The items of proof to establish a right to a patent to a mining claim should be prepared strictly in accordance with the directions in mining regulations, and verified in the manner prescribed by this section. Phosphate Deposits, In re, 17 C. L. O. 74, p. 75. The provisions of this statute requiring affidavits to be verified before an officer authorized to administer oaths in the land district in which the mining claim is situated are mandatory and their observance essential to the jurisdiction of the local officers to entertain the patent proceedings, and where not so verified the affidavit is wholly void. North Clyde Quartz Min. Claim & Mill Site, In re, 35 L. D. 455, p. 456. See Mattes v. Treasury Tunnel, etc., Co., 34 L. D. 314. El Paso Brick Co., In re, 37 L. D. 155, p. 158. 3. OATH MUST BE BY APPLICANT. Under this section the oath required in case of an application for a patent for a mining claim must be by the applicant, and this was the law until the act of January 22, 1880 (21 Stat. 61). Crosby & Other Lode Claims, In re, 35 L. D. 434, p. 435. See Frue, In re, 7 C. L. O. 20. This section does not authorize an application for a mineral patent and the necessary affidavits to be made by an agent where the applicant himself resides in and is physically within the land district at the time of making his application. Drescher, In re, 41 L. D. 614, p. 615. 4. OATH BY OFFICER OF CORPORATION. The oath to an adverse claim made by the president of a corporation in Louisville, Ky., does not meet the requirements of the law where it appears that the corporation itself was organized under the laws of Colorado. Louisville Gold Min. Co. v. Hayman Min., etc., Co., 33 L. D. 680, p. 682. An adverse claim by a corporation verified by its executive officer outside of the land district where the claim is situated, and at the principal place of business of such corporation, is the act of the corporation itself. Frank Hough Min. Co. v. Empire Prince Min. Co., 42 L. D. 99, p. 103. 5. OFFICER AUTHORIZED TO VERIFY AFFIDAVITS -PLACE OF VERIFI CATION. This section authorizes affidavits to be verified before any officer authorized to administer oaths in any district where the land is situated. Mattes v. Treasury Tunnel, Min., etc., Co., 34 L. D. 314, p. 316. Verifications of applications for patent, or affidavits relating thereto, must be made before an officer authorized to administer oaths within the land district where the claim is situated, and the verification before an officer acting without authority under the law is of no legal effect, and a notice published by a register based upon such an application and affidavit is fatally defective, and an entry can not stand. Milford Metal Mines Investment Co., In re, 35 L. D. 174, p. 175. El Paso Brick Co., In re, 37 L. D. 155, p. 158. Frank Hough Min. Co. v. Empire Prince Min. Co., 42 L. D. 99, p. 102. Mattes v. Treasury Tunnel, Min., etc., Co., 33 L. D. 553, p. 554. An adverse claim not sworn to before an officer authorized to administer oaths within the land district must be rejected. Corning Tunnel, Min., etc., Co. v. Pell, 3 C. L. O. 130, p. 131. McMurdy v. Streeter, 1 C. L. O. 34. This section requires all necessary affidavits in connection with the mining laws to be verified before any officer authorized to administer oaths within the land district where the claim is situated. Drescher, In re, 41 L. D. 614, p. 615. This section contemplates that proofs in support of an application should be verified not only before an officer authorized to administer oaths within a land district wherein a claim applied for is situated, but that they should be actually verified within the land district. Mattes v. Treasury Tunnel, Min., etc., Co., 34 L. D. 314. Overruling Lonergan v. Shockley, 33 L. D. 238. An affidavit authorized by this section can not be verified before an officer outside of the land district, though his jurisdiction extends over the land district in which the claim is located. Mattes v. Treasury Tunnel, Min., etc., Co., 34 L. D. 314, p. 317. Corning Tunnel, Min., etc., Co. v. Pell, 3 C. L. O. 130. Prior to the act of 1882 (22 Stat. 49), the oath to an adverse claim was required to be made by the claimant and to be verified by an officer authorized to administer oaths within the land district wherein the claim was situated. Louisville Gold Min. Co. v. Hayman Min., etc., Co., 33 L. D. 680, p. 682. All affidavits required under the mining laws must be verified before any officer authorized to administer oaths within the land district, except as otherwise expressly provided by the amendatory act of January 22, 1880 (21 Stat. 61). Stock Oil Co., In re, 40 L. D. 198, p. 199. Affidavits of citizenship, under this section, must be sworn to before a qualified officer of the land district in which the mining claim is located, and the amendatory act of January 22, 1880 (21 Stat. 61), does not change this rule. Phillips, In re, 8 C. L. O. 5. Under this section an oath in support of an adverse claim may be verified before any officer authorized to administer oaths within the land district where the claim is situated, and by the act of April 26, 1882 (22 Stat. 49), the oath may in certain specified instances be made before an officer outside the land district, yet under either statute the oath must be made before an officer authorized to administer it. Mattes v. Treasury Tunnel, Min., etc.,Co., 33 L. D. 553, Corning Tunnel Min., etc., Co. v. Pell, 3 C. L. O. 195. Dardanelles Min. Co. v. California Min. Co., Copp's Min. Dec. 161. 6. OATH ADMINISTERED BY AGENT OF CORPORATION-EFFECT. A notary public who is duly commissioned and acting within the land district is not incapacitated from administering an oath to an application for a mining claim, where the applicant is a corporation, merely because he is secretary of the corporation, where it appears that he was not a stockholder and was not otherwise beneficially interested in such corporation. Milford Metal Mines Investment Co., In re, 35 L. D. 174, p. 175. The fact that an application for patent for a mining claim and the affidavits as to publication and posting of notice were verified before a notary public who was interested as an attorney in prosecuting the patent proceedings does not render them void but voidable only and subject to amendment. Stock Oil Co., In re, 40 L. D. 198, p. 204-206. See Coalinga Hub Oil Co., In re, 40 L. D. 401, p. 405. 7. AMENDMENT OF VERIFICATION OR AFFIDAVIT. The verification of an application for patent for a mining claim and affidavit required in connection therewith are subject to amendment where there is no question as to the fact of notice, and when amended to conform to the requirements, an entry may be permitted, or if already allowed may be permitted to stand. Stock Oil Co., In re, 40 L. D. 198, p. 206. Crosby and Other Lode Claims, In re, 35 L. D. 434. An application for patent for mining claim and the proof of posting notice must be verified before a competent officer in the land district in which the claim is located, but in the absence of an adverse claim or protest, the claimant may be permitted to substitute proper affidavits. Pinedo, In re, Copp's Min. Lands 266. Phillips, In re, 8 Ĉ. L. O. 5. 56974°-Bull. 94-15-40 SECTION 2336, REVISED STATUTES. Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection; but the subsequent location shall have the right of way through the space of intersection for the purposes of the convenient working of the mine. And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection. Same as section 14, act of May 10, 1872 (17 Stat. 91, p. 95), p. 683. A. OWNERSHIP OF INTERSECTING VEINS. 1. CONSTRUCTION OF SECTION. 2. APPLICATION OF SECTION TO LOCATIONS AND VEINS. 3. VEINS-CONSTRUCTION AND MEANING. 4. CROSSING AND INTERSECTING OF VEINS-DIP AND STRIKE. 5. OWNERSHIP OF ORE AT INTERSECTION-PRIORITY OF LOCA TION. 6. SPACE OF INTERSECTION-MEANING. 7. OWNERSHIP BELOW INTERSECTION-PRIORITY OF LOCATION. 8. RIGHT OF WAY TO JUNIOR LOCATOR-MEANING AND EXTENT. 9. ADVERSE PROCEEDINGS APPLICATION AS TO INTERSECTION. 10. FEDERAL QUESTION. 1. CONSTRUCTION OF SECTION. This section is in complete harmony with section 2322 R. S. and the two coact to establish a rule for the easy definition of miners' rights and the elimination therefrom of the uncertainties existing under former laws, and taken together they substitute for the old lode claim under former acts well-defined segment of the earth with its mineral contents, and not only define the rights of every locator upon his vein or lode, but also define the rights of all locators where their veins or lodes intersect or cross each other. Watervale Min. Co. v. Leach, 4 Ariz. 34, p. 64. Where there can be a reasonable and apparent construction of this section by which it will not be in conflict with section 2322, then such construction must be given and must govern. Wilhelm v. Silvester, 101 Cal. 358, p. 361. This section is not in conflict with 2322, but supplements it. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 182 U. S. 499, p. 505. This section is not intended to limit or define the rights of a person in mere possession of a tract of mining ground where there is more than one vein, or to prescribe the effect of a conveyance by a locator of a claim of a portion of his location containing one of such veins; but the object is to supplement the provisions of section 2322 and the prescribed rules under which different locations by different proprietors should be held and to determine the rights of such proprietors in case of intersecting veins. Stinchfield v. Gillis, 107 Cal. 84, p. 89. This section does not purport to provide for the location of cross veins over territory included within a prior valid and subsisting location, but its purpose is to fix the rights of the claimants of such veins, to settle apparent conflicting rights between claimants of veins crossing or intersecting, and to provide easements for the benefit of such claimants. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 27 Colo. 1, p. 15, overruling Branagan v. Dulaney, 8 Colo. 408. There is nothing in the language of this section relating to the time or method of locating a claim, and it can not in any way amend, modify, repeal, or otherwise affect the language of section 2322 R. S., giving locators possessory title and the exclusive right of possession of the surface and of all veins, lodes, and ledges apexing within the surface lines. Nash v. McNamara, 30 Nev. 114, p. 135. 2. APPLICATION OF SECTION TO LOCATIONS AND VEINS. The provisions of this section apply to locations made under the act of 1872 (17 Stat. 91), as well as before. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 182 U. S. 499, p. 507. The provisions of this section apply to locations made under the act of May 10, 1872 (17 Stat. 91), as well as before, and refer to the intersecting or crossing of veins either upon their strike or dip, and the space of intersection, in determining the ownership of ore within such space, means either intersection of veins or conflicting claims, according to the facts in each particular case, and the section grants a right of way to the junior claimant for the convenient working of his mine through such space upon the veins, underneath the surface, which he owns or controls outside of such space of intersection. Calhoun Gold Mining Co. v. Ajax Gold Mining Co., 27 Colo. 1, p. 22. Lee v. Stahl, 13 Colo. 174, p. 176. The assumption that the provisions of this section can not be applied to locations made since the passage of the mining law of 1872 on veins which intersect upon their strike without bringing it in conflict with section 2322 is unwarranted. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 182 U. S. 499, p. 506. This section has no application to mill sites which have been patented and which lie across, separating in two parts, lode claims. Andromeda Lode, In re, 13 L. D. 146, p. 147. This section has no application to a case where the end of a lode simply is made to project into the surface of another prior claim. Correction Lode, In re, 15 L. D. 67, p. 69. See Engineer Min., etc., Co., In re, 8 L. D. 361. This section refers to a case where priority of title governs, and can have no application to a party who has no title. Wilhelm v. Silvester, 101 Cal. 358, p. 363. In case of a single vein discovery, the portion thereof appropriated by the first discoverer is wholly withdrawn from interference or claim by any other citizen until some default is made, but this rule does not apply to the location of cross lodes. Omar v. Soper, 11 Colo. 380, p. 389. |