proceeding, a deed may be reformed or declared void on account of mistake or fraud; but there is no such issue in the case at bar.

"Counsel on each side have cited a number of authorities, but we do not deem it necessary to notice them at length, for they are not determinative of the question here involved, and deal with facts different from those of the case at bar. However, the views hereinabove expressed were substantially declared in the case of Central Eureka Co. v. E. Central Eureka Co., 146 Cal. 156, 79 Pac. 834, 9 L. R. A. (N. S.) 940. The question there was whether a conveyance of ground by metes and bounds carried a part of the Summit quartz mining lode, which dipped under it, and the court held that it did. not. But the court said: 'unquestionably it would have been conveyed by any instrument purporting to grant the Summit quartz mining claim, or the Summit quartz mining ground, for it was part and parcel thereof.' Our conclusion is that the court below erred in sustaining objections to evidence offered by appellants to show the value of the rock taken from the mining ground by respondent, and in granting a nonsuit and rendering judgment for respondent. Upon the agreed statement of facts, if the rock taken by respondent from appellants' land was of any pecuniary value as gold-bearing quartz, then appellants were entitled to judgment for such value.

"The judgment appealed from is reversed, and the cause remanded, for further proceedings in accordance with this opinion."

PER CURIAM.-After a reconsideration of this case in bank we are satisfied with the conclusion reached and the opinion delivered in department; and for the reasons given in said opinion the judgment appealed from is reversed, and the cause remanded, for further proceedings as directed in said opinion.28

BEATTY, C. J.-I dissent. The construction given to the conveyance under which the appellants claim can be upheld only by disregarding the radical difference between the relation of a mining claim to its surface description, and that which is included in the surface description of other lands. As to lands generally, a conveyance includes everything above and below the surface of the earth within vertical planes conforming to the surface lines, but this is not true of mining claims. The patent from the United States does not

28 "In settlement of disputed title between the Nine Hour and St. Louis Lodes, The Montana Co. conveyed to the St. Louis Co. a strip of the disputed ground 30 feet wide by 400 feet in length. The deed conveyed the strip with the dips, spurs and angles, and 'all the mineral therein contained.' Afterwards a vein not then known to exist was found to dip underneath this strip. The federal courts below allowed the grantor to work this vein underneath the strip, but the Supreme Court finally held that the words above quoted were a common law grant and covered the ore in this dipping vein between the vertical lines of the strip. And they further intimated that the grantor might have a right of way to get at its vein beyond the strip. Montana M. Co. v. St. Louis M. Co., 204 U. S. 204; overruling 102 F. 430 and 104 F. 664."-Morrison's Mining Rights, 14 ed. 312-313.

transfer to the patentee everything within the vertical planes extended downwardly through his end and side lines, and it does transfer things outside of such planes; viz., all parts of veins having their apices within his surface lines, though in their descent they are carried by their dip beyond the planes of his side lines. This is the effect of a patent for the entire claim; and when the patentee conveys a part of that claim described by surface lines, the necessary implication is that he reserves all that is embraced within the lines of that portion of the surface claim not conveyed, including the extralateral dip of all veins having their apices within the lines of the part so reserved. To give a deed for a part of a mining claim any other construction is to defeat the intention of the parties 99 times in 100, and the circumstances under which the deed in question here was given afford ample proof that in this case a construction is given to the deed which neither grantor nor grantee intended.

CHAPTER VIII.

ADVERSE CLAIMS AND PROTESTS AGAINST THE ISSUANCE OF PATENTS.1

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FEDERAL STATUTES.

SEC. 2325. A patent for any land claimed and located for valuable deposits may be obtained in the following manner: Any person, association, or corporation authorized to locate a claim under this chapter, having claimed and located a piece of land for such purposes, who has, or have, complied with the terms of this chapter, may file in the proper land office an application for a patent, under oath, showing such compliance, together with a plat and field notes of the claim or claims in common, made by or under the direction of the United States surveyor-general, showing accurately the boundaries of the claim or claims, which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted, and shall file a copy of the notice in such land office, and shall thereupon be entitled to a patent for the land, in the manner following: The register of the land office, upon the filing of such application, plat, field notes, notices, and affidavits, shall publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim; and he shall also post such notice in his office for the same period. The claimant at the time of filing this application, or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the United States surveyor-general that five hundred dollars' worth of labor has been expended or improvements made upon the claim by himself or grantors; that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description to be incorporated in the patent. At the expiration of the sixty days of publication the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during such period of publication. If no adverse claim shall have been filed with the register and the receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.

SEC. 2326. Where an adverse claim is filed during the period of publica

The steps necessary to be taken to patent mining claims cannot be exhibited as advantageously in a case book as in a text book without taking an undue amount of space for the purpose, and accordingly the student is recommended to look at the forms and procedure as set forth in the latest edition of Morrison's Mining Rights, and to consult chapters XVIII-XIX of Costigan on Mining Law. It seems desirable, however, to insert a few cases to show the nature and need of adverse claims and of protests.

tion, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment-roll with the register of the land office, together with the certificate of the surveyorgeneral that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment-roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim with the proper fees, and file the certificate and description by the surveyor-general, whereupon the register shall certify the proceedings and judgment-roll to the Commissioner of the General Land Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of a title conveyed by a patent for a mining claim to any person whatever. Rev. St. U. S. §§ 2325, 2326.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That if, in any action brought pursuant to section twenty-three hundred and twenty-six of the Revised Statutes, title to the ground in controversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the land office or be entitled to a patent for the ground in controversy until he shall have perfected his title.-Act March 3, 1881, 21 Stat. L. 505.

GENERAL LAND OFFICE REGULATION.

53. At any time prior to the issuance of patent protest may be filed against the patenting of the claim as applied for, upon any ground tending to show that the applicant has failed to comply with the law in any matter essential to a valid entry under the patent proceedings. Such protest cannot, however, be made the means of preserving a surface conflict lost by failure to adverse or lost by the judgment of the court in an adverse suit. One holding a present joint interest in a mineral location included in an application for patent who is excluded from the application, so that his interest would not be protected by the issue of patent thereon, may protest against the issuance of a patent as applied for, setting forth in such protest the nature and extent of his interest in such location, and such a protestant will be deemed a party in interest entitled to appeal. This results from the holding that a co-owner excluded from an application for patent does not have an 'adverse' claim within the meaning of sections 2325 and 2326 of the Revised Statutes. (See Turner v. Sawyer, 150 U. S., 578-586.)—Land Office Mining Regulations, rule 53.

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ISSUANCE OF PATENTS.

HEALEY ET AL. v. RUPP.

1906. SUPREME COURT OF COLORADO. 37 Colo. 25, 86 Pac. 1015.

ACTION by Albert J. Rupp against John Healey and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded. GABBERT, C. J.-The subject-matter of controversy is the conflict between two lode mining claims, known as the "Canestota" and "Last Batch." The owners of the Last Batch applied for patent, which was adversed by the owners of the Canestota. Thereafter, suit was brought by appellee, as plaintiff, in support of this adverse against the appellants, as defendants. From a judgment for plaintiff the defendants appeal. There have been several trials, and the case has been here once before for review. 28 Colo. 102, 63 Pac. 319. Prior to the last trial, the record of which is presented by this appeal, plaintiff, over the objection of defendants, was permitted to file a supplemental complaint, basing his right to the premises in controversy upon a discovery as of a date many years subsequent to the time of filing his adverse in the local land office. Prior to the filing of this supplemental complaint the plaintiff filed an amended and additional location certificate, in which he claimed the premises in dispute by virtue of the discovery mentioned in his supplemental complaint. * *

*

The proceedings in this case had their inception in the Land Office when the defendants filed an application for patent on the Last Batch lode. The next step was the filing of an adverse by the plaintiff as the owner of the Canestota, and the suit in support thereof is but a continuation of these proceedings to determine, as we have said, for the information of the land department, which, if either, of the parties is entitled to a patent from the government for the premises in controversy. Wolverton v. Nichols, supra. [119 U. S. 485.]

The notices required to be given of an application for patent are, in effect, a summons to all adverse claimants. Wolfley v. Lebanon Co., 4 Colo. 112. The latter must assert their rights by filing an adverse within the 60 days' publication of notice of application for patent. Section 2325, Rev. St. [U. S. Comp. St. 1901, p. 1429]. Unless filed within that period, it will be conclusively presumed that none exist. Lily M. Co. v. Kellogg (Utah) 74 Pac. 518. So far,

2 Part of the opinion is omitted.