While this may be true in one sense, yet a patent cannot confer any greater rights than those flowing from a valid perfected mining location. Pre-emption and homestead claims pass through the same gradations of title, but the nature and extent of the possessory right conferred are essentially different.

Each state regulates

2543. Dower within the states. for itself the laws of descent, the domestic relation, and property rights between husband and wife. The subject of dower is one upon which congress may legislate so far as the territories are concerned, but within the states it is powerless to grant the right, or deny its existence where the state creates it. Therefore, in determining what rights, if any, the wife has in the lands or possessions of the husband, in any given state, we must, as a rule, look to state legislation and the decisions of state courts. Of the precious-metal-bearing states, no dower right whatever exists in California, Colorado, Idaho, Nevada, North Dakota, South Dakota, Washington, or Wyoming. In Montana, a widow is entitled to the third part of all lands whereof her husband was seized of an estate of inheritance, and equitable estates are subject to such dower right.'

There can be no doubt that as to a patented mining claim, or one that has passed to entry and for which a certificate of purchase has been issued, the dower right would attach, the same as it would to any other class of lands; but as to whether such right could be asserted in a perfected mining location, prior to entry and payment, has been the cause of serious controversy.

2

In the case of Black v. Elkhorn Mining Co., Judge Knowles held, that such an estate was subject to the wife's dower, but where the husband had conveyed the property to a purchaser who subsequently applied for and received. a patent, the wife having failed to assert her rights by adverse claim, the dower right was lost.

'Laws of Montana, 9th ed., ? 1, p. 63; Chadwick v. Tatem, 9 Mont, 354; Black v. Elkhorn M. Co., 47 Fed. 600. 247 Fed., 600.

The case was taken to the United States circuit court of appeals, which court held, that a mere locator of a mining. claim, owning only a possessory right conferred by the statute, has no such estate in the property as against the United States or its grantee, as will permit rights of dower to be predicated thereon by virtue of any state legislation. In other words, Judge Knowles gave the right judgment but the wrong reason for it. The supreme court of the United States affirmed the ruling of the circuit court of appeals on parallel lines of reasoning.

To what extent the doctrine of the supreme court of the United States might be deemed binding on the conscience of the state courts is a question not necessary for us to determine. The result reached is manifestly in consonance with the preconceived notions of practitioners in the mining regions. A contrary rule would have disturbed many mining titles, and opened the door to vexatious litigation. If, in the process of reasoning by which the ultimate conclusion has been reached, the dignity of the mining locator's estate has suffered to a slight extent, it has suffered in a good cause. We are fully justified from the foregoing authorities in accepting as a settled doctrine, that in states where the dower right exists by virtue of state legislation, such right will not attach to a mining claim held simply by location.

The states of Oregon and Utah have dower laws similar. to those of Montana. Nebraska and Florida, both of which states are nominally subject to the general mining laws of congress, but which are not classified as metal-bearing states, likewise make provision for dower rights in the wife.

2544. Dower within the territories.-The same rule as to the dower right existing in the states by virtue of state legislation applies with equal force in the territories, where that right is established by act of congress. Under the Edmunds-Tucker amendment to the anti-polygamy

152 Fed., 859.

2 Black v. Elkhorn M. Co., 163 U. S. 445.

act,' congress provided that a widow should be endowed of a third part of all the lands whereof her husband was seized of an estate of inheritance. The act was, of course, applicable to the then territory of Utah. Whether or not it applied to the other territories, was a mooted question until recently. The question arose in Wyoming, which, while still a territory, passed a law abolishing dower."

A widow asserted a right to dower under section eighteen of the Edmunds-Tucker act, claiming that the passage by congress of that act superseded the territorial law and restored the dower right. The supreme court of Wyoming held, that the act applied only to Utah, and was not operative in any other territory.

This ruling was affirmed by the supreme court of the United States on writ of error.1

Dower has been abolished by action of the territorial legislature in Arizona. In New Mexico there is no specific mention of dower in any of its legislation. In this territory the law of community property prevails, which had its origin in the system of the civil law, and was adopted in California and most of the Pacific states and territories."

It may be conceded, that with the exception of those states heretofore enumerated, the dower right does not exist in any of the states or territories within the purview of this treatise.

Whether or not it is necessary in any of the states or territories for a wife to join with the husband in a conveyance of real property, by which term we include mining locations, depends, of course, upon the laws of the several state and territorial jurisdictions. It is beyond the scope of this treatise to enter into a detailed statement of the rules of law regulating conveyancing in these different states. They are general laws, affecting all classes of real property without distinction..

12 18, Act of March 3, 1887, 24 U. S. Stats. at Large, 638.
Act of Dec. 10, 1869; 2221, Rev. Stats. Wyo., 1887.

CHAPTER II.

THE NATURE AND EXTENT OF PROPERTY RIGHTS CONFERRED BY LODE LOCATIONS.

ARTICLE I. INTRODUCTORY - INTRALIMITAL RIGHTS.

II. CROSS LODES.

ARTICLE I. INTRODUCTORY-INTRALIMITAL RIGHTS.

548. General observations.

549. Classification of rights with reference to boundaries.

2550. Extent of the grant as defined by the statute.

551. The right to the surface and presumptions flowing therefrom.

? 552. Intralimital rights not affect. ed by the forin of surface location.

2553. Pursuit of the vein on its course beyond bounding planes of the location not permitted.

548. General observations. It has been satisfactorily established that the estate created by a valid perfected mining location, as between the locator and every one else, save the government, is in the nature of a fee simple. Under ordinary circumstances this would be a sufficient characterization of the estate. The attributes of a fee sim ple estate are well understood, and no explanation is required. But the peculiarites of the mining law render it necessary to elaborate and define with greater particularity than is possible by the use of a single descriptive term, the nature and extent of property rights conferred by perfected mining locations.

There are certain rights which may be said to be common to all classes of locations. There are others which are peculiar to one or the other. In order to treat the subject

analytically, we are compelled to deal with the two classes separately, first considering the subject of lodes, or veins.

2549. Classification of rights with reference to boundaries. Property rights conferred by lode locations may be subdivided for the purpose of convenience into two classes:

(1) Those which are confined to things embraced within. the boundaries of the location. By the term boundaries. as we here employ it, we include not only the surface lines, but the vertical planes drawn downward through them. If we may be excused for introducing into the mining vocabulary coined and eccentric words, we would classify these rights as intralimital;

(2) Those which, while depending for their existence upon the ownership of things within the boundaries, may be exercised under certain conditions and restrictions out of, and beyond, those boundaries. These rights may be classified as extralimital.

Whether these terms will ever come into general use or not, they will at least enable the author to formulate his views, express them according to his conception of the law, and group the different elements under distinctive and homogeneous titles. For the purpose of classification, therefore, we may say that property rights flowing from a valid lode location are either intralimital or extra limital. We will examine the nature and extent of these rights in the order named.

2550. Extent of the grant as defined by the statute. -Section twenty-three hundred and twenty-two of the Revised Statutes provides, that,—

"Locators shall have the exclusive right of possession and "enjoyment of all the surface included within the lines of "their locations, and of all veins, lodes, or ledges, through"out their entire depth, the top, or apex, of which lies in"side of such surface lines extended downward vertically, "although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend "outside the vertical side lines of such surface locations."