E. ADVERSE CLAIMS-EFFECT ON POSSESSORY TITLE. This section does not mean that the person holding the title as provided may obtain patent therefor, in the absence of an adverse claim filed within the period of the statute of limitations; but he is entitled to patent if no adverse claim is filed, as provided for in section 2325 Revised Statutes. McCowan v. McClay, 16 Mont. 234, p. 241. The words of this section "in the absence of any adverse claim" mean that patent shall be issued to a claimant who has held and worked his claim for a period equal to the time prescribed by the statute of limitations, if no other person filed what is known in the Land Office as an adverse claim, within the period within which an adverse claimant may file his claim under the mining laws. McCowan v. McClay, 16 Mont. 234, p. 241. Possession, under this statute, for the statutory period of limitation is equivalent to a valid location, but otherwise this section must be construed in relation to other sections of the mining law, and such possession does not entitle the possessor to a patent as against an adverse claim properly filed. Upton v. Santa Rita Min. Co., 14 N. Mex. 96, P. 120. Notwithstanding the provision of this section as to the holding of a mining claim for a period equal to the statute of limitation, yet if an adverse claimant appears to an application for patent, the contest must be referred to a court of competent jurisdiction for determination, as in other cases. McCowan v. McClay, 16 Mont. 234, p. 241. The signification of the words "adverse claim," in this and other sections of the mining law, is a claim filed in the United States Land Office opposing an application for patent to mining premises made by another person. McCowan v. McClay, 16 Mont. 234, p. 239. 56974°-Bull, 94—15—-38 SECTION 2333, REVISED STATUTES. SEC. 2333. Where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of $5 per acre for such vein or lode claim and 25 feet of surface on each side thereof. The remainder of the placer claim or any placer claim not embracing any vein or lode claim shall be paid for at the rate of $2.50 per acre, together with all costs of proceedings; and where a vein or lode, such as is described in section 2320, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof. Same as section 11, act of May 10, 1872 (17 Stat. 91, p. 95), p. 681. A. PLACER AND LODE CLAIMS. B. APPLICATION OF SECTION TO VEINS WITHIN PLACER LIMITS, p. 556. C. NATURE AND COINCIDENCE OF PLACER AND LODE CLAIMS, p. 557. D. RIGHT TO SURFACE CONFLICT GROUND, p. 557. E. VEINS OR LODES WITHIN PLACER CLAIMS, p. 558. F. KNOWLEDGE OF VEIN OR LODE, p. 560. G. APPLICATION FOR PLACER PATENT, p. 563. H. APPLICATION FOR LODE AFTER PLACER PATENT, p. 566. I. APPLICATION FOR PLACER AND LODE, p. 568. J. WIDTH OF LODE CLAIM WITHIN PLACER LIMITS, p. 568. K. ADVERSE PROCEEDINGS PLACER AND LODE CLAIMANTS, p. 569. L. PATENT FOR PLACER CLAIM, p. 570. A. PLACER AND LODE CLAIMS. 1. RELATIVE RIGHTS OF PLACER AND LODE CLAIMANTS. 2. PLACER CLAIM DEFINED. 3. REGULATION OF PLACER CLAIMS. 1. RELATIVE RIGHTS OF PLACER AND LODE CLAIMANTS. This section defines the proceedings necessary for the adjustment of the relative rights of owners of lode and placer claims and is substantially the same as section 11 of the act of May 10, 1872 (17 Stat. 91). Moxon v. Wilkinson, 2 Mont. 421, p. 425. The amount of land which may be taken up as a placer claim and the amount as a lode claim, and the price per acre to be paid when patents are obtained are different, and the rights conferred by the respective patents and the conditions upon which they are held are also different. Pike's Peak Lode, In re, 10 L. D. 200, p. 205. United States v. Iron Silver Min. Co., 128 U. S. 673. This section is founded upon the well known and universally recognized difference in the character of vein, or lode deposits, and placer deposits, and Congress has fixed the price of each according to the relative value. Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95, p. 100. See Reynolds v. Iron Silver Min. Co., 116 U. S. 687, p. 697. Vein or lode deposits and placer deposits may exist in the same superficial area, and they may be discovered, located, and claimed by the same or different persons, and patented accordingly. Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95, p. 99. South Star Lode, In re, 20 L. D. 204. The terms "vein or lode" and "vein or lode claim" is used indiscriminately and interchangeably throughout this section, and it follows that the term "vein or lode" is intended to be synonymous with the term "vein or lode claim" as used in the section. Iron Silver Min. Co. v. Sullivan, 16 Fed. 830, p. 832. The object of the statute is to convey the minerals in the land, and the separate conveyance of a placer claim is not such a disposition of all interest in the land as to deprive the department of jurisdiction where a lode claim does not pass by the patent. South Star Lode, In re, 20 L. D. 204, p. 210. The law does not give to lode claimants a right of way through an intersecting placer claim. Silver Queen Lode, In re, 16 L. D. 186. 2. PLACER CLAIM DEFINED. Placer mines are those in which the minerals are generally found in the softer material which covers the earth's surface and not among the rocks beneath. The method of mining such a claim is to take the soft earthy matter in which the particles of mineral are loosely mingled and separate them by filtration. Reynolds v. Iron Silver Min. Co., 116 U. S. 687, p. 695. By the term "placer claim," as used in this section, is meant ground with defined boundaries which contains mineral in the earth, sand, or gravel; ground that includes valuable deposits not fixed in rock. United States v. Iron Silver Min. Co., 128 U. S. 673, p. 679. A placer location is not a location of lodes or veins underneath the surface, but is simply a claim of a tract or parcel of ground for the sake of loose deposits of mineral near the surface. Clipper Min. Co. v. Eli Min., etc., Co., 194 U. S. 220, p. 228. A placer claim differs from a lode claim in the amount of land which may be taken, the price per acre to be paid, and the rights conferred by the respective patents and the conditions upon which they are held. United States v. Iron Silver Min. Co., 128 U. S. 673, p. 680. Largey, In re, 17 C. L. O. 3, p. 4. The last clause of this section evidently intends that any placer claim not embracing any vein or lode claim shall be considered as a placer claim and not as a claim for veins or lodes. Iron Silver Min. Co. v. Sullivan, 16 Fed. 830, p. 832. 3. REGULATION OF PLACER CLAIMS. Placer claims were first regulated by the statute of July 9, 1870 (16 Stat. 217). Smelting Co. v. Kemp, 104 U. S. 636, p. 650. The purpose of this section is to place the location of placer claims on an equality, both in procedure and rights, with lode claims. Clipper Min. Co. v. Eli Min., etc., Co., 194 U. S. 220, p. 227. This section was primarily intended for the benefit and protection of locators of placer claims. Migeon v. Montana, etc., R. Co., 77 Fed. 249, p. 256. This section makes specific provision for both placer and vein or lode claims falling within the same boundaries. Reynolds v. Iron Silver Min. Co., 116 U. S. 687, p. 695. The purpose of this section is to require good faith on the part of a placer claimant, so that he may not, under cover of a large area of land acquired as a placer claim, obtain title to quartz deposits also without making the proper claim therefor and the additional payment required by law for the lands containing them. Noyes v. Clifford, 37 Mont. 138, p. 153. B. APPLICATION OF SECTION TO VEINS WITHIN PLACER LIMITS. This section has no application to lodes or veins within the boundaries of a placer claim which have been previously located and are in the possession of the locator or of his assigns, as such locations are the property of the locator or of his grantees; but the section applies only to lodes or veins not taken up or located so as to become the property of others, and veins not thus owned and known to exist must be included in the application for a placer patent or they will be waived by the applicant. Sullivan v. Iron Silver Min. Co., 109 U. S. 550, p. 552. Noyes v. Mantle, 127 U. S. 348, p. 353. Sullivan v. Iron Silver Min. Co., 143 U. S. 431. Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95, p. 103. Mt. Rosa Min., etc., Co. v. Palmer, 26 Colo. 56, p. 63. Clipper Min. Co. v. Eli Min., etc., Co., 29 Colo. 377, p. 383. McConaghy v. Doyle, 32 Colo. 92, p. 102. Horsky v. Moran, 21 Mont. 345, p. 349. McCarthy v. Speed, 11 S. Dak. 362, p. 368. See Shonbar Lode, In re, 1 L. D. 551. Shonbar Lode, In re, 3 L. D. 388. This section does not apply to lodes or veins within the boundaries of a placer claim located previously under the United States statutes and not in the possession of such locator, but it only applies to lodes or veins not taken up and located so as to become the property of others. Pike's Peak Lode, In re, 10 L. D. 200, p. 202. See Reynolds v. Iron Silver Min. Co., 116 U. S. 687. Iron Silver Min. Co. v. Reynolds, 124 U. S. 374. This section makes provision for the ownership of a mineral vein or lode having its apex within the area of a tract whose surface is valuable for placer mining. Clipper Min. Co. v. Eli Min., etc., Co., 194 U. S. 220, p. 227. This section is not in conflict with section 2320 of the Revised Statutes, but is intended to refer to lode claims found only within the limits of a placer location, while the other section refers to lode locations generally, exclusive of those within the limits of a placer claim. Mt. Rosa Min., etc., Co., v. Palmer 26 Colo. 56, p. 65. C. NATURE AND COINCIDENCE OF PLACER AND LODE CLAIMS. The two classes of mineral deposits known as vein or lodes and placer claims are so different in character and formation, and so completely separate and distinct from each other, that even when found to exist in the same superficial area, they may be located and held by different persons and patented accordingly. Henderson v. Fulton, 35 L. D. 652, p. 655. See Reynolds v. Iron Silver Min. Co., 116 U. S. 687, p. 695. Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95, pp. 99–100. Jaw Bone Lode v. Damon Placer, 34 L. D. 72. Veins or lodes and placer deposits are frequently found to exist in the same land, and it is no objection to the validity of a placer claim that it embraces veins or lodes as well as placer deposits. Hogan & Idaho Min. Claims, In re, 34 L. D. 42, p. 43. From this statute Congress evidently considered that the vein of mineral-bearing quartz was more valuable than the surface or placer deposit, as indicated by the difference in price per acre and the quantity limited to each applicant. Reynolds v. Iron Silver Min. Co., 116 U. S. 687, p. 695. A placer claim not embracing any vein or lode claim, or that part of a placer claim not included also in a vein or lode claim, is to be paid for by the locator at a different price per acre from that including the vein or lode claim. Iron Silver Min. Co. v. Sullivan, 16 Fed. 830. The fact that land is held as a placer claim does not necessarily prevent lode locations from being made thereon. In case of a placer deposit and in the absence of a lode within the limits of the claim the lode laws have no application, but the land is subject to entry and patent exclusively under the provisions of the placer mining laws. Harry Lode Min. Claim, In re, 41 L. D. 403, p. 406. D. RIGHT TO SURFACE CONFLICT GROUND. The surface ground being only an incident to a lode location, and not a part of it, a placer claimant, in which such lode location exists, is entitled to the surface area within the overlap, except so much thereof as is necessary to the occupation, use, operation, and enjoyment of the lode claim by its owner, and this may be more or less, according to the extent and location of any improvements and other conditions peculiar to a particular claim; and the superior right of a lode claimant to the possession of his lode, within a placer claim, should not be permitted to carry with it more surface ground within the overlap than is necessary for the occupation, use, operation, and full enjoyment thereof, and where the possessory right to the placer claim has been awarded the placer applicant by the judgment of a proper court. Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95, p. 105. |