industry at the time the act was passed. Placer mining, which had occupied the attention exclusively of the early miners of California, was on the decline, and the quartz, or lode, mining was in the ascendency. The auriferous quartz veins of California were being developed to an important extent. Nevada, with its great Comstock lode, was attracting the attention of the civilized world. Much expensive litigation had arisen there,' and the necessity for some law giving a degree of certainty to mining titles was urgent. In addition to this, important quartz veins of great value had been discovered in other portions of Nevada, and in Colorado, Idaho, Montana, and other of the precious metal bearing states and territories. All these facts considered, it is safe to assume that the lode-mining industry was the one which was uppermost in the public mind, and which was most in need of national statutory regulation. At all events, until the passage of the placer law of 1870, no ultimate title to any mineral lands could be acquired, except to a" vein, or lode, of quartz or other rock in place, bearing "gold, silver, cinnabar, or copper."

The method of obtaining this title provided for in the act was simple; but the nature of the thing granted, the relationship of the surface and its boundaries to the lode, the extent of the dip or extralateral right, and some of the terms used in the act were, and still are, matters of serious contention and controversy.

The historical importance of the act of July 26, 1866, consists in the establishment of the three important principles enumerated in section fifty-four.

58. Relationship of surface to the lode.-Under local rules, as well as under the act of 1866, the lode was the principal thing, and the surface was in reality an incident.

The surveyor-general for the state of Nevada, in his report for 1865, expressed the belief that one fifth of the output of the Comstock, estimated up to that date by Mr. J. Ross Browne at forty-five millions of dollars, was spent in litigation. (Mineral Resources of the West, 1867, p. 32.) 2 Johnson v. Parks, 10 Cal. 447; Patterson v. Hitchcock, 3 Colo, 533, 544; Wolfley v. Lebanon, 4 Colo. 112; Walrath v. Champion M. Co., 63 Fed. 552.

While in some districts the precise quantity of surface. allowed in connection with a lode was fixed by local rules, in many others no fixed quantity was mentioned. The lode. only was located, the claims being staked, if at all, at the ends only. The notice of location usually called for so many feet on the vein, and a misdescription as to its course did not vitiate the location. The locator had a right prior to patent to follow it wherever it ran.'

Neither the form nor extent of the surface area claimed controlled the rights on the located lode. It did not measure the miner's right either to the linear feet upon its course or to follow the dips, angles, and variations of the vein."

The local rules fixed no bounding planes across the course of the vein, and end lines were not in terms provided for, although they were, according to the decision in the Eureka case, implied. But there was no implication that they should be parallel.3

A locator could hold but one lode, or vein, even if his claim had fixed surface boundaries. But the fact that two ledges existed within the bounds was required to be first established before the subsequent claimant had any lawful right to invade the surface boundaries of the senior locator."

In all patents issued under the act, a recital was inserted, restricting the grant to the one vein, or lode, described therein, and providing that any other vein, or lode, discovered within the surface ground described should be excepted and excluded from the operation of the grant.

259. Construction of the act by the land department. --Shortly after the passage of the act the commissioner of the general land office issued "circular instructions" for the guidance of the registers, receivers, and surveyors

1 Johnson v. Parks, 10 Cal. 447.

2 Eureka Case, 4 Saw. 302, 323.

Eureka Case, 4 Saw. 302, 319; Iron S. M. Co. v. Elgin, 118 U. S. 196, 208. Eureka Case, 4 Saw. 302, 323; Eclipse G. & S. M. Co. v. Spring, 59 Cal. 304; Walrath v. Champion M. Co., 63 Fed. 552.

5 Atkins v. Hendree, 1 Idaho, 107.

F

general in carrying the law into effect. These instructions provided for the establishment of end lines at right angles to the ascertained or apparent general course of the vein, and permitted the applicant to apply for patent to a vein without any inclosing surface, the estimated quantity of superficial area in such cases being equal to a horizontal plane, bounded by the given end lines and the walls on the sides of the vein. As was said by the commissioner of the general land office, an applicant for a patent under this act might include surface ground lying on either or both. sides of the vein as part of his claim, or he might apply for a patent for the vein alone. His rights upon the vein and in working it were precisely the same, whatever might be the form of his surface ground, or whether he had any

or none.2

As to the effect of such patent, when issued, the department took the view that the patentee was fully invested with the title to his lode for the linear extent specified in the grant, whatever course the vein might be found to pursue underground; and that he might follow the particular lode named in the patent to the number of feet expressed in the grant, although the ledge in its course should leave the surface ground described in the patent." In other words, the department inclined to the opinion that the right of a lode claimant to pursue the vein to the extent of the number of linear feet claimed, whatever might be its course, was the same after patent as before.

Under this construction of the law, patents were issued in several instances describing a small area of surface, upon which the improvements were erected, within which surface a few hundred linear feet of the lode only was included, the remainder of feet claimed being indicated by a line extending beyond the defined surface area in the direction and to the extent claimed. An example of a patent issued

1 Jan. 14, 1867 - Copp's Min. Dec., p. 239.

2 Mt. Joy Lode-Copp's Min. Dec., p. 27.

3 Flagstaff Case — Copp's Min. Dec., p. 61.

4

* Commissioner's Letter - Copp's Min. Dec., pp. 154, 201.

under this interpretation is found in the case of the famous Idaho mine in Grass Valley, California. We present for illustrative purposes a copy of the plat accompanying this patent:

FIGURE 1.

This patent described the surface ground shown on the plat, and granted "the said mineral claim, or lot of land, "above described, with the right to follow said vein, or lode, "to the distance of thirty-one hundred linear feet, with its dips, angles, and variations, although it may enter the land "adjoining." Just what was in fact granted by the patent to a line might be the cause for serious controversy, even if the line correctly followed the outcrop of the vein. But subsequent development proved that this outcrop, or top, was considerably north of the patented line. Litigation arose between the Idaho and the Maryland, adjoining on the east, as to where the right of the Idaho on the vein. terminated and that of the Maryland began, and as to what was the bounding plane on the dip between the two companies. Under the interpretation followed by the land. department, it would seem that the Idaho company could follow the vein in whatever direction it ran, after leaving the surface boundaries, to the extent of the thirty-one

hundred feet. The trial court ruled that the diagram fixed the position of the lode, and that the bounding plane on the lode between the two companies was to be drawn through the point at the eastern terminus of the lode line. shown on the plat. The case was compromised during the trial. It is cited simply to show some of the embarrassments flowing from the early interpretation by the land department of the act, and the difficulties encountered in later years where coterminous proprietors are brought into controversy with these old locations or with patents granted under this act.

Frequently the land department went to another extreme on this subject of surface ground. Patents were issued covering a few hundred feet of a lode, embraced within irregular surface boundaries which covered an area of several hundred acres.

Figure 2 presents an illustration of this. It is taken from a patent issued by the department, based upon a claim to the lode, originating under the act of 1866 upon proceedings completed and entry made prior to the passage of the act of May 10, 1872.

So long as the act of 1866 was in force, which granted but the one lode, the legal controversies likely to arise over a proper construction of such a patent were not particularly serious. But when we consider that the act of 1872 purports to grant to the holder of such a patent all other lodes which have their tops, or apices, within the patented