property rights susceptible of being conveyed under the mining laws applicable to lode claims. It is to this standard that the various forms of locations on the surface which may come under discussion in the future will be compared.

2361. Surface area, length, and width of lode claims. Prior to the passage of the act of July 26, 1866, the number and length of claims on a discovered lode, and the extent of surface ground which might be occupied and enjoyed therewith, was, like everything else connected with mining upon the public domain during that period, regulated by district rules or local customs. The act of 1866 fixed the limit of a single claim at two hundred feet in length along the vein, for each locator, except the discoverer, who was entitled to two claims. No person could make more than one location on the same lode, and not more than three thousand feet could be taken by any association of persons.1

2

As to width, this was left entirely to local regulations. When the claimant filed the diagram of his lode on application for patent, he was called upon to extend his claim laterally, so as to conform to the local laws, customs, and rules of miners. In some districts, the width was specified with reference to either the center of the vein or its inclosing walls. In others, the locator was allowed a reasonable quantity of surface. As the lode was the principal thing, and the surface a mere incident, neither the form nor extent of the surface area controlled the rights on the located lode."

The act of May 10, 1872, which is incorporated into the Revised Statutes, changed this rule, giving to the surface boundaries a controlling importance. It fixed the maximum length on the vein at fifteen hundred feet, and a maximum surface width of six hundred feet, three

114 Stats. at Large, p. 252, 24.

2 Id., 2.

See, ante, 2 58.

See, ante, 2 71.

hundred feet on each side of the middle of the vein, at the surface.1

State or district regulation may limit this width to a minimum of twenty-five feet on each side of the middle of the vein, and we cannot see why the length of a claim may not likewise be limited by state or local rules within the maximum.3

Be that as it may, where state statutes deal with the subject at all they follow the lines of the federal law,1 and no such limitation has ever been attempted by district regulations within our knowledge.

As to width, the maximum allowed by the federal law is the rule, except in a few localities. In Gilpin, Clear Creek, Boulder, and Summit counties, in the state of Colorado, the width is fixed by statute at seventy-five feet on each side of the center of the vein. In all other counties of that state, it is one hundred and fifty feet on each side of the center of the vein, which rule obtains in North Dakota and South Dakota."

These three states also provide, that any county at any general election may determine upon a greater width within the limitations of the federal laws, but Mr. Morrison informs us, that this privilege has never been exercised.9

With the exceptions above noted, the customary surface area is, therefore, fifteen hundred by six hundred feet, 117 Stats. at Large, p. 91, 22.

Rev. Stats, 2320; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 305; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 104; Copp's Min. Dec. 201; In re Taylor, 9 Copp's L. O. 52, 92.

3 Mr. Morrison, in his Mining Rights, 8th ed., p. 17, doubts the power of the state to so limit the length, but gives no reason for his conclusion other than the fact that no attempt in that direction has ever been made.

*See, ante, ? 250 (1).

5 Mills' Annot. Stats. 3149; Morr. Min. Rights, 8th ed., p. 19.

Rev. Code 1895, 1427.

7 Comp. Laws of Dak. 1887, 1998. Adopted by South Dakota - Laws

of 1890, ch. cv.

Morr. Min. Rights, 8th ed., p. 20.

"See, ante, 250 (2).

EE

embracing twenty and two-thirds acres. called the unit of lode locations.

This may be

It is entirely immaterial how many or how few locators participate in this class of locations. The size of the claim," or, more properly, the location, is not governed by the number of persons participating in its appropriation. There is nothing in the law which prevents any one locator or any set of locators from appropriating as many locations on the same lode as they may be able to find independent discoveries upon which to base them,' but no location may exceed the statutory limit as to length and width.

2362. Location covering excessive area. It frequently happens, that the locator marking his surface without the aid of chain or compass includes within his boundaries an area in excess of the statutory limit.

The courts uniformly hold, that such a location, where it injures no one at the time it is made, and it has been made in good faith, is voidable only to the extent of the excess."

Upon application for patent, the monuments may be moved and the lines drawn in to cast off the excess.3

An excessive location cannot be said to be a fraud upon. others. It cannot take away rights already acquired by prior appropriation. A location within the statutory limit cannot accomplish this. As to subsequent locators, they can measure the ground from the preliminary discovery Copp's Min. Dec. 207.

2 Rose v. Richmond M. Co., 17 Nev. 25; Richmond M. Co. v. Rose, 114 U. S. 576, 580; Glacier Mt. S. M. Co. v. Willis, 127 U. S. 471, 481; Hauswirth v. Butcher, 4 Mont. 299; Leggatt v. Stewart, 5 Mont. 107, 109; Lakin v. Dolly, 53 Fed. 333; S. C. on appeal, 54 Fed. 461; Thompson v. Spray, 72 Cal. 528; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 107; Atkins v. Hendree, 1 Idaho, 95; Burke r. McDonald, 2 Idaho, 646; Stem Winder M. Co. v. Emina & L. C. M. Co., 2 Idaho, 421. Affirmed on appeal to U. S. Sup. Ct. (not officially reported), Law. Co-op. ed., book 37, p. 941. Hanson v. Fletcher, 10 Utah, 266; Howeth v. Sullenger, 113 Cal. 541.

3 In re Empey, 10 Copp's L. O. 102; Howeth v. Sullenger, 113 Cal. 547.

notice, which is universally posted at, or in reasonable proximity to, the point of discovery. This notice itself, as a rule, specifies the linear distance claimed from the discovery point, and where it does not, the locator can only claim seven hundred and fifty feet along the vein on each side of his discovery notice."

If the prior locator has too much ground, it is easy to discover it; and all the benefit that a subsequent locator can claim is, that he shall be entitled to maintain his right to the excess.3

In a locality where neither state law nor district rule require the posting of a preliminary notice at the discovery point, a case might arise where a location, as marked, includes so large an area as to give rise to the suspicion of bad faith. In such a case, where such preliminary notice is wanting, there would be nothing to guide the subsequent locator, and the excessive location should be held worthless for any purpose. A fifteenhundred-foot claim cannot be shifted from one end to the other of a two-thousand-foot claim, as circumstances might require, to cover the discovery of a third person within the two-thousand-foot location."

As we have heretofore stated, however, the general, if not universal, rule is, to hold this class of locations void only as to the excess.

2363. Surface conflicts with prior locations.—As a mining location can only be carved out of the unappropriated public domain, it necessarily follows that a subsequent locator may not invade the surface territory of his neighbors and include within his boundaries any part of a prior valid and subsisting location. But conflicts of surface area are more than frequent. Many of them arise

5 Hauswirth v. Butcher, 4 Mont. 299; Leggatt v. Stewart, 5 Mont. 107,

from honest mistake, others from premeditated design. In both instances the question of priority of appropriation is the controlling element which determines the rights of the parties. Two locations cannot legally occupy the same space at the same time. These conflicts sometimes involve a segment of the same vein, on its strike; at others, they involve the dip bounding planes underneath the surface. More frequently, however, they pertain to mere overlapping surfaces. The same principles of law apply with equal force to all classes of cases. Such property rights as are conferred by a valid prior location, so long as such location remains valid and subsisting, are preserved from invasion, and cannot be infringed or impaired by subsequent locators. To the extent, therefore, that a subsequent location includes any portion of the surface lawfully appropriated and held by another, to that extent such location is void. However regular in form, it is of no effect while there is a valid prior location subsisting.'

A location to be effectual must be good at the time it is made. The subsequent abandonment or forfeiture of the conflict area by the senior appropriator would not inure to the benefit of the subsequent locator."

The junior locator might, subsequent to the abandonment or forfeiture of the conflict area by the senior, amend his location and include the overlapping surface; but without some act on his part manifesting an intention to make a new appropriation or acquire a new right after the abandonment or forfeiture became effectual, this area would not by mere gravity become a part of the junior location.*

2364. Surface must include apex-Location on the dip. There can be no question but that the act of July

1 Belk v. Meagher, 3 Mont, 65; S. C. on appeal, 104 U. S. 279; Garthe v. Hart, 73 Cal. 541; Souter v. Maguire, 78 Cal. 543; Armstrong v. Lower, 6 Colo. 393; Aurora Hill Cons. v. 85 M. Co., 12 Saw. 355.

2 Belk v. Meagher, 104 U. S. 279, 285; Oscamp v. Crystal River M. Co., 58 Fed. 293, 295.

$ Johnson v. Young, 18 Colo. 625.

4 Pralus v. Pacific G. & S. M. Co., 35 Cal. 30, 36.