of the judicial tribunals to determine; yet, in cases where mining locations cross each other, and there is reason to believe that a contest may arise in future, the rights of neither of the parties in interest should be prejudiced prior to a judicial determination thereof by the intersection of unnecessary habendum or reddendum clauses in the patent.

In this case the Camp Bird company has not entered and is not asking for a patent for the surface ground embraced in the Adlaide claim at the point of intersection of the two claims, yet its vein may extend through the ground belonging to the Adlaide and still not intersect with the Adlaide vein. In that event, the right of the Camp Bird owners to pursue said vein through the ground of the Adlaide at the point of intersection of the two claims is vested by law, and ought not to be limited by the patent; while on the other hand the right of the owners of the Adlaide to pursue their vein is equally well protected by the statute, and should not be prejudiced by the grant of the Camp Bird company.

Under the circumstances of this case, the only way by which the interests of both parties can be fully protected is by making the excepting clause in favor of the Adlaide company as broad as the granting clause to the Camp Bird company; for, by so doing, both will receive all that the law gives them, and neither will have any legal advantage.

It is a familiar principle of law that a reservation in a reddendum clause in a deed by a grantor, to be valid, must be made to one of the grantors and not to a stranger to the deed: 2 Bl. Com. 299; Co. Lit. 47; Fouchs, 80; Cruise Dig., tit. 32,c. 24, sec. 1; and I am therefore of the opinion that the exception should be contained in the habendum clause. Form of reservation.

The following form will, in my opinion, fully protect the interests of both parties, viz.:

"Have given and granted, and by these presents do give and grant unto the said Patrick Gallagher and Charles Gallagher, and to their heirs and assigns, the said mining premises herein before described as with the exclusive right of possession and enjoyment of all the land included. within the exterior lines of said survey not herein expressly excepted from these presents, and of linear feet of the said Camp Bird vein, lode, ledge, or deposit, for the

length herein before described, throughout its entire depth, although it may enter the land adjoining, and also of all other veins, lodes, ledges, or deposits throughout their entire depth, the top or apexes of which lie inside the exterior lines of said survey at the surface extended downward vertically, although such veins, lodes, ledges, or deposits in their downward course may so far depart from a perpendicular as to extend outside the side lines of said survey: Provided, That the right of possession hereby granted to such outside parts of said veins, lodes, ledges, or deposits shall be confined to such portions thereof as lie between vertical planes drawn downward through the end lines of said survey at the surface, so continued in their own direction that such vertical plane will intersect such exterior parts of said veins, lodes, ledges, or deposits, excepting and excluding, however, all that portion of said surface ground embraced by mineral survey No. 254 of the Adlaide mining claim; and also excepting and excluding all veins, lodes, ledges, or deposits, the top or apex of which lies inside of the exterior lines of said Adlaide survey at the surface extended downward vertically, or which have been therein discovered or developed: Provided, That nothing contained in this grant is intended to interfere with the legal rights of said claimants in case said veins are found on exploration to intersect with each other."

Inasmuch as the owners of the Adlaide lode failed to file an adverse claim and commence suit within the period prescribed by law, I am of opinion that your ruling that they were entitled to the right of appeal, as parties in interest,

was erroneous.

Your decision is modified in accordance with the views above expressed, and the papers transmitted with your letter of March 24, 1879, are herewith returned.

Very respectfully,

C. SCHURZ, Secretary.

The Commissioner of the General Land Office.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., July 25, 1879.

SIR: Referring to my decision of the twenty-first instant, in the matter of the application of Patrick Gallagher and

Charles Gallagher for a patent of the Camp Bird mining claim No. 130, of the survey No. 237, in the California mining district, Fairplay land district, Colorado, you are hereby instructed to insert in the form prescribed in said decision the words "fifteen hundred," so as to make the clause read as follows: * * * "with the exclusive right of possession and enjoyment of all the land included within the exterior lines of said survey not herein expressly excepted from these presents, and of fifteen hundred linear feet of said Camp Bird vein, lode, ledge," etc. * * *

Very respectfully,

C. SCHURZ, Secretary.

The Commissioner of the General Land Office.

No. 27. Case in which adverse claim was sought to be filed where there was no surface conflict of claim.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., November 22, 1879.

Register and Receiver, Salt Lake City, Utah.

GENTLEMEN: I am in receipt of your letter of the thirteenth instant, transmitting papers in the matter of the adverse claim of John T. Gilmer, Monroe Salisbury, and Orange J. Salisbury, owners of the Saratoga lode, of which entry has been made, against the application for patent to the Bulldozer mining claim, made July 30, 1879, by S. H. Wooster et al.

Said adverse claim was filed during the period of publication, and the ground upon which it is based is, briefly stated, as follows: The Saratoga lode lies nearly parallel to the Bulldozer, for a distance of about one thousand one hundred and fifty feet, and at the nearest point their side lines are about three hundred feet apart. The owners of the Saratoga claim allege that their lode dips under the Bulldozer, and is in fact the lode upon which the Bulldozer, a subsequent location, was located. No conflict of surface ground is alleged.

Motion was made by applicants for patent to dismiss said. adverse claim, which motion was granted, and the case comes before this office from such action.

Reason for rejection.

Your order dismissing said adverse claim is approved, for the reason that there is no conflict of surface ground, and that the land outside the Saratoga lode will be sold, subject to the right of the Saratoga owners to follow the dip of their vein under it, and extract their ore.

United States mining patent contains provision granting right to follow dip or vein.

Such condition is inserted in proper form, in every patent for lode claims. It is a perfect protection for all rights such as are claimed by the adverse claimants in this case, and granted under section two thousand three hundred and twenty-two, Revised Statutes. The same condition, in favor of adjoining owners, will be inserted in the patent to the Saratoga lode, when issued. There is nothing in the statute prohibiting, either expressly or by implication, the sale of land adjoining any mineral claim, patented or otherwise. To the contrary, it is distinctly contemplated that adjoining land may be patented to and owned by other parties, and the rights of the owner of a lode or vein which dips under the surface ground of an adjoining claim are clearly defined. The adverse claim now in question is in fact based upon the proposition that parties other than the owners of the Saratoga lode have not the right to locate, and that this office has not the right to sell claims adjoining the Saratoga survey, because its lode may dip under the claims so located and sold. The nature of this proposition is not such as constitutes an adverse claim within the meaning and intent. of the law. The statute protects, by its operation, the very interests sought to be defended by the adverse claim.

Statute contemplates surface boundaries.

By reference to section two thousand three hundred and twenty-six, Revised Statutes, it will be seen that "boundaries and extent" of adverse claims must be shown before they can be entertained. The statute unquestionably contemplated surface boundaries. Locations, the records of same, surveys, and patents are all predicated upon surface measurements. The boundaries and extent of the adverse claim, which are required to be shown, can not be construed to refer to the underground limits to which possibly or

probably the claim may be shown, after development, to extend; and the statute provides for rights under the surface in another manner. Duly notify all parties hereof, allow sixty days for appeal, and report action to this office. Very respectfully,

J. M. ARMSTRONG, Acting Commissioner.

No. 28. ACT OF 1866.

The right to follow a vein under adjoining land does not create a "controversy" or "opposing claim" under the second section, nor an adverse claim under the third section.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., February 24, 1873. SIR: I have considered your decision, rendered May 27, 1872, in the matter of the application of the Julia Gold and Silver Mining Company for patents for the Julia, Scheel, La Cata, South-east Extension of the Hale and Norcross, and the Sarah Ann lodes in Nevada.

The facts are as follows:

On the thirtieth September, 1871, applications for patents for these claims were filed in the Register's office, at Carson City, Nevada, and notice was given in the usual manner, for ninety days. On the twentieth of December, 1871, and before said ninety days had expired, Mr. Isaac L. Requa, in behalf of the Chollar Potosi Mining Company, filed, in behalf of said company, a protest against issuing patents for said claims, on the ground that, on the fourth of February, 1870, a patent had been issued to said Chollar Potosi Mining Company for their claim on the Comstock lode; that they are still the owners of the property described in said patent; that said lodes, for which the Julia Gold and Silver Mining Company has made application for patents, are the same which underlie the ground embraced in the patent issued to this Chollar Potosi Mining Company; and that underlying the land claimed by the Julia Company, there exists no other vein, lode, or lodes, than such as are embraced in the patent to the Chollar Potosi Company. Wherefore, the Chollar Potosi Company pray that all proceedings may be stayed until the rights of the respective parties shall have been adjudicated in the proper local courts.