although a vein or lode may, and often does, contain more than one vein, as used under the United States statute, it clearly means lines or aggregations of metal, imbedded in quartz, or other rock in place.1 On the contrary, the ore in a placer claim is not imbedded in the native rock, but the term signifies ground that includes valuable deposits which are not in place, i. e., not fixed in the rock, but which are in a loose state, mixed with the earth or sand and free from rock. But although the term is usually defined to include only free metal, which has been displaced from the rock, under the United States statute it is held that claims usually referred to as "placers" should include all forms of deposit, except veins of quartz or other rock in place.3 The manner of location and the conditions under which the two kinds of mining claims are held are entirely different under the law, and the locator of a placer claim cannot hold a vein or lode, within the boundaries of his claim, which he knew existed when he applied for a patent, if he fails to insert an application for such lode or vein also.1

§ 33. Lode must be "known to exist." To constitute knowledge sufficient to enable the locator of mineral

1 United States v. Iron, Sil. Min. Co., 128 U. S. 673.

2 Blan. & Weeks Ld. Cas., p. 30, et sub.; Wade Amer. Min. Law, p. 70, Sec. 43.

3 Rev. Sta. U. S., § 2329 et sub.

4 Wade Amer. Min. Law, Sec. 44, p. 71. As to essentials of location, see: Haws v. Vict. Min. Co., 160 U. S. 303; Del Monte Co. v. Last Chance Co., 171 U. S. 55; King v. Amy &c. Co., 152 U. S. 222; Kinney v. Fleming (Ariz.), 56 Pac. Rep. 723; Altoona Q. S. M. Co. v. Integral Q. S. M. Co., 114 Cal. 100; Willeford v. Bell (Cal.), 49 Pac. Rep. 6; Duncan v. Fulton (Colo.), 61 Pac. Rep. 244; Taylor v. Paranteau, 23 Colo. 368; Golden Terra Co. v. Smith, 2 Dak. 374; Clearwater Co. v. San Garde (Idaho, 1900), 61 Pac. Rep. 137; Boyd v. Desrozier, 20 Mont. 444; Nesbitt v. Delamar's &c. G. M. Co., 24 Nev. 273; Lockart v. Wills, 9 N. M. 344; Risch v. Wiseman, 36 Oregon, 484; Wells v. Davis (Utah, 1900), 62 Pac. Rep. 3; 20 Am. & Eng. Enc. Law (2 Ed.), 704 et sub.

land to prosecute his claim successfully, there should be mineral deposits upon the land claimed which he has ascertained and knows to exist.1 Mere outcroppings on the surface is not sufficient evidence of the existence of lodes or veins, as to justify their designation as "known" veins or lodes, but in order to meet that designation, the veins or lodes should be clearly ascertained and of such extent as to render the land more valuable on that account.2 The words "known to exist" refer also to knowledge of the existence of a vein or lode within the boundaries of a placer claim,3 and a mineral vein or lode is known to exist" within the meaning of the United States statute, although personal knowledge of the fact may not be possessed by an applicant for a patent for a placer claim, when he has filed his location papers in good faith, and complied with all the other essentials necessary to a valid location. The locator of a placer claim, however, cannot hold a vein or lode within the boundaries of his claim, which he knew existed at the time he applied for a patent for the same, unless he also inserted an application for such vein or lode; but if he did not know of the existence of such vein or lode at the time he filed his application for a patent, his patent would convey to him all valuable minerals subsequently found within the boundaries of his claim, unless a subsequent locator of the vein or lode had filed his adverse claim before the termination of the period of publication of the notice of such application.

§ 34. Extent of mining claims. The extent of mining land which can be claimed by an individual or a corpora

1 U. S. Statute, § 2320 et sub.

2 United States v. Iron, Sil. Min. Co., 128 U. S. 673; Colorado C. & J. Co. v. United States, 123 U. S. 307.

3 Iron, Sil. Min. Co. v. Reynolds, 124 U. S. 374.

4 Noyes v. Mantle, 127 U. S. 348.

5 Wade Amer. Min. Laws, p. 71.

Reinheim v. Dahl, 6 Mont. 167.

tion, qualified to locate, is provided for by the general statutes of the United States, and in no case can a vein or lode claim exceed fifteen hundred feet in length, by six hundred feet in width, and no locator of such a claim can legally hold over three hundred feet on either side of the middle of the vein or lode at the surface. However, the locator of a vein or lode claim cannot be restricted by local rules or State legislation to less than fifteen hundred feet in length, following the course of such vein or lode, and fifty feet in width, i. e., twenty-five feet on either side of the middle of the vein at the surface, and the rule applies as well to associations of persons as it does to a single individual,3 except where a greater greater limitation would be necessary in order to protect the rights of adverse claimants previously acquired and existing before the statute came into effect. But placer claimants are not governed by the same rules that pertain to the locators of vein or lode claims, and the amount of land in the two cases, as well as the conditions on which it is held, are

1 R. S. U. S., § 2320 et sub.

2 Wade Amer. Min. Laws, p. 70.

3 Wade's Am. Min. Laws, 15. § 2320. "Mining claims upon veins and 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, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred 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 three hundred 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 twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen hundred and seventy-two, render such limitation necessary. The end lines of each claim shall be parallel to each other." (Act of Congress May 10th, 1872, Ch. 152, § 2.)

vastly different. Under the statute no single individual can hold over twenty acres of land as a placer claim and no association of persons, regardless of the number of persons constituting such association, can legally hold over one hundred and sixty acres of land. The distinguishing features between lode and placer claims appears elsewhere in this chapter.3

§ 35. Rights acquired by possession. No title to public mineral land is acquired by the claimant as against the government from the mere fact of possession. The only right which is acquired by possession is the exclusive right to hold possession of the land included within the locator's claim and a superior right, as against other third parties, to enter and purchase such land from the government.

1 United States v. Iron, Sil. Min. Co., 128 U. S. 673.

One

2 Rev. Sta. U. S., § 2329; Id. 2331. § 2321. Where placer claims are upon surveyed lands and conform to legal subdivisions, no further survey or plat shall be required, and all placer mining claims located after the tenth day of May, eighteen hundred and seventy-two, shall conform as near as practicable with the United States system of public land surveys and the rectangular subdivisions of such surveys, and no such location shall include more than twenty acres for each individual claimant, but where placer claims cannot be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands; and where, by the segregation of mineral lands in any legal subdivision, a quantity of agricultural land less than forty acres remains, such fractional portion of agricultural land may be entered by any party qualified by law, for homestead or pre-emption purposes." (Act of Congress, May 10, 1872, Ch. 152, § 10.) 3 See Sec. 32.

4 "Possession raises an inference of title. It gives the one in possession a right not only to prevent others from entering to explore the ground for mineral, but from erecting superstructures as well. It is property, and as such subject to execution; may be transferred by deed or written agreement, or by a mere transfer of the possession to another by verbal consent. And when one was in possession at his death, it was held that his possession gave prima facie title to his heirs. But no claimant who relies on prior possession alone has any right or title which he can assert against the United States or its grantee." Wade's Am. Min. Law, 36; Sears v. Taylor, 4 Colo. 38; Jackson v. McMurray,

in possession of public land can hold such land as against an adverse claimant, who cannot show a better title than the holder, even though the latter has not yet made a discovery of the mineral, or taken any other steps to perfect a location of the land. The mere fact that one is in possession of such land, prosecuting a search for mineral, is one of the strongest proofs of the locator's good faith, and is sufficent evidence of the possessor's intention to locate a claim, to enable him to hold the same against anyone who would come upon the land for purposes inconsistent with such locator's rights. Possession, in fact, constitutes one of the essentials of a valid location and it has been held that where a party relies upon a location made by himself, if he fails to show possession, he must show all the other acts necessary to a valid location, and a full compliance with the general law and the local rules

Id. 76; Burdge v. Smith, 14 Cal. 380; Campbell v. Rankin, 99 U. S. 261; Richardson v. McNulty, 24 Cal. 339; English v. Johnson, 17 Cal. 107; Kinney v. Con. Virginia M. Co., 4 Sawyer, 382-450; Correa v. Frietas, 42 Cal. 339; Wade's Am. Min. Law, p. 36. Valid location will defeat a claim based on mere possession alone. Belk v. Meagher, 1C4 U. S. 284; Eilers v. Boatman, 111 U. S. 356; 3 Utah, 159; Phoenix Mill v. Lawrence, 55 Cal. 143; Craig v. Thompson, 10 Colo. 517; Burns v. Clark, 133 Cal. 634; 20 Am. & Eng. Enc. Law (2 Ed.), p. 722. Mere possession is good as against one who cannot show a better title. Patchen v. Keeley, 19 Nev. 404; Crossman v. Pendrey, 8 Fed. Rep. 693; Zollers Min. Co. v. Evans, 2 McCreary (U. S.), 39; Garthe v. Hart, 73 Cal. 541; Gregory v. Pershbaker, 73 Cal. 109; Neubaumer v. Woodman, 89 Cal. 310; Weese v. Barker, 7 Colo. 178; Patterson v. Tarbel, 26 Oreg. 29; 20 Am. & Eng. Enc. Law (2 Ed.), p. 720 et sub.

1 "A prior locator of a mining claim, on the bank of a stream, has the right to the use of the bed of the stream for the purpose of fluming or working his claim; and any subsequent erection, dam, or embank ment, which will turn the water back upon such claim, or hinder it from being worked with flumes, or other necessary means or appliances, is an encroachment upon the rights of such locator, and he is entitled to recover the damages caused by the obstructions." (Sims v. Smith, 7 Cal.

148.) B. & W. L. C. 131, 311, et sub.