The fact that a mining claim is located by an alien can only be taken advantage of by the Government, and such location is not illegal or void, and is only voidable by the act of the Government. Shea v. Nilima, 133 Fed. 209, p. 215. By this section mineral lands are open to occupation and purchase by citizens of the United States or those who have declared their intention to be come such; and an alien has no power to make a mining location under this statute, but a location by an alien is free from attack, and voidable only by the Government. Manuel v. Wulff, 152 U. S. 505, p. 510. McKinley Creek Min. Co. v. Alaska United Min. Co., 183 U. S. 563, p. 571. Matlock v. Stone, 77 Ark. 195, p. 199. Holdt v. Hazard, 10 Cal. App. 440, p. 443. See McCarthy v. Speed, 11 S. Dak. 362, p. 366. The location of a mining claim by an alien can not be attacked in a suit between private parties. Tornanses v. Melsing, 109 Fed. 710, p. 711. Manuel v. Wulff, 152 U. S. 505. Billings v. Aspen Min., etc., Co., 52 Fed. 250. McCarthy v. Speed, 11 S. Dak. 362, p. 366. Holdt v. Hazard, 10 Cal. App. 440, p. 443. Wilson v. Triumph Consol. Min. Co., 19 Utah 66, p. 73. Stewart v. Gold & Copper Co., 29 Utah 443, p. 447. E. VEIN OR LODE-DEFINITION. Valuable mineral, as gold, silver, copper, etc., intermingled with or embedded in the rock in place, is called a lode, and the rock is quarried not for the stone but for the mineral it contains. Conlin v. Kelley, 12 L. D. 1, p. 3. The term "vein or lode" does not mean a merely typical fissure or contact vein, but any fairly well-defined zone or belt of mineral-bearing rock in place. East Tintic Consol. Min. Claim, In re, 40 L. D. 271, p. 273. A vein can not be said to exist merely because rock is crushed, shattered, or even fissured, and what constitutes a vein must depend somewhat upon the nature of the country in which it is alleged to be found, but a true vein may be barren in some places; and a court will not declare as a matter of law that a whole limestone area thousands of feet wide is one vein. Mammoth Min. Co. v. Grand Central Min. Co., 213 U. S. 72, p. 76. F. MINING CLAIM AS PROPERTY. 1. OWNERSHIP AND TRANSFER. 2. DOWER RIGHTS DO NOT ATTACH. 1. OWNERSHIP AND TRANSFER. A mining claim perfected under the statute is property which may be bought, sold, and conveyed, and which passes by descent. Forbes v. Gracey, 94 U. S. 762, p. 765. Belk v. Meagher, 104 U. S. 279, p. 283. Black v. Elkhorn Min. Co., 49 Fed. 549, p. 550. O'Connell v. Pinnacle Gold Mines Co., 140 Fed. 854, p. 855. Alexander v. Sherman, 2 Ariz. 326, p. 329. Phoenix Min., etc., Co. v. Scott, 20 Wash. 48, p. 50. 2. DOWER RIGHTS DO NOT ATTACH. The estate of the locator in a mining claim before patent is not such an estate that dower attaches to it. Black v. Elkhorn Min. Co., 163 U. S. 445, p. 450. Black v. Elkhorn Min. Co., 52 Fed. 859, p. 862, affirmed on this point; Black v. Elkhorn Min. Co., 49 Fed. 549, overruled on this point. See Black v. Elkhorn Min. Co., 47 Fed. 600. O'Connell v. Pinnacle Gold Mines Co., 131 Fed. 106, p. 107. There is no right of dower in the estate held by the United States in or to a mining claim after location and before patent. Black v. Elkhorn Min. Co., 49 Fed. 549, p. 553. Where a mineral location is made on lands returned as agricultural the burden of proof is upon the mineral claimant, and he may show the inferior rights of the agricultural claimant. Caledonia Min. Co. v. Rowen, 2 L. D. 714, p. 718. Dughi v. Hawkins, 2 L. D. 721. Magalia Gold Min. Co. v. Ferguson, 3 L. D. 234, p. 236. Where lands are prima facie agricultural the burden of proof is upon a mineral claimant to show its mineral character, and he must show that the mineral exists in sufficient quantity to make it more valuable for mining than for agricultural purposes. Tinkham v. McCaffrey, 13 L. D. 517, p. 518. See Savage v. Boynton, 12 L. D. 612. In a controversy between a mineral and an agricultural claimant the question is whether the mineral character of the land is such as to make the land more valuable for mining than for agricultural purposes, or whether the mineral character is shown to be such as to warrant the conclusion that minerals might be obtained by well-known processes of mining in sufficient quantities and of such value as to make it more profitable for mining than agriculture. Creswell Min. Co. v. Johnson, 8 L. D. 440, p. 441. Where land rated as agricultural is claimed as a mining location the burden is on the mineral claimant to show by a preponderance of the evidence that the land is more valuable for mining than for agricultural purposes as a present fact, and not that it may possibly develop minerals of such a quantity and of such a character as to establish its mineral value. Creswell Min. Co. v. Johnson, 8 L. D. 440, p. 442. In a contest between a mineral and an agricultural claimant the question is whether as a present fact the land is more valuable for the mineral it contains than for agricultural purposes. Peirano v. Pendola, 10 L. D. 536, p. 538. Walton v. Batten, 14 L. D. 54, p. 56. Creswell Min. Co. v. Johnson, 8 L. D. 440. To defeat a preemption entry because of the mineral character of the land it must be shown that mineral was known to exist at the time of the entry; but a subsequent discovery of mineral will not warrant the cancellation of a preemption entry. Harnish v. Wallace, 13 L. D. 108, p. 109. See Colorado Coal & Iron Co. v. United States, 123 U. S. 307, p. 328. Caste, In re, 3 L. D. 169. Abercrombie, In re, 6 L. D. 393. Plymouth Lode, In re, 12 L. D. 513. Chormicle v. Hiller, 26 L. D. 9. Aspen Consol. Min. Co. v. Williams, 27 L. D. 1, p. 17. In a contest against an agricultural claimant the burden of proof is upon the mineral claimant; but where the mineral claimant has a filing of record the burden shifts and is then upon the agricultural claimant. Walton v. Batten, 14 L. D. 54, p. 55. If land is worth more for agriculture than mining it is not mineral land, though it may contain some measure of gold or silver. Winters v. Bliss, 14 L. D. 59, p. 62. Cleary v. Skiffich, 28 Ćolo. 362, p. 368. A person who purchases a part of the public domain as agricultural lands with a knowledge that it is mineral land does not acquire a good title. United States v. Culver, 52 Fed. 81. H. POSSESSION OF MINING CLAIMS JURISDICTION OF FEDERAL COURTS. The right of possession to mining claims given by this and other sections does not necessarily confer jurisdiction on a Federal court, regardless of citizenship, as such an action may involve the question of the right of possession only. Shoshone Min. Co. v. Rutter, 177 U. S. 505, p. 508. This section, with others, expressly provides that the right of possession may be determined by local customs or rules of miners; and accordingly the right of possession may not involve any question under the Constitution or laws of the United States, but simply a determination of local rules and customs or State statutes. Shoshone Min. Co. v. Rutter, 177 U. S. 505, p. 508. I. PATENT-EFFECT AS A CONVEYANCE. Under the statute a patent for a mining claim conveys the subsurface as well as the surface, and the only limitation on the exclusive title thus conveyed is the right to pursue a vein which on its dip enters the subsurface. St. Louis Min. etc. Co. v. Montana Min. Co., 194 U. S. 235, p. 237. SECTION 2320, REVISED STATUTES. Mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining claim located after the 10th day of May, 1872, whether located by one or more persons, may equal, but shall not exceed, 1,500 feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim. shall extend more than 300 feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than 25 feet on each side of the middle of the vein at the surface, except where adverse rights existing on the 10th day of May, 1872, render such limitation necessary. The end lines of each claim shall be parallel to each other. This section is the same as section 2, act of May 10, 1872 (17 Stat. 91), p. 677. A. CONSTRUCTION AND APPLICATION OF MINING LAWS. C. MINING LOCATIONS OR CLAIMS, p. 48. A. CONSTRUCTION AND APPLICATION OF MINING LAWS. 1. MINING STATUTES CONSTRUED TOGETHER. 2. OBJECTS OF MINING STATUTES. 1. MINING STATUTES CONSTRUED TOGETHER. If this and section 2329 were to be construed independently as though standing by themselves, or if the mining act as a whole contained nothing of a nature purporting to show that the general words used in this section, "gold, silver, cinnabar, lead, tin, and copper," were intended in a larger sense than these specific words indicate, then it might be concluded that the mining laws apply only to metallic substances. Pacific Coast Marble Co. v. Northern Pac. R. Co., 25 L. D. 233, p. 241. The validity of a location or claim under the mining laws of the United States must be determined by those laws themselves. Riley, In re, 33 L. D. 68, p. 70. The right granted by statute to locate mining claims, prior to the acquisition of a vested right, is not an obstruction either to the disposition or the reservation of the public lands. Gibson v. Anderson, 131 Fed. 39, p. 41. This, with other sections of the mining laws, makes certain provisions for the locating, working, holding, and purchasing of mining claims upon veins or lode of quartz or other rock in place bearing valuable mineral deposits. Harry Lode Min. Claims, In re, 41 L. D. 403, p. 406. This statute should be so construed as to protect locators of mining claims who have discovered rock in place bearing precious metals in sufficient quantity and quality to induce them to spend time and money in developing the same. Jefferson-Montana Copper Mines Co., In re, 41 L. D. 320, p. 322. It is only by compliance with these and other sections of the statute that the locator can initiate rights to a mining claim. Sharkey v. Candiani, 48 Oreg. 112, p. 124. 2. OBJECTS OF MINING STATUTES. The object of this and other sections is to permit the development of the mining resources rather than the sale of the mineral lands, and accordingly Congress permits persons to dig out and take the ores found in lands belonging to the Government without receiving any compensation therefor. Reservation of Lands, In re, 17 Op. Atty. Gen. 230, p. 232. Stanislaus Electric Power Co., In re, 41 L. D. 655, p. 659. Fort Maginis, In re, 8 C. L. O. 137. While the right to mineral lands is initiated by a location after a discovery of mineral and such mining claims may be held and worked without purchase, yet the law authorizing the exploration also provides for their location, entry, and purchase. McFadden v. Mountain View Min., etc., Co., 97 Fed. 670, p. 680. The mining laws were originally intended for the purpose of allowing the discoverers of valuable mineral to secure the right of possession and the Nation's title thereto. Union Oil Co., In re, 23 L. D. 222, p. 225. The mining laws were passed for the development of the mineral resources in the public domain and must receive a liberal interpretation. Jefferson-Montana Copper Mines Co., In re, 41 L. D. 320, p. 321. These mining statutes were not drawn by geologists, but were framed for the protection of miners in the claims which they had located and developed, and they must receive such a construction as will carry out this purpose, and the object of Congress was to avoid any limitation in the application of this act which a scientific definition of any of these terms might impose. Eureka Consol. Min. Co. v. Richmond Min. Co., 8 Fed. Cas. 819. Bluebird Min. Co. v. Largey, 49 Fed. 289, 290. See Migeon v. Montana, etc., R. Co., 77 Fed. 249, p. 254. Gregory v. Pershbaker, 73 Cal. 109, p. 115. Ambergris Min. Co. v. Day, 12 Idaho 108, p. 117. The mining statutes were not enacted in the interests of science but for the purpose of protecting the rights of miners in claims located by them, and these statutes should be construed with such liberality as to effect such purpose and protect miners in claims located upon any kind of vein or lode of quartz or other rock in place bearing any of the metals named in the acts, regardless of the kind or character of rock or formation in which the mineral may have been found. Hayes v. Lavagnino, 17 Utah 185, p. 196. B. VEIN OR LODE. 1. NECESSITY AND EXTENT OF DEFINITIONS. 2. STRICT DEFINITIONS. 3. WHAT CONSTITUTES. 4. WHAT DOES NOT CONSTITUTE. |