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"Our conclusions are that the title to portions of this "horizontal vein or deposit-"blanket vein," as it is generally called-may be acquired under the sections concerning veins, lodes, etc. The fact that so many patents have "been obtained under these sections, and that so may appli"cations for patent are still pending, is a strong reason against a new and contrary ruling. That which has "been accepted as law, and acted upon by that mining "community for such a length of time, should not be adjudged wholly a mistake and put entirely aside because of difficulties in the application of some minor provisions to the peculiarities of this vein or deposit."

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Judges Field, Harlan, and Brown dissented, but not as to the legal conclusions. They were of the opinion that the evidence was insufficient to establish the existence of a "known lode."

The embarrassing results flowing from this decision. will be demonstrated when we discuss the question of apex and extralateral rights.

294. Other definitions given by state and federal courts. The supreme court of Montana has given the following definition:

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"In construing this language, regard must be had to "what in truth a lode, or lead, is, and when so tested the problem seems easy of solution and free from doubt. A "lead, or lode, is not an imaginary line without dimen"sions; it is not a thing without shape or form. But "before it can legally and rightfully be denominated a "lead, or lode, it must have length, and width, and depth; "it must be capable of measurement; it must occupy "defined space, and be capable of identification. Before "a quartz claim can be legally located, a lead, or lode, 'containing gold or silver must be discovered; and before such discovery can be called a discovery, at least one "well-defined wall,' or side, to the lode must be found. What, then, is a quartz lode? It is a fissure, or seam, in "the country rock, filled with quartz matter, bearing gold "or silver. This fissure may be wide or narrow; it varies "in width from one inch, or even less, to one hundred feet,

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1 At the time this case was decided, a law existed in Montana making it a prerequisite to a valid location that the workings should disclose at least one wall.

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"or much more. The sides of a lead are represented and "defined by the walls of the country rock, and these walls. "must be discovered, and the lead identified thereby, be"fore it can be located and held as a lead."1

Judge Hawley, sitting as circuit judge in the ninth circuit, after reviewing most of the adjudicated law upon the subject, thus expressed his views:

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"This statute was intended to be liberal and broad enough to apply to any kind of a lode, or vein of quartz or other rock bearing mineral, in whatever kind, charac"ter, or formation the mineral might be found. It should "be so construed as to protect locators of mining claims "who have discovered rock in place, bearing any of the precious metals named therein, sufficient to justify the locators in expending their time and money in prospect"ing and developing the ground located. It must be borne "in mind that the veins and lodes are not always of the "same character. In some mining districts the veins, "lodes, and ore deposits are so well and clearly defined as "to avoid any questions being raised. In other localities "the mineral is found in seams, narrow crevices, cracks, or "fissures in the earth, the precise extent and character of "which can not be fully ascertained until expensive explorations are made, and the continuity of the ore and "existence of the rock in place, bearing mineral, is estab'tablished. It never was intended that the locator of a "mining claim must determine all these facts before he "would be entitled, under the law, to make a valid loca"tion. Every vein, or lode, is liable to have barren spots "and narrow places, as well as rich chimneys and pay "chutes, or large deposits of valuable ore. When the locator finds rock in place containing mineral, he has made a "discovery within the meaning of the statute, whether the "rock or earth is rich or poor, whether it assays high or "low. It is the finding of the mineral in the rock in place, as distinguished from float rock, that constitutes "the discovery, and warrants the prospector in making a "location of a mining claim." 3

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And in a later case, speaking for the circuit court of appeals,

1 Foote v. National M. Co., 2 Mont. 403.

? Quoted in Wyoming Cons. M. Co. v. Champion M. Co., 63 Fed, 540, 544. Book v. Justice M. Co., 58 Fed. 106, 120, commented on and reaffirmed in Cons. Wyoming M. Co. v. Champion M. Co., 63 Fed. 540, 544.

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"When a locator of a mining claim finds rock in place containing mineral in sufficient quantity to justify him "in expending his time and money in prospecting and developing the claim, he has made a discovery within "the meaning of the statute, whether the rock or earth is "rich or poor, whether it assays high or low."

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In Hyman v. Wheeler, Judge Hallett, after referring to the decisions in some of the Leadville cases, adds the following:

"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."

Some of the courts accept the liberal interpretation suggested by Dr. Raymond in the Eureka case-that a "lode is whatever a miner could follow and find ore."3

Others lean to the scientific definition-that it is a seam or fissure in the earth's crust, filled with quartz or other rock in place, carrying gold, silver, etc.'

In a case arising in Nevada, at Treasure Hill, where the formation is limestone, and the conditions were parallel to those existing in the Eureka case, the supreme court of that state held that the term " lode" might be applied to ore deposits in a succession of chambers connected by a seam, varying in width, and more or less barren, and with walls of different character.5

All cases seem to agree that neither the size nor the richness of the ore is an element of the definition."

1 Migeon v. Mont. Cent. Ry., 77 Fed. 249, 255. 229 Fed. 347, 353.

3 Harrington v. Chambers, 1 Pac. 362, 375; Burke v. McDonald, 2 Idaho, 310; Shreve v. Copper Bell M. Co., 11 Mont. 309; Brownfield v. Bier, 15 Mont. 403.

North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 309; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 107; Foote v. National M. Co., 2 Mont. 402; Stinchfield v. Gillis, 96 Cal. 33.

5 Phillpotts v. Blasdel, 8 Nev. 62.

6 Stinchfield v. Gillis, 96 Cal. 33; Stevens v. Leiter & Williams, 1 Morr. Min. Rep. 566; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 107; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 309.

7 Stinchfield v. Gillis, 96 Cal. 33; Book v. Justice M. Co., 58 Fed. 106; Migeon v. Mont. Cent. Ry., 77 Fed. 249.

Golden Terra M. Co. v. Mahler, 4 Morr Min. Rep. 390; Armstrong v.

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As to whether a given deposit is a vein, or lode, is a question of fact.'

ARTICLE III. "ROCK IN PLACE."

ville.

2298. Classification of lands con- 2300. The blanket deposits of Leadtaining valuable deposits. 299. Use of term "in place" in the mining laws.

2301. Judicial interpretation of the term "rock in place."

2298. Classification of lands

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containing valuable

deposits. The laws of the United States prescribing the terms upon which its lands containing valuable deposits, other than coal and salines, shall be sold, used, or occupied, have divided such lands into two distinct classes:

(1) Those which contain veins, or lodes of quartz or of other rock in place;"

(2) Those containing placers and other forms of deposit other than those found "in place."

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To determine the proper manner of appropriating public lands containing such valuable deposits, it is necessary to first ascertain whether they are found in veins, or lodes of rock in place, or not. If of rock in place, a method is to be pursued differing from that applicable to other deposits, and the nature and extent of rights conferred by the appropriation of one class differ in some respects from those conferred by the other. It becomes necessary to arrive at an understanding of what is meant by "rock in "place."

Lower, 6 Colo. 393; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 108; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 309.

1 Bluebird M. Co. v. Largey, -49 Fed. 289; Bullion B. & C. M. Co. v. Eureka Hill M. Co., 5 Utah, 3; Illinois S. M. Co. v. Raff, 34 Pac. (New Mex.), 544.

2 Rev. Stats., 2320. 3 Id., 2329. Justice Miller, in Stevens & Leiter v. Williams, 1 Morr. Min. Rep. 566, 572; Gen. Circ. Inst. (July 15, 1873), Copp's Min. Dec. 316,

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299. Use of term "in place" in the mining laws.— A vein, or lode, is necessarily "in place." The condition of being "in place" is one of its essential attributes. The term "quartz, or other rock in place," as used in section twenty-three hundred and twenty of the Revised Statutes, refers to its constituent elements, or the "filling" of veins and lodes. Experience has shown that mineral substances in veins, or lodes, are not always found in quartz. Sometimes the vein material is composed of the same character of rock as the inclosing walls-the nature of the occurrence of mineral being in the form of impregnations, penetrating the country rock, or the mineral may be but a replacement of the original rocks. So the statute recognizing that while the material of most veins consists of quartz, yet, as this is not universally true, the alternative, "or other rock in place," was introduced. As quartz in a vein is rock in place, the statute would have been equally as comprehensive if instead of saying "veins, or lodes of " quartz or other rock in place," it had simply said, "veins, "or lodes of rock in place."

The term "rock in place," occurs in all of the mining legislation of congress. There is nothing cabalistic in its use. It is simply the in situ of the geologist, and as explained by the commissioner of the general land office in the mining circulars issued by him, the term has always received the most liberal construction of which the language would admit. Every class of claims that either according to scientific accuracy or popular usage can be classed and applied for as a vein or lode may be patented under the law, as a vein or lode of rock in place.1

In this class the commissioner included all lands wherein the mineral matter is contained in veins or ledges occupying the original habitat, or location, of the metal or mineral, whether in true or false veins, in zones, in pockets, or in the several other forms in which minerals are found. in the original rock."

'Commissioner Drummond (July 20, 1871), Copp's Min. Dec. 46. 2 Copp's Min. Dec. 316, 319; 1 Copp's L. O. 11.

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