7. PROOF OF EXISTENCE QUESTION OF FACT. Whether a particular vein or lode is such a one as is referred to in these sections is a question of fact and not of law. Bluebird Min. Co. v. Largey, 49 Fed. 289. p. 290. Illinois Silver Min., etc., Co. v. Raff, 7 N. Mex. 336, p. 339. See Iron Silver Min. Co. v. Cheesman, 116 U. S. 529, p. 537. Hyman v. Wheeler, 29 Fed. 347. Any dispute as to whether a given parcel of land is a vein or lode is a question of fact to be determined by men experienced in mining, and it can not be determined as a matter of law. Blue Bird Min. Co. v. Largey, 49 Fed. 289, p. 292. See Columbia Copper Min, Co. v. Dutchess Min., etc., Co., 13 Wyo. 244, p. 256. A determination as to what is a vein, lode, or ledge of rock in place bearing gold or eilver, or other precious metals, must be arrived at from the evidence of miners, as a question of fact, and their understanding of the meaning of these terms must control or give meaning to the acts of Congress. Eureka Consol. Min. Co. v. Richmond Min. Co., 8 Fed. Cas. 819. Bluebird Min. Co. v. Largey, 49 Fed. 289, p. 290. Gregory v. Pershbaker, 73 Čal. 109, p. 115. See Overman Silver Min. Co. v. Corcoran 15 Nev. 147. Columbia Copper Min. Co. v. Dutchess Min., etc., Co. 13 Wyo. 244, p. 256. A party seeking to prove the existence of a lode or vein may rely upon any characteristics that he can find in the ground in dispute and prove the same by witnesses who accept such features as establishing the fact, while the opposite party may disprove the proposition by showing the absence of all other characteristics of a vein or lode. Hyman v. Wheeler, 29 Fed. 347, p. 353. There are four classes of cases where the courts have been called upon to determine what constitutes a lode or vein within the intent and meaning of the different sections of the Revised Statutes: (1) As between miners who have located on the same lode under this section; (2) as between placer and lode claimants under section 2333; (3) between mineral claimants and parties holding town-site patents to the same; (4) between mineral and agricultural claimants of the same land. Migeon v. Montana Central R. Co., 77 Fed. 249, pp. 254–255. Ambergris Min. Co. v. Day. 12 Idaho 108, p. 117. Fox v. Myers, 29 Nev. 169, p. 183. See Henderson v. Fulton, 35 L. D. 652, p. 659. Grand Central Min. Co. v. Mammoth Min. Co., 29 Utah 490, p. 574. Proof of ore in mass and a position in the body of a mountain is sufficient to show the existence of a lode of the dimensions of such ore, and so far as it prevails the ore is a lode, whatever its form or structure may be, and it is unnecessary to decide any question of fissures, contacts, selvages, slickensides, or other marks of distinction. Hyman v. Wheeler, 29 Fed. 347, p. 353. Cheesman v. Shreeve, 40 Fed. 787, p. 793. In determining either the fact or the likelihood of the existence of a vein or lode of ore a court or jury may consider the topography of the mountain, its geological formation, with its sands, limes, porphyry, quartzite, and granite formation, together with the mineralized rock in body and detachments. Cheesman v. Shreeve, 40 Fed. 787, p. 795. The presence of a vein or lode may be determined by assay and analysis. Certain geological formations and strata and substances and fissures are the usual concomitants and incidents of the presence of an ore vein, and in tracing out the lay and trend of ore deposits the presence or absence of such concomitants is important. Cheesman v. Shreeve, 40 Fed. 787, p. 796. Proof that the strata lying along the plane of contact between blue and brown limestone has mineralized to the extent of showing value in gold and silver, and distinguishable from other parts of the mountain by carrying ore and by association with the plane of contact, may constitute a mineralized zone, and such a zone is clearly a vein or lode within the meaning of this statute. Hyman v. Wheeler, 29 Fed. 347, p. 355. Cheesman v. Shreeve, 40 Fed. 787, p. 793. Proof of a barren contact between blue and brown limestone is not sufficient to establish a vein or lode, but it must carry ore to some extent and of some value to constitute such vein or lode. Hyman v. Wheeler, 29 Fed. 347, p. 355. The determination of the question as to whether a given deposit is a vein, lode, or ledge does not constitute a Federal question within the meaning of the statute giving Federal courts jurisdiction and the right to remove a cause to a Federal court. Bluebird Min. Co. v. Largey, 49 Fed. 289, p. 291. C. MINING LOCATIONS OR CLAIMS. 1. NATURE AND EFFECT. 2. "LOCATION" AND "MINING CLAIM"-USE AND MEANING. 3. MADE ON UNAPPROPRIATED PUBLIC LANDS. 4. LOCATION ON VEIN OR LODE. 5. LOCATION ON APEX OF VEIN. 6. MANNER AND METHOD OF MAKING. 7. AGREEMENTS TO LOCATE GRUBSTAKE CONTRACTS. 10. EXTRALATERAL RIGHTS. 11. RELOCATION. 12. FORM, EXTENT AND DIMENSIONS. a. LOCATIONS LENGTHWISE OF LODE. b. MEASUREMENTS DETERMINED BY VEIN OR LODE. c. PARALLELOGRAM IN FORM. d. LENGTH AND WIDTH OF LOCATION. 13. DISCOVERY ESSENTIAL. a. OBJECT AND NATURE OF REQUIREMENT. b. DISCOVERY AS INITIAL ACT. c. DISCOVERY A PREREQUISITE. d. BASIS OF RIGHTS AND SOURCE OF TITLE. e. DISCOVERY A UNIT. f. WHAT CONSTITUTES-ROCK IN PLACE. g. DISCOVERY WITHIN LIMITS OF LOCATION. 13. DISCOVERY ESSENTIAL Continued. j. ORDER OF STEPS IMMATERIAL-CONDITIONS. k. PRIORITY OF DISCOVERY EFFECT AND RIGHTS. 1. SUFFICIENCY OF DISCOVERY. m. EXTENT AND VALUE OF DISCOVERY. n. DISCOVERY INSUFFICIENT. 0. DISCOVERY A QUESTION OF FACT. p. KINDS OF MINERAL. q. KINDS OF MINERAL-INSTANCES. 14. SURFACE LINES. a. LOCATION AND DIRECTION OF SIDE LINES. d. WANT OF PARALLELISM OF END LINES EFFECT. a. LOCATIONS INVALID. b. OVERLAPPING CLAIMS- -EFFECT AND VALIDITY. d. LOCATION WHERE SENIOR LOCATION IS VOID. 19. NUMBER OF CLAIMS UNLIMITED. 20. LODE AND PLACER CLAIMS-RELATIVE RIGHTS OF LOCATORS. 21. STATE REGULATIONS-VALIDITY. 22. RULES AND CUSTOMS OF MINERS. 23. LOCATION NOTICE SUFFICIENCY AND EFFECT. 24. TAXATION OF MINING CLAIMS. 1. NATURE AND EFFECT. Lode mining claims must conform to the vein or lode, and it would be impracticable if not impossible to make them always conform to the public surveys, and section 2327 expressly provides that they need not conform to the public surveys. Washington v. Ross, 55 Wash. 242, p. 244. The right of location upon the mineral lands of the United States is a privilege granted by Congress, but it can only be exercised within the limits prescribed by the grant. Belk v. Meagher, 104 U. S. 279, p. 284. Peoria & Colorado Min., etc., Co. v. Turner, 20 Colo. App. 474, p. 479. A location of a mining claim is not made by taking possession alone, but by working on the ground, recording and doing whatever else is required for that purpose by the acts of Congress and the local laws and regulations. Belk v. Meagher, 104 U. S. 279, p. 284. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 346. P. 64. Yard, In re, 38 L. D. 59, Ware v. White, 81 Ark. 220, p. 228. Sweet v. Webber, 7 Colo. 443, p. 450. Saxton v. Perry, 47 Colo. 263, p. 277. Ambergris Min. Co. v. Day, 12 Idaho 108, p. 120. Garfield Min., etc., Co. v. Hammer, 6 Mont. 53, p. 59. Purdum v. Laddin, 23 Mont. 386, p. 389. Hickey v. Anaconda Copper Min. Co., 33 Mont. 46, p. 63. Lockhart v. Wills, 9 N. Mex. 344, p. 357. Noyes v. Black, 4 Mont. 527. Upton v. Larkin, 5 Mont. 600, p. 603. Lalande v. McDonald, 2 Idaho 283, p. 288. Work Min., etc., Co. v. Doctor Jack Pot Min. Co., 194 Fed. 620, p. 625. Location is the act or series of acts by which the right of exclusive possession of mineral veins and the surface of mineral lands is vested in the locator. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel, etc., Co., 196 U. S. 337, p. 346. The word "location" as a mining term is frequently used in a more restricted sense to portray the placing of the claim, the posting of the notice containing the name of the lode, the name of the locator, and the date of discovery, and the marking of the boundaries of the claim without the discovery. Uinta Tunnel Min., etc., Co. v. Ajax Gold Min. Co., 141 Fed. 563, p. 566. The mere posting of a discovery notice is not sufficient to constitute a valid location of a mining claim, but there must be a discovery and the exterior boundaries of the claim properly marked. Nicholls v. Lewis & Clark Min. Co., 18 Idaho 224, p. 232. The location of a mining claim is the act of appropriating a parcel of public mineral land in accordance with the provisions of the mining laws. The term is also applied to the parcel of land appropriated. Tomera Placer Claim, In re, 33 L. D. 560. See Smelting Co. v. Kemp, 104 U. S. 636, p. 649. Territory v. Mackey, 8 Mont. 168, p. 173. The location is the initial step taken by the locator to indicate the place and extent of the surface which he desires to acquire, and it includes the giving of notice. Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., 171 U. S. 55, p. 74. Under the act of July 26, 1866 (14 Stat. 251), the location was of the lode; but under the act of May 10, 1872, the location is that of a piece of land containing the top or apex of a lode. St. Louis Min. Co. v. Montana Min. Co., 194 U. S. 235, p. 238. The existence of a vein or lode is necessary to the making of a valid location, as the thing located is the mineral bearing vein or lode, and the surface ground taken along such vein or lode is an incident thereto and intended to facilitate the convenient and safe working of the mine. Cripple Creek Gold Min. Co. v. Mt. Rosa Min., etc., Co., 26 L. D. 622, p. 625. It is sufficient to give a right to the occupant of mining ground on the Government domain to show its appropriation by such occupant by means which are a substantial compliance with the law and which, in view of the surrounding circumstances, will give notice to those who have a right to know that the particular mining ground is subject to the dominion and control of a private claimant. Eilers v. Boatman, 3 Utah 159, p. 164. Tonopah & Salt Lake Min. Co. v. Tonopah Min. Co., 125 Fed. 408, p. 419. 2. "LOCATION" AND MINING CLAIM"-USE AND MEANING. The terms "location" and "mining claim" are often used indiscriminately to denote the same thing. Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., 171 U. S. 55, p. 74. See Smelting Co. v. Kemp, 104 U. S. 636, p. 649. Creede, etc., Min. Co. v. Uinta Tunnel, etc., Co., 196 U. S. 337, p. 347. Poire v. Wells, 6 Colo. 406, p. 412. Territory v. Mackey, 8 Mont. 168, p. 173. The term "claim" means the surface ground claimed in connection with a lode. Branagan v. Dulaney, 2 L. D. 744, p. 750. A mining claim is a parcel of land containing precious metal in the soil or rock and a location is the act of appropriating such parcel of land according to law or to certain established rules. Smelting Co. v. Kemp, 104 U. S. 636, p. 649. Peabody Gold Min. Co. v. Gold Hill Min. Co., 97 Fed. 657, p. 661. Poire v. Wells, 6 Colo. 406, p. 412. Hawke v. Deffeback, 4 Dak. 20, p. 34. Salisbury v. Lane, 7 Idaho 370, p. 385. Territory v. Mackey, 8 Mont. 168, p. 173. Mammoth Min. Co. v. Juab County, 10 Utah 232, p. 236. The use of the words "mines or mining claims” is evidently intended to distinguish between cases in which the miner is the owner of the soil, and therefore has perfect title to the mine, and those in which the miner does not have title to the soil, but works the mine under what is well known in the mining districts and what is recognized by the act of Congress as a "mining claim.” Forbes v. Gracey, 94 U. S. 762, p. 766. Black v. Elkhorn Min. Co., 49 Fed. 549, p. 550. A lode claim embraces a definite tract of land, but the lode discovered therein is the principal thing and the surface ground only incidental thereto, and may or may not contain lode mineral. American Smelting & Refining Co., In re, 39 L. D. 299, p. 302. A difference exists between a vein or lode, and a vein or lode mining claim in that a vein or lode may be entirely concealed beneath the surface of the earth and not known to exist, while a lode mining claim is on the surface, exposed to view, and designated by stakes and monuments so that its boundaries may be readily traced. Mantle v. Noyes, 5 Mont. 274, p. 289. 3. MADE ON UNAPPROPRIATED PUBLIC LANDS. In order to establish any title under the mining laws each party must show a location upon unappropriated territory. Girard v. Carson, 22 Colo. 345, p. 347. See Gwillim v. Donnellan, 115 U. S. 45. All mineral locations are required to be made on the public domain. Howard, In re, 15 L. D. 504, p. 505. Engineer Min., etc., Co., In re, 8 L. D. 361. Correction Lode, In re, 15 L. D. 67. See Brown v. Gurney, 201 U. S. 184, p. 191. Swanson v. Kettler, 17 Idaho, 321, p. 334. The rights granted to locators under this section are restricted to such locations on veins and lodes as may be situated on the public domain. Cayuga Lode, In re, 5 L. D. 703, p. 704. |