main. Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557. See, also, Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Law Rep. 304. 92. "It must be remembered that every seam or crevice in the rock, even though filled with clay, earth or rock, does not constitute a vein, nor every ridge of stained rocks its croppings. Nor on the contrary, is it required that well-defined walls shall be developed, or paying ore found within them. But something must be found in place, as rock, clay or earth, so colored, stained, changed and decomposed by the mineral elements as to mark and distinguish it from the inclosing country." Burke v. McDonald, 2 Idaho, 646; 33 Pac. Rep. 49. 93. "A lode or vein is a body of mineral or mineral-bearing rock, within defined boundaries, in the general mass of the mountain. In this definition the elements are the body of mineral or mineral-bearing rock, and the boundaries. With either of these things established, very slight evidence may be accepted as to the existence of the other." Hyman v. Wheeler, 29 Fed. Rep. 347; 15 Mor. Min. Rep. 519. 94. A vein is by no means always a straight line, of uniform dip or thickness, or richness of mineral matter throughout its course. Generally they are found in clefts or fissures in the surrounding rock, with a well-defined wall above and below. Iron Silver M. Co. v. Cheesman, 116 U. S. 529. 95. "A vein is discovered when there is disclosed a well-defined body of rock in place carrying gold, which body subsequently proves to be continuous." The only line of demarkation between the vein and the country rock may be the commencement of the rock to bear mineral. Regular, well-defined and easily-distinguished walls are not essential to the existence of the vein. It is not necessary that the ore found shall be "pay ore," for what is waste to-day may, with changed surrounding circumstances, prove to be "pay ore" to-morrow. Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 399; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390. 96. The boundaries of a lode are not necessarily such as are visible, but may be such as may be established only by assays. Hyman v. Wheeler, 29 Fed. Rep. 347; 15 Mor. Min. Rep. 519. 97. Whether it is in the form of a broken mass of blue and brown lime, between regu. lar walls of the same rocks, or a part of such strata in solid formation, mineralized by replacement of some of their constituents with valuable metals, the result is the same, and the name which science may apply to it is of no importance. Hyman v. Wheeler, 29 Fed. Rep. 347; 15 Mor. Min. Rep. 519. 98. "By veins or lodes' . . are meant lines or aggregations of metal imbedded in quartz or other rock in place. The terms are found together in the statutes, and both are intended to indicate the presence of metal in rock. Yet a lode may, and often does, contain more than one vein." United States v. Iron Silver M. Co., 128 U. S. 673. (Affirming S. C., | 24 Fed. Rep. 568.) 99. Fire clay or kaolin, though with welldefined boundaries, is not a vein or lode, but must be located as a placer. Dobbs Placer, 1 L. D. 565. 100. A formation of broken limestone, boulders, low-grade ore, gravel and sand, with solid rock on each side, is rock in place, the manner or time of its deposit being immaterial. Jones v. Prospect Mtn. T. Co., 21 Nev. 339; 31 Pac. Rep. 642. See Stevens v. Will iams, 1 McCrary, 480; 1 Mor. Min. Rep. 557, and Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Law Rep. 304. 101. Excluding the waste slide, or debris on the surface of the mountain, all things in the mass of the mountain are in place. Iron Silver Mining Co. v. Cheesman, 116 U. S. 529. 102. A vein or lode authorized to be located is a seam or fissure in the earth's crust, filled with quartz or some other kind of rock, in place, carrying gold, silver or other valuable mineral deposits named in the statute. It may be very thin or many feet thick, and it may be rich or poor, provided it contains any of the metals named in the statute. But it must be more than detached pieces of quartz or mere bunches of quartz not in place. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. 103. A connected deposit of silver-bearing ore and concomitant vein matter is a vein or lode. Phillpotts v. Blasdell, 8 Nev. 61; 4 Mor Min. Rep. 341. 104. "And as to the word vein or lode, it seems to me that these words may embrace any description of deposit which is so situated (in place) in the general mass of the country, whether it is described in one way or another; that is to say, whether, in the language of the geologist, we say that it is a bed, or a segregated vein, or gash vein, or true fissure vein, or merely a deposit; it matters not what the particular description may be; in respect to those distinctions which are observed by geologists in defining the different classes of deposits that lie in the embrace or are inclosed by the general mass of the mountain. In all cases I suppose that they are lodes if not veins. It may be true that many of these deposits will not come under the description of veins as known to geologists, but if they are not so described-if that cannot be so correctly described — they are, at least, lodes, and are recognized as such by miners in their search for them." Stevens v. Williams, 1 MeCrary, 480; 1 Mor. Min. Rep. 557. See, also, Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Law Rep. 304. 105. The term "rock in place," as used in the mining acts of Congress, has always received the most liberal construction that the language will admit of, and every class of claims that, either according to scientific accuracy or popular usage, can be classed or applied for as a "vein or lode," may be patented under this law. Com'r to Thomas Boles, July 20, 1871; Sickel's Min. Dec. 522. 106. The definition of a lode given by geologists is that of a fissure in the earth's crust filled with mineral matter, or, more accurately, an aggregation of mineral matter, containing ores in fissures. Van Cotta on Ore Deposits, Primes' Trans. 26. 107. A vein or lode may be a zone with ore in pockets, gashes or chutes. Illinois S. M. & M. Co. v. Raff, 34 Pac. Rep. 544. For several definitions of veins or lodes, see Jones v. Prospect Mtn. Tunnel Co., 21 Nev. 389; 31 Pac. Rep. 642. Citing Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557; Hyman v. Wheeler, 29 Fed. Rep. 347; 15 Mor. Min. Rep. 519; Hibschle v. Gildersleeve, 8 C. L. O. 65; Neils Larsen, 9 C. L. O. 2. 108. The terms "lode" or "vein," as used in the mining acts, are such "lodes" or "veins" as are so called by miners. Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362. See 111 U. S. 350. | 109. Mere contact without mineral-bearing ore does not constitute a lode. Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Law Rep. 304. See Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557. 110. Veins or lodes in place are those lying in a fixed position in the general mass of the country rock or mountain. Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557. See Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Law Rep. 304. 111. A vein is "any zone or belt of mineralized rock lying within boundaries clearly separating it from neighboring rock." Cheesman v. Shreeve, 40 Fed. Rep. 787. 112. Not every metalliferous zone is a lode. Mt. Diablo M. & M. Co. v. Callison, 5 Sawy. 439; 9 Mor. Min. Rep. 616. 113. In considering the continuity of a lode or vein, a distinction is to be made between a fissure vein and a contact lode. In the first, the fissure, filled with vein matter, whether valuable or not, marks the existence of the vein. In the second, the mere contact without the presence of mineral will not be accepted as a continuance of the lode, except for a short distance or a few feet. Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557. See Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Rep. 304. 114. "The law will not distinguish between different kinds and classes of ore if they have appreciable value in the metal for which the location was made. Nor is it necessary that the ore shall be of economical value for treatment. It is enough if it is something ascertainable, something beyond the mere trace, which can be positively and certainly verified as existing in the ore." Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Law Rep. 304. See Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557. 115. "Any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. It includes all deposits of mineral matter found through a mineralized zone or belt coming from the same source, impressed with the same forms, and appearing to have been created by the same process." Eureka Cons. M. Co. v. Richmond M. Co., 4 Sawy. 302; 9 Mor. Min. Rep. 578; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. 116. "Ore disseminated at intervals, or found in channels, chutes, cavities, pockets or other irregular occurrences at intervals in quartzite, without ore connections between the same, is not a lode or vein within the meaning of the statute." But "slight interruptions of the mineral-bearing rock are not alone sufficient to destroy the identity of a vein." Cheesman v. Shreeve, 40 Fed. Rep. 787. 117. The fracture or dislocation of the walls of a lode will not prevent it being considered in place. Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Law Rep. 304. See Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557. 118. A lode need not necessarily be rock, but may be of earthy or loose friable material, if inclosed by walls in the country rock. Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557. See Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Law Rep. 304. (2) Size and Shape of Claim. (See SURVEY, p. 137.) 119. The width of a lode claim may be limited by miners' regulations to twenty-five feet on each side of the middle of the vein. A location embracing more than the width allowed by law or regulation on each side of the middle of the vein is void as to the excess but not in its entirety. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. 120. Where a lode is discovered in a discovery shaft and does not outcrop on the surface, it will be assumed that the shaft marks the middle of the vein, in the absence of a contrary showing, Hope M. Co., 5 C. L. O. 116; Albert Johnson, 7 C. L. O. 35. 121. There is no law for the sale of lode claims by legal subdivisions. John O. Welsh, 3 C. L. O. 18. 122. A location of a lode need not be a parallelogram, but may follow the course of the lode, whether that be straight or tortuous. (This principle, applied to the facts in this case, gives a decision contrary to the case of Iron Silver M. Co. v. Elgin M. & Sm. Co., 118 U. S. 196; 15 Mor. Min. Rep. 641.) Breece M. Co., 3 L. D. 11. See to same general effect, Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282. 123. A location is valid only to the extent of the lode included therein, as the surface is held only in connection with the lode. Terrible M. Co. v. Argentine M. Co., 5 McCrary, 639. 124. The vein is the principal thing in the sense that it is for the sake of the vein that the location is made; the surface is of no value without it. But the location is of a piece of land including the vein. Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429. 125. "The surface ground and the lode are not independent grants. It is not the purpose of the act to grant surface ground without a discovered lode. The lode is the principal thing and the surface ground incident thereto." Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282. 126. "However tortuous might be the course of the lode, the claimant had a perfect right to follow it up and prepare his diagram so as to include it, together with the surface ground on each side thereof allowed by local laws. There is no language in the act that requires the diagram to be in the form of a parallelogram or in any particular form." Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282. 127. "If the lode located terminates at any point within the location, or departs at any point from the side lines, the location beyond that point is defeasible if not void." Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542; Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Re-affirmed in 6 Colo. 581; 15 Mor. Min. Rep. 458.) 128. "When one has discovered a lode upon the unappropriated public domain, and has, within the proper time, in good faith, performed all the subsequent acts essential to a valid location, as provided by law, he is entitled to the presumption that his lode extends throughout the full length of the claim" (as against another lode claimant). The burden of disproving this is upon the one deny. ing it. Armstrong v. Lower, 6 Colo. 581; 15 Mor. Min. Rep. 458. (Affirming 6 Colo. 393; 15 Mor. Min. Rep. 631.) See, also, Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542. 129. A lode claim divided into two noncontiguous tracts by land patented as agricultural in character can be entered only as (3) Discovery. to one of such tracts. Departmental decision | cannot exceed one hundred feet in width. of March 31, 1896, in case of George H. Hewitt. Com'r to Helena Office, Aug. 6, 1874, 1 C. L. 130. A location which is separated along O. 162; Tootle, Hann & Co., 3 C. L. O. 67. the line of the lode by a patented location made on a parallel lode is invalid as to one of the non-contiguous portions of the lode, as all parallel lodes embraced in the patented claim passed under the patent therefor. Col. Hall Lode, Keanage M. Griffin, 2 L. D. 735, 736. 131. A lode claim intersected by an excluded placer must be restricted upon entry to that one of its non-contiguous parts on which is situate the discovery. Silver Queen Lode, 16 L. D. 186. non 132. If the presumed line of the lode is interrupted by a tract excluded as mineral, the lode claimant may not embrace the non-contiguous portions of his lode in one mineral entry. Andromeda Lode, 13 L. D. 146; Bi-metallic M. Co., 15 L. D. 309. 133. It is presumed by the Land Department, in the absence of a contrary showing, that the lode extends in a straight line through the center of a surveyed claim. Bimetallic M. Co., 15 L. D. 309. 134. Under the act of May 10, 1872, it is the land containing the lode that is located, not the lode upon a discovery of which the location is based. Golden Terra M. Co. v. Mahler (Smith), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390. (See DISCOVERY, p. 32.) 139. A discovery of a vein or lode within the claim is essential to a valid location. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411; Bryan v. McCaig, 10 Colo. 309; 15 Pac. Rep. 413. 140. A locator need not be the discoverer of the vein located, but must have known of its existence. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. .141. No valid location can be made until a vein or deposit of gold, silver, or metalliferous ore or rock in place has been discovered. Overman S. M. Co. v. Corcoran, 15 Nev. 417; Gleeson v. Martin White M. Co., 13 Nev. 457; 1 Mor. Min. Rep. 691. 142. A vein is discovered when there is disclosed a well-defined body of rock in place carrying gold, which body is afterwards proven to be continuous, without regard to the value of such body as pay ore. Golden Terra M. Co. v. Mahler (Smith), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390. 143. Assays of rock taken from a claim subsequent to location may tend to show 135. Surface ground is simply an adjunct that, at date of location, a vein of mineralto the lode and must be coterminous there-bearing rock had been discovered. Southern with. Engineer Mining & Developing Co., 8 L. D. 361; Plevna Lode, 11 L. D. 236. 136. A claimant who locates a claim in good faith, as discoverer of a vein afterward found to be part of one great lode underlying a large tract, is entitled to the additional two hundred feet of the vein allowed by local law to discoverers. Richmond M. Co. v. Rose, 114 U. S. 576. Cross G. & S. M. Co. v. Europa M. Co., 15 Nev. 383; 9 Mor. Min. Rep. 513. 144. After discovery the discoverer has a reasonable time within which to trace his lode and mark the surface lines of his claim. Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429. 145. A lode discovered in a tunnel run under the provisions of section 2323, United States Revised Statutes, and of which a location notice was posted at the mouth of the tunnel, and duly recorded, need not be located 137. The Montana statute (1864) allowing surface ground fifty feet on each side of the lode, construed as meaning fifty feet on each side of the inclosing walls of the lode, allow-by the discoverer on the surface to protect ing the width of the claim to be one hundred feet plus the width of the lode. Foote v. National M. Co., 2 Mont. 402; 9 Mor. Min. Rep. 605. 138. Lode claims located under the territorial act of December 26, 1864, in Montana, his right, and a subsequent locator on the surface acquires no rights. Ellet v. Campbell, 18 Colo. 510; 33 Pac. Rep. 521. 146. Before a tunnel claimant, under section 2323, United States Revised Statutes, ac quires any right to a lode, it must be discovered in the tunnel. Corning Tunnel & M. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612. 147. A lode location will be presumed to cover the lode discovered in the absence of a showing to the contrary. Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542. 148. The plaintiff in an action of ejectment between the owners of conflicting mining claims must prove a discovery in his discovery shaft and that the lode there discovered extends to the ground in conflict. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441. 149. "The discovery by the defendant of the Dahl lode two or three hundred feet outside of those boundaries does not, as observed by the court below, create any presumption of the possession of a vein or lode within those boundaries, nor, we may add, that a vein or lode existed within them." Dahl v. Raunheim, 132 U. S. 260. 150. It is well settled that the rights of the miner to the surface ground of his location are dependent upon his discovery, and upon the relation which the vein, in its course and direction, bears to the surface as it has been located. The grant of the vein has always been held to be the principal thing and the surface but an incident, which, as to its extent, is entirely determined by the course of the principal thing granted, to wit, the vein. Patterson v. Hitchcock, 3 Colo. 532; 5 Mor. Min. Rep. 542; Colorado Midland Ry. Co. v. Croman, 10 Colo. 381. 151. Evidence as to the extent and richness of the vein, as developed subsequent to location, is inadmissible for the purpose of showing the location to have been based upon a discovery thereof. Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404. See S. C., 5 Mont. 600; 6 Pac. Rep. 66. 152. "It [sec. 2320, U. S. Rev. Stat.] allows a claim to be located to the extent of fifteen hundred feet along the vein or lode, but provides that no location shall be made until the discovery of the vein or lode within the limits of the claim located; which is, in effect, a declaration that locations resting simply upon a conjectural or imaginary existence of a vein or lode within their limits shall not be permitted. A location can only rest upon an | actual discovery of the vein or lode." King v. Amy & Silversmith M. Co., 152 U. S. 222. See, also, 9 Mont. 543; 24 Pac. Rep. 200. 153. The forcible ouster of one who has discovered a mineral-bearing lode and has posted a notice of his claim thereon, by a trespasser, during the time allowed the discoverer by law to perfect his location, and the prevention of the discoverer from compli ance with the law in that regard, excuse him, at least as against such intruder, from a performance of the various acts necessary to a legal location. Erhardt v. Boaro, 113 U. S. 527; 4 Mor. Min. Rep., 432. See 2 McCrary, 141; 1 Mor. Min. Rep. 452. (4) Expenditures. (See EXPENDITURES, p. 224.) 154. Where a lode claim is located over a survey already patented, the subsequently located lode must be shown to extend beyond the lines of the patented survey. The new discovery shaft cannot be located on such patented claim. Improvements made within the patented ground cannot be credited to the later claim. John G. Kennedy, 10 C. L. O. 150. 155. Annual expenditures must be made upon placer claims as well as upon lode claims. Circular, March 24, 1887, 8 L. D. 505. 156. Lodes located prior to May 10, 1872, upon which the required expenditure has been made since May 10, 1872, and prior to January 1, 1875, are not subject to relocation at the later date. Shoo Fly Lode v. Mono Lode, 1 C. L. O. 135. 157. Where a claim has been relocated for abandonment by one of the original claimants, he cannot be credited with the expenditure made under the original location, as all rights thereunder have been forfeited. Max Boehmer, 8 C. L. O. 3. 158. Where a mill site and lode are applied for, $500 expenditure is required on the lode claim only. Com'r to Surveyor-General of Colorado, 1 C. L. O. 2. 159. The act of February 11, 1875, credits to a lode claim the expenditures made in running a tunnel for the purpose of developing the lode owned by the proprietors of the tunnel. Geo. S. Dodge, 6 C. L. O. 122. |