times to determine which is "strike" or which is "dip." This is fully shown in the case of Duggan v. Davey, commented upon and illustrated in a preceding section,' and suggested in discussing the form of the Leadville deposits. Necessarily, each case must depend for solution upon the particular facts surrounding it. For all practical purposes, the definitions given in this article, and the authorities cited, are sufficient. 1 See, ante, 2 310. CHAPTER II. LODE CLAIMS, OR DEPOSITS "IN PLACE." ARTICLE I. INTRODUCTORY. II. THE LOCATION AND ITS REQUIREMENTS. III. THE DISCOVERY. IV. THE DISCOVERY SHAFT AND ITS EQUIVALENT. V. THE PRELIMINARY NOTICE AND ITS POSTING. VI. THE SURFACE COVERED BY THE LOCATION-ITS FORM VII. THE MARKING OF THE LOCATION ON THE SURFACE. X. XI. CHANGE OF BOUNDARIES AND AMENDED LOCATION CER- RELOCATION OF FORFEITED OR ABANDONED CLAIMS. XII. LODES WITHIN PLACERS. 322. Introductory. ARTICLE I. INTRODUCTORY. 2323. The metallic or non-metal lic character of deposits occurring in veins as affecting the right of appropriation under the laws applicable to lodes. 2322. Introductory. In the preceding chapters of this work, it has been demonstrated that only the public mineral lands of the United States may be appropriated under the mining laws. By "public lands" is meant such as are subject to sale or disposal under general laws. Land to which any claims or rights of others have attacked does not fall within the designation of "public land."" 2 Newhall v. Sanger, 92 U. S. 761; Bardon v. N. P. R. R., 145 U. S. 535; Mann v. Tacoma Land Co., 153 U. S. 273; Wilcox v. Jackson, 38 U. S. 49%; Cameron v. United States, 148 U. S. 301; United States v. Tygh Valley Land & L. S. Co., 76 Fed. 693. We have also attempted to illustrate' the nature and character of the appropriation under laws (other than those exclusively applicable to the acquisition of mineral lands) which operate as a segregation of a given tract from the body of public land, and inhibit its acquisition, although mineral in character, under the mining laws. What constitutes such an appropriation of mineral lands, under these last-named laws, as will remove them from the category of "public lands," and inhibit their acquisition by other mining claimants, can be determined only after an analysis of the law regulating the acquisition of title to such lands. After we shall have outlined the methods provided by law for such acquisition, we shall endeavor to explain fully the nature and extent of the title so acquired, the tenure by which it is held, the property rights flowing therefrom, and the conditions under which such rights may be lost or extinguished. The general statement may here be properly made, however, that a perfected, valid appropriation of public mineral lands, under the mining laws, operates as a withdrawal of the tract from the body of the public domain, and so long as such appropriation remains valid and subsisting the land covered thereby is deemed private property." We are now to consider the manner in which public mineral lands containing veins, or lodes, of quartz or other rock in place may be lawfully appropriated. 2323. The metallic or non-metallic character of deposits occurring in veins of rock in place as affecting the right of appropriation under the laws applicable to lodes. In defining what constitutes "mineral land" within the meaning of the acts of congress, using that term. 1 See, ante, title III., ch. iii., ?? 112–219. 2 Gwillim v. Donnellan, 115 U. S. 45; Belk v. Meagher, 104 U. S. 279; S. C., 3 Mont. 65; McFeters v. Pierson, 15 Colo. 201; Iron S. M. Co. v. Campbell, 17 Colo. 267; Seymour v. Fisher, 16 Colo. 188; Garthe v. Hart, 73 Cal. 541; Souter v. Maguire, 78 Cal. 543; Armstrong v. Lower, 6 Colo. 393; Lebanon M. Co. v. Cons. Rep. M. Co., 6 Colo. 371; Faxon v. Barnard, 4 Fed. 702. as the legal equivalent of the various words and phrases of a kindred nature found in the mining laws,' we have heretofore treated the subject regardless of the form in which the deposits occur- i. e. whether" of rock in place," as in quartz veins, or not "in place," as in the case of a riferous gravels and other substances encountered in surface beds. The conclusions there reached" were intended to apply to all classes of deposits, without any attempt at classification as to form of occurrence. We are now ca upon to consider a special class of mineral lands, and to determine to what extent, if any, the metallic or onmetallic character of the deposits found in veins of in place controls the manner in which lands contain them may be appropriated. lled ock ing of The act of July 26, 1866, provided for the acquisitio title to veins, or lodes, of quartz or other rock in p 1 ace bearing gold, silver, cinnabar, or copper. By necessary intendment it excluded all other classes of metallic substances, as well as all which were non-metalliferous. The placer law of July 9, 1870, extended the right of entry and patent" to claims usually called 'placers,' including all forms of deposit, excepting veins of quartz or other rock in place." The act of May 10, 1872, provided in terms for the appropriation of lands containing veins, or lodes, of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits. also This is preserved in the Revised Statutes, which contain the provisions of the placer law of 1870, heretofore referred to. Therefore, under the existing law we find the classification to be as follows: (1) Lands containing veins, or lodes, of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, per, or other valuable deposits;1 cop of deposit, excepting veins of quartz or other rock in place' (2) Claims, usually called "placers," including all forms 1 See, ante, 86, p. 93. Rev. Stats. 2320. 5 Rev. Stats. 2329. And in prescribing the method for obtaining patents, both classes seem to have been grouped under the term "valu"able deposits."1 It may be said that, ordinarily, nothing but metalliferous ores are encountered in veins of rock in place. There are, however, exceptions to this rule. Coal occurs in veins, and in many instances with as pronounced dip and strike as in the auriferous quartz lodes. But lands containing coal are sold under special laws. Marble, borax, onyx gypsum, talc, graphite, rock phosphates, chalk, marls, oilstones, mica, asbestos, fluorspar, sulphur, and mineral paint are non-metallic substances, and occur in veins of rock in place. All of these have commercial value, and in many instances yield as much profit in proportion to the cost of exploitation and extraction as the metalliferous veins. When any of these substances occur in the form of superficial deposits, lands containing them may be appropriated under the placer laws, as they are not veins of rock in place. But suppose they occupy a pronounced inclined position in the mass of the mountain - how are they to be appropriated? If by the placer laws, and if they are on surveyed lands, they must be taken up in some subdivision of the government surveys, and according to the current of land department authority, there must be a discovery on each twenty acres. If the deposit should exist in the form of an ideal vein, there would be but one exposure upon which a discovery could be based, and nothing overlying the dip beyond the vertical plane drawn through the surface boundary of a twenty-acre tract could be located, because discovery would be impossible except by sinking vertical shafts at great expense, with no protection in the meanwhile, in the possession of the tract. We cannot see, since the act of 1872 was passed increasing the number of terms used in the prior law, what right the land department has to insist that veins, or lodes, must be metalliferous in order to be appropriated under the lode laws. The extralateral right may be of as Rev. Stats. ? 2325. |