of their application for patent knew that this blanket vein existed underneath the surface, thus holding, that the placer patent would carry that portion of the lode on its dip underlying the placer surface as against one failing to show a superior right, and that the possession of the lode by the lode claimants underneath the placer surface was not such superior right. When the case reached the supreme court of the United States, that court assumed that the evidence was sufficient to establish the existence of a known lode, and overruled the trial court, holding, that as the lode was reserved out of the placer patent, the possession of it was a right superior to that granted by the placer patent. As the placer patent did not cover any part of the apex of the vein, it is difficult to see how anyone could locate it within the placer boundaries. How could the placer claimant assert a right to it at the time of applying for patent, and draw side lines equidistant from the center of the vein if the placer location had no part of the apex? This state of facts explains the following language of the court: "We are of the opinion, that congress meant that lodes "and veins known to exist when the patent was asked for "should be excluded from the grant, as much as if they "were described in clear terms. It was not intended to "remit the question of their title, to be raised by some one "who had, or might get, a better title, but to assert that no "title passed by the patent, and in such case it does not pass to the patentee. "He takes his surface land and his placer mine, and such 'lodes, or veins, of mineral matter within it as were unknown, but to such as were known to exist, he gets by that "patent no right whatever. The title remaining in his "grantor, the United States, to this vein, the existence of "which was known, he has no such interest in it as author"izes him to disturb any one else in the peaceable posses"sion and mining of that vein. "When it is once shown that the vein was known to exist "at the time he acquired title to the placer, it is shown "that he acquired no title or interest in that vein by his "patent." How can a vein be described "in clear terms," except by metes and bounds? How can it be described by metes and bounds unless it is located? And how can it be located unless its top, or apex, is found,' and its center line established for the purpose of determining the position of the side lines? At the second trial, the lode claimants abandoned the apex theory, and disavowed their right to lateral pursuit, resting on their possession. The placer claimants attempted to fortify their right to the ore bodies by showing ownership of the Rock and Dome lode claims containing the apex of the vein, adjoining the Pinnacle and Crown Point on the north, and sought to trace their vein in its downward. course from its apex to the point of the alleged trespass. This the trial court refused to permit. The supreme court of the United States held this to be error. It also found, that no vein was known to exist within the limits of the placer at the time of the placer application. Therefore, the placer patent prevailed." Judge McCrary was of the opinion, that to be excepted out of a placer patent a lode must have been located and defined by metes and bounds before the application for patent.3 In this view he was upheld by a dissenting opinion of Chief Justice Waite in Reynolds v. Iron S. M. Co.,' and by a specially concurring opinion of Judge Field in Sullivan v. Iron S. M. Co.; but this doctrine has been repeatedly denied by the supreme court of the United States." After a full consideration of all the cases of which we have any knowledge, we think the current of authority supports, rather than negatives, our conclusions. While the result of these conclusions, when applied to the case of a known lode within a patented placer, is 1 See, ante, ? 394. 2 Iron S. M. Co. v. Reynolds, 124 U. S. 374. 3 Iron S. M. Co. v. Sullivan, 16 Fed. 829. 116 U. S. 698. 5 143 U. S. 436. Sullivan v. Iron S. M. Co., 143 U. S. 431, 433, and cases there cited. seriously opposed to our pre-conceived notions as to the inviolability of a government patent, yet the difficulty flows from the decisions of the courts holding that such lodes are reserved from the patent, whether located or not. If so reserved, they may be located; if located, they must be inclosed within a defined surface area, and there is but one section of the law which limits the quantity of such surface. We shall have occasion to again refer to this subject when dealing in subsequent chapters with the force and effect of a government patent, and the proceedings by which it is obtained. CHAPTER III. PLACERS AND OTHER FORMS OF DEPOSIT NOT "IN PLACE." ARTICLE I. CHARACTER OF DEPOSITS SUBJECT TO APPROPRIATION UNDER LAWS APPLICABLE TO PLACERS. II. THE LOCATION AND ITS REQUIREMENTS. III. THE DISCOVERY. IV. STATE LEGISLATION AS TO POSTING NOTICES AND PRELIMI- V. THE SURFACE COVERED BY THE LOCATION-ITS FORM VI. THE MARKING OF THE LOCATION ON THE Ground. VII. THE LOCATION CERTIFICATE AND ITS RECORD. CONCLUSION. ARTICLE I. CHARACTER OF DEPOSITS SUBJECT TO APPROPRIATION UNDER LAWS APPLICABLE TO PLACERS. 419. The general rule. 2420. Specific substances classified as subject to entry under the placer laws. 421. Building stone and stone of special commercial value. 2422. Petroleum. 3423. Natural gas. 2424. Brick clay. 2425. Phosphatic deposits. 2427. Subterranean gravel deposits 419. The general rule. In a preceding chapter,1 in determining what constitutes "mineral land," which as such is susceptible of appropriation under the mining laws, we have to some extent anticipated much that might be properly said in defining the character of deposits which are subject to appropriation under the laws applicable 1See, ante, tit. iii., ch. i., ?? 85-98. to placers, and we have there endeavored to formulate general rules by which the mineral character of substances is to be established. In conformity with these rules, land of the public domain may be entered under the laws applicable to placers when it is shown to have upon or within it such a substance as falls within the clas sification named in section ninety-eight, if such substance is found in the form of superficial or other deposits not in place. If a discovered deposit satisfies the law as to its mineral character, and it is not found in veins of quartz, or other rock in place, it may be appropriated under the laws applicable to placers. What constitutes "rock in "place" has been fully discussed." We say that all forms of deposit, other than those occurring in veins of rock in place, must be appropriated under the laws applicable to placers, for the reason, that placers present, in popular estimation, the highest type of deposits which do not occur in veins of rock in place, and are the only class of such deposits as are individualized and specially named in the statute." "" of The right to acquire title to "claims usually called "placers" was granted for the first time by the mining act of July 9, 1870. This has always been familiarly called the "placer law," in contradistinction to the "lode law' July 26, 1866. The subsequent legislation preserved the distinction, so that, colloquially speaking, mineral deposits are to be treated either as lodes or placers. In time, placer, which was the name given by the Spaniards to the auriferous gravels of America, has become a generic term, in which all forms of deposit, other than those occurring in veins, are popularly included. Dr. Raymond, in his "Glossary of Mining and Metal"lurgical Terms,"" defines the word placer as, a deposit of 1 See, ante, ? 98. 2 See, ante, ?? 299-301. 3 Rev. Stats., 2329. 416 Stats. at Large, 217. 5 Moxon v. Wilkinson, 2 Mont. 421. 6 Trans. Am. Inst. Min. Eng., vol. ix., p. 164. |