CHAPTER XV. DIFFERENT KINDS OF CLAIMS, THEIR SPECIAL FEATURES AND CHARACTERISTICS. 1. Lode Claims. A. Definition of Lode; Apex Rule. B. Cross and Uniting Veins. IL. Placer Claims. III. Lodes in Placers. VI. Water Right Claims. I. LODE CLAIMS. A. Definition of Lode; Apex Rule. THE" valuable mineral deposits in lands belonging to the United States" which, by Rev. Stats. 2319, are thrown open to exploration and purchase, are divided generally into lode or vein deposits and placer deposits, which two classes are located in distinct ways. Those plots of ground, which are known as "claims," are, when located, also subject to different rules. Lode claims are described in the statute as "mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, copper, or other valuable deposits" (Rev. Stats. 2320), and as "mining locations . . . on any mineral vein, lode, or ledge situated on the public domain" (Rev. Stats. 2322). The primary requisite of such a claim, therefore, " is that it shall be upon a lode or vein of mineral-bearing rock." The meaning of these terms hence becomes of vital importance. The definitions thereof adopted by the courts are not the definitions of the geologists. These words are used in the statutes in the signification which they convey, not to the scientific man, but to the practical miner. A lode, therefore, in the above clauses means a body of mineralbearing rock lying within walls (which should be well defined, but sometimes are not) of neighboring rock, usually of a different kind, but sometimes of the same kind, and extending longitudinally between those walls in a continuous zone or belt. The distance between the walls may decrease in places until the thickness of the vein is unappreciable, or until the vein matter entirely disappears between them; but usually there is a continuing crack or crevice, though even this is sometimes hardly appreciable. So long, however, as the walls remain reasonably well defined or the continuity of the mineral-bearing matter between them remains established, the vein exists.2 A lode was defined in the Eureka Case to be " any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. It includes all deposits of mineral matter found through a mineralized zone or belt coming from the same source, impressed with the same forms, and appearing to have been created by the same processes." This definition, which has received the approval of the highest courts, is, however, rather a general description than an accurate definition. It is not a conclusive test, but a guide by which to determine whether or not the mineral deposit in question is or is not to be treated as a vein or lode. The mineralized zone or belt may contain within its limits small subordinate veins in a geological sense, but this will not detract from its character as a lode. But very broad metalliferous zones between defined boundaries will not be allowed to swallow up true fissure veins existing within these boundaries, where the width of such a zone is, as compared with the legal width of a claim, unreasonably large; for in such a case to treat this as a lode would defeat the purpose of the statute. The only essential quality of the rock included within the boundaries is that it must contain a trace of valuable mineral. It may be loose and friable, or very hard. Still it is vein matter if it is enclosed within the country rock. Thus the two essential elements of a lode are (a) the mineral-bearing rock, which must be in place and have reasonable trend and continuity, and (b) the reasonably distinct boundaries on each side of the same. If either of these is well established, accepted of the existence of the other. 1 An example of this, which is frequently met with, is when the country rock is impregnated with ore along and often on both sides of a small fissure. slight evidence will be Whether or not a par 2 See Geological Preface. See detailed discussion of the characteristics of true lodes, veins, contact deposits, etc., in the Geological Preface. ticular deposit conforms to the foregoing requirements, and is a lode or vein, is in each case a question of fact for determination by the jury. Rev. Stats. 2322 provides: "The locators of all mining locations. heretofore made or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as they comply with. the laws of the United States, and with State, Territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, 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, and ledges throughout their entire depth, the top or apex of which lies inside 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. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another." This statement of the locator's rights to follow upon its downward course that portion of any vein having its apex within the surface lines of the location, which lies between vertical planes drawn downward through the end lines, is called the apex rule. It is in conflict with the common law rule that the owner of the surface also owns the minerals under the surface. That rule, however, is entirely aside from the case. In a lode claim the principal thing is the lode. This it is that is granted by the government, and the surface ownership is for the purpose of holding the lode, and the surface only serves to define the locator's rights upon the lode. The important things in the application of the rule, therefore, are the identity of the apex and the position of the surface lines. The intention of the statute is that the claim should be located along the course of the discovered vein. The ideal location is upon a vein which is a straight line, and which is cut by the parallel end lines at right angles to it. Nature, however, has not always conformed herself to this ideal, as many veins do not follow a straight course and are often quite irregu lar. The requirement, however, that the location must be in the direction of the course of the vein must generally be complied with if the locator wishes to hold full fifteen hundred feet upon it. The locator is bound by the lines which he himself lays out, and the courts have treated those lines as end lines through which the vein passes on its strike, or course across country, whether the locator so intended them or not. If, therefore, the location is made across the vein, the side lines become the end lines, and in following the vein upon its downward course he is confined within the plane drawn vertically through those lines extended. If, however, one of the end lines, as. drawn, crosses the vein, which on its onward course through the claim passes out of one of the side lines before reaching the other end line, the law will establish one new end line, which is a line parallel to the other end line as laid out, but passing through the point where the apex of the vein as it passes out of the claim intersects the side line; the other end line remaining the same as laid out. The locator may even himself abandon the portion of his claim beyond this point of intersection, and lay out a new end line as above. When a locator claims title to a full claim of fifteen hundred feet long and six hundred feet wide, theoretically he should prove the existence of a lode extending throughout the claim; but the slightest evidence that the strike of the vein is in the direction of the location is sufficient to shift the burden of proof upon his adversary. If, however, the lode should come to an end at a point within the boundaries of the claim, the owner thereof will be confined between a perpendicular plane drawn through the end line which is intersected, and another plane drawn through the terminus of the lode; but he cannot go beyond the plane of his other end line as laid out. The fact that a lode claim intersects a located claim does not negative the validity of the part beyond the intersecting claim, if the lode actually extends into that part. If, however, the inter 1 If the claim has been patented, the lines as defined in the patent are of course controlling. secting claim is a placer or a mill site, this is treated in the Land Department as conclusive against the continuity of the lode.1 This principle that the locator may not pass out of his lines along the course of the vein finds expression in the rule that the locator may follow his vein outside his side lines upon the dip but not upon the strike. The dip of the vein is the "downward course" of the statute. The strike of the vein is its onward course, its direction or trend across and through the country. Upon the strike the locator is confined to the section of the vein between his end lines; upon the dip he may follow it indefinitely, no matter if it takes him beneath the ground of another and outside the downward vertical extension of his own side line boundaries. By Rev. Stats. 2320 it is provided that "the end lines of each claim shall be parallel to each other." This provision is obligatory. If the locator fails to so draw his end lines he may not have advantage of the apex rule, and in working his vein may not pass outside his surface lines. The reason of this rule, which governs its application, is that in irregular locations it is impossible to determine which are the true end lines, and consequently impossible to apply the apex rule. A slight divergence from the parallel is not important, if it arises from difficulty in marking the lines by reason of the nature of the ground and if the locator has followed substantially the directions of the statute in marking his boundaries, that is, if his side lines are laid in the direction of the strike of the lode and his end lines are laid across it.2 It is the true end lines that must be substantially parallel. The locator by making two lines parallel cannot by that means establish them as end lines; what are such is determined by the course of the vein, and, as we have seen, the locator's original side lines are often his actual end lines, when the vein crosses the claim as originally laid out. The end lines must always be the lines through which the vein passes on the strike when it passes out of the claim. The other important element of the apex rule is that the apex of the vein must lie within the surface lines extended vertically downward. The apex of a vein is the part nearest the surface, and usually is the more or less exposed outcropping edge of the 1 See, however, post, p. 472, n. 2 As to triangular locations, see Montana Co. v. Clark, 42 Fed. 626, post. |