of two hundred yards. The one-lode theory finally prevailed. The definition of a lode given in the Eureka-Richmond case (4 Sawy. 302), a case involving the construction of rights accruing under the law of 1866, is as follows: "We are of the opinion that the term [lode] as used in the acts of Congress is applicable to 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." When the width of the Mother Lode of California varies from that of a knife-blade to eight hundred feet, and more, we realize what kind of an inconstant variable instead. of a straight line a surveyor has to deal with, something of which the land department did not seem to have had the slightest conception.

Under section three of the act no patent could in any case issue for more than one vein or lode. As there was nothing in the statute to prevent another from locating within a certain distance of the original locator, there was no legal method of preventing the presence of undesirable neighbors. A blackmailer might locate an adjacent outcrop of the same lode, and the original locator might have upon his shoulders a suit involving all the horrors of a one-lode and many-lode contest. The only alternative would be to buy out the subsequent locator. The original locator might, through ill-luck, locate some spur of a valuable lode and thus attract to make a location in his immediate neighborhood some one who would otherwise never dream of locating there. The latter might show by underground workings his to be the lode proper and the original location only a spur, and then, under some facile proof of local rule or custom giving him all "spurs" as well as dips, angles and variations, oust the prospector but for whose discovery he would himself never have located. There being no provision for side lines, this clause of the law of 1866 was also an open

invitation to men with wealth and without conscience to locate in the immediate neighborhood alongside of a valuable ledge located by a man who was poor, offer him their own price for his claim, and, if he refused to accept, deliberately sink a shaft more or less vertical to take what did not belong to them, and while they were enriching themselves offer to give up the ledge upon the geological proof of its ownership which the law required and which they knew was utterly beyond the financial power of their victim to supply.

RELATION OF SURFACE TO LODE.

The law of 1866 intended to carry out the idea of the early rules and customs that the lode was the principal thing and the surface a mere incident. It provided, however, that the patent should issue, among other things, "upon the payment to the proper officer of five dollars per acre." That word "acre" is the first shadow of the cloud no bigger than a man's hand. If the statute had prescribed that the lode was to be a gift, and that five dollars an acre must be paid for any incident surface ground, or if it had placed a fixed price upon every so many linear feet of lode, together with so many dollars an acre on any incident surface ground, it would have disclosed a more conscious purpose to keep the two properties absolutely distinct. But to prescribe that the mine should be paid for at five dollars an acre was to bring an English common-law habit of thought unnoticed into a strange environment. Inasmuch as there was no relationship whatever between the surface and the dimensions of the lode, most of the district rules had no provisions whatever for the size of the tract of surface land to be used. By custom or rules in most districts the miner simply used what surface he needed and claimed a possessory right to only so much as he actually occupied. The land department honestly made an attempt to carry out this provision of the law, and in doing so, while itself showing an ignorance of the topography of the country in its instructions concerning end lines, laid down a rule for the computaton of areas that

would have required every deputy mining surveyor to be an expert geologist. The instructions provided for the establishment of end lines at right angles to the ascertained or apparent general course of the lode, and permitted the applicant to apply for patent to a lode without any inclosing surface, the estimated quantity of superficial area in such cases being equal to a horizontal plane, bounded by the given end lines and the walls on the side of the lode. Why at right angles, gentlemen? Simply to facilitate an arithmetical calculation.

As a result of these instructions, patents were issued describing a small area of surface, which was occupied by the miner in connection with his improvements, within which area a portion of the lode was included, the remainder of linear feet claimed being indicated by a straight line extending beyond the defined surface and in the direction and to the extent claimed. The patents issued for the Idaho mine at Grass Valley, and the Maximillian mine at Sutter Creek are examples. The patents, like the statute, did not provide for bounding planes at the end of the lode, they simply ignored the difficulty. When the courts of last resort came to construe these patents, however, they ignored the jealousy with which the miner always divorced property in the lode from any relation to the measurements of surface areas occupied, ruled that both end and side surface lines were contemplated by the provisions of the law of 1866, and that the miner under the patent was not permitted to follow the vein on its strike beyond the surface boundaries. The cloud had already grown considerably larger than a man's hand. Under this ruling the direction of the surface end lines became of enormous interest to the locator, because through them hereafter were to be drawn his end-line boundary planes. The miner had been learning something of lode mining himself in the meantime, and had come to realize the extreme importance to him of the direction of those end-line boundary planes as the only means of saving the "rake" of his ore. shoots, while here was a land department placidly directing

its surveyors to establish end lines at right angles to the lode, in seeming utter geologic ignorance of the very existence of rake or ore-shoot. Under instructions from the land department, and, in many instances, through the ignorance of the miners themselves, patents were under the law of 1866 issued in many a fantastic shape, from that of a horseshoe to that of an isosceles triangle, with heroic attempts in many instances to draw the end lines not simply at right angles to the general course of the lode, but at right angles to the local trend at the respective ends of the linear measurement on the lode. In the case of such patents the resultant extreme convergence, or unthinkable divergence of the end lines produced constrained the courts, although they granted extralateral rights in all other ordinary cases of divergence, to deny extra-lateral rights altogether. The same result took place where the miner, through mistake, as in the case of the Flagstaff mine in Utah, made his location across, instead of with, the strike of his lode.

Under the decisions of the courts, the extent of the surface tract became of an importance never dreamed of at the time of the passage of the act. It is idle to speculate now whether it was ever necessary at all on the part of the courts to establish any relation between the surface and the extent of the lode in order to give the miner the full benefit of the terms of the act. For good or for evil, the judicial legislation had been done. It is very doubtful whether the significance of what had been done was fully realized at the time. The size of the tract was still, however, under the terms of the act, dependent upon the local rules and customs, and, under the circumstances, the very facility with which these could be changed or wiped out altogether, which had been one of their main recommendations in the days of shifting placer and early lode mining, now became one of the chief dangers. Customs could be established to affect the very size of the tracts asked to be patented. All provisions about how a mining claim could be located at all were still dependent on these transient and unstable rules and customs. It

was one thing to recognize by law the locations already made and the rights already accrued under these rules and customs operating naturally, but it was quite another thing to make them the basis for future locations to be recognized by the law. "What are these mining customs to which the law pays such sweeping respect?" bursts out Dr. Raymond in 1869 (Mineral Resources, page 221). "They are edicts passed at twenty-four hours' notice by mass meetings of from five to five hundred men; it requires no more formalities to abolish or amend them than it did to make them—a notice posted on a door, a 'mass meeting' next day, and the thing is done. The records of titles are kept by an officer called the recorder, not known to the law, nor answerable for malfeasance in office, except that if he were known to tamper with the books in his charge his life might be taken by the party wronged. The records are kept in a few districts in fire-proof offices and in suitable form, but more frequently in small blank-books, pocket-books, or scraps of paper, stowed away under the counter or behind the flourbarrel or the stove of a store or bar-room."

NO UNIFORMITY OF CONDITIONS OF POSSESSION.

Moreover, there was no uniformity of the conditions. upon which possessory titles depended, especially in the matter of the necessary work to be done to hold the claim. This again was all made to depend on the local rules and customs, and they were, upon this subject, very lax and of all varieties. The report of a committee made to the Senate of the State of Nevada on February 23, 1866, as accurately described the situation in California as that in Nevada:

"In one district the work required to be done to hold a claim is nominal; in another exorbitant; in another abolished; in another adjourned from year to year. A stranger, seeking to ascertain the law, is surprised to learn that there is no satisfactory public record to which he can refer; no public officer to whom he may apply who is under any bond or obligation to furnish him information or guar