8. Under the law of 1872, a mining claim is a piece of land as distinguished from a lode on which the location is based. Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Journal, 405; 4 Mor. Min. Rep. 390; Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429.

9. The fee in the land on which mining claims are located remains in the United States, but the rights of miners are incident to the fee and have been carved out of it. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196.

10. An owner of a mining claim may relocate it under a different name. Phillpotts v. Blasdell, 8 Nev. 61; 4 Mor. Min. Rep. 341.

11. A mining claim is known to exist when located. Mantle v. Noyes, 127 U. S. 348. (See 5 Mont. 274; 5 Pac. Rep. 856.) Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574. 12. 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; Leadville M. Co. v. Fitzgerald, 4 Mor. Min. Rep. 380; Gilpin v. Sierra Nev. Cons. M. Co., 2 Idaho, 662; 23 Pac. Rep. 547; Bell v. Skillicorn, 28 Pac. Rep. 768.

13. "It is the discovery of mineral that entitles the discoverer to a claim; it is equally meritorious whether discovered in the discovery shaft or in any other part of the surface ground of his claim, as the national statute is silent as to where it shall be found." Wight v. Tabor, 2 L. D. 738.

14. A claim is an entirety, and it need not be shown that improvements are situate upon any particular portion of the claim where it has been enlarged by amendment of the location. Lincoln Placer, 7 L. D. 81.

16. A mill site is a mining claim or possession under section 2392, United States Revised Statutes, and is excepted from a town site patent if located prior to town site entry. Hartman v. Smith, 7 Mont. 19; 14 Pac. Rep. 648.

17. Mines within the limits of incorporated towns discussed. Steel v. St. Louis Sm. Co., 106 U. S. 447.

18. A claimant under a town site patent which contained the usual exception of mining claims acquired no interest in a valid mining claim or in the surface thereof. Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858.

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

20. Occupancy of land for town site purposes will not prevent its legal location as a mining claim. Poire v. Wells, 6 Colo. 406.

21. Mere occupation of public land as a town lot will not prevent mining of the land. Martin v. Browner, 11 Colo. 12; 1 Mor. Min. Rep. 613.

from town site patents. Silver Bow M. & M.

22. Known mining claims are excepted

Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858; King v. Thomas, 12 Pac. Rep.865.

23. An agricultural patent is void as against a pre-existing valid mining claim. Gold Hill Qtz. M. Co. v. Ish, 5 Oreg. 104; 11 Mor. Min. Rep. 635.

24. The owner of an unsurveyed mining claim in conflict with an agricultural entry, and which the Land Department holds should be excluded from the agricultural entry, must have an official survey of his claim made. Winters v. Bliss, 14 L. D. 59.

25. A tunnel claim should be protected by an adverse, being a mining claim. Back v. Sierra Nevada Cons. M. Co., 2 Idaho, 386; 17

herited without infringing the title of the United States. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183.

43. A verbal sale of a mining claim, even though accompanied by delivery of possession, does not convey legal title. Goller v. Fett, 30 Cal. 481; 11 Mor. Min. Rep. 171.

44. In early times, parol transfers of mining claims, followed by change of possession, were recognized as legal. Kinney v. Cons. Virginia M. Co., 4 Sawy. 382; 10 Mor. Min. Rep. 457.

45. Generally speaking, the ordinary rules of real property are applied to mining claims held under possessory right. They may be conveyed, are subject to sale on execution, and descend as realty. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 63; 12 Mor. Min. Rep. 178.

46. The name by which a lode claim is conveyed is immaterial if it may be identified. Phillpotts v. Blasdell, 8 Nev. 61; 4 Mor. Min. Rep. 341.

47. A mining claim may be conveyed by name, reference being made to the location record. Carter v. Bacigalupi, 23 Pac. Rep. 361. 48. A mining claim is property and may be sold. Suessenbach v. First Nat. Bank, 5 Dak. 477; 41 N. W. Rep. 662.

be

49. Mining claims are treated as real estate although held under conditions, and may conveyed by deed and sold on execution and descend to the heir. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 63; 12 Mor. Min. Rep. 178;

Atkinson v. Taylor, 7 Colo. 195; Atwood v. Fricot, 17 Cal. 38; 2 Mor. Min. Rep. 305; Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217. 50. 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.

51. Mining claims on the public lands must be held and worked in accordance with the local mining laws adopted and in force in the mining district where the same are located. Strang v. Ryan, 46 Cal. 33; 1 Mor. Min. Rep. 48.

52. An entry should not be allowed for a lode claim made non-contiguous by the exclusion of a placer claim. Apple Blossom Placer v. Cora Lee Lode, 21 L. D. 438.

53. The owner of a lode claim has a prima facie right to all ore within the surface lines, and if another takes ore therefrom, claiming it to be contained in a lode which has been located and which dips under the first claim, such fact must be proved to avoid liability.. Driscoll v. Dunwoody, 16 Pac. Rep. 726.

54. It is presumed by the Land Department, in the absence of a contrary showing, that the lode extends in a straight line through the center of a surveyed claim. Bi-metallic M. Co., 15 L. D. 309.

55. If the presumed line of the lode is interrupted by a tract excluded as non-mineral, the lode claimant may not embrace the noncontiguous portions of his lode in one mineral entry. Andromeda Lode, 13 L. D. 146; Bimetallic M. Co., 15 L. D. 309.

56. The owner of a mining claim may not follow the lode on its strike outside his claim.

Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282.

57. "However tortuous might be the course of the lode, the claimant has a perfect right to follow it up and prepare his diagram so as to include it, together with the surface ground on each side thereof allowed by local laws. There is no language in the act that requires the diagram to be in the form of a parallelogram or in any particular form." Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282.

58. The locator of a mining claim need not purchase from the United States until he so Mor. Min. Rep. 183; United States v. Nelson, wishes. Forbes v. Gracey, 94 U. S. 762; 14 5 Sawy. 68; 14 Mor. Min. Rep. 381.

59. "In all cases where mining claims lie partly in one land district and partly in another, applications for patent therefor should be filed in that district where the principal workings of the claim are situated, as shown by the plat and field-notes; and the diagrams and notices should be posted near to such workings. A copy of the notice and of the diagram should be posted in the register's office in such district." Com'r to San Francisco Office, Nov. 12, 1875, 2 C. L. O. 130.

60. If a claim is made the subject of two entries, in different land districts, only one patent will issue for the claim. New Orleans Lode, Rapid City, South Dak., Mineral Entry No. 356, and Buffalo, Wyoming, Mineral Entry No. 6.

2. Veins or Lodes.

(1) Definitions.

61. "A vein or lode authorized to be located is a seam or fissure in the earth's crust filled with quartz or some other rock in place carrying gold, silver, or other valuable mineral deposits named in the statute; it may be very thin and it may be many feet thick, or thin in places, almost or quite pinched out, in the miner's phrase, and in other places widening out into extensive bodies of ore. So also, in places, it may be quite or nearly barren, and at others be immensely rich. It is only necessary to discover a genuine mineral vein or lode, whether small or large, rich or poor, at the point of discovery within the lines of the claim located, to entitle a miner to make a valid location, including the vein or lode. It may, and often does, require much time and labor and expense to develop the vein or lode, after discovery and location, sufficiently to determine whether there is a really valuable mine or not, and a location would be necessary before incurring such expenses in developing the vein, to secure to the miner the fruits of his labor and expense in case a rich mine should be developed." North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Iron Silver M. Co. v. Cheesman, 116 U. S. 529.

62. Only veins containing metalliferous ores are subject to location under section 2320, United States Revised Statutes. Dobbs Placer, 1 L. D. 565.

63. A vein is an “aggregation of mineral matter in fissures of rock." Bainbridge on Mines, p. 2.

64. "Vein or lode," "rock in place," "valuable mineral deposits," defined. Com'r to Surveyor-General and Registers and Receivers, July 15, 1873, Copp's Min. Lands (2d ed.), 50. 65. If two ore bodies have the same kind of boundaries, and are connected by the same boundaries or contact, they may be said to be a part of one lode. Leadville M. Co. v. Fitzgerald, 4 Mor. Min. Rep. 380.

66. A lode is in place if the principal part of the rock above it (hanging wall) is in place. Leadville M. Co. v. Fitzgerald, 4 Mor. Min. Rep.

380.

67. If an ore body is continuous, within inclosing rocks, it is in place. Iron Silver M.

Co. v. Cheesman, 2 McCrary, 191; 9 Mor. Min. Rep. 552.

68. On the issue of continuity of a vein expert testimony is admissible. Kahn v. Old Telegraph M. Co., 2 Utah, 174; 11 Mor. Min. Rep. 645.

69. A location is made of the vein (1858). Johnson v. Parks, 10 Cal. 446; 4 Mor. Min. Rep. 316.

70. A lode is a mineral body in the general mass of the mountain. Iron Silver M. Co. v. Cheesman, 2 McCrary, 191; 9 Mor. Min. Rep.

552.

71. "A body of mineral or mineral-bearing rock, in the general mass of the mountain, so far as it may continue unbroken and without interruption, may be regarded as a lode, whatever the boundaries may be. In the existence of such body, and to the extent of it, boundaries may be implied. An impregnation, to the extent to which it may be traced as a body of ore, is as fully within the broad terms of the act of congress as any other form of deposit." Hyman v. Wheeler, 29 Fed. Rep. 347; 15 Mor. Min. Rep. 519.

72. The terms "vein," "lode" and "ledge" are supposed to be nearly synonymous, and mean a continuous body of mineral-bearing rock within defined boundaries in the general mass of the mountain, whether of greater or less extent, thick or thin. Iron Silver M. Co. v. Cheesman, 2 McCrary, 191; 9 Mor. Min. Rep. 552.

73. Clay or shale may form one wall of a vein. Eureka Cons. M. Co. v. Richmond M.

Co., 4 Sawy. 302; 9 Mor. Min. Rep. 578.

74. Definition of "vein" is similar to that given in the Eureka case. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529.

75. A valid location may be made on croppings without proving the value of the vein Callicontained. Mt. Diablo M. & M. Co. v. son, 5 Sawy. 439; 9 Mor. Min. Rep. 616.

76. Assays made from samples are but slight evidence of the value of the vein from which the samples are taken. Cheesman v. Shreeve, 40 Fed. Rep. 787.

77. It is immaterial whether ore is of high or low grade. Stevens v. Gill, 1 Mor. Min. Rep. 576; 16 Am. Law Rep. 304; Golden Terra M. Co. v. Mahler (Smith), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep.

390; North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529. For discussion of this subject, see Book v. Justice M. Co., 58 Fed. Rep. 106. Whether thick or thin is immaterial. Iron Silver M. Co. v. Cheesman, 8 Fed. Rep. 297.

78. "While metalliferous rock in place may be so found within defined boundaries as to require recognition as a lode, although not in a fissure, a broad metalliferous zone cannot be permitted to swallow up, under the name 'lode,' true fissure veins found within its limits." Mt. Diablo M. & M. Co. v. Callison, 5 Sawy. 439; 9 Mor. Min. Rep. 616.

79. Mere belief in the existence of a vein is not knowledge thereof. Sullivan v. Iron Silver M. Co., 143 U. S. 431. 80. A mineral lode, as the term is used by miners and the mining acts of Congress, is a zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock, but does not include a deposit of gold-bearing gravel, although the same may lie between clearly-defined strata of rock, and have an average drop of several degrees. Such a deposit of gravel is a placer, as that term is used by miners and in section 2329, United States Revised Statutes. Gregory v. Pershbaker, 73 Cal. 109; 14 Pac. Rep. 401; 15 Mor. Min. Rep. 602.

81. Location gives the discoverer title to the vein discovered, and also all other veins the apexes of which are inside of the claim located. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411.

82. "The line of location includes the surface ground and the vein or lode, and measures the extent of the miners' 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.

83. A vein can only be located by means of a surface claim, and held only to the extent that it is included within the surface lines (except as to rights to follow it on its dip). Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429.

84. Possession of a vein, recognized by the mining laws to which protection is given, is by one who holds the surface where the vein makes its apex. Eilers v. Boatman, 3 Utah, 59; 2 Pac. Rep. 66; 1 West Coast Rep. 632; 15 Mor. Min. Rep. 462. See 111 U. S. 356; 15 Mor. Min. Rep. 471.

85. Entry should not be allowed when it is shown that the lode is not embraced within claimed ground, as the right to surface ground depends on possession of a lode therein. Branagan v. Dulaney, 2 L. D. 744.

86. "Whether the ore is loose and friable, or very hard, if the inclosing walls are country rock, it may be located as a vein or lode. But if the ore is on top of the ground, or has no other covering than the superficial deposit which is called alluvium, diluvium, drift or debris, it is not a lode or vein, within the meaning of the act, which may be followed beyond the lines of the location." Tabor v. Dexter, 9 Mor. Min. Rep. 614.

87. "A fissure in the earth's crust, an opening in its rocks and strata made by some force of nature in which the mineral is deposited, would seem to be essential to a lode in the

judgment of geologists. But to the practical miner the fissure and its walls are only of importance as indicating the boundaries within which he may look for and reasonably expect to find the ore he seeks. A continuous body of mineralized rock lying within any other well-defined boundaries on the earth's surface and under it would equally constitute, in his eyes, a lode. We are of opinion, therefore, that the term as used in the acts of Congress is applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock." Iron Silver M. Co. v. Cheesman, 116 U. S. 529.

88. Under the law of 1872, a mining claim is a piece of land as distinguished from a lode on which the location is based. Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390.

89. Rock in place is not necessarily quartz, but may be any combination of rock, broken up, mixed with minerals and other things. Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557.

90. Expert testimony is admissible to show that a claim contains such a vein as a miner

discovering it would be likely to follow with the reasonable expectation of finding paying ore. Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362. See 111 U. S. 350.

91. A short interruption of ore matter will not be considered a discontinuance of a vein or lode if other distinguishing features re