made a location of his claim, they cannot afterwards be changed to conform to the direction of the vein or lode, if the change would in any way conflict with the rights of other locators upon adjacent claims. The locator of a vein or lode claim is also given the right by statute to mine and claim all veins and lodes whose apex is within his boundaries, although the veins or lodes may extend beyond the side lines of his claim, provided the vein or lode, at the point where it departs from a vertical position, lies in a downward course. But where the location does not include the apex of the vein, the locator cannot claim the right to mine the vein beyond the side lines of his claim, and he has no right to follow a vein beyond the end lines of his claim, whether the vein is "on the dip," or otherwise;

1 Wade Amer. Min. Laws, p. 63 et sub. See R. S. U. S. 2322, 2336. “One of the most important provisions of this section is that which secures the right not only to that part of the vein or lode which lies within the side lines extending downward vertically, but to so much of it as departed from the vertical side lines on the dip. This provision has been fruitful of no little contention and expensive litigation. As it affects patented and unpatented claims alike, it qualifies the general doctrine of ownership to the center of the earth, which applies to titles to real estate in general. Dip, is simply that departure from a vertical position, which is one of the incidents of almost all veins in their downward course. The apex is simply the top of the lode, or terminal point, where it comes nearest the surface. As applied to vertical veins, these terms present few difficulties in construing the statute. The only one upon which serious doubt has been expressed is whether a subsequent location on the apex would take precedence of a prior discovery and location on the same vein below the apex, so as to allow the later discovery to follow the vein, not only within the side lines of the earlier one down to the point where the vein was first discovered, but below that, and thus appropriate the entire vein. Or whether the first discoverer and locator might follow the dip up, as well as down. There can be no doubt that the location which does not include the apex, confers no rights beyond the side lines."- Wade, p. 63. Rev. Stat. U. S., § 2322; Bullion M. Co. v. Croesus M. Co., 2 Nev. 169; Iron-Silver M. Co. v. Cheeseman, 1 Colo. 461; Eureka &c. Co. v. Richmond M. Co., 4 Sawyer (U. S. Cir. Ct.), 302; Iron Mine v. Loella Mine, 1 Colo. 16-23; Mining Co. v. Tarbet, 98 U. S. 463; Van Zandt v. Argentine M. Co., 1 Colo. 524. The apex of

nor can he go beyond the side lines of his claim, except when the vein is " on the dip."1

§ 44. Value of land office decisions. The decisions of the United States land offices and those of the Secretary of the Interior, construing the different mining acts, are of recent years growing quite voluminous and often pass upon rights of vast importance as between individuals and the general government. It may be stated as a general rule that their decisions upon the facts in the cases which they are called upon to pass, if the same are unaffected by fraud or mistake, will be held to be conclusive by the courts,2 and before a case has been finally passed upon and adjudiIcated in the land office the courts would not exercise their jurisdiction to interfere by extraordinary remedy of mandamus or injunction to compel the land department officials to discharge their duties.3 But after the government has conveyed its title to the land, and the question to be determined has become one of private rights, the decisions of the land offices have not the authorized utterance of law upon such rights, and the aid of the courts can be invoked to investigate the character of their decisions and adjudicate the rights involved, under the law. The decisions of the land office are not conclusive upon the rights of the parties, and in all cases where fraud or mistake is alleged, the courts will investigate the proceedings

a vein is not always a point, but frequently a line of great length, any portion of the apex on the course or strata of the vein, found within the limits of a claim, is sufficient discovery to entitle the locator to obtain title. Larkin v. Upton, 144 U. S. 19; 12 Sup. Ct. Rep. 614; Mor. Min. Rts. (10 Ed.), pp. 208-9.

1 Ante, idem; Mor. Min. Rts. (10 Ed.), pp. 212, 319.

2 Minnesota v. Batchelder, 1 Wallace, 109.

3 Silver v. Ladd, 2 Wallace, 209.

4 Silver v. Ladd, 7 Wal. 219; Lyttle v. Arkansas, 22 How. 192; Garland v. Winn, 20 How. 8; Lindsay v. Howes, 2 Black, 559; Tinley v. Williams, 9 Crouch, 161; Hunt v. Wyckliff, 2 Peters, 201.

by which titles are sought to be vested, inquire into the facts of disputed entries and afford the proper relief to the parties litigant, notwithstanding the decisions of the register and receiver.1

§ 45. Distinctions between locations of ledge and surface. Under the common law the possession of the surface of the soil carried with it the right to everything above and below the surface.2 But this doctrine can have little application to the law of mines and minerals, for its practical enforcement would be next to an impossibility. Such a doctrine would enable the settler on public land for agricultural purposes to claim all the minerals beneath. the surface, and give to the locator of a “blind ledge ” the right to follow the same to the surface and claim the most extensive and valuable improvements the agriculturist had erected thereon.3 Accordingly it has been held that the right to the possession of a "blind ledge," without surface indications, did not carry with it the right to erections on the surface; nor would a surface location necessarily carry with it the right to an undiscovered ledge or lode beneath the surface, and particularly if the surface was located for other than mining purposes. Hence, in the

*

1 Bernard's Heirs v. Ashley's Heirs, 18 How. 43; Cunningham v. Ashley, 14 How. 377; Johnson v. Townsley, 13 Wal. (U. S.) 72. In Lyttle v. Arkansas, 22 How. (U. S.) 192, the court, delivering its opinion, says: "Another preliminary question is presented on this record, namely, whether the adjudication of the register and receiver * * is subject to revision in courts of justice, etc. * **We deem this question too well settled in the affirmative for discussion." (See also Magwire v. Tyler, 1 Black (U. S.), 195; Tate v. Carney, 54 How. U. S. 357; Wilcox v. Jackson, 13 Pet. (U. S.) 498; Doe v. Eslava, 9 How. 421; cited in B. & W. L. C., p. 202, et sub.

2 Tiedeman R. P., § 2; Blackstone's Com.

3 Blanchard & Weeks Lead. Cas., p. 203, et sub.

4 Bullion Min. Co. v. Croesus G. & S. Min. Co., 2 Nev. 168; idem, p. 204.

simple location of a ledge, without a location of the surface, the locator's rights attach only to the ledge,1 and if the surface is held adversely, he must work his ledge from some accessible point on the surface which is not occupied, or obtain the right to work it from the owners of the surface of the soil.2 But if the ledge extends to the surface of the soil, as it often does, the locator of the ledge is then entitled to the surface also, but this is only true when the outlines of the ledge are plainly visible at the surface.3

One person can

§ 46. Location in name of another. make a valid location of a mining claim in the name of another, but the party making such location, although he occupies and works such claim, cannot maintain an action. for injury thereto in his own name, if the location was made in the name of another.4 And so where one locates a mining claim for himself and others, the relation of cotenants is established between them, and the party making the location cannot bind his other cotenants on any contract made in their joint names in regard to the disposition or changing of such claim without their knowledge or consent. But if the relation of copartners had been established between the owners of the claim they would be bound in such case by the acts of their copartner, and even though this relation did not exist, if they should verbally consent to such a contract in their relation as cotenants,

1 Blanchard & Weeks Lead. Cas. and notes, p. 162; McClintock v. Bryden, 5 Cal. 97; Irwin v. Phillipps, 5 Id. 140; Fitzgerald v. Norton, 5 Id. 308.

2 Blanchard & Weeks Ld. Cas., p. 202, and cases cited.

3 Ante, idem; Mor. Min. Rts. (10 Ed.) 136, et sub.

4 Van Valkenberg v. Huff, 1 Nev. 142.

5 Chase v. Savage Sil. Min. Co., 2 Nev. 9; Blanchard & Weeks Ld. Cas., p. 201, et sub.

6 Blanchard & Weeks Lead. Cas., p. 572, et sub.

this would be sufficient to support the contract, and it could be enforced against them.1 And where one person locates a claim in the name of another, if such person should afterward abandon the first location and locate the same in his own name, he would thereby acquire an independent right over such claim, which would date from the time of the relocation.2

§ 47. Mining claims on school, railroad and other grants. - Contests were quite frequent at an early day in the Western States between locators of mining claims and those claiming title by virtue of grants from the general government of land for school and other public purposes. Such contests often arose between the locator and grantees of the State to land acquired by special Act of Congress for school purposes, and not the less frequent were those claiming title by reason of special grants to railroad corporations, parties to such disputes. Considerable discord arose between the holdings of the State and United States courts as to the exact status of the miners' right to locate claims upon land previously granted by the government for public purposes, and the decisions are to a certain extent irreconcilable.4 After the title to the land had been transferred from the government to its grantee, for whatever purpose, there would seem to be no doubt of the latter's

1 Chase v. Savage Silver Min. Co., 2 Nev. 9.

2 Van Valkenburg v. Huff, 1 Nev. 142; Mor. Min. Rts. (10 Ed.) 136. & McLaughlin v. Powell, 50 Cal. 64; Railroad v. Smith, 9 Wall. 98;

Alford v. Barnum, 45 Cal. 482; People v. Strattan, 25 Cal. 242.

4 Blanchard & Weeks' Leading Cases in Mines and Minerals, p. 684, et sub. The statutory reservation of minerals in grants to railroads, is held to reserve, absolutely, all minerals, whether known to exist at time of grant, or not. Barden v. North. Pac. R. R. Co., 154 U. S. 288; Smith v. North. Pac. Co., 19 U. S. App. 131. The former case overrules the previous holdings upon this point. 20 Am. & Eng. Enc. Law (2 Ed.),