much value to the proprietor of a mica, rock phosphate, or talc vein, as a gold vein. The act itself, in terms, makes no distinction based upon the chemical composition of the deposit. But it groups the classes according to the form in which the valuable deposits occur. In our judgment, the land department is no more authorized to insist. that veins, or lodes, of mica or graphite in place should be located as placers, than it has to require cinnabar deposits to be located as lodes, independently of the form of their occurrence.1 How shall they be appropriated?

un

The term "deposits" used in section twenty-three dred and twenty of the Revised Statutes is just as com prehensive as the same term found in section twenty-three hundred and twenty-nine.

val

The deliberate addition in the statute of the term "uable deposits" to the enumeration of metallic Substances, is of itself evidence of the highest character that the intention of the law-makers was to enlarge the scope of the lode laws, and embrace every character of deposit found in veins of rock in place which fall within the meaning of "mineral" in its broadest sense. If the meaning of the term "valuable deposits" was intended to be restricted to such substances as were metallic in their nature, it is fair to presume that congress would have used the term "valu "able metallic or metalliferous deposits." Gold occurs in veins of rock in place, and when so found the land taining it must be appropriated under the laws applicable to lodes. It is also found in placers, and when so found the land containing it must be appropriated under the laws applicable to placers. Iron ore is found in veins of rock in place. It also occurs in beds and superficial de posits. Where it is found in veins, lands containing must be appropriated under the lode laws. Where not found in veins of rock in place, the proceedings

con

it

it is to

obtain government title are the same as those prescribed

for placers.2

1Copp's Min. Dec. 47, 60.

2 In re Stewart, 1 Copp's L. 0.34; Com'rs' Letter, Copp's Min. Dec. 235.

Iron is not named in the act of 1872, nor in the Revised Statutes. Prior to the passage of that act, lands containing it were sold the same as agricultural lands. That act, as interpreted by the land department, was comprehensive enough to include iron ore, and thenceforward lands containing such substances were patented only under the mining laws.'

The large number of non-metallic substances mentioned in a previous chapter of this work have been held by the land department to fall within the definition. of "mineral" and "deposit," as these terms are used in the mining statutes. True, in the cases wherein this rule was established the substances occurred in the form of superficial deposits. But if it is once determined that they are "mineral" or "valuable deposits," they then become subject to classification for the purpose of appropriation, the same as the metallic substances enumerated in the act.

We are not unmindful of the decision of the supreme court of Washington, wherein that court announced that, in its judgment, a mining claim, whether lode or placer, is not established or entitled to be patented under the mineral laws, unless it contains some of the metals for which mining works are prosecuted; nor do we overlook the recent ruling of Secretary Hoke Smith, arising out of the same case, wherein the supreme court of Washington is criticised by the distinguished secretary for invading his jurisdiction; but the conclusions reached by the secretary go further than did the offending state court. The secretary says:

"It appears to me so plain that congress only contemplated lands that were valuable for the more precious "metals should be patented as lode claims, that it needs no "argument to convince one of the proposition."

1 Com'rs' Letter, Copp's Min. Dec. 214.

Commissioner McFarland also made a ruling that veins of clay or non-metalliferous substances were not subject to location as lodes, but might be entered as placers.1

It is unnecessary for us to here reiterate the conclusions. heretofore reached by us as to what is meant by the terms “mineral land" and "valuable deposits," as these terms are used in the mining laws. We think those conclusions were based upon the weight of authority. If they are correct, it follows, in our judgment, that land containing any substance, metallic or non-metallic, which possesses economic value for use in trade, manufacture, the sciences, or in the mechanical or ornamental arts, if such substance exists therein in veins, or lodes, of rock in place in sufficient quantities as to render the land more valuable for the purpose of removing and marketing the product than for any other purpose, such land must be appropriated under the laws applicable to lodes.

This may be contrary to the popular notion. But if there is any logic in the law, it seems to us that there is but one conclusion to be deduced, and that is the one we have adopted.

Perhaps instances of non-metallic substances occurring in veins of rock in place are rare, and the solution of the question not of great public importance. But it is a matter of public importance that the mining laws should be consistently construed, and that arbitrary interpretation should be avoided.

We are of the opinion that the metallic or non-metallic character of the contents of veins, or lodes, of rock in place is entirely immaterial, if they otherwise fulfill the requirements announced in section ninety-eight of this treatise.

Montague v. Dobbs, 9 Copp's L. O. 165. 2See, ante, 98.

ARTICLE II. THE LOCATION AND ITS REQUIREMENTS.

66

327. "Location" and mining | 329. The requisites of a valid lode

"claim "defined.

328. Acts necessary to be performed to constitute a valid lode location under the Revised Statutes in the absence of supplemental state legislation and local district rules.

location where supple

327. "Location" and "mining claim" defined.— "Location" and "mining claim" do not always mean the same thing. The supreme court of the United States has said that a mining claim is a parcel of land containing precious metal in its soil or rock. A location is the act of appropriating such parcel according to certain established rules. The "location" in time became among the miners synonymous with the "mining claim" originally appropriated. If the miner has only the ground covered by one location, his "mining claim" and his "location" are identical, and the two designations may be indiscriminately used to denote the same thing. But if by purchase he acquires other adjoining "locations," and adds them to his own, then his "mining "claim" covers the ground embraced by all the locations."

Judge Hillyer defined a "mining claim" to be that portion of the public mineral lands which the miner, for mining purposes, takes up and holds in accordance with the mining law. The words "mining claim" have no reference to the different stages in the acquisition of the government title. It includes all mines, whether patented or not patented, if acquired under the mining laws.1

"Location" is the inception of the miner's title.

The use of the term "precious metal" in this connection is manifestly of no controlling importance. The Revised Statutes enumerate a number of metals which are in no sense "precious."

St. Louis Smelting Co. v. Kemp, 104 U. S. 636; McFeters v. Pierson, 15 Colo. 201. See, also, N. P. R. R. Co. v. Sanders, 49 Fed. 129, 135; In re Mackie, 5 L. D. 199.

3 Mt. Diablo M. & M. Co. v. Callison, 5 Saw. 439.

Bewick v. Muir, 83 Cal. 368, 372.

1

A statute of California provides that "every person who "performs labor upon any 'mining claim' has a lien upon "the same." In construing this law, the supreme court of that state has held that the lien extends to the whole claim," but by such a "claim" was meant a portion of the public lands to which the right of enjoyment has been asserted under the mining laws; that a Mexican grant containing eleven hundred and nine acres, and another three hundred and fourteen acres, upon which mining was conducted, the whole being known as the Guadalupe mine, was not a "mining claim," and no lien could be filed thereon." Nor is a tract of one hundred and sixty acres of land, held under agricultural patent, upon which parties were engaged in mining, such a "claim" as is lienable. But a consolidation of numerous mining locations, held and operated under one ownership, the aggregation being designated by a general name, such as the "Red Cloud mine," is a "mining claim," and the whole claim is lienable."

While the law prescribes a limitation as to the size of a location, there is no limitation to the number of claims one person may hold by purchase. A single location is a claim," as that term is used in the Revised Statutes. But, as we have heretofore seen, "claim" may embrace a number of locations.

66

328. Acts necessary to be performed to constitute a valid lode location, under the Revised Statutes, in the absence of supplemental state legislation and local district rules. It is not necessary that any supplemental state legislation or local district regulations should exist. Where they do not exist, a location may be perfected by

1 Cal. Code Civ. Proc., 2 1183.

2 Helm v. Chapman, 66 Cal. 291.

3 Williams v. Santa Clara Min. Ass'n., 66 Cal. 193; U. S. Min. Dec. 136, 142; Week's Min. Lands, 118.

Morse v. De Ardo, 107 Cal. 622.

5 Tredennick v. Red Cloud M. Co., 72 Cal. 78, 84. See, also, Malone v. Big Flat G. M. Co., 76 Cal. 583.

St. Louis Smelting Co. v. Kemp, 104 U. S. 636, 648; Malone v. Big Flat G. M. Co., 76 Cal. 578, 583.