62. A placer patent conveys title to a lode not then known to exist. Raunheim v. Dahl, 6 Mont. 167; 9 Pac. Rep. 892; 132 U. S. 260; Montana Copper Co. v. Dahl, 6 Mont. 131; 9 Pac. Rep. 894.

63. Where no vein or lode is known to exist within a placer claim at date of application for patent therefor, the patent for such placer claim shall carry all such veins or lodes within its boundaries which may be afterwards found to exist under its surface.

Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591.

69. On a sufficient showing by the applicant for a lode claim situate in a patented placer, a hearing may be ordered to determine whether the lode was known at the date of the placer application, with the view of recommending suit by the United States Attorney-General to vacate the placer patent as to the conflict. Rebel Lode, 12 L. D. 683; Pikes Peak Lode, 14 L. D. 47. (Modified by South Star Lode, 20 L. D. 204.)

70. An application for a lode claim in conflict with a patented placer may not be received by the Land Department as long as the placer patent remains outstanding. If the placer patent was issued upon false proof,

65. A lode within a placer location belongs to the placer claimant if not known at date of application for placer patent. Montana Copper Co. v. Dahl, 6 Mont. 131; 9 Pac. Rep. 894.

66. A patent for a placer claim carries title

to all veins or lodes in said claim not known at date of application for placer patent. Maggie Lode, 14 L. D. 655.

67. Where it appears to the satisfaction of the Land Department that a lode was known at date of placer application for patent, the lode may be patented notwithstanding the issuance of the placer patent, but the lode claimant will be restricted, as to surface ground, to twenty-five feet on each side of the middle of the vein. (Departmental decision.) Moyer v. Mike & Starr G. & S. M. Co., 10 C. L. O. 150. (Citing Becker v. Sears, 1 L. D. 577; War Dance Lode v. Church Placer, 1 L. D. 549; Robinson v. Roydor, 1 L. D. 564; Shonbar Lode, 1 L. D. 551.) To same effect, see Searl v. Finn, 10 C. L O. 119. But see Pikes Peak Lode, 10 L. D. 200; South Star Lode, 20 L. D. 204.

68. Where an applicant for a lode patent shows the lode to have been known at date of application for a patented placer with which it conflicts, instead of incurring the expense of suit by the United States to vacate the placer patent as to the conflict, the Land Department may accept a reconveyance of the land to the United States, which would reinvest the Department with jurisdiction over it. Juniata Lode, 13 L. D. 715.

the United States. Pikes Peak Lode, 10 L. D. 200. (Overruled by South Star Lode Case, 20 L. D. 204.)

71. Where the record shows that there is no known vein or lode within the boundary of a placer claim, and patent regularly issues thereon, no subsequent application for a lode claim within said placer should be accepted celed. Rebel Lode, 12 L. D. 683. See South so long as said placer patent remains uncanStar Lode, 20 L. D. 204.

72. The validity of a placer patent and its extent, as in conflict with an alleged known lode or vein, are questions that can only be determined by judicial authority. Pikes Peak

Lode, 10 L. D. 200. See South Star Lode, 20

L. D. 204.

73. The question of whether or not a lode was known to exist within a placer claim at date of the application for placer patent is always one for an ultimate decision by the courts. After the Land Department has issued a patent for the placer claim its jurisdiction over the land patented has ceased, and the only way the title of the patentee can be impeached is by proper proceedings in court. Iron Silver M. Co. v. Campbell, 135

U. S. 286.

74. The owner of a lode alleged to have been known at date of application for patent to a placer (since patented), covering a lode, should apply for patent in the usual manner and allow the placer patentee to adverseshould he desire. Olathe Placer, 4 L. D. 494. See South Star Lode, 20 L. D. 204.

75. An applicant for a patent for a lode claim within a patented placer claim must. show the existence of such mine and its true

76. Where a patented placer is found to be in conflict with a lode claim, and the facts are such as to warrant judicial proceedings for the vacation of the patent as to the land in conflict, the patentee may, by mesne conveyance, surrender the title of such land to the government, and so vest the Department with jurisdiction to again dispose of the land. Juniata Lode, 13 L. D. 715.

77. Where it is ascertained by inquiry instituted by the Department, or determined by a court of competent jurisdiction, that a lode claim exists within the boundaries of land covered by a placer patent, and that such lode claim was known to exist at the date of application for such patent and was not applied for, it must be held that the land embraced in such lode is reserved from the operation of the conveyance by the general terms of exception therein, and that patent may issue for the lode claim if the law has been in other respects complied with. (Case of Pikes Peak Lode, 14 L. D. 47, overruled.) South Star Lode (review), 20 L. D. 204.

78. In assuming to issue patent for a lode claim alleged to have been known at the date of application for a placer patent (since issued) covering the land, the Department will proceed with caution, and will require the known existence of such lode at that date to be clearly shown. Departmental decision of May 13, 1896, In re Lucy L. Lode.

79. Where an entry is made of a lode claim in conflict with a patented placer claim, and it appears that the title under the placer patent, to the ground in conflict, is vested in the lode claimant, the known existence of the lode at date of the application for the placer patent may be shown by ex parte affidavits, as there could be no opposing party to render a hearing necessary. But after the issuance of a placer patent the Land Department will not assume that a lode was known to exist within the placer claim because of the fact that a lode claim was located therein prior to the placer application. The known existence of the lode at that date must be shown as a fact by proof. Valley Lode, 22 L. D. 713. 80. Section 2333, United States Revised Statutes, has no application to a legally located vein or lode within the boundaries of a

15 Mor. Min. Rep. 611

81. Section 2333, United States Revised Statutes, applies only to lodes or veins not taken up and located so as to become the property of others. If any are not thus owned and are known to exist, the applicant for a patent for a placer claim must include them in his application or he will be deemed to have declared that he had no right to them. Sullivan v. Iron Silver M. Co., 143 U. S. 431. See S. C., 109 U. S. 550.

82. A placer applicant will not be allowed to amend his application for patent so as to embrace therein a lode discovered before the filing of such application, as the failure to embrace the same in the placer application in the first instance was under the law a conclusive waiver of all claims to the lode. Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95.

83. The limitation of the width of a lode claim within a placer prescribed by section 2333, United States Revised Statutes, has no application to a case where a lode was covered by a valid location of the full legal extent, prior to the application for placer patent, but the whole lode claim is excepted from the placer patent. Pikes Peak Lode, 10 L. D.

200.

84. The owner of a lode claim covered by an application for a placer patent is not obliged to adverse the placer application, for his claim is excepted from the operation of the placer patent by law. Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611.

85. Where an application for patent under the lode mining laws is made for land already patented to another under the placer mining laws, the provision of section 2326, United States Revised Statutes, does not require the placer patentee to adverse the application of the lode claimant, as only those holding mining claims by possessory title are required to proceed under that law. Iron Silver M. Co. v. Campbell, 135 U. S. 286. See 17 Colo. 267; 29 Pac. Rep. 513.

86. A placer patentee cannot be called: upon to defend his title against a lode claimant before the Land Department. Iron Silver M. Co. v. Campbell, 135 U. S. 286. See 17 Colo. 267; 29 Pac. Rep. 513.

87. A placer claimant may file an adverse claim against the application for patent to a

88. Where a placer patentee has filed an adverse claim against the application for patent for a lode claim within the placer, and has begun suit thereon, the Land Department will take no action, but will leave the parties to secure a determination of their rights in court. Iron Silver M. Co. v. Mike & Starr M. Co., 6 L. D. 533.

89. A judicial award of the right of possession to an adverse placer claimant as against the applicant for patent for a lode claim does not preclude inquiry by the Land Department on an allegation of the lode claimant that the placer claim, as subsequently applied for, embraces a known lode, where it appears that the question was not tried on the adverse suit; and if such allegation is sustained, the lode claimant may make entry of his lode, together with surface ground necessary to the convenient working thereof. Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95.

90. During the pendency of a suit based upon an adverse claim filed by a placer claimant against an application for patent to a lode claim, entry may not be allowed upon said application. Clipper M. Co., 22 L. D. 527.

91. The Colorado courts entertain adverse suits brought by lode claimants against placer applicants. Alice Placer, 4 L. D. 314; Swaim v. Cravan, 12 L. D. 294.

92. In Montana suits are entertained based on adverse claims filed by lode claimants against an application for a placer patent. Hopkins v. Noyes, 4 Mont. 550; 2 Pac. Rep. 280; 15 Mor. Min. Rep. 287; Railroad Lode v. Noyes Placer, 9 L. D. 26.

93. The locator of a lode claim who fails to adverse an application for a placer claim covering the same, by such failure loses his rights to surface ground in excess of twentyfive feet on each side of the middle of his lode. Shonbar Lode, 3 L. D. 388. (Modified in South Star Lode, 20 L. D. 204.)

94. A lode claimant who fails to adverse an application for patent to a conflicting placer claim is estopped from questioning the validity of the placer title. Raunheim v. Dahl, 6 Mont. 167; 9 Pac. Rep. 892. See 132 U. S. 260.

contained to lode claimants, is without authority of law, and will not be followed by the Land Department, which will not issue a patent for a placer claim containing known lodes belonging to one other than the placer claimant. Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641.

96. A dispute between mining claimants, one claiming the land as a lode claim and the other as a placer claim, must be settled in court, as the determination of such controversies is not within the jurisdiction of the Land Department. Com'r to C. Dodson, April 10, 1891.

97. Where application for a placer patent was made and no adverse filed by a lode claimant, and subsequently the lode claimant applied for patent and was adversed by the placer applicant, who began suit and then dismissed it, it was held that the placer applicant had abandoned the conflict, and that patent for the lode claim need not be confined to twenty-five feet on each side of the middle of the lode. Monroe Lode, 4 L. D. 273.

98. Proof of the location of a lode claim in a placer, at date of placer application for patent, is not proof of the known existence of the lode. Butte & Boston M. Co. v. Sloan, 16 Mont. 97; 40 Pac. Rep. 217.

99. One who locates a lode within a placer claim after publication of notice of placer application acquires no right to it, and (semble) nor does he acquire any right if the location is made after placer application. Montana Copper Co. v. Dahl, 6 Mont. 131; 9 Pac. Rep. 894.

100. Locations of lodes or veins within placer claims prior to application for placer patent, when perfected under the law, are the property of the locators or their assigns, and are not, therefore, subject to disposal by the government. Sullivan v. Iron Silver M. Co., 143 U. S. 431. (Citing and quoting Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510.)

fact may not be possessed by the applicant for a patent of a placer claim. The information which the law requires the locator to give to the public must be deemed sufficient to acquaint the applicant with the existence of the vein or lode." Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611.

102. After issuance of placer patent the owner of a lode therein, located with surface ground twenty-five feet on each side, may not so amend his location as to take in a greater amount of surface ground. Becker v. Sears, 1 L. D. 577.

103. The discovery of a quartz lode two hundred or three hundred feet outside of the boundaries of a placer claim raises no presumption that such lode extends within the placer boundaries, where there is no surface indication thereof. Raunheim v. Dahl, 6 Mont. 167; 9 Pac. Rep. 892. See 132 U. S. 260.

104. In the case of a known lode in a placer claim at date of the placer application for patent, and not included in the placer application, the rule which applies to all actions to recover possession of real estate applies, namely, that the plaintiff can only recover on the strength of his own title and not on the weakness of defendant's title. In such a case the placer claimant, being without title, may not dispossess a person in the peaceable possession of the lode. Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591.

105. The fact that a placer patent was obtained with the intention of acquiring title to lodes supposed to exist within the placer claim but as yet undiscovered will not defeat the title of the placer patentee. Iron Silver M. Co. v. Reynolds, 124 U. S. 374; 116 U. S. 687 (first trial); 15 Mor. Min. Rep. 591.

106. The entry as a placer claim of land known to be valuable only for lodes contained is illegal, and will be canceled. Grosfield v. Nigger Hill Cons. M. Co., 14 L. D. 685.

107. A patent for a lode claim which is situated within the boundaries of a placer claim covered by a prior patent is not conclusive of the fact that the lode so patented was known to exist at the date of the application for the placer patent, and hence excepted from the placer patent. Iron Silver M. Co. v. Campbell, 135 U. S. 286. See 17 Colo. 267; 29 Pac. Rep. 513.

108. A placer and a lode claim not contiguous to each other cannot be embraced in the same patent. Com'r to Henry O'Conner, 5 C. L. O. 162.

109. In procuring a patent for a placer claim, under section 2333, United States Revised Statutes, where the claimant is also in possession of a lode or vein included within the boundaries of his placer claim, the patent shall cover both, if he makes this known and pays $5 per acre for twenty-five feet on each side of his vein, and $2.50 per acre for the remainder of his placer claim. Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591.

110. Where application is made for patent to a placer claim, exclusive of lodes claimed by other parties, the lode claims must be surveyed by the placer applicant in order that the land covered thereby may be excluded from the placer patent. Com'r to F. C. Morse, 5 C. L. O. 5.

111. For the purpose of including ground claimed under a lode location, valid when made, and any veins or lodes the tops or apexes of which may be situated therein, the end line of the lode claim may be established within a patented placer claim, under the same principle as is laid down in paragraphs 50 and 51 of the Mining Circular, page 138, for conflicting lode claims. Black Diamond Lode, 22 L. D. 284.

112. An applicant for a placer patent, who has given due notice thereof and made an entry, may maintain a suit to quiet title against one claiming under a conflicting lode location. Dahl v. Raunheim, 132 U. S. 260.

5. General.

113. "It cannot be claimed that a location of a narrow strip of land 12,000 feet long, extending through three sections, conforms as near as practicable to the rectangular subdivisions of the public surveys, unless the adjoining land had been previously appropriated or reserved." Com'r to Sacramento

Office, Jan. 16, 1883, In re William Rablin, 10 C. L. O. 3. (Reversed, S. C., 2 L. D. 764.)

114. Held: That a placer claim two miles long, containing only forty-one acres, along a ravine, surrounded by land not valuable for mineral, conforms as near as reasonably practicable to legal subdivisions. Departmental

115. Though placer claims on surveyed lands are required to conform "as near as practicable" with legal subdivisions, they may be located along a stream or canyon, as it is not the intent of the law to compel the placer claimant to take land unfit for mining. William Rablin, 2 L. D. 764.

116. A placer claim on surveyed land must be located by legal subdivisions or the reason shown for failure to do so. Southern Pacific R. R. Co. v. Griffin, 20 L. D. 485.

117. A placer entry of a long, narrow strip of land covering a stream of water, on surveyed land, held to conform as near as reasonably practicable with the public surveys, where it is shown that the surrounding land was valueless for mining. (In this case four entries covered a strip of land from five to five hundred feet wide and about eighteen miles long.) Pearsall & Freeman, 6 L. D. 227. 118. Placer claims, located subsequent to May 10, 1872, must conform as near as practicable to the public surveys. Com'r to George A. Black, Jan. 6, 1879, 5 C. L. O. 162.

119. A placer claim may be located by legal subdivisional description, notwithstanding the suspension of the township survey. Gird v. California Oil Co., 60 Fed. Rep. 531.

120. As the evidence shows that the oil

placer mining claim was located in good faith, it is no defense to a trespass to say that mineral does not exist upon the mining claim. Van Horn v. State of Wyoming, 40 Pac. Rep.

964.

121. "It has been the policy of the government to withhold patents for water rights, and leave them to be determined and protected by the local courts. It was clearly not the intention of Congress to allow a large river for two or three miles, with only a few feet of ground along its banks, to be patented as a placer claim." Com'r to Sacramento Office, Jan. 16, 1883, In re William Rablin, 10 C. L. O. 3. Reversed by Secretary's decision in Same Case, 2 L. D. 764, wherein it is stated that "It is well settled that if the beds of un

navigable streams contain mineral deposits they may be appropriated for mining purposes, and that, as to the water, the locator obtains only an usufruct in it."

a placer mine, but to a water right. William A. Chessman, 2 L. D. 774; Robert S. Hale, &

L. D. 536.

123. If the land contains gold or other valuable deposits in loose earth, sand or gravel, which can be secured at a profit, it is enterable under the placer mining laws, regardless of other valuable qualities it may possess, such as timber, or the uses besides mining to which it may be put. But if a patent is secured under the placer mining laws for land not containing any placer deposits, for the purpose of securing title to the timber thereon, the United States may maintain a suit to vacate such patent for fraud in its procurement. United States v. Iron Silver M. Co., 128 U. S. 673. See 5 McCrary, 266; 24 Fed. Rep. 568.

124. A placer entry and patent may embrace more than one hundred and sixty acres. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673; Good Return M. Co., 4 L. D. 221.

125. A person or association may purchase as many placer claims as the local laws permit and embrace them all in one application for patent. Com'r to H. F. Page, Nov. 21, 1874, 1 C. L. O. 134.

126. If properly located, an unlimited area may be embraced in an application for patent to a placer claim. Com'r to Smith Brothers, Sept. 20, 1879, 7 C. L. O. 4.

127. A patent for a placer claim carries with it title to the surface as well as the land beneath the surface. Deffeback v. Hawke, 115 U. S. 392.

128. The statutes of Montana requiring a record to be made of vein mining claims cannot be construed to include placer claims. The record is therefore no part of the chain of title to a placer claim, and hence is inadmissible in evidence. Moxon v. Wilkinson, 2 Mont. 421; 12 Mor. Min. Rep. 602.

129. Circular of September 22, 1882, as to reports by Deputy Surveyors on placer claims. 1 L. D. 685.