"terms of the act of congress as any other form of deposit."

66

The supreme court of Colorado, speaking through Justice Gabbert, contributes the following comprehensive statement:

"Many definitions of veins have been given, varying "according to the facts under consideration. The term "is not susceptible of an arbitrary definition applicable "to every case. It must be controlled, in a measure at "least, by the conditions of locality and deposit. The "distinguishing feature between a vein and the forma"tion inclosing it may be visible. It must have bound"aries, but it is not necessary that they be seen. Their "existence may be determined by assay and analysis. "The controlling characteristic of a vein is a continuous body of mineral-bearing rock in place in the gen"eral mass of the surrounding formation. If it possess "these requisites, and carry mineral in appreciable "quantities, it is a mineral-bearing vein within the "meaning of the law, even though its boundaries may "not have been ascertained."

66

The supreme court of Utah also furnishes a valuable and interesting discussion of the subject.2

Some of the courts accept the liberal interpretation suggested by Dr. Raymond in the Eureka case-that a "lode is whatever a miner could follow and find ore.'' 3

Others lean toward the narrow definition-that it is a seam or fissure in the earth's crust, filled with quartz or other rock in place, carrying gold, silver, etc.*

'Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 948, 952, (citing Cheesman v. Shreeve, 40 Fed. 787; Hyman v. Wheeler, 29 Fed. 347; Iron S. M. Co. v. Cheesman, 116 U. S. 529, 6 Sup. Ct. Rep. 481). Hayes v. Lavagnino, 17 Utah, 185, 53 Pac. 1029.

Harrington v. Chambers, 3 Utah, 94, 1 Pac. 362, 375; Burke v. McDonald, 2 Idaho, 310, 13 Pac. 351; Shreve v. Copper Bell M. Co., 11 Mont. 309, 28 Pac. 315; Brownfield v. Bier, 15 Mont. 403, 38 Pac. 1067.

4 North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 309, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 107, 11 Fed. 666; Foote v. National M. Co., 2 Mont. 402; Stinchfield v. Gillis, 96 Cal. 33, 30 Pac. 839.

In a case arising in Nevada, at Treasure Hill, where the formation is limestone, and the conditions were parallel to those existing in the Eureka case, the supreme court of that state held that the term "lode" might be applied to ore deposits in a succession of chambers connected by a seam, varying in width, and more or less barren, and with walls of different character.1

8

All cases seem to agree that neither the size 2 nor the richness of the ore 3 is an element of the definition.* As to whether a given deposit is a vein, or lode, is a question of fact."

ARTICLE III. "ROCK IN PLACE."

298. Classification of lands containing valuable deposits.

299. Use of term "in place'' in the mining laws.

2298.

§ 300. The blanket deposits of Leadville.

§ 301. Judicial interpretation of the term "rock in place."'

Classification of lands containing valuable deposits. The laws of the United States prescribing the terms upon which its lands containing valuable deposits, other than coal, shall be sold, used, or

'Phillpotts v. Blasdell, 8 Nev. 62.

Stinchfield v. Gillis, 96 Cal. 33, 30 Pac. 839; Stevens v. Williams, 1 Morr. Min. Rep. 566, Fed. Cas. No. 13,413; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 107, 11 Fed. 666; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 309, 1 Fed. 522; Meydenbauer v. Stevens, 78 Fed. 787.

3 Stinchfield v. Gillis, 96 Cal. 33, 30 Pac. 839; Book v. Justice M. Co., 58 Fed. 106; Migeon v. Mont. Cent. Ry., 77 Fed. 249; Shoshone M. Co. v. Rutter, 87 Fed. 801, 807.

Golden Terra M. Co. v. Mahler, 4 Morr. Min. Rep. 390; Armstrong v. Lower, 6 Colo. 393; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 108, 11 Fed. 666; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 309, 1 Fed. 522.

5 Bluebird M. Co. v. Largey, 49 Fed. 289; Bullion B. and C. M. Co. v. Eureka Hill M. Co., 5 Utah, 3, 11 Pac. 515; Illinois S. M. Co. v. Raff, 7 N. Mex. 336, 34 Pac. 544.

occupied, have divided such lands into two distinct classes:

(1) Those which contain veins, or lodes, of quartz or of other rock in place;1

(2) Those containing placers and other forms of deposit other than those found "in place." 2

To determine the proper manner of appropriating public lands containing such valuable deposits, it is necessary to first ascertain whether they are found in veins, or lodes, of rock in place, or not. If of rock in place, a method is to be pursued differing from that applicable to other deposits, and the nature and extent of rights conferred by the appropriation of one class differ in some respects from those conferred by the other. It becomes necessary to arrive at an understanding of what is meant by "rock in place."

? 299. Use of term "in place" in the mining laws.A vein, or lode, is necessarily "in place." The condition of being "in place" is one of its essential attributes The term "quartz or other rock in place," as used in section twenty-three hundred and twenty of the Revised Statutes, refers to its constituent elements, or the

filling" of veins and lodes. Experience has shown that mineral substances in veins, or lodes, are not always found in quartz. Sometimes the vein material is composed mainly of the same character of rock as the inclosing walls-the occurrence of mineral being in the form of impregnations, penetrating the country rock, or the mineral may be but a replacement of the original rocks. So the statute recognizing that while the material of most veins consists of quartz, yet, as this

1 Rev. Stats., § 2320.

2 Id., § 2329. Justice Miller, in Stevens v. Williams, 1 McCrary, 480, 1 Morr. Min. Rep. 566, 572, Fed. Cas. No. 13,413; Gen. Circ. Inst. (July 15, 1873), Copp's Min. Dec. 316, 318.

is not universally true, the alternative, "or other rock "in place," was introduced. As quartz in a vein is rock in place, the statute would have been equally as comprehensive if instead of saying "veins, or lodes, of "quartz or other rock in place," it had simply said "veins, or lodes, of rock in place.'

The term "rock in place," occurs in all of the mining legislation of congress. There is nothing cabalistic in its use. It is simply the in situ of the geologist, and as explained by the commissioner of the general land office in the mining circulars issued by him, the term has always received the most liberal construction of which the language would admit. Every class of claims that either according to scientific accuracy or popular usage can be classed and applied for as a vein or lode may be patented under the law, as a vein or lode of rock in place.1

In this class the commissioner included all lands wherein the mineral matter is contained in veins or ledges occupying the original habitat, or location, of the metal or mineral, whether in true or false veins, in zones, in pockets, or in the several other forms in which minerals are found in the original rock.2

Petroleum is said to be "in place" when it occupies the undisturbed position in the earth between the inclosing rocks, where it was placed by natural processes; and so with subterranean salt water.3

Ordinarily, there should be but little difficulty in determining whether a given deposit is a vein or lode of rock in place or not. But circumstances have arisen which have provoked discussion as to what is meant by the term "in place," and it has frequently occupied the attention of the courts.

Commissioner Drummond (July 20, 1871), Copp's Min. Dec. 46. 2 Copp's Min. Dec. 316, 319, 1 Copp's L. O. 11.

Williamson v. Jones, 39 W. Va. 231, 257, 19 S. E. 436.

66

300. The blanket deposits of Leadville. -The blanket deposits at and in the vicinity of Leadville, Colorado, have given rise to most of the controverted questions on the subject of "lodes," "veins,” “in place," "top," and "apex"; and the burden of solving many of these difficulties in the first instance fell to the lot of Judge Hallett. His decisions have furnished the text for other courts, in other jurisdictions, where analogous conditions have been to a limited extent encountered.

The conditions which created the necessity for a rule of interpretation to be applied to the term "in place" are thus stated by the distinguished judge:

"Until the discovery of mineral deposits near Lead"ville no controversy had arisen in Colorado as to "whether a lode, or vein, is in place within the meaning "of the act of congress.

66

"The mines opened in Clear Creek, Gilpin, Boulder, "and other counties descend into the earth so directly "that no question could arise whether they were in"closed in the general mass of the country; whatever "the character of the vein, and whatever its width, it was sure to be within the general mass of the moun66 tain; but the Leadville deposits were found to be of "a different character. In some of them at least, the "ore was found on the surface or covered only by the "superficial mass of slide, débris, detritus, or mov"able stuff which is distinguishable from the general "mass of the mountain, while others were found "beneath an overlying mass of fixed and immovable "rock which could be called a wall as well as that which "was found below them. It then became necessary to "consider very carefully the meaning of the words 'in 'place' in the act of congress, in order to determine "whether these deposits were of the character described "in that act. 991

666

Leadville M. Co. v. Fitzgerald, 4 Morr. Min. Rep. 381, Fed. Cas. No.