A quartz claim upon a patented placer claim depends for its ultimate validity and value upon the ability of the locator to prove that at the time application for the placer patent was made the placer claim contained such known vein or lode. Kift v. Mason, 42 Mont. 232, p. 237. See Noyes v. Clifford, 37 Mont. 138. 5. EXCEPTIONS AS TO VEIN OR LODE-EXTENT. The statute excepts only such veins and lodes as are known to exist at the time the application is made for the patent and not at the date of the patent. United States v. Iron Silver Min. Co., 128 U. S. 673, p. 680. A patent can not make exceptions with reference to a vein or lode broader than the statute itself. United States v. Iron Silver Min. Co., 128 U. S. 673, p. 680. Lodes or veins known to exist within a placer claim at the date of the application for the placer patent and not applied for are by operation of law excepted from the placer patent and so inserted in the patent. Pikes Peak Lode, In re, 10 L. D. 200, p. 203. South Star Lode, In re, 20 L. D. 204. Elda Min., etc., Co. v. Mayflower Gold Min. Co., 26 L. D. 573, p. 574. Cripple Creek Gold Min. Co. v. Mt. Rosa Min., etc., Co., 26 L. D. 622, p. 623. Cape May Min., etc., Co. v. Wallace, 27 L. D. 676, p. 679. Largey, In re, 17 C. L. O. 3, p. 4. Casey v. Thieviege, 19 Mont. 341, p. 346. Washoe Copper Co. v. Junila, 43 Mont. 178, p. 187. By a patent to a placer claimant the Government conveys the tract therein described but excepts any vein or lode known to exist within the described premises. Pikes Peak Lode, In re, 14 L. D. 47, p. 49. The rights of a lode claimant within the boundaries of a placer claim are not affected by the issuance of a patent to the placer claimant, but are protected as fully as if specifically excepted from the operation of the patent, and patent may be subsequently issued to the lode claimant. Elda Min., etc., Co. v. Mayflower Gold Min. Co., 26 L. D. 573. Cape May Min., etc., Co. v. Wallace, 27 L. D. 676, p. 679. Where it appears from the record that there is a lode claim within the boundaries of a placer claim, not owned by the applicant for such placer claim, then the patent for such placer claim should except the lode claim in its full extent. Largey, In re, 17 C. L. O. 3, p. 4. See Pikes Peak Lode, In re, 14 L. D. 47. If known veins or lodes are expressly excepted from patents for placer claims within their boundaries, it is also true that under the preemption, homestead, or town-site laws no title from the United States to land known at the time of sale to be valuable for minerals can be obtained. Pikes Peak Lode, In re, 10 L. D. 200, p. 204. The veins and lodes excepted by this section are veins and lodes valuable for their Davis v. Weibbold, 139 U. S. 507, p. 524. A vein or lode existing within the limits of a placer claim is reserved from the operation of the placer patent by this section, and the lode patent may issue therefor upon due proof or of compliance with the statute. Butte & Boston Min. Co., In re, 21 L. D. 125, p. 126. See South Star Lode, In re, 20 L. D. 204. A patent for a placer claim made on an application stating that no known lode existed within the boundaries of such placer location and containing a reservation that should any vein or lode bearing gold, silver, etc., be claimed or known to exist "within the above described premises at the date hereof the same is expressly excepted and excluded from these presents," does not convey title to a lode claim known to exist at the date of such application and such lode claim does not pass by virtue of the patent, and a subsequent patent may issue for such lode claim on compliance with the statutory requirements. South Star Lode (on review), 20 L. D. 204. See Winter Lode, In re, 22 L. D. 362. 6. PATENTS FOR PLACER AND LODE CLAIMS-RIGHTS OF PATENTEES. Two classes of mining claims are recognized by the mining laws, a placer and a lode claim, and separate patents may issue for such claims, one conveying the placer and the other the lode claim, and to different persons, but both may pass under a placer patent; and this is done where the lode claim is not known at the date of the application, or where it is known and the placer patentee includes it in his application for patent. South Star Lode, In re, 20 L. D. 204, p. 210. The issuance of a patent for a placer claim does not prevent the department from issuing a patent for a lode claim within the exterior boundaries of the placer patented claim if the lode claim was known to exist at the date of the application for such placer patent. Iron Silver Min. Co. v. Mike & Starr, etc., Min. Co., 6 L. D. 533. See Iron Silver Min. Co. v. Mike & Starr, etc., Min. Co., 143 U. S. 394. A patent for a placer mining claim can not include a vein or lode known to exist within its limits at the date of the application. Noyes v. Clifford, 37 Mont. 138, p. 142. Known lodes within the limits of a placer location are not the subject of a placer grant, and such a grant does not operate to confer title or possession thereof upon the placer claimant, or withdraw them from subsequent location by others; and such placer location gives a qualified possession of the ground located, and the known lodes or veins within the placer limits can be acquired only by locating them as lode claims. Mount Rosa Min., etc., Co., v. Palmer, 26 Colo. 56, p. 59. See Reynolds v. Iron Silver Min. Co., 116 U. S., 687. See Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95. A placer patent conveys title to all minerals in the ground described except lodes or veins known to exist at the date of location. Mutchmor v. McCarty, 149 Cal. 603, p. 610. The title to a lode or vein known to exist within a placer claim but not stated as known remains in the United States, and the patentee has no such interest in it as authorizes him to disturb anyone else in the peaceable possession and mining of such vein. Reynolds v. Iron Silver Min. Co., 116 U. S. 687, p. 698. Montana Co. v. Clark, 42 Fed. 626, p. 630. Doe v. Waterloo Min. Co., 54 Fed. 935, p. 938. Washoe Copper Co. v. Junila, 43 Mont. 178, p. 182. See Noyes v. Clifford, 37 Mont. 138. A patent for a placer claim will not convey the title to a known vein or lode within its boundaries unless such vein or lode is specifically applied and paid for. Clipper Min. Co. v. Eli Min., etc., Co., 194 U. S. 220, p. 229. Where a lode or vein is claimed by another than the placer applicant the case then falls within the provisions of the latter clause of the section, which does not prescribe in terms the superficial area which shall be reserved together with such lode or claim from a grant of placer ground, as does the first clause of the section. Daphne Lode Min. Claim, In re, 32 L. D. 513, p. 516. The patentee of a placer claim containing a known lode or vein does not forfeit his entire claim, but only the part wrongfully patented to him, and it is a usual practice to require him to surrender the whole of his patent in order to have all of it patented back to him except the small strip which the proof shows does not belong to him. Juniata Lode, In re, 13 L. D. 715, p. 717. See Winter Lode, In re, 22 L. D. 362. Eureka & Excelsior Consol. Gold Min. Co., In re, 24 L. D. 512, p. 513. This section provides for patent for placer claim that includes a known vein or lode, and on failure to apply for a patent for such known vein or lode the placer patentee acquires no right whatever to such vein or lode. Old Dominion Copper Min., etc., Co. v. Haverly, 11 Ariz. 241, p. 251. 7. PRESUMPTIONS AND CONCLUSIVENESS. All presumptions favor the validity of a placer patent, and that the patentee had fully complied with the law, and that at the time of his application there was no known vein in such claim. Montana, etc., R. Co. v. Migeon, 68 Fed. 811, p. 813. A patent issued to a placer claim conclusively established the fact that the ground was placer and its effect can not be avoided. Dahl v. Raunheim, 132 U. S. 260, p. 261. Butte & Boston Min. Co. v. Sloan, 16 Mont. 97, p. 103. An action to quiet title is allowed where the application for patent is not resisted, as in case of the location of a lode claim within a placer claim, and where the lode claim was not known to exist at the time of the application for patent. Dahl v. Raunheim, 132 U. S. 260, p. 261. See Iba v. Central Assn., 5 Wyo. 355, p. 366. 8. VACATION OF PATENT BECAUSE OF KNOWN LODES. Upon proof showing that mines were known at the time an entry was made and a patent issued either to a townsite lot or to a placer claim, the department will recommend a suit in the proper court to set aside the patent or such part thereof as conflicts with such mine. Juniata Lode, In re, 13 L. D. 715, p. 716. The courts will vacate that part of a placer claim or patent in conflict with an existing lode and dispossess the placer proprietor; and to save the trouble and expense of litigation the placer claimant may convey by deed directly to the lode claimant the ground in controversy. Juniata Lode, In re, 13 L. D. 715, p. 716. A finding by the department to the effect that a lode claim does not pass to a placer patentee is only prima facie evidence of that fact, and the question may be inquired into by a court after patent has issued to a lode claimant. South Star Lode, In re, 20 L. D. 204, p. 208. See Iron Silver Min. Co. v. Campbell, 135 U. S. 286. Where a lode claim was located prior to the date of an application for a placer patent and the placer application antedated the lode application which proceeded without adverse on behalf of the lode claim and various adverse claims were filed against the placer application by claimants of other lodes, during the pendency of which patent to the full width applied for was by inadvertence and mistake as to its conflict with the placer issued for a lode claim and the application for lode patent was allowed and the patent by inadvertence issued for the full width of the claim throughout, in the absence of a determination that the lode was known to exist at the date of the application for the placer patent, the jurisdiction which was thereby lost to determine that and other questions might be restored to the Land Department, and a suit may be maintained to cancel the patent so issued by inadvertence and mistake. Daphne Lode Claim, In re, 32 L. D. 513, p. 517. See Elda Mining & Milling Co. v. Mayflower Gold Mining Co., 26 L. D. 573. 9. SUBSEQUENT DISCOVERY OF VEIN OR LODE-EFFECT. Where lodes or veins in quartz or other rock in place bearing gold or silver or other metal were not disclosed at the time of application for a patent for a placer claim, a subsequent discovery of lodes upon the ground and their successful working deos not affect the good faith of the applicant, as that is to be determined by what was known to exist at the time of making application. United States v. Iron Silver Min. Co., 128 U. S. 673, pp. 684, 685. See Sullivan v. Iron Silver Min. Co., 143 U. S. 431, p. 434. Cripple Creek Gold Min. Co. v. Mt. Rosa Min., etc., Co., 26 L. D. 622, p. 623. Aspen Consol. Min. Co. v. Williams, 27 L. D. 1, p. 16. Iron Silver Min. Co. v. Mike & Starr, etc., Min. Co., 143 U. S. 394, p. 401. The title to all veins and lodes within the boundaries of a placer claim passes to the placer patentee and any subsequent discovery inures to his benefit. Clipper Min. Co. v. Eli Min., etc., Co., 194 U. S. 220, p. 231. SECTION 2334, REVISED STATUTES. The surveyor general of the United States may appoint in each land district containing mineral lands as many competent surveyors as shall apply for appointment to survey mining claims. The expenses of the survey of vein or lode claims, and the survey and subdivision of placer claims into smaller quantities than 160 acres, together with the cost of publication of notices, shall be paid by the applicants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The Commissioner of the General Land Office shall also have power to establish the maximum charges for surveys and publication of notices under this chapter; and, in case of excessive charges for publication, he may designate any newspaper published in a land district where mines are situated for the publication of mining notices in such district, and fix the rates to be charged by such paper; and, to the end that the Commissioner may be fully informed on the subject, each applicant shall file with the register a sworn statement of all charges and fees paid by such applicant for publication and surveys, together with all fees and money paid the register and the receiver of the land office, which statement shall be transmitted, with the other papers in the case, to the Commissioner of the General Land Office. Same as the first half of section 12, act of May 10, 1872 (17 Stat. 91, p. 95), p. 681. A. MINERAL SURVEYORS SURVEY OF MINING CLAIMS. 1. APPOINTMENT OF DEPUTY SURVEYORS. 2. AUTHORITY OF SURVEYOR GENERAL. 3. QUALIFICATIONS OF MINERAL SURVEYORS. 4. SURVEY OF MINING CLAIM-RIGHT OF CLAIMANT. 5. MINERAL CLAIMANT MAY CONTRACT WITH ANY SURVEYOR. 6. EXPENSE OF SURVEY-PAYMENT BY CLAIMANT. 7. DEPOSIT FOR EXPENSE OF SURVEY. 8. RESURVEY OF MINING CLAIM-COMPENSATION. 9. MINERAL SURVEYORS NOT TO BE INTERESTED IN CLAIMS SUR VEYED. 10. REPORT OF SURVEYOR EVIDENCE OF MINERAL CHARACTER OF LAND. 1. APPOINTMENT OF DEPUTY SURVEYORS. Deputy mineral surveyors are appointed without limitations for no particular time, are not required to keep an office, do not remain under the direction or supervision of the surveyor general, and are not obliged to perform any service either for the Government or any individual, but are simply persons designated as having the requisite qualifications to make a proper survey of mining claims, and their work is done under special contract with the mineral claimant. Hand v. Cook, 29 Nev. 518, p. 541. |