 Mor. Min. Rep. 431.

597. A locator with color of title may hold against one having no better title. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 63; 12 Mor. Min. Rep. 178.

598. Where a claim is recognized for years by neighboring claimants, a formal location need not be proven. Kinney v. Cons. Virginia M. Co., 4 Sawy. 382; 10 Mor. Min. Rep.

457.

599. Where each of several locators claims a distinct portion of a fifteen hundred foot claim, each of such portions is a separate claim and must be located and developed as such. Zeckendorf v. Hutchison, 1 New Mex. 476; 9 Mor. Min. Rep. 483.

600. One holding a mining claim under a location may sue in trespass one who removes timber from the claim. McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1076.

601. A purchaser may have a better right than his grantor, the locator, as against other citizens seeking to locate the same ground. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 63; 12 Mor. Min. Rep. 178.

602. The owner of a mining claim has a prima facie right to all minerals within the surface lines of his location. Gilpin v. Sierra Nevada Cons. M. Co., 2 Idaho, 662; 23 Pac. Rep. 547.

603. A location made on a discovery claim of another before the time has expired within which the first discoverer must complete his location, is invalid. Craig v. Thompson, 10 Colo. 517; 16 Pac. Rep. 24.

604. A location on the surface based on a tunnel discovery will relate back to the location of the tunnel claim, and cut out an intervening surface location on the same lode.