introduced the receiver's receipt for the entry thereof, it is admissible for the defendants to prove by decisions of the Land Department that the entry had been canceled and set aside on the protest against the issuance of patent. Murray v. Polglase, 17 Mont. 455; 43 Pac. Rep. 505.

11. Ejectment.

(See ADVERSE and SUIT, pp. 284 and 445.) 151. In ejectment, possession by plaintiff is prima facie evidence of legal title, and is sufficient as against a mere trespasser. Campbell v. Rankin, 99 U. S. 261; 12 Mor. Min. Rep.

257.

152. In an action of ejectment the legal title must prevail. The patent of the United States passes that title. Steel v. St. Louis Sm. Co., 106 U. S. 447.

153. Defendant in ejectment suit involving a mining claim may prove plaintiff's title to have been lost by abandonment of the claim, under a general denial of plaintiff's title. Bell v. Brown, 22 Cal. 671; 5 Mor. Min. Rep. 240. 154. In an ejectment suit where plaintiff shows title by patent for a mining claim, and defendant admits possession for town site purposes, plaintiff is entitled to judgment without showing that the surface is necessary to the working of his mine. Abbott v. Primeaux, 16 Nev. 361.

155. The rule in ejectment that plaintiff must recover on the strength of his own title, not on the weakness of that of his adversary, is not applicable to suits for possession of mining claims, the question there being which one has the better right. Strepy v. Stark, 7 Colo. 614; 5 Pac. Rep. 111; 4 West Coast Rep.

158. There can be no color of title in an occupant of land who does not hold under an instrument or proceeding of law purporting to transfer the title or to give the right of possession. Nor can good faith be affirmed of a party holding adversely where he knows that he has no title, and that under the law, which he is presumed to know, he can acquire none. So held, where, in an action of ejectment for known mineral land by the holder of a patent of the United States, the occupant set up a claim to improvements made thereon under a statute of Dakota, which provides that, "in an action for the recovery of real property, upon which permanent improvements have been made by a defendant or those under whom he claims, holding under color of title, adversely to the claim of plaintiff, in good faith, the value of such improvements must be allowed as a counter-claim by such defendant," he not having taken any proceedings to acquire the title under laws of Congress authorizing the sale of such lands, or to acquire the right of possession under the local customs or rules of miners of the district. Deffeback v. Hawke, 115 U. S. 392.

12. Grant.

(See GRANT, p. 364.)

159. Under a grant of school lands, "The State's title vests, if at all, at the date of the completion of the survey (Cooper v. Roberts, 18 How. 173; Virginia Lode, 7 L. D. 459); and, if the land, although in reality mineral, was not then known to be mineral, the subsequent discovery of its mineral character would not devest the title which had already passed." Abraham L. Miner v. State of California, 9

L. D. 409.

160. A person claiming under a mineral location, to be entitled to the possession as against one claiming under a patent to a railroad company, must show that at date of such patent the land was known to be more valuable for mining than for agricultural purposes, and in determining the relative value for such purposes, subsequent changes cannot be considered. Hunt v. Steese, 75 Cal. 620; 17 Pac. Rep. 920.

161. In determining controversies between parties on the public domain, where neither can have absolute rights, it is a convenient rule to presume a grant from the government, of mines, water privileges and

the like, to the first appropriator; but such a presumption is without force as against the superior proprietor. Boggs v. Merced M. Co., 14 Cal. 279 (1859-60); 10 Mor. Min. Rep. 334; S. C., 3 Wall. 304.

13. Location.

(See LOCATION, p. 77.) 162. “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 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 such 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.

163. "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. If, when one enters on land to make a location there is another location in full force, which entitles its owner to the exclusive possession of the land, the first location operates as a bar to the second." Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482; Wills v. Blain, 4 New Mex. 378; 20 Pac. Rep. 795.

164. The valid location of a mining claim is a grant from the government to the person making the location. The location is the inception of the grant, and the patent is its consummation. The grant is kept alive by representation (work). A failure to represent forfeits the grant, and makes void the title acquired by location, and the ground thereupon becomes again subject to location and purchase. 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. See 130 U. S. 291.

tional 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 (Op. 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.

166. A legal location of a mining claim upon the unappropriated public domain confers a vested right in the locator of which he cannot be divested by any subsequent act of the Executive Department of the government. Fort Maginnis Case (Op. Atty. Gen.), 1 L. D.

552.

167. The owner of a valid location is entitled to its exclusive use and possession, and a stranger who enters thereon for the purpose of mining, cutting timber or otherwise interfering with the owner's use or possession is a trespasser. Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240. See, also, Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 489.

168. Under the mining laws of Congress every valid location of a mining claim is accompanied by the right to the exclusive possession and enjoyment of the soil of such claim. This right is not a mere easement. Upon complying with the terms and conditions of said laws the locator may have an absolute conveyance of the property. Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434.

169. The right to a mining claim vests by the taking thereof in accordance with local rules. McGarrity v. Byington, 12 Cal. 426; 2 Mor. Min. Rep. 311 (1859); Dutch Flat Water Co. v. Mooney, 12 Cal. 534 (1859).

171. 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.

172. Under existing legislation the owner of a mining claim has a good vested title and should be treated accordingly until the same is divested by the true owner. Merced M. Co. v. Fremont, 7 Cal. 317 (1857).

173. "A person who makes a valid location of a mineral ledge or lode, and complies with the laws and the local mining rules in respect thereto, obtains a vested right to such property, of which he cannot be divested." | Blake v. Butte S. M. Co., 2 Utah, 54; 9 Mor. Min. Rep. 503.

174. Claimants under the mining laws have, as against every one but the United States, a vested right of property. Hughes v. Devlin, 23 Cal. 501; 12 Mor. Min. Rep. 241.

175. One cannot locate ground of which another is in actual possession under claim or color of right, because such ground would not be vacant and unoccupied. Eilers v. Boatman, 3 Utah, 159; 2 Pac. Rep. 66; 1 West Coast Rep. 632; 15 Mor. Min. Rep. 462; S. C., 111 U. S. 356; 15 Mor. Min. Rep. 471.

176. Unauthorized underground working of a lode will not prevent its location by the discoverer of the apex, as "the possession of a vein recognized by the mining laws and to which protection is given, is by one who holds the surface where the vein makes its apex." Eilers v. Boatman, 3 Utah, 159; 2 Pac. Rep. 66; 1 West Coast Rep. 632; 15 Mor. Min. Rep. 462; S. C., 111 U. S. 356; 15 Mor. Min. Rep.

471.

177. The discovery and location of a claim in pursuance of the law is equivalent to a contract of sale and purchase where the purchaser is let into possession and becomes entitled to a deed upon payment of purchasemoney and making of a certain expenditure. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345.

178. Locators of mining claims, so long as they comply with the law, have the "exclusive

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.

179. Title acquired by a valid location is presumed to continue in the absence of allegation and proof to the contrary. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345.

180. 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.

181. Failure to complete a location within the time allowed by State statute may be excused by the wrongful adverse possession of the claim by third persons. Erhardt v. Boaro, 2 McCrary, 141; 1 Mor. Min. Rep. 452. See 113 U. S. 537, to same effect.

182. "The object of any notice at all being to guide a subsequent locator and afford him information as to the extent of the claim of the prior locator, whatever does this fairly and reasonably, should be held a good notice. Great injustice would follow, if, years after a miner had located a claim and taken possession and worked upon it in good faith, his notice of location were to be subjected to any very nice criticism." Mt. Diablo M. Co. v. Callison, 5 Sawy. 439; 9 Mor. Min. Rep. 616.

183. A location notice is not of itself evidence of legal possession, but is evidence of one step taken to acquire such possession. Thompson v. Lee, 8 Cal. 276; 1 Mor. Min. Rep.

610.

184. 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.

185. Locations of lodes or veins within placer claims, when perfected under the law, are the property of the locators or their assigns, and are not, therefore, subject to disposal of the government. Sullivan v. Iron Silver M. Co., 143 U. S. 431. (Citing and quoting Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510.) See 3 Mont. 65.

186. The locator of a mining claim who maintains his location has the sole right of

187. Where one of two discoverers acquired the right of the other, and erased the name of the other from the location notice, and remained in sole possession, the alteration of the notice did not amount to an abandonment of the original location. Omar v. Soper, 11 Colo. 380; 18 Pac. Rep. 443; 15 Mor. Min. Rep. 496.

188. One who locates a stone placer has title to all other minerals in the claim. Freezer v. Sweeney, 8 Mont. 508; 21 Pac. Rep.

20.

189. The fact that ground not located is used for depositing tailings by one party will not reserve it from location by another. O'Keiffe v. Cunningham, 9 Cal. 589; 9 Mor. Min. Rep. 451.

14. Lode - Placer.

(See VEIN and PLACER, pp. 6 and 321.) 190. The title to all veins or lodes within a placer claim, known to exist at date of the placer application for patent and not included in such application, remains in the United States, and the placer patentee or his grantees have no right to dispossess any one in the peaceable possession of such vein or lode, whether the latter have any title or not. Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591.

191. The identity of the vein outside of the side lines with that inside the lines is essential to the possession and pursuit thereof outside such lines. So long as the inclosing walls can be distinctly and continuously traced and the mineral matter of the same character found between them, there can be

no doubt that it is the same vein; but if the

mineral disappears, or the fissure with its walls of the same rock disappears, the identity can no longer be traced; then the right to follow the vein outside the perpendicular lines of the survey is lost. Iron Silver M. Co. v. Cheesman, 116 U. S. 529.

192. 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

U. S. 286.

193. Where an application for patent under the lode mining laws is made for land already patented to another under the placer mining laws, the provisions of section 2326, United States Revised Statutes, do not require the placer patentee to adverse the application of 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.

194. 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; 15 Mor. Min. Rep. 591.

195. "The discovery by the defendant of the Dahl lode two or three hundred feet outside of those boundaries does not, as observed by the court below, create any presumption of the possession of a vein or lode within those boundaries, nor, we may add, that a vein or lode existed within them." Dahl v. Raunheim, 132 U. S. 260.

199. Mines of precious metals belong to the political sovereignty. Gold Hill Quartz M. Co. v. Ish, 5 Oreg. 104; 11 Mor. Min. Rep. 635; 7 Op. Atty. Gen. 636.

200. Mines under Mexican laws, whether in public or private lands, belong to the supreme government. Castillero v. United States, 2 Black, 1.

201. As a general rule the public mineral lands of California are open to the occupancy of every person who, in good faith, chooses to enter upon them for the purpose of mining. Smith v. Doe, 15 Cal. 100 (1859–60).

202. The general course of legislation in California authorizes the inference of a license from her to the miner to enter upon lands and remove the gold, so far as she has any right; but this license is restricted to the public lands. Boggs v. Merced M. Co., 14 Cal. 279; 10 Mor. Min. Rep. 334 (1859–60); S. C., 3 Wall. 304.

203. There is no license from the United States, or the State of California, to miners to enter upon the private lands of individuals for the purpose of extracting the mineral in the soil. Boggs v. Merced M. Co., 14 Cal. 279; 10 Mor. Min. Rep. 334 (1859-60); S. C., 3 Wall. 304; Henshaw v. Clark, 14 Cal. 460 (1859-60).

204. The United States have not conveyed or dedicated the minerals in public land to individuals or the public. United States v. Parrott, 1 McAll. 271.

205. State legislation and judicial decisions have recognized a qualified ownership of mines in private individuals. State v. Moore, 12 Cal. 56; 14 Mor. Min. Rep. 110 (1859).

206. The statement that miners have a general license to work mines on public lands is inaccurate. Congress has adopted no specific action on the subject. The supposed license consists in the simple forbearance of the general government. Boggs v. Merced M. Co., 14 Cal. 279; 10 Mor. Min. Rep. 334 (185960); S. C., 3 Wall. 304.

207. Previous to 1866 a miner on public land was merely a licensee. Gottschall v. Melsing, 2 Nev. 185; 1 Mor. Min. Rep. 667.

209. Congress recognized the possessory right of miners under the rules of the mining districts, but in doing this it has not parted with its title to the land. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183.

210. The act of July 26, 1866, is held to be a confirmation of pre-existing rights which the government had by its policy heretofore recognized. Broder v. Natoma Water & M. Co., 101 U. S. 274; 50 Cal. 621; 4 Mor. Min. Rep. 670; 5 Mor. Min. Rep. 33; Jennison v. Kirk, 98 U. S. 453. (Affirming Titcomb v. Kirk, 51 Cal. 288; 5 Mor. Min. Rep. 10.)

211. Under the 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 mere 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.

212. Under the Spanish and Mexican laws an ordinary grant of lands by the government conveyed no title to the mine and minerals within the bounds of the tract granted. These remain a portion of the public domain. 1 Heathfield, Gamboa, 136-138; Ordinances of 1783, Title V; Halleck's Collection, pp. 222, 223; also, Title VI, Art. 14, Halleck's Collection, p. 228; Castillero v. United States, 2 Black, 1.

213. One person may own the surface and another the mine, and different persons may own different strata or minerals under the same land. Stewart v. Chadwick, 8 Clarke, 463; Adam v. Briggs Iron Co., 7 Cush. 361; Ryckman v. Gillis, 57 N. Y. 68; 15 Am. Rep. 464.

17. Mining Claims.

(See MINING CLAIMS, p. 1.)

214. Mining claims held by possessory title are property in the fullest sense of the word, and may be sold, transferred, mortgaged 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,