regardless of the form in which the deposits occur-i. e. whether "of rock in place," as in quartz veins, or not "in place," as in the case of auriferous gravels and other substances encountered in surface beds.1 The conclusions there reached2 were intended to apply to all classes of deposits, without any attempt at classification as to form of occurrence. We are now called upon to consider a special class of mineral lands, and to determine to what extent, if any, the metallic or nonmetallic character of the deposits found in veins of rock in place controls the manner in which lands containing them may be appropriated. The act of July 26, 1866, provided for the acquisition of title to veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, or copper. By necessary intendment it excluded all other classes of metallic substances, as well as all which were non-metalliferous. The placer law of July 9, 1870, extended the right of entry and patent "to claims usually called 'placers,' "including all forms of deposit, excepting veins of quartz or other rock in place. 66 The act of May 10, 1872, provided in terms for the appropriation of lands containing veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits. This is preserved in the Revised Statutes, which also contain the provisions of the placer law of 1870, heretofore referred to. Therefore, under the existing law we find the classification to be as follows: (1) Lands containing veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits; 3 (2) Claims usually called "placers," including all forms of deposit, excepting veins of quartz or other rock in place. And in prescribing the method for obtaining 1 Ante, § 95. Rev. Stats., § 2320. 4 Id., § 2329. patents, both classes seem to have been grouped under the term "valuable deposits."", It may be said that, ordinarily, nothing but metalliferous ores are encountered in veins of rock in place. There are, however, exceptions to this rule. Coal occurs in veins, and in many instances with as pronounced dip and strike as in the auriferous quartz lodes. But lands containing coal are sold under special laws. Marble, borax,2 onyx, asphaltum, gilsonite, or uintaite (a species of asphaltum), gypsum, talc, graphite, rock phosphates, chalk, marls, oil-stones, mica, asbestos, fluorspar, sulphur, and mineral paint are non-metallic substances, and occur in veins of rock in place. All of these have commercial value, and in many instances yield as much profit in proportion to the cost of exploitation and extraction as the metalliferous veins. When any of these substances occur in the form of superficial deposits, lands containing them may be appropriated under the placer laws, as they are not veins of rock in place. But suppose they occupy a vertical or pronounced inclined position in the mass of the mountain. A typical illustration showing the occurrence of non-metallic substances in veins is afforded by the deposits of uintaite, or gilsonite, found in Utah. FIGURE 30A. Figure 30A is a cross-section taken from the monograph of Mr. George H. Eldridge on these deposits.3 So far as structure is concerned, it exhibits the highest type of a fissure vein, and if the vein-filling or gangue carried metalliferous ores BFT 1 Rev. Stats., § 2325. 2 See McCann v. McMillan, 129 Cal. 350, 62 Pac. 31. it would respond fully to the scientific as well as popular definition of a true fissure vein. In the illustration the vein occupies practically a vertical position which eliminates from discussion the subject of the extralateral right. But a reading of Mr. Eldridge's monograph shows that in many of these deposits the plane of the vein is inclined, rendering the discussion which follows pertinent. How is this class of deposits to be appropriated? If by the placer laws, and if they are on surveyed lands, they must be taken up in some subdivision of the government surveys. If the deposit should exist in the form of an ideal vein, there would be but one exposure upon which a discovery could be based, and nothing overlying the dip beyond the vertical plane drawn through the surface boundary of, for example, a twenty-acre tract, could be located without discovery, and discovery would be impossible except by sinking vertical shafts at great expense, with no adequate protection in the meanwhile in the possession of the tract. We cannot see, since the act of 1872 was passed increasing the number of terms used in the prior law, that there is any foundation to support the contention that veins or lodes must be metalliferous in order to be appropriated under the lode laws. The extralateral right may be of as much value to the proprietor of a mica, rock phosphate, asphaltum, gilsonite, or talc vein as a gold vein. The act itself in terms makes no distinction based upon the chemical composition of the deposit. But it groups the classes according to the form in which the valuable deposits occur. In our judgment, there is no more reason for insisting that veins or lodes of mica, graphite, asphaltum, gilsonite, or other non-metallic substance in place should be located as placers than it has to require cinnabar deposits to be located as lodes, independently of the form of their occurrence.1 1 1Copp's Min. Dec. 47, 60. How shall they be appropriated? The term "deposits" used in section twenty-three hundred and twenty of the Revised Statutes is just as comprehensive as the same term found in section twentythree hundred and twenty-nine. The deliberate addition in the statute of the term "valuable deposits" to the enumeration of metallic substances, is of itself evidence of the highest character that the intention of the law-makers was to enlarge the scope of the lode laws, and embrace every character of deposit found in veins of rock in place which fall within the meaning of "mineral" in its broadest sense. If the meaning of the term "valuable deposits" was intended to be restricted to such substances as were metallic in their nature, it is fair to presume that congress would have used the term "valuable metallic or metalliferous "deposits." Gold occurs in veins of rock in place, and when so found the land containing it must be appropriated under the laws applicable to lodes. It is also found in placers, and when so found the land containing it must be appropriated under the laws applicable to placers. Iron ore is found in veins of rock in place. It also occurs in beds and superficial deposits. Where it is found in veins, lands containing it must be appropriated under the lode laws. Where it is not found in veins of rock in place, the proceedings to obtain government title are the same as those prescribed for placers.1 Iron is not named in the act of 1872, nor in the corresponding section of the Revised Statutes. Prior to the passage of that act, lands containing it were sold the same as agricultural lands. That act, as interpreted by the land department, was comprehensive enough to include iron ore, and thenceforth lands containing In re Stewart, 1 Copp's L. O. 34; Commr.'s Letter, Copp's Min. Dec. 235. such substances were patented only under the mining laws.1 The large number of non-metallic substances mentioned in a previous chapter of this work 2 have been held by the land department to fall within the definition of "mineral" and "deposit," as these terms are used in the mining statutes. True, in the cases wherein this rule was established the substances occurred in the form of superficial deposits. But if it is once determined that they are "mineral" or "valuable deposits," they then become subject to classification for the purpose of appropriation the same as the metallic substances enumerated in the act. We are not unmindful of the decision of the supreme court of Washington,3 wherein that court announced that, in its judgment, a mining claim, whether lode or placer, is not established or entitled to be patented under the mineral laws, unless it contains some of the metals for which mining works are prosecuted; nor do we overlook the ruling of Secretary Hoke Smith, arising out of the same case, wherein the supreme court of Washington was criticised by the distinguished secretary for invading his jurisdiction; but the conclusions reached by the secretary went further than did the offending state court. The secretary said: "It appears to me so plain that congress only contemplated lands that were valuable for the more precious "metals should be patented as lode claims, that it needs "no argument to convince one of the proposition."4 This view was subsequently overruled in so far as it purported to limit the definition of "mineral" to metallic substances or the "more precious metals," and the 1 Commr.'s Letter, Copp's Min. Dec. 214. |