The term "downward course," a more flexible term, may therefore have been advisedly used in the new law to apply to a course from a higher to a lower level in the plane of the vein following downward along the intersecting vertical end-line plane, which only in extremely rare instances would be coincident with the true dip-line.

C

To illustrate: On figure 29 the line A-E is a true dip

FIGURE 29.

FIGURE 30.

line,-i. e. at right angles to the strike.

The line A-F is the intersection of the plane of the vein with the vertical end-line plane, which obviously at the surface crosses the lode at an angle less than a right angle. The course along the intersecting plane from A to F is essentially downward, just as much so as that from A to E.

We do not desire at this juncture to anticipate the discussion of the larger problems involved in the grant of the extralateral right, but there is an apt illustration of the application of the term "downward course" to a series of claims on the same vein, known as the Bunker Hill lode in the Coeur d'Alenes, Idaho.

Figure 30 represents, in isometric projection, the Bunker Hill vein upon which were the locations thereon named.

STRIKE, DIP," OR

The Viola does not depart far from the true dip-line, but the San Carlos is nearer to the strike-line than to the dip-line.1 The Stemwinder follows a line between the strike and dip.

While litigation over these properties is still pending in the courts, up to the present writing extralateral rights have been awarded to the respective owners (subject to certain priorities not necessary to enumerate here) between the vertical end-line planes of the respective locations, as delineated on figure 30—not necessarily to the full extent as there shown, but sufficiently to establish the negative doctrine that the right to follow the vein on its "downward course" conferred by the statute does not mean that such course must be on a true dip-line.2

Many of the questions here under discussion will necessarily reappear when we come to deal with the manner of making surface locations, the functions performed by end-lines, extralateral rights, and other subjects which are intimately associated with that of definitions. Our present investigation is limited to the subject of definitions.

Further elaboration here is unnecessary, and may be deferred until we reach the domain of practical application.

1From the facts found by the court, the side-line common to the Viola and San Carlos bisected a broad apex-the Viola covering the foot-wall, and the San Carlos the hanging-wall. For diagram showing these claims, see 114 Fed. 418.

The extralateral rights of the respective claims shown on figure 30 were discussed, and to some extent at least adjudicated in the cases appearing in the reports as indicated: Tyler and Last Chance, 157 U. S. 683, 15 Sup. Ct. Rep. 733; 61 Fed. 557, 71 Fed. 848, 54 Fed. 284, 79 Fed. 277; Viola and San Carlos, 114 Fed. 417; Stemwinder, 109 Fed. 538.

ARTICLE I.

CHAPTER IL

LODE CLAIMS, OR DEPOSITS "IN PLACE.'

INTRODUCTORY.

II. THE LOCATION AND ITS REQUIREMENTS.

III. THE DISCOVERY.

IV. THE DISCOVERY SHAFT AND ITS EQUIVALENT.

V. THE PRELIMINARY NOTICE AND ITS POSTING.

VI. THE SURFACE COVERED BY THE LOCATION-ITS FORM AND
RELATIONSHIP TO THE LOCATED LODE.

VII. THE MARKING OF THE LOCATION ON THE SURFACE.

VIII. THE LOCATION CERTIFICATE AND ITS CONTENTS.

IX. THE RECORD.

X. CHANGE OF BOUNDARIES AND AMENDED OR ADDITIONAL LOCA-
TION CERTIFICATES.

XI.

RELOCATION OF FORFEITED OR ABANDONED CLAIMS.

XII. LODES WITHIN PLACERS.

ARTICLE I. INTRODUCTORY.

322. Introductory.

323. The metallic or non-metallic character of deposits

occurring in veins as affecting the right of appropriation under the laws applicable to lodes.

322. Introductory.-In the preceding chapters of this work, it has been demonstrated that only the public mineral lands of the United States may be appropriated under the mining laws.1 By "public lands" is meant such as are subject to sale or disposal under general laws.2 Land to which any claims or rights of others have attached does not fall within the designation of

McFadden v. Mountain View M. and M. Co., 97 Fed. 670; In re Logan, 29 L. D. 395; Nome Transp. Co., Id. 447; State of Louisiana, 30 L. D. 276.

66

public lands."1 As was said by the supreme court of the United States,

66

"Public lands belonging to the United States for "whose sale or other disposition congress has made provision by its general laws, are to be regarded as legally open for entry and sale under such laws, unless "some particular lands have been withdrawn from sale "by congressional authority or by an executive with"drawal under such authority, either express or im"plied." 2

We have also attempted to illustrate the nature and character of the appropriation under laws (other than those exclusively applicable to the acquisition of mineral lands) which operate as a segregation of a given tract from the body of public land, and inhibit its acquisition, although mineral in character, under the mining laws. What constitutes such an appropriation of mineral lands under these last-named laws as will remove them from the category of "public lands" and inhibit their acquisition by other mining claimants can be deter

1 Ante, § 80; Newhall v. Sanger, 92 U. S. 761; Bardon v. N. P. R. R., 145 U. S. 535, 12 Sup. Ct. Rep. 856; Mann v. Tacoma Land Co., 153 U. S. 273, 14 Sup. Ct. Rep. 820; Wilcox v. Jackson, 13 Pet. (U. S.) 498; Cameron v. United States, 148 U. S. 301, 13 Sup. Ct. Rep. 595; United States v. Tygh Valley Land and L. S. Co., 76 Fed. 693; James v. Iron Co., 107 Fed. 597, 603; Hartman v. Warren, 76 Fed. 157, 160; Kansas Pacific Ry. Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. Rep. 566; Teller v. United States, 113 Fed. 273, 281.

Lockhart v. Johnson, 181 U. S. 516, 21 Sup. Ct. Rep. 665. See Baca Float No. 3, 30 L. D. 497.

In the nomenclature of the public land laws, the word "withdrawal" is generally used to denote an order issued by the president, secretary of the interior, commissioner of the general land office, or other proper officer, whereby public lands are withheld from sale and entry under the general lands laws, in order that presently or ultimately they may be applied to some distinctly public use or disposed of in some special Sometimes these orders are not made until there is an immediate necessity therefor, but more frequently the necessity for their being made is anticipated. Hans Oleson, 28 L. D. 25, 31; In re Cox, 31

way.

L. D. 193.

3 Ante, §§ 112-219.

mined only after an analysis of the law regulating the acquisition of title to such lands. After we shall have outlined the methods provided by law for such acquisition, we shall endeavor to explain fully the nature and extent of the title so acquired, the tenure by which it is held, the property rights flowing therefrom, and the conditions under which such rights may be lost or extinguished. The general statement may here be properly made, however, that a perfected, valid appropriation of public mineral lands, under the mining laws, operates as a withdrawal of the tract from the body of the public domain, and so long as such appropriation remains valid and subsisting the land covered thereby is deemed private property.1

We are now to consider the manner in which public mineral lands containing veins or lodes of quartz or other rock in place may be lawfully appropriated.

323. The metallic or non-metallic character of deposits occurring in veins of rock in place as affecting the right of appropriation under the laws applicable to lodes.-In defining what constitutes "mineral "land" within the meaning of the acts of congress, using that term as the legal equivalent of the various words and phrases of a kindred nature found in the mining laws, we have heretofore treated the subject

'Gwillim v. Donnellan, 115 U. S. 45, 5 Sup. Ct. Rep. 1110; Belk v. Meagher, 104 U. S. 279, S. C., 3 Mont. 65; McFeters v. Pierson, 15 Colo. 201, 22 Am. St. Rep. 388, 24 Pac. 1076; Iron S. M. Co. v. Campbell, 17 Colo. 267, 29 Pac. 513; Seymour v. Fisher, 16 Colo. 188, 27 Pac. 240; Fisher v. Seymour, 23 Colo. 542, 49 Pac. 30; Garthe v. Hart, 73 Cal. 541, 15 Pac. 93; Souter v. Maguire, 78 Cal. 543, 21 Pac. 183; Armstrong v. Lower, 6 Colo. 393; Lebanon M. Co. v. Cons. Rep. M. Co., 6 Colo. 371; Faxon v. Barnard, 4 Fed. 702; Meydenbauer v. Stevens, 78 Fed. 787; Stratton v. Gold Sovereign M. and T. Co., 1 Leg. Adv. 350, S. C. 89 Fed. 1016; Matoa G. M. Co. v. Chicago Cripple G. M. Co., vol. 178 Min. and Scientific Press, p. 374; Cone v. Roxana G. M. Co. (Colo.), 2 Leg. Adv. 350; Mt. Rosa M. M. and L. Co. v. Palmer, 26 Colo. 56, 77 Am. St. Rep. 245, 56 Pac. 176; Kinney v. Fleming (Ariz.), 56 Pac. 723.

Ante, § 86.