CHAPTER IV.

OF LODE AND PLACER CLAIMS IN THE SAME GROUND.

§ 318. Preliminary Rights of locator of placer claim which contains

a lode.

319. Manner of locating lodes within placers.

320. Width of lode locatable in placer ground.

321. Same-The rule where a lode is located before placer.

$318. Preliminary Rights of locator of placer claim which contains a lode.- The statute has recognized what the experience of the miner has proved, that it not infrequently occurs that a placer claim may also contain a lode within its boundaries. In such case each should be located by itself, a separate estate being created in each. The location of a placer claim carries with it no rights to a lode existing therein and known to exist at any time before patent. The lode so existing may be claimed and located either by the placer claimant himself or by another locator. Therefore, where such lode is known to exist within the boundaries of the placer at the date of its location, or at such subsequent date as it is discovered, the placer claimant should, in order to protect his rights, if he desires to hold such lode, at once locate and mark the boundaries thereof, as in the case of any other lode location. Failure on his part to do this leaves the lode subject to location by another, regardless of the possession of the placer within which it is contained.1

IR. S. U. S., § 2333.

2 Id.; Land Office Circular of June 24, 1899, § 32, p. 23; Noyes v. Mantle, 127 U. S. 348; Iron Silver M. Co. v. Reynolds, 124 U. S. 374. 3 Post, SS 666 et seq.

4 Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95; Reynolds v. Iron Silver M. Co., 116 U. S. 687; Mt. Rosa M. M. & L. Co. v. Palmer, 26 Colo. 56, 56 Pac. Rep. 176, 50 L. R. A. 289; McCarthy v. Speed,

§ 319. Manner of locating lodes within placers.-Except as to the question of the amount of surface ground which may be claimed in connection with a lode discovered within the boundaries of a placer claim, the requirements of a valid location of such lode, and the manner of making it, are in all respects the same as in the case of a lode discovered in ground wholly unappropriated. Under the provisions of the statute, however, the holder of a placer claim containing a lode within its limits may proceed to patent the lode within the placer, without having previously located the same, by virtue of the mere possession thereof on his part, provided it has not, in the meantime, been located by another, which location is still valid and in force. The reason of this rule is obvious: since the purpose of location is to publicly lay claim to and assert dominion over, with the view of holding, working and patenting, it is sufficiently accomplished by the placer location.

§ 320. Width of lode locatable in placer ground.— The question as to how much surface ground may be located within a placer has never been definitely settled. It has only come before the courts or the department in two ways: First, upon application for the placer, the lode being either insufficiently excepted, or adverse proceedings being instituted by the lode against the placer; and second, upon suit after patent by the owner of the "known lode," which is excepted by law out of the placer patent.

In these cases it seems definitely settled that the lode claimant (especially if the lode claim is made after the placer) is only entitled to twenty-five feet on each side of the center of the vein. This matter will be more fully considered hereafter under the head of Application for Patent. It would seem to follow from the statute and the

11 S. Dak. 362, 50 L. R. A. 184, 77 N. W. Rep. 590; R. S. U. S., § 2333; Land Office Circular, June 24, 1899, $32.

1 Upon the subject of a valid location generally, see post, Part VII.

2R. S. U. S., § 2333.

See post, § 666 et seq.; Circular of General Land Office, June 24, 1899, p. 23, § 32.

Post, Part X, ch. IL

logic of the situation, since the placer patentee, if he applies for both lode and placer, takes fifty feet of surface ground with his lode, and the remainder as placer, the locatable width of a lode claim within a placer must be limited to that width.1

In a case in Colorado which falls within the second class above mentioned and just cited, this question was elaborately discussed by the supreme court, and in the course of the opinion occurs the following logical statement of the law: "Another and more serious question is presented, and that is the amount of surface ground appellee is entitled to under and by virtue of his lode locations. The court below awarded him the full amount claimed, to wit, 300 by 1,500 feet, in each of the claims. It is insisted by counsel for appellant that he is entitled to only the mineral lodes and not to any of the surface of the placer ground. Why should there be any difference between the rights of claimants of known lodes within the boundaries of a placer? We know of none. The object of excepting known lodes from placer locations was to prevent titles to such lodes being obtained under the guise of a placer; at the same time, in order to protect claimants to each character of mineral locations to the greatest extent, and preserve to each that which was most valuable for particular purposes in connection with each class of claims. The lode, for convenient working, could not be limited to less than twenty-five feet on each side of the center of the vein; and the placer, which would be valueless without such surface rights, is permitted to take title to the remaining area accordingly.

. . The government receives for its mineral lands the price fixed for lodes and placers respectively, and the superior right to the surface area of the placer claimant, acquired by his prior location or patent, is protected. It is

1Noyes v. Mantle, 127 U. S. 348; Shonbar Lode, 1 L. D. 551, 8 L. D. 388; Pike's Peak Lode, 10 L. D. 200; Aurora Lode v. Bulger Hill & Nug

get Gulch Placer, 23 L. D. 95. See also Reynolds v. Iron Silver M. Co., 116 U. S. 687; Searl v. Finn, 10 C. L. O. 119.

+

the conclusion of a majority of the court that the limitation of the width of a lode claim in section 2333 is not only applicable to the placer claimant, but applies as well to others who locate a lode within the boundaries of his previously located placer. It follows that the court below erred in adjudging to appellee surface ground in excess of twentyfive feet on each side of the lodes in question." 1

§ 321. Same- The rule where a lode is located before placer. The discussion in the last section has reference entirely to the case of a lode located by another than the placer claimant, within the limits of the placer claim, after the location of the placer and while it is still in force. Where the lode is located before the placer, there is no good reason why the locator would not be entitled to hold the full-sized lode claim, since "the section 2 can have no application to lodes or veins within the boundaries of a placer claim which have been previously located under the laws of the United States, and are in possession of the locators or their assigns; for such locations, when perfected under the law, are the property of the locators, or parties to whom the locators have conveyed their interest;"" the only condition to such location being, that he discover mineral in rock in place within the limits of his claim. In such case it would seem to follow that the locator of a placer claim, conflicting with the lode, would only be entitled to so much of the ground as was not already claimed by the lode. If it should so happen that the placer claim is only

.

1 Mt. Rosa M. M. & L. Co. v. Palmer, 26 Colo. 56, 50 L. R. A. 289, 56 Pac. Rep. 176. See also cases cited, note 1, ante, p. 291; Moyer v. Mike & Starr G. & S. M. Co., 10 C. L. O. 150; ante, § 280.

2 R. S. U. S., § 2333.

3 Noyes v. Mantle, 127 U. S. 348; Sullivan v. Iron Silver M. Co., 143 U.S. 431.

4 Noyes v. Mantle. supra; Reynolds v. Iron Silver M. Co., 116 U. S. 687; Iron Silver M. Co. v. Reynolds, 124 U. S. 374; Sullivan v. Iron Silver M. Co., supra; Mt. Rosa M. M. & L Co. v. Palmer, 26 Colo. 56, 56 Pac. Rep. 176, 50 L. R. A. 289 and note; Iron Silver M. Co. v. Mike & Starr G. & S. M. Co., 143 U. S. 394.

for twenty acres by a single individual, on unsurveyed land, or that the legal subdivision, where the land has been surveyed, should run in substantially the same direction as the lode location (something not likely to occur, yet not impossible), there would be a virtual conflict of the entire claim, when the existence of a lode of rock in place within the boundaries of the lode location would be the sole question for decision. But where the placer claim is for one hundred and sixty acres by an association of persons, it can be readily seen that it could be so located as to entirely surround the lode location. In either case we think there is no question but that, where the lode is located before the placer, and is predicated upon the discovery of mineral in rock in place within its limits, its locator would be entitled to the full width of his claim as allowed by United States, state or district laws.1

1 See notes 3 and 4, ante, p. 292.