(5) Application.

(See APPLICATION, p. 174.) 160. If, subsequent to the survey of several contiguous claims, title thereto becomes vested in one person, he may embrace all of said claims so surveyed in one application for patent. William De Witt, 9 C. L. O. 34.

161. During the pendency of a suit based upon an adverse claim filed by a placer claimant against an application for patent for a lode claim, entry may not be allowed upon said application. Clipper M. Co., 22 L. D. 527. 162. A placer claim and a lode claim, noncontiguous to each other, may not be embraced in one application for patent under section 2333, United States Revised Statutes. Com'r to Henry O'Connor, January 10, 1879, 5

C. L. O. 162.

(6) Mill Site.

(See MILL SITE, p. 355.)

163. A mill site abutting on the end of a lode claim may be shown to be non-mineral, and may be patented. Departmental decision In re National M. & Exploring Co., 7 C. L. O. 179; Com'r to R. F. Long, 9 C. L. O. 188.

164. An applicant for patent to a mill site under the first clause of section 2337, United States Revised Statutes, must show title to the lode claim in connection with which it is claimed. Com'r to Hailey Office, July 3, 1896, In re Grouse Creek No. 2, Mill Site.

165. Patent will not issue for a lode claim divided into two non-contiguous parts by a patented mill site, but may be issued for the tract on which are situate the discovery and improvements. Andromeda Lode, 13 L. D. 146.

166. An applicant for a lode patent, by excluding conflict with a mill site, admits the non-mineral character of the land embraced therein, and if the assumed course of the lode is intersected by said mill site, the lode claimant may retain in his application only one of the non-contiguous parts of his claim. Michael Howard, 15 L. D. 504.

167. The use, in a mine, of timber growing upon land is not such a use of the land as will warrant entry thereof as a mill site appurtenant to the mine, under the first clause of section 2337, United States Revised Statutes. Two Sisters Lode and Mill Site, 7 L. D. 557.

168. An entry of a lode and mill site defective in that notice of application for patent

was not posted upon the mill site may be referred to the Board of Equitable Adjudication. New York Lode and Mill Site, 5 L. D. 513. (Overruling Bailey and Grand View M. & Sm. Co., 3 L. D. 386.)

169. To be enterable under the first clause of section 2337, United States Revised Statutes, a mill site must be actually used, as a present fact, for mining or milling purposes, in direct connection with the lode claim to which it is claimed to be appurtenant. Peru Lode and Mill Site, 10 L. D. 196.

170. Where a lode claim and a mill site appurtenant thereto are embraced in one survey and in one application for patent, the survey of the mill site need not be connected with a corner of the public surveys or a United States mineral monument, if connected with the survey of the lode claim; and in such case it is not incumbent upon the claimant to show an expenditure of $500 upon the mill site, its use or occupancy for mining or milling purposes in connection with the lode claim being sufficient to entitle claimant to ask for a patent therefor. Alta Mill Site, 8

L. D. 195.

(7) Town Site.

(See TOWN SITE, p. 451.)

Where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof; but nothing contained in this section shall be so construed as to rec

gnize any color of title in possessors for mining purposes as against the United States. Sec. 2386, U. S. Rev. Stat.

No title shall be acquired, under the foreof gold, silver, cinnabar or copper; or to any going provisions of this chapter, to any mine valid mining claim held under existing laws. Sec. 2392, U. S. Rev. Stat.

171. A known mining claim is excepted from a town site patent. Silver Bow M. & M. Co. v. Clarke, 5 Mont. 378; 5 Pac. Rep. 574; Butte Cite Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858; King v. Thomas, 12 | Pac. Rep. 865; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434. And may be patented to mineral claimant. Com'r to Denver Office, Nov. 16, 1895, Antediluvian Lode.

172. The owner of a town lot under a patent issued prior to 1872 has the absolute fee-simple title to all of the lot in which known mines did not exist. A mine-owner

has no right to tunnel or work on those portions of the lot where a mine does not exist. Dower v. Richards, 73 Cal. 477; 15 Pac. Rep. 105.

173. Upon a sufficient showing by an ap plicant for a lode within the limits of a patented town site, a hearing will be ordered to determine whether or not the lode was known to be valuable for mineral at date of townsite entry, with a view to the recommendation of suit to vacate the town site patent to the extent of the conflict, if such issue be decided in the affirmative. Thomas J. Laney, 9 L. D. 83; Plymouth Lode, 12 L. D. 513; Protector Lode, 12 L. D. 662; Pacific Slope, 12 L. D. 686; Cameron Lode, 13 L. D. 369.

174. If the owner of a lode claim within a patented town site secures a reconveyance of the conflict to the United States, he may show by affidavits the known existence of the lode at date of the town site entry, without going to a hearing for that purpose, as there could be no other party to such a hearing. Com'r to Denver Office, July 10, 1896, In re Dump Lode.

175. Where the applicant for patent for a lode claim situated within a patented town site shows such lode to have been known at the date of the town site entry, he may procure a reconveyance of the conflict by the town site to the United States, and thus reinvest the Land Department with jurisdiction to patent the claim. Pederson Lode v. Black Hawk Town Site, 14 L. D. 186.

176. A mining claim was worked until 1869, and was then abandoned. A town site patent issued in 1869 covering the claim. The claim was located subsequently, in 1884. Held, that the claim was not such a mine as would be excepted from the town site patent. Richards v. Dower, 151 U. S. 658; 81 Cal. 44; 22 Pac. Rep. 304.

177. To be reserved from entry under the town site laws, land must, at date of such entry, (1) be covered by a valid mining claim, and (2) be known to be valuable for mineral. Duffy Quartz Mine, 18 L. D. 259.

178. When application for patent is made for a lode claim embraced within a patented town site, the town site claimants should protect any rights they may have by filing an adverse claim and securing a judicial determination thereof. If they fail so to do the United States will not bring suit to vacate

the lode patent. Smoke House Lode, Butte City, 4 L. D. 555.

179. The Land Department in issuing a mineral patent should insert therein only terms of conveyance and a recital of compliance with the law. Deffeback v. Hawke, 115 U. S. 392; W. A. Simmons, 7 L. D. 283; Antediluvian Lode, 8 L. D. 602.

180. A lode to be excepted from a town site patent need not have been located at date of town site entry. It is excepted if known. Dower v. Richards, 73 Cal. 477; 15 Pac. Rep. 105.

181. A lode is located, but the location certificate is defective for uncertainty. A town site entry is then made. Then the location is amended. Two patents are issued. Held, that the location, being invalid, might not be amended after the intervention of adverse town site rights. Tombstone Town Site Case, 15 Pac. Rep. 26.

182. A town lot may be the subject of an adverse claim to land embraced within an application for patent for a lode claim. Papina v. Alderson, 10 C. L. O. 52.

183. It is no objection to the issuance of a patent for a lode claim that an application has been made for a town site embracing the ground, as mines cannot be acquired under the town site laws. South Comstock G. & S. M. Co., 2 C. L. O. 146.

(8) Agricultural Claim.

(See AGRICULTURAL CLAIM, p. 376.) 184. To be excepted from an agricultural patent, land must have been known to be more valuable for mineral than for agricultural purposes at date of agricultural entry. The development of mineral after such entry is immaterial. United States v. Reed, 12 Sawy. 99; 28 Fed. Rep. 486; Boggs v. Merced M. Co., 14 Cal. 380; 10 Mor. Min. Rep. 334; Hunt v. Steese, 75 Cal. 620; 17 Pac. Rep. 920.

185. One who applies for a patent for a lode claim situated in a school section may be allowed to show that the land was known to be mineral in character at the date of the admission of the state, and hence excepted from the grant to the state. Fleetwood Lode,

12 L. D. 604.

186. "A change in the conditions occurring subsequently to the sale, whereby new discoveries are made, or by means whereof

it may become profitable to work the veins as mines, cannot affect the title as it passed at the time of the sale. The question must be determined according to the facts in existence at the time of the sale. If upon the premises at that time there were not "known mines," capable of being profitably worked for their product, so as to make the land more valuable for mining than for agriculture, a title to them acquired under the pre-emption act cannot be successfully assailed." Colorado Coal & Iron Co. v. United States, 123 U. S. 307.

(9) Survey.

(See SURVEY, p. 137.)

187. The plat of survey of a lode claim must show all conflicts, and, unless such conflicts are shown, the survey should not be approved. Grand Dipper Dode, 10 C. L. O. 240. 188. The survey of a lode claim may be in the form of a triangle only when the presence of adjoining claims renders it necessary and when it is shown that the lode runs into the point of the angle. Fred. C. Morse, 5 C. L. O. 178.

189. The lines of a survey must necessarily conform to the course of the vein and not to congressional surveys. Reynolds v. Iron Silver M. Co., 116 U. S. 687.

(10) Cross Lodes.

(See CROSS VEINS, p. 354.)

190. Where two veins intersect, the prior locator takes the ore at the intersection, but the subsequent locator has a right of way through. Pardee v. Murray, 4 Mont. 234; 2 Pac. Rep. 16; 15 Mor. Min. Rep. 515.

191. Section 2336 was not intended to limit or define the rights of a person in mere possession of a tract of mining ground where there is more than one vein, or to prescribe the effect of a conveyance by the locator of a claim of a portion of his location containing one of such veins. The objects of the statute | were to supplement the provision of section 2322, and to prescribe rules under which different locations by different proprietors should be held, and to determine the rights of such proprietors in case of intersecting veins. Stinchfield v. Gillis, 107 Cal. 84; 40 Pac. Rep. 98. (Is another trial of S. C., 96 Cal. 33; 30 Pac. Rep. 839.)

(11) Strike.

(See SURVEY, p. 137.)

192. 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.

193. The location should be made along the strike of the vein. Patterson v. Hitchcock, 3 Colo. 523; 5 Mor. Min. Rep. 542.

194. A location of a mining claim upon a lode or vein of ore should be laid along the same, lengthwise of the course of its apex, as well under the mining act of 1866 as under that of 1872. If located otherwise, the location will only secure so much of the lode or vein as it actually covers. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607.

195. If the lode leaves the location at a point on a side line, the right to follow it on its strike ceases at the point of intersection of the lode with the side line. Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282; Johnson v. Buell, 4 Colo. 557; 9 Mor. Min. Rep. 502; McCornick v. Varnes, 2 Utah, 355; 9 Mor. Min. 505.

(12) End and Side Lines.

196. Extra-lateral rights of a patentee de pend upon the actual course and position of the vein; not on the course and position indicated on the patent survey. Consolidated Wyoming Co. v. Champion M. Co., 63 Fed. Rep. 540.

197. The statutory direction that the end lines of a lode claim must be parallel should be followed as a rule, but under peculiar circumstances an exception to the rule may be allowed. Wilson H. Henry (Sterling Price Lode), 10 C. L. O. 102.

198. 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 be

yond 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.

199. Where a lode leaves a claim through a side line, for the purpose of ascertaining and defining the right of the owner to follow the lode on its dip under section 2322, United States Revised Statutes, an end line should be drawn through the side line at the point of departure, parallel to the original end lines. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607; Iron Silver M. Co. v. Elgin M. & Sm. Co., 118 U. S. 196; 15 Mor. Min. Rep. 641; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478; Tyler M. Co. v. Last Chance M. Co., 157 U. S. 683. See 9 U. S. App. 613; 71 Fed. Rep. 848; Fitzgerald v. Clark, 157 U. S. 696; 42 Pac. Rep. 273; Colorado Central Cons. M. Co. v. Turck, 4 U. S. App. 290; 12 U. S. App. 85; 50 Fed. Rep. 888; Tyler M. Co. v. Sweeney, 4 U. S. App. 329; 54 Fed. Rep. 284; Last Chance M. Co. v. Tyler M. Co., 7 U. S. App. 463; 54 Fed. Rep. 284; 61 Fed. Rep. 557: Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557. See Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Law Rep. 304; Consolidated Wyoming Co. v. Champion M. Co., 63 Fed. Rep. 540; Del Monte M. & M. Co. v. New York & Last Chance M. Co., 66 Fed. Rep. 212; Carson City G. & S. M. Co. v. North Star M. Co., 73 Fed. Rep. 597; Wilhelm v. Sylvester, 101 Cal. 358; 35 Pac. Rep. 997; Tombstone M. & M. Co. v. Way Up M. Co., 24 Pac. Rep. 794; Watervale M. Co. v. Leach, 33 Pac. Rep. 418.

200. But where the claim is located across instead of along the lode, the side lines will be treated as end lines. King v. Amy & Silversmith M. Co., 152 U. S. 222; Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683.

201. A lode mining claim should be so surveyed as to leave no doubt as to which lines are to be considered as the end lines of the claim. Com'r to Surveyor-General of New Mexico, In re Sterling Price Lode, 10 C. L. O. 86.

202. Extra-lateral rights to work a lode other than the one specifically located are

governed by the end lines as located, in the same manner as the extra-lateral rights to work the lode located. Walrath v. Champion M. Co., 63 Fed. Rep. 552.

203. "Under the act of 1866 (14 Stat. 251),

parallelism in the end lines of a surface loca

tion was not required; but where a location has been made since the act of 1872, such parallelism is essential to the existence of any right in the locator or patentee to follow his vein outside of the vertical planes drawn through the side lines. His lateral right by the statute is confined to such portion of the vein as lies between such planes drawn through the end lines and extended in their own direction; that is, between parallel vertical planes. It can embrace no other portion." Iron Silver M. Co. v. Elgin M. & Sm. Co. (Horseshoe Case), 118 U. S. 196; 15 Mor. Min. Rep. 641.

204. Non-parallelism of the end lines will not defeat the right of the locator on the apex of a lode to follow the lode on its dip, if the end lines converge in the direction of the dip, as the non-parallelism in that case would only operate to restrict the rights of the claimant. Carson City G. & S. M. Co. v. North Star M. Co., 73 Fed. Rep. 597.

205. For the purpose of including ground claimed under a lode location valid when made, and any veins or lodes the tops or apexes of which may be situated thereon, the end line of the lode claim may be established within a patented placer claim under the same principle as is laid down in paragraphs 50 and 51 of the Mining Circular, for conflicting lode claims. Black Diamond Lode, 22 L. D. 284.

206. Where a mining claim is located across a vein or lode instead of along it, those lines of the claim are side lines which in their length show the length claimed along the vein or lode, and those lines of the claim intersected by the lode on its course or strike are the end lines. Argentine M. Co. v. Terrible M. Co., 122 U. S. 478. See case of Van Zandt v. Argentine M..Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441.

207. If a lode departs from the side line of a claim, the claimant may voluntarily abandon his claim beyond the point of such departure and establish an end line at that point. Last Chance M. Co. v. Tyler M. Co., 15 U. S. App. 456. See 157 U. S. 683.

(13) Apex and Dip.

(See SURVEY, p. 137.)

location is based, and to all other veins having their apexes in the location, with the right to follow the same on the dip between perpendicular planes passed through parallel end lines. Iron Silver M. Co. v. Cheesman, 2 McCrary, 191; 9 Mor. Min. Rep. 552; North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299;

v. Murray, 4 Mont. 234; 2 Pac. Rep. 16; 15 Mor. Min. Rep. 515.

211. Under the law prior to 1872, the locator was entitled to but one vein. After the act of 1872 he was entitled to all veins having their tops or apexes within his surface lines. Blake v. Butte S. M. Co., 2 Utah, 54; 9 Mor. Min. Rep. 503.

212. Although the act of 1872 enlarges the right of a locator by a grant of all veins, lodes and ledges the top or apex of which lie within his surface lines, his right 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.

213. 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.

214. 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. See 2 McCrary, 191; 9 Mor. Min. Rep. 552.

215. 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 Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441.

216. A location, properly made, gives the locator the right to the vein upon which the

217. A patent includes all veins having their tops or apexes within the surface patented. Iron Silver M. Co. v. Cheesman, 2 McCrary, 191; 9 Mor. Min. Rep. 552.

218. A claimant 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.

219. 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.

220. One owing a lode claim is presumed to own all mineral therein until 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 Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411.

221. Surface ground is not given a locator simply for 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 in 6 Colo. 581; 15 Mor. Min. Rep. 458.)

222. 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 Pac. Rep. 642; Cons. Wyoming M. Co. v. Cham- | pion M. Co., 63 Fed. Rep. 540. (Refusing to follow Bell v. Skillicorn, 28 Pac. Rep. 768.)

223. "The ownership of or title to a vein is determined by its top or apex; and although one may discover a vein within the limits of the ground claimed, yet if the top or apex of such vein lies without his claim, he will acquire no right thereto." Larkin v. Upton, 7