M. Co. claim, and after going through the acts of location, called it the Canyon mining claim, and that all such attempted locations and acts are contrary to law, and without right." The only amendment to plaintiff's complaint was in reference to paragraph 3, which, as amended, reads as follows: "That for over 10 years immediately preceding the acts hereinafter complained of, the plaintiff and his grantors was the owner of, and entitled to, the possession, and in the quiet and peaceable possession of the said Canyon mining claim, and the ledge thereon."

The allegations contained in defendants' answers relative to the issuance of the town-site patent to Silver City and the subsequent sale and conveyance of lots within said town site covering the land embraced within the boundaries of the Canyon mining claim were established by documentary proof. The record of location of the Canyon mining claim shows that it was located by W. J. Westerfield, March 21, 1884. The record is designated "Notice of Relocation," and in the body thereof the following statement appears: "This is a relocation of the Richmond G. & S. M. claim and shall be known as the Canyon G. & S. M. claim. The said Richmond G. & S. M. Claim not having had the necessary amount of labor or improvements made or expended thereon as required by the laws of the United States. This claim is situated in the Devil's Gate and Chinatown mining district, Lyon county, state of Nevada." The Richmond G. & S. M. claim is shown to have been located March 8, 1876. *

* *

The record shows without question that the ground embraced within the boundaries of the Canyon claim had been held as a mining claim from the date of the location of the Richmond G. & S. M. claim, March 8, 1876. The plaintiff and his grantor asserted rights to the Canyon claim as a relocation of the Richmond G. & S. M. claim. As relocators, they recognized the validity of the prior location, which, having become subject to forfeiture, was forfeited by relocation.

Plaintiff's right to the ground covered by the Canyon claim, regardless of whether or not it was subject to location as a mining claim, may be supported by adverse possession alone. Such possession would give him all ledges or veins apexing within the boundaries of the claim, and the right to follow them within his side lines, extended vertically downwards, but whether such adverse possession would carry with it extralateral rights, in the event the ground passed to the town site for town-site purposes under its patent, is a question, and one which we do not find to have ever been passed upon. As the validity of plaintiff's location can be determined upon other facts of the case, we shall not now attempt its solution. If the ground in question never passed under the townsite patent, then it is not questioned but that the plaintiff is entitled to any extralateral rights which he may have established by proof

in this case. The reservation in the town-site patent is in accordance with the provisions of the Acts of Congress of March 2, 1867, c. 177, 14 Stat. 541, and of June 8, 1868 (chapter 53, 15 Stat. 67), as united and incorporated into section 2392 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 1459), which reads. as follows: "No title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar or copper, or to any valid mining claim or possession held under existing laws."

Counsel for appellants urges that the evidence shows without conflict that the land embraced within the Canyon claim was not known to be valuable for its minerals prior to, and at the time of, the issuance of the town-site patent, and hence that it passed to the town site under the patent, and, having so passed, no valid mining claim could be initiated thereon. In support of this position counsel cites and relies upon a number of decisions of the Supreme Court of the United States, and particularly the cases of Davis v. Weibbald, 139 U. S. 520, 11 Sup. Ct. 628, 35 L. Ed. 238, Dower v. Richards, 151 U. S. 658, 14 Sup. Ct. 452, 38 L. Ed. 305, and Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423. The cases supra were in each instance controversies growing out of conflicting claims to the ground between holders of town-site lots under the town-site patent and mining claimants, whose alleged rights to the ground were in some instances based upon mining locations instituted subsequent to the town-site patent. This case presents a different situation, particularly from the fact that it is not a controversy between the town-site lot owners and a mineral claimant.

A reading of the statute discloses that not only "any mine of gold, silver, cinnabar or copper" is exempted from the provisions of the statutes, but, in addition, the exemption extends to "any valid mining claim or possession held under existing laws." There is evidence in this case that the ground covered by this Canyon location was covered by mining claims as early as 1860, and located and relocated thereafter and held as mining ground ever since. There is evidence to the effect, and counsel for appellant concedes, that the Canyon claim was "well-known mining ground" at the time of the issuance of the town-site patent, but he contends that it was not known to be valuable for mining purposes, and hence would not be exempt from the town-site patent. It is true, however, that the mining claimants have never had their possession disturbed by any one claiming under the town site. The location of the Richmond G. & S. M. claim antedates the sale of the town lots, under the town-site patent, covering the same ground, and it does not appear that the town-site lot purchasers ever successfully or at all, disputed the title of the locators of the mining claim. * * It is clear from the language used in the statute, and from the 40-MINING LAW

*

opinions expressed by the Supreme Court of the United States, particularly in the Davis v. Weibbald Case, supra, that land, held as a valid and subsisting mining claim at the time of the issuance of the town-site patent, does not pass under such patent, nor is the title or right of possession of the location at all affected thereby. "As said in Belk v. Meagher, 104 U. S. 279, 283, 26 L. Ed. 735: 'A mining claim perfected under the law is property, in the highest sense of that term, which may be bought, sold, and conveyed, and will pass by descent.' It is not, therefore, subject to the disposal of the government." Noyes v. Mantle, 127 U. S. 353, 8 Sup. Ct. 1134 (32 L. Ed. 168). "A valid mining claim can only be based upon a discovery within the limits of the claim, and the existence of mineral in such quantities as to render the land more valuable for mining than for any other purpose, or as will justify a prudent man in the expenditure of time and money in its exploration and development." Lindley on Mines, § 176.

It may be seriously questioned whether a discovery, sufficient to support a valid mining location so as to exempt such location from the provisions of a town-site patent, could be held to the same degree of strictness as would be required in the case of a mine known, or claimed to be known, to exist at the time of the issuance of such town-site patent, but which had not previously been located. In the case at bar, while it appears that the ground embraced within the Canyon claim was sold as town lots under the town-site patent, it does not appear that the lot purchasers ever acquired, or attempted to acquire, possession from the claimants to the ground under prior existing mining locations. The evidence is conclusive, we think, that the ground covered by the Canyon claim has been held as a valid and subsisting mining claim from a time long prior to the date of the town-site patent down to the present. No one in a position to question the right of the plaintiff, his grantor, and prior locators of the ground covered by the Canyon claim to hold the same as mining ground, have ever established, or attempted to establish, so far as the record shows, a superior right to the ground. Under this state of facts it follows as a matter of law that the Canyon mining claim is a valid mining claim unaffected by the town-site pat

ent.

4.*

*

** Counsel for appellant contends, as a matter of law, that "no extralateral right can legally exist through a mineralized hanging and foot-wall formation, which is sufficiently mineralized to sustain a mining location, and to induce the miner and prospector to expend his time and money in the exploration thereof, even though scientists and geologists and hired experts might find sufficient provocation to swear that they detect walls to any formation which they call an independent vein coursing through such mineralized formation." We do not think counsel's contention can be supported as an inflexible rule of law. We think counsel fails to

distinguish between what is sufficient in the law to constitute a discovery sufficient to support a valid location of a mining claim and what constitutes a vein having defined walls, and to which extralateral rights attach. If we understand counsel correctly, he takes the position that there is no distinction, and in this we think he is in error. Suppose a vein containing valuable ore has well-defined wall, which are themselves but a part of a mineralized zone, which carries small values, and which in places contains seams of quartz sufficiently valuable to support a mining location, can it be said that such vein cannot be regarded as separate and distinct from the mineralized zone? We think it cannot be so said. What may constitute a discovery sufficient to validate a location may be, and frequently is, a very different thing from what constitutes an apex of a vein which will entitle the owner thereof to extralateral rights. * * * The mineral zone in question in this case is described as country rock cut by a series of independent ledges of an approximately parallel dip, any one of which ledges has its entire system of walls. Within this country rock comprising the mineral zone, at "wide intervals, as you would find in the bedding and cracks of any rock," are found "quartz seamlets." The fact that the Canyon ledge passes through a mineral zone of this character does not, we think, make it an inseparable part of the general mass of rock comprising the zone, but upon the contrary, that it may be regarded separate and distinct therefrom, and may be followed upon its dip. In the former appeal of this case, we said: "If small pieces of quartz, narrow seams, and little pockets of ore embodied in porphery be deemed sufficient to sustain a location, we do not understand that they give the owner any greater rights against veins apexing on other claims dipping under this ground than he would have if his location were based upon a substantial and well-defined ledge." *

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The record contains a number of other assignments of error, but the view which we have taken upon the main questions heretofore considered makes it, we think, unnecessary to consider them. The judgment and order appealed from are affirmed.1

Section 7.-Mill Sites.

FEDERAL STATUTE.

SEC. 2337. Where nonmineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such nonadjacent surface ground may be embraced and included in an application for a patent for such vein or lode, and the same may be pattented therewith, subject to the same preliminary requirements as to survey and notice as are applicable to veins or lodes; but no location hereafter made of such nonadjacent land shall exceed five acres, and payment for the same

"On rehearing the conclusions reached were adhered to. See Golden v. Murphy, 31 Nev. 395, 105 Pac. 99.

must be made at the same rate as fixed by this chapter for the superficies of the lode. The owner of a quartz mill or reduction works, not owning a mine in connection therewith, may also receive a patent for his mill site, as provided in this section. Rev. St. U. S. § 2337.

CLEARY v. SKIFFICH ET AL.

1901. SUPREME COURT OF COLORADO.

28 Colo. 362, 65 Pac. 59.

ACTION by Simon Skiffich and another against Reuben St. J. Cleary. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

The subject-matter of controversy in this case is the area in conflict between the Zara lode-mining claim and the Arrighi mill site. Application for patent having been made for the latter, the owners of the lode claim filed an adverse, and in support thereof commenced this action against the applicant for patent on the mill site. The judgment below was in favor of the plaintiffs. The defendant appeals.

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GABBERT, J.15_* A plea of defendant was also interposed to the effect that the land described in the complaint was not, at the time it was located as a lode claim, subject to location, for the reason that it was then actually occupied for a mining purpose by the defendant. On motion of plaintiffs, this plea was stricken out. It is urged by counsel for defendant that title to a mining claim cannot be initiated by a trespass. The lode claim was discovered without the lines of the mill site. Its boundaries, as fixed, did embrace a portion of the latter. These facts appear from the pleadings. In such circumstances, the act of the plaintiffs in projecting the boundaries of their claim so as to include a part of the mill site was not a trespass, and the motion to strike was well taken.

The mill site was located in 1860, and ever since that date, down to the time of the location of the lode claim, in 1895, was in the uninterrupted possession of the defendant and his grantors, who had erected a three-stamp mill thereon about the time of the location, which was subsequently enlarged, and has been operated from the time of its construction. Over $16,000 has been expended by defendant and his grantors in the way of improvements. The jury found that the vein of the lode claim intersected the mill site. There is no question that a vein was discovered on the lode claim upon which its location is based, and that such vein carries mineral in appreciable quantities. The vein in question appears to have been known since about 1884, but no ore has ever been shipped therefrom, nor has there ever been any attempt to operate it as a mine. Its values are shown by assays only, which, with one exception, established that 15 A part of the opinion is omitted.