(1) Either the lode locator is entitled to the full width allowed to other lode locations, or

(2) He is allowed only such surface as may be reasonably necessary for the enjoyment of the lode.

The supreme court of the United States has held, in Noyes v. Mantle,' that a placer patent reserves a lode claim, located prior to the application for patent, to its full extent; but in that case, although the decision as reported is silent as to the date of the placer location, it is quite manifest that the lode was discovered and located prior to the location of the placer. Such prior location withdraws the area covered, and the subsequent placer locator could, of course, obtain no rights as against the lode locator. This is not the case we have assumed. If, in the Noyes-Mantle case, the lode location in controversy had been the junior in date, we might infer from the decision that the subsequent lode locator was authorized to select, within the boundaries of the placer, a full surface claim. But as heretofore indicated, the lode location in that case ante-dated not only the application for placer patent, but the location of the placer. We are not aware that the precise point under discussion has ever been determined by the courts.

When we examine the rulings of the land department, we find that they are not uniform.

Originally, that department held, that the claimant of a lode within placer limits could only assert the right, as against a placer patentee, to twenty-five feet on each side of the center of the vein. If he sought to claim more, he could only protect his right to the increased area by adversing the placer applicant. Failing to do so, he was limited to a width of fifty feet.3

This was before the decision in Noyes v. Mantle (supra). Subsequent to this decision, the department reached the

1 127 U. S. 348.

"The record in this case, as filed, discloses the fact that the lode was located in April, and the placer the following October. 3Shonbar Lode, 1 L. D. 551; Id., 3 L. D. 388.

following conclusions, after quoting from the cases of Noyes v. Mantle and Reynolds v. Iron S. M. Co.:-1

"It thus appears, that the limitation of the width of the "claim in section twenty-three hundred and thirty-three, "Revised Statutes, is only applicable where the same claim"ant seeks a patent for a vein, or lode, included within the "boundaries of his placer claim, and has no application "to a lode claim properly perfected by another, prior "to the date of the application for patent for placer claim, "whose boundaries include the lode claim. If, therefore, "it shall appear from the record that there is a lode claim "within the boundaries of a placer claim, then that lode "claim in its full extent should be excepted from the placer patent."

But in this case the department declined to patent the lode claim at all for the reason, that its jurisdiction had been exhausted by the issuance of the placer patent-a ruling which, as heretofore noted, was subsequently changed. The last expression of opinion by the land department the subject under consideration is found in a decision by Secretary Smith in the case of the Aurora Lode v. The Bulger Hill and Nuggett Gulch Placer."

upon

In this case, the placer claims were first located, the Bulger Hill on March 19th, and the Nuggett Gulch on April 6, 1881. The Aurora Lode was located April 9th of the same year. The properties had been in litigation, arising out of patent proceedings, the Aurora Lode claimant having applied for a patent, which was adversed by the placer claimant, the judgment being in favor of the latter.

Notwithstanding this, the land department entertained the protest of the lode claimant against the issuance of a patent to the placer claimant, and after discussing the effect of the judgment of the court, and the relative rights of the two classes of claimants, the secretary of the interior thus expresses his views:

1116 U. S. 687; 124 U. S. 374.

2 Pike's Peak Lode, 10 L. D. 200, 203.

3 See, ante, 2 413.

423 L. D. 95, 348.

5 Bennett v. Harkrader, 158 U. S. 441.

แ

"The only question which presents any serious difficulty "to my mind relates to the extent of surface area the lode "claimant will be entitled to in the event he sustains, by proof in the regular way, the allegations of his protest. "His claim as originally located appears to be something "over five hundred feet in width at the points of conflict "with the placer locations. The extensive and valuable "improvements erected upon the claim are alleged to be upon that part within the overlap. The surface ground being, however, only an incident to the lode, and not a part of it, I am of the opinion, that under the judgment of the court, the placer claimant is entitled to the surface area within the overlap, except so much thereof as is necessary to the occupation, use, operation, and enjoyment of "of the lode claim by its owners. This may be more or "less, according to the extent and location of the present "improvement, if any, and other conditions peculiar to "this particular claim. I know of no established prece"dent controlling in such a case as this, but in view of the superior right of the placer claimant to the surface area "as established by prior location and by the judgment of "the court in the adverse proceedings, I do not think that "the superior right of the lode claimant to the possession "of his lode, if its discovery, location, and known existence "be true, as alleged, should be allowed to carry with it "more surface ground within the overlap than is necessary "for the occupation, use, operation, and full enjoyment "thereof. Having been defeated in the adverse proceed"ings in the court, it would appear to be but just and right "that the lode claimant should be thus restricted as touching the surface area of his claim, and, indeed, such seems "to be necessary in order to give effect to the court's "judgment."

66

Without stopping to consider the binding effect of the judgment in the adverse proceedings as an estoppel upon the lode claimant, we think that the ruling of the secretary proceeds upon considerations of an equitable nature, rather than upon anything deducible from the mining laws. If we assume, that nothing is reserved out of the placer location but the lode itself, we practically concede that the reservation is of no substantial benefit to any one, as the right to enjoy it would be practically denied. The

placer locator would hold everything, except the ledge bounded by its inclosing walls, and no right of entry over or through the placer ground would be permitted.' Or, at the utmost, the lode claimant would only be entitled to an easement over the placer ground, upon the principle, that a reservation of a thing out of a grant is a reservation of whatever may be necessary to its enjoyment.

But the mining laws contemplate no such conditions. The only method by which the lode may be located is by defining a surface inclosing it." The only clause which defines or limits this surface is found in section twentythree hundred and twenty of the Revised Statutes. This is applicable to all lodes, or veins. No exception is made. of such as exist, or may be found, in placers.

The conclusion seems logical, that if a lode within a placer is subject to appropriation at all, it may be appropriated the same as if it were situated elsewhere. The placer claimant locates with the full knowledge, that a lode discovered within the limits of his claim will not belong to him by virtue of his placer location; and that when such is discovered it may be located by those whose rights can only be defined by end and side lines carving out of the placer a surface area. The government says to him, in effect: You may locate this ground which appears to "be placer, but you do so with the distinct understanding, "that if a lode is discovered therein before you apply for "a patent, such lode shall belong to him who first discovers and locates it. Such discovery will entitle the "discoverer to all privileges which are accorded with "respect to lodes found elsewhere on the public domain."

If a patent issues for a placer claim which contains a lode, or vein, the existence of which was known to the placer claimant prior to his application for such patent, by failing to claim it, he cannot object to its subsequent appropriation by others.

We do not understand that, in such an instance, the

1Dower v. Richards, 73 Cal. 477, 480.

See, ante, 22 71, 361.

patent to the placer claimant affects the question. The right acquired by the placer location in legal contemplation is, as against strangers, as great as that conveyed by patent. A lode claimant cannot carve out of the placer surface any greater area before the placer patent issues than he could if he located the excepted lode after the patent. The patent confirms to the placer locator all the rights enjoyed under the location no more

no less. Therefore, the existence, or non-existence, of a patent is of no moment if it be conceded that the lode is one that is subject to location.

While the suggested solution on this subject of width of lodes within placers is open to some criticism, in our judgment it is the only one logically deducible from a full consideration of the entire body of the mining laws in connection with the adjudicated cases upon the subject.

Is there anything in the adjudicated cases which inferentially militates against this view?

Our attention is again directed to the controversies arising out of the blanket deposits of Leadville, and in construing the decisions on the subject of lodes within placers, regard must be had to the circumstances of each particular

case.

In the case of Reynolds v. Iron Silver Mining Company, there was no surface conflict between the lode claimants and the placer patentee. There was no attempt by anyone to locate the lode within the placer boundaries. The lode claimants sought to justify their presence underneath the Wells and Moyer placer, on the ground that they were following a vein on its downward course, having the apex outside of the placer and within the Pinnacle and Crown Point lode claims. They failed in this at the first trial for the reason, that the trial court found that they had located across the vein instead of along it. The court decided in favor of the placer claimants, although the evidence tended to show that the placer claimants at the time 1 Chambers v. Harrington, 111 U. S. 347, 353. 2116 U. S. 687.