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to a placer (since patented) covering the lode, | tion is sustained, the lode claimant may make should apply for patent in the usual manner entry of his lode together with surface and allow the placer patentee to adverse ground necessary to the convenient working should he desire. Olathe Placer, 4 L. D. 494. thereof. Aurora Lode v. Bulger Hill & Nug293. The issuance of a placer patent will get Gulch Placer, 23 L. D. 95. not preclude the issuance of patent for a lode claim situate within the placer and known at date of application for the placer patent. Robinson v. Roydor, 1 L. D. 564.

294. Where a lode claim conflicts with a

placer, the lode discovery being outside of the conflict, there is no presumption of continuation of the lode into the placer ground. (Raunheim, placer claimant, filed application for patent, and gave notice. Dahl, lode claimant, did not adverse. Hence Dahl is estopped from questioning the validity of the placer claim.) Raunheim v. Dahl, 6 Mont. 167; 9 Pac. Rep. 892; 132 U. S. 260.

295. "Generally, when a ledge has been traced for such a distance, in a claim for this size, it would not be an unreasonable presumption that it would continue in the same di

rection far enough to cross the end lines of the claim." Carson City G. & S. M. Co. v. North Star M. Co., 73 Fed. Rep. 597.

296. In procuring a patent for a placer claim under section 2333, United States Revised Statutes, where the claimant is also in possession of a lode or vein included within the boundaries of his placer claim, the patent shall cover both, if he makes this known and pays $5 per acre for twenty-five feet on each side of his vein, and $2.50 per acre for the remainder of his placer claim. Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591.

297. After the issuance of a placer patent the Land Department will not assume that a lode was known to exist within the placer claim because of the fact that a lode claim was located therein prior to the placer application. The known existence of the lode at that date must be shown as a fact, by proof. Valley Lode, 22 L. D. 317.

299. Where entry is made of a lode claim in conflict with a patented placer claim, and it appears that the title under the placer patent, to the ground in conflict, is vested in the lode claimant, the known existence of the lode at date of the application for the placer patent may be shown by ex parte affidavits, as there could be no opposing party to render a hearing necessary. Valley Lode, 22 L. D. 713.

with a patented placer may be suspended to allow the lode claimant opportunity to show at a hearing that the lode was known at date of placer application, with view to the recommendation of suit to vacate the patent for the placer claim. Rebel Lode, 12 L. D. 683. (Modified in South Star Lode, 20 L. D. 204.)

300. The entry of a lode claim conflicting

301. Where an applicant for a lode patent shows the lode to have been known at the date of application for the patented placer, with which it conflicts, instead of incurring the expense of a suit by the United States to vacate the placer patent as to the conflict, the Land Department may accept a reconveyance of the land to the United States, which would re-invest the Department with jurisdiction over it. Juniata Lode, 13 L. D. 715.

302. Where it is ascertained by inquiry instituted by the Department, or determined by a court of competent jurisdiction, that a lode claim exists within the boundaries of land covered by a placer patent, and that such lode claim was known to exist at the date of application for such patent and was not applied for, it must be held that the land embraced in said lode claim is reserved from the operation of the conveyance by the general terms of exception therein, and that patent may issue therefor, if the law has been in other respects complied with. Case of Pike's Peak Lode, 14 L. D. 47. (Overruled, South Star Lode (review), 20 L. D. 204.)

298. A judicial award of the right of possession to an adverse placer claimant as against the applicant for patent for a lode 303. On a sufficient showing by the appliclaim does not preclude inquiry by the Land cant for a lode claim situated in a patented Department on an allegation of the lode placer, a hearing may be ordered to determine claimant that the placer claim, as subse- whether the lode was known at the date of quently applied for, embraces a known lode, the placer application, with the view of rec where it appears that the question was not ommending suit by the United States Attortried on the adverse suit; and if such allega-ney General to vacate the placer patent as to

the conflict. Pike's Peak Lode, 14 L. D. 47. (Modified by South Star Lode, 20 L. D. 204.)

304. An application for a lode claim in conflict with a patented placer may not be received by the Land Department as long as the placer patent remains outstanding. If the placer patent was issued upon false proofs, suit to vacate the same should be brought by the United States. Pike's Peak Lode, 10 L. D. 200. (Overruled by South Star Lode Case, 20 L. D. 204.)

305. The decision of the Department, In re Juniata Lode, 13 L. D. 715 (wherein the Department consented to accept a reconveyance of the part of a patented placer claim covered by a lode location, for the purpose of issuing patent for the lode claim without suit to vacate the placer patent), is not applicable

where it is desired to allow a lode patentee to reconvey a tract for the purpose of giving an unpatented lode claim its discovery. Winter Lode, 22 L. D. 302.

306. A judgment rendered on an adverse suit, awarding the surface of the ground in volved 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.

307. The validity of a placer patent and its extent, as to conflict with a lode alleged to have been known at date of application for the placer patent, are questions that may be determined only by the courts. Pike's Peak Lode, 10 L. D. 200. (Overruled in South Star Lode Case, 20 L. D. 204.)

308. The question of whether or not a lode was known to exist within a placer claim at date of the application for placer patent is always one for an ultimate decision by the courts. After the Land Department has issued a patent for the placer claim, its jurisdiction over the land patented has ceased, and the only way the title of the patentee can be impeached is by proper proceedings in court. Iron Silver M. Co. v. Campbell, 135 U. S. 286.

310. In the case of a known lode in a placer claim at date of the placer application for patent, and not included in the placer application, the rule which applies to all actions to recover possession of real estate applies, namely, that the plaintiff can only recover on the strength of his own title, and not on the weakness of defendant's title. Reynolds v. Iron Silver M. Co., 116 U. S. 687.

311. In an action by the patentee of a placer claim to recover possession of a vein or lode within its boundaries, an answer alleging that the vein or lode was known to the patentee to exist at the time of applying for the patent, and was not included in the placer ap

plication, well pleads the fact which, under

section 2333, United States Revised Statutes,

precludes the patentee from having any right

of possession of the vein or lode. Sullivan v. Iron S. M. Co., 109 U. S. 550.

312. The owner of a lode claim covered by an application for a placer patent is not obliged to adverse the placer application, for his claim is excepted from the operation of the placer patent by law. Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611.

313. Where an application for patent under the lode mining laws is made for land already patented to another under the placer mining laws, the provision of section 2326, United States Revised Statutes, does not require the placer patentee to adverse the ap plication for the lode claimant, as only those holding mining claims by possessory title are required to proceed under that law. Iron Silver M. Co. v. Campbell, 135 U. S. 286.

314. A dispute between mining claimants, one claiming the land as a lode claim and the other as a placer claim, must be settled in court, as the determination of such controversies is not within the jurisdiction of the Land Department. Com'r to C. Dodson, April 10, 1891.

315. 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, 1 L. D. 551; 3 L. D. 388. (Modified in South Star Lode, 20 L. D. 204.) 309. A placer patentee cannot be called 316. Where application for a placer patupon to defend his title against a lode claim-ent was made and no adverse claim filed by ant before the Land Department. Iron Silver a lode claimant, and subsequently the lode M. Co. v. Campbell, 135 U. S. 286. 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 middle of the lode. Monroe Lode, 4 L. D. 273.

317. A placer claimant may file an adverse against the application for patent to a lode claim conflicting with the placer claim. Bennett v. Harkrader, 158 U. S. 441.

318. In Montana, suits are entertained, based on adverse claims filed by lode claimants against an application for a placer patent. Hopkins v. Noyes, 4 Mont. 550; 2 Pac. Rep. 280; 15 Mor. Min. Rep. 287; Railroad Lode v. Noyes Placer, 9 L. D. 28.

319. The Colorado courts entertain adverse suits brought by lode claimants against placer applicants. Alice Placer, 4 L. D. 314.

324. A lode claimant claiming a conflict with another lode claim must, to recover, show that his lode extends through the conflict. Zollars & Highland Chief Cons. M. Co. v. Evans, 2 McCrary, 39; 4 Mor. Min. Rep. 407; Van Zandt v. Argentine Mining Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441.

. . The

325. "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. boundaries to prospect for mineral veins, and prospector cannot go within such surface his act, if he do so, is as much trespass as though the land was patented." Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.)

326. "A person who makes a valid location of a mineral ledge or lode, and complies 320. Where a placer patentee has filed an with the laws and the local mining rules in adverse claim against the application for pat-respect thereto, obtains a vested right to such

ent for a lode claim within the placer and has begun suit thereon, the Land Department will take no action, but will leave the parties to secure a determination of their rights in court. Iron Silver M. Co. v. Mike & Starr M. Co., 6 L. D. 533.

321. A placer applicant will not be allowed to amend his application for patent so as to embrace therein a lode discovered before the filing of such application, as the failure to embrace the same in the placer application in the first instance was, under the law, a conclusive waiver of all claims to the lode. Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95.

322. A mere intent to get a lode in a placer, if it be not known to exist, is immaterial. Iron Silver M. Co. v. Reynolds, 124 U. S. 374.

(15) General.

323. "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 mining laws, local and statutory. It must, under the law of congress of 1872 (Rev. Stat., sec. 2320), be located upon at least one known vein or lode, but the vein or lode is not the whole claim." Mt. Diablo M. & M. Co. v. Callison, 5 Sawy. 439; 9 Mor. Min. Rep. 616.

property, of which he cannot be divested." Blake v. Butte S. M. Co., 2 Utah, 54; 9 Mor. Min. Rep. 503.

327. As claims located prior to 1872 were for one vein only, an application for a claim in conflict with another need not be adversed by the owner of such other claim to protect his rights, if such claims were located on different lodes. Blake v. Butte S. M. Co., 2 Utah, 54; 9 Mor. Min. Rep. 503.

328. The name by which a lode is conveyed is immaterial if the property may be identified from the description given in the deed. Lebanon M. Co. v. Cons. Republican Mtn. M. Co., 6 Colo. 380; Phillpotts v. Blasdell, 8 Nev. 61; 4 Mor. Min. Rep. 341.

329. The statutes of Montana which regulate the descent and distribution of real property are applicable to quartz lodes. Carhart v. Montana Mineral, etc., 1 Mont. 245.

330. In the absence of an adverse claim, it will be assumed that a lode exists in land entered as a lode claim on regular proof. Apple Blossom Placer v. Cora Lee Lode, 21 L. D. 438.

331. 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.

332. The locators of a vein or lode may not amend their location because of a change in the course of the vein located, so as to interfere with the vested rights of another location. O'Reilly v. Campbell, 116 U. S. 418.

333. A person in possession of a vein or lode can only be deprived of that possession by a superior title. Iron Silver M. Co. v. Cheesman, 116 U. S. 529.

339. Whatever is recognized as mineral by the standard authorities, where the same occurs in quantity and quality to render the land in question more valuable on its account than for agricultural purposes, is mineral within the meaning of the mining laws. W. H. Hooper, 1 L. D. 560.

340. In addition to those named in the statute, the following minerals are enterable under the mineral land laws: Gypsum, limestone, asphaltum, borax, auriferous cement, de-fire-clay, kaolin, mica, marble, petroleum, slate nized as mineral by standard authorities. and other valuable deposits which are recogCom'r to Bernard Snow, July 22, 1893.

334. On an adverse suit, if the defendant shows a prima facie good location, the plaintiff must either show a better one, or that fendant's lode does not extend into the ground

in conflict. Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542.

335. The location of a vein or lode as running in a certain direction, not marked or developed for years but simply indicated by a notice, is invalid as against a claim subsequently located on ground different from that indicated, after the development of the latter claim without objection, although subsequent explorations by the first locators disclose the fact that their vein in its true course covers the subsequent claim. O'Reilly v. Campbell, 116 U. S. 418.

336. "Generally, when a ledge has been traced for such a distance, in a claim of this size, it would not be an unreasonable presumption that it would continue in the same direction far enough to cross the end lines of the claim." Carson City G. & S. M. Co. v. North Star M. Co., 73 Fed. Rep. 597.

3. Minerals.

337. Those specifically named in the statute: Gold, silver, cinnabar, lead, tin and copper. Copper and cinnabar are to be entered as lodes. Com'r to J. E. Morgan, Aug. 26, 1871; Sickel's Min. Dec. 523. Tin appears as a lode deposit. Grosfield v. Nigger Hill Cons. M. Co., 14 L. D. 685.

338. Other valuable deposits: The latest decision by the Land Department as to what constitutes mineral land within the purview of chapter 6 of title XXXII, United States Revised Statutes, is that contained in Commissioner's decision of October 2, 1896, In re Aldritt v. N. P. R. R. Co. (Bozeman, Mont., Land District), and holds in plain terms that, to be open to exploration and purchase under the mineral land laws, land must contain metalliferous

minerals.

341. Varieties of, considered. Eureka Cons. M. Co. v. Richmond M. Co., 4 Sawy. 302; 9 Mor. Min. Rep. 578.

342. All minerals, except coal and iron, are excepted from grants to railroads. Com'r to W. A. Arnold, 2 C. L. O. 131.

Minerals in Michigan, Wisconsin and Minne

sota excepted from the operation of the mineral laws.

The provisions of the preceding sections of this chapter shall not apply to the mineral lands situated in the states of Michigan, Wisconsin and Minnesota, which are declared free and open to exploration and purchase, according to legal subdivisions, in like manner as before the tenth day of May, eighteen hundred and seventy-two. And any bona fide entries of such lands within the states named since the tenth of May, eighteen hundred and seventy-two, may be patented without reference to any of the foregoing provisions of this chapter. Such lands shall be offered for public sale in the same manner, at the same minimum price, and under the same rights of pre-emption as other public lands. 17 Stat. 465; sec. 2345, U. S. Rev. Stat.

Minerals in Missouri and Kansas excepted from the operation of the mineral laws. AN ACT to exclude the states of Missouri and Kansas from the provisions of the act of congress entitled "An act to promote the development of the mining resources of the United States, approved May tenth, eighteen hundred and seventy-two.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That within the states of Missouri and Kansas deposits of coal, iron, lead, or other minerals be, and they the act entitled "An act to promote the deare hereby, excluded from the operation of velopment of the mining resources of the United States," approved May tenth, eighteen said states shall be subject to disposal as hundred and seventy-two, and all lands in agricultural lands.

Approved May 5, 1876. (19 Stat. 52.)

Mineral lands in Alabama excepted from the

operation of the mining laws.

AN ACT to exclude the public lands in Alabama from the operation of the laws relating to mineral lands. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That within the state of Alabama all public lands, whether mineral or otherwise, shall be subject to disposal only as agricultural lands: Provided, however, that all lands which have heretofore been reported to the General Land Office as

containing coal and iron shall first be offered at public sale: And provided further, that any bona fide entry under the provisions of the homestead law of lands within said state heretofore made may be patented without reference to an act approved May tenth, eighteen hundred and seventy-two, entitled, "An act to promote the development of the mining resources of the United States," in cases where the persons making application for such patents have in all other respects complied with the homestead law relating thereto.

Approved March 3, 1883. (22 Stat. 487.)

343. Mineral lands in Oklahoma Territory are excepted from the operation of the mining laws. Section 16 of act approved March 3, 1891 (26 Stat. 1026).

344. The term mineral "includes all fossil bodies or matters dug out of mines." Rosse v. Wainman, 14 M. & W. 859; McGlenn v. Wienbroeer, 15 L. D. 370.

Agate (Moss): Land containing, is mineral
land if it is most valuable therefor.
to P. M. Gill, Oct. 8, 1894.

Com'r

cular, July 15, 1873, 1 C. L. O. 11: Maxwell v. Brierly, 10 C. L. O. 50; Com'r to H. Poole, Feb. 7, 1882. Regulations governing entry of, 1 L. D. 561.

Considered a mineral in New Brunswick. Gisner v. Gas Co., 1 Nova Scotia, 72; 2 Allen (N. B.), 595.

(Placer.) Auriferous Cement: Is mineral. Conlin v. Kelly, 12 L. D. 1; Maxwell v. Brierly, 10 C. L. O. 50; Com'r to T. N. Stoddard, Copp's Min. Lands, 83.

Auriferous Clay (see Clay): Is a mineral.

(Placer.)

Bituminous Shale: The General Land Office
will express no opinion in advance of the
submission of an actual case requiring a
decision. Definitions of shale. Com'r to
O. P. Shakspeare, Aug. 7, 1893.
Black Lead (see Graphite).
Bog Iron (see Iron): Is not a mineral.
Borax, Carbonate of Soda, Nitrate of Soda,
Sulphur, Alum, and Asphalt: Lands con-
taining, to be enterable under the mineral
land laws, must be affirmatively shown to
be more valuable therefor than for agri-
cultural purposes. Departmental Circular
of Jan. 30, 1883, 1 L. D. 561. (Regulations
governing entry of.)

Borax: Is a mineral. (Placer.) Downey v.
Rogers, 2 L. D. 707; Conlin v. Kelly, 12 L. D.
1; Circular, July 15, 1873, 1 C. L. O. 11; Max-
well v. Brierly, 10 C. L. O. 50.
Brick Clay (see Clay).
Building Stone (see Stone).

Albertite (see Asphaltum): Is a mineral. Com'r Carbonate of Soda (see Soda).
to Secretary Noble, April 12, 1892.
Alkaline Earths: Are mineral. Regulation
governing entry of, 1 L. D. 561.

Alum: Is a mineral. Downey v. Rogers, 2
L. D. 707; Circular, July 15, 1873, 1 C. L. O.
11. Regulations governing entry of, 1 L. D.
561.

Aluminium: Is too common a deposit to be
considered a mineral patentable under the
mineral land laws. Jordan v. Idaho Alu-
minium M. & Mfg. Co., 20 L. D. 500.
Amygdaloid Bands: Are mineral. Circular,
July 15, 1873, 1 C. L. O. 11.
Asbestus: The General Land Office will express
no opinion, in advance of the submission of
an actual case, as to whether or not asbestus
is a mineral. Com'r to P. F. Lull, May 19,
1893.

Asphaltum (see Gilsonite and Albertite): Is a
mineral. (Placer.) Downey v. Rogers, 2
L. D. 707; Conlin v. Kelly, 12 L. D. 1; Cir-

Clay: Auriferous clay is a mineral. Maxwell v. Brierly, 10 C. L. O. 50.

Ordinary clay is not a mineral. Com'r to Helena office, Feb. 19, 1891, 18 C. L. O. 15.

Brick clay is not a mineral. Departmental decision of June 19, 1888, In re Blake Placer. S. C. on review, Jan. 17, 1889, Dunluce Placer, 6 L. D. 761.

Fire-clay - Kaolin, are minerals. (Placer.) Dobbs Placer, 1 L. D. 565; Dunluce Placer, 6 L. D. 761; Conlin v. Kelly, 12 L. D. 1; Clark v. Ervin, 17 L. D. 550; Maxwell v. Brierly, 10 C. L. O. 50; Rex v. Brettell, 3 B. & Ad. 424; Com'r to J. D. M. Crockwell, 2 C. L. O. 66.

Instructions relative thereto. Com'r to Helena office, Feb. 19, 1891, 18 C. L. O. 15. Kaolin, how located. Dobbs Placer, 1 L. D. 565.

Potter's clay is not a mineral. Departmental decision of Oct. 7, 1892. Com'r to

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