An artificial mound of rocks on the line of a lode is a conspicuous object which would naturally attract the attention of one seeking information as to a former location of a lode, and the slightest examination of the mound would result in the discovery of a written notice.

In another case in the same state, it was held, that a written notice placed in a tin can, and the can placed in a mound of rocks, was sufficient posting.1

It is manifest that some precaution should be taken to protect the notice from destruction by exposure to wind and weather.

In the absence of any specific direction in the state statute or district regulation prescribing the manner of posting, any device adopted which would enable one. seeking information in good faith to discover the existence of the notice, should be sufficient. The posting of such a notice after a bona fide discovery is an appropriation of the territory specified for the period allowed by local rules or state legislation for the performance of the remaining acts required to complete the location, and the appropriator is entitled during that period to be protected in his possession against all comers.3

'Gird v. California Oil Co., 60 Fed. 531, 544.

2 Id.

Ante, § 339; Erhardt v. Boaro, 113 U. S. 527, 537, 5 Sup Ct. Rep. 560; Marshall v. Harney Peak Tin M. and M. Co., 1 S. Dak. 350, 47 N. W. 290; Omar v. Soper, 11 Colo. 380, 387, 7 Am. St. Rep. 246, 18 Pac. 443; Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037; Iron Silver M. Co. v. Elgin, 118 U. S. 196, 8 Sup. Ct. Rep. 1177.

ARTICLE VI. THE SURFACE COVERED BY THE LOCATION

ITS FORM AND RELATIONSHIP TO THE LOCATED LODE.

360. The ideal location.

§ 361. Surface area, length, and

width of lode claims.

patented mining claims, millsites, and agricultural

lands.

§ 362. Location covering excessive 8 364. Surface must include apex.

-Location on the dip. The end-lines.

unpatented locations.

$366. The side-lines.

§ 363a. Surface conflicts with prior | § 367. Side-end lines.

360. The ideal location. When we speak of an ideal location, we mean one which not only responds to all the requirements of the law, but one which confers upon its possessor the greatest possible property right, and conforms to the judicial theories of what constitutes the highest type of a perfected location. The ideal is rarely encountered in the practical mining world, but it furnishes a convenient standard with which the everyday location may be compared, enabling us to show to what extent a departure from the ideal diminishes the property rights which are susceptible of acquisition under a location of the highest possible type.

The ideal location must have for its basis an ideal lode, such a one as we have described and illustrated in a preceding section. With this assumed, we should describe the highest type of a location as a rectangular parallelogram, the lines crossing the apex of the lode at right angles to the general course of the vein, termed in law the end-lines, the extremities of which are equidistant from the center of the vein, the side-lines parallel to the course of the vein; that is, equidistant throughout from a line drawn through the center of the apex on its

longitudinal course;1 such a location as is represented in figure 11.2 Without intending to enter into a discussion at this time of the extralateral right, we may say that this form of location confers upon the possessor the greatest property rights susceptible of being conveyed under the mining laws applicable to lode claims. It is to this standard that the various forms of locations on the surface which may come under discussion in the future will be compared.

2361. Surface area, length, and width of lode claims. Prior to the passage of the act of July 26, 1866, the number and length of claims on a discovered lode, and the extent of surface ground which might be occupied and enjoyed therewith, was, like everything else connected with mining upon the public domain during that period, regulated by district rules or local customs. The act of 1866 fixed the limit of a single claim at two hundred feet in length along the vein, for each locator, except the discoverer, who was entitled to two claims. No person could make more than one location on the same lode, and not more than three thousand feet could be taken by any association of persons.3

As to width, this was left entirely to local regulations. When the claimant filed the diagram of his lode on application for patent, he was called upon to extend his claim laterally, so as to conform to the local laws, customs, and rules of miners. In some districts, the width was specified with reference to either the center of the vein or its inclosing walls. In others, the locator was allowed a reasonable quantity of surface. As the lode was the principal thing, and the surface a mere incident, neither

.

'Empire M. and M. Co. v. Tombstone M. and M. Co., 100 F'ed. 910, 913. Ante, 309.

$14 Stats. at Large, p. 252, § 4.

Id., p. 252, § 2.

Put

the form nor extent of the surface area controlled the rights on the located lode.1

The act of May 10, 1872, which is incorporated into the Revised Statutes, changed this rule, giving to the surface boundaries a controlling importance. It fixed the maximum length on the vein at fifteen hundred feet, and a maximum surface width of six hundred feet, three hundred feet on each side of the middle of the vein at the surface.3

State or district regulation may limit this width to a minimum of twenty-five feet on each side of the middle of the vein, and we cannot see why the length of a claim may not likewise be limited by state or local rules within the maximum."

Be that as it may, where state statutes deal with the subject at all they follow the lines of the federal law, and no such limitation has ever been attempted by district regulations within our knowledge.

As to width, the maximum allowed by the federal law is the rule, except in a few localities. In Gilpin, Clear Creek, Boulder, and Summit counties, in the state of Colorado, the width is fixed by statute at seventy-five feet on each side of the center of the vein. In all other counties of that state, it is one hundred and fifty feet on each side of the center of the vein,' which rule obtains in North Dakota.8

These two states also provide that any county at any

17 Stats. at Large, p. 91, § 2.

Rev. Stats., § 2320; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 305, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 104, 11 Fed. 666; Copp's Min. Dec. 201; In re Taylor, 9 Copp's L. O. 52, 92.

'Mr. Morrison, in his "Mining Rights," (10th ed., p. 19,) doubts the power of the state to so limit the length, and assigns as a reason that it is a federal limitation.

Ante, § 250 (1).

'Mills' Annot. Stats., § 3149; Morr. Min. Rights, 10th ed., p. 21. Rev. Code, 1895, § 1427; Id. 1899, § 1427.

general election may determine upon a greater width within the limitations of the federal laws, but Mr. Morrison informs us,1 that this privilege has never been exercised in Colorado.2

With the exceptions above noted, the customary surface area is therefore fifteen hundred by six hundred feet, embracing twenty and two-thirds acres. This may be called the unit of lode locations.

It is entirely immaterial how many or how few locators participate in this class of locations. The size of the "claim," or, more properly, the location, is not governed by the number of persons participating in its appropriation. There is nothing in the law which prevents any one locator or any set of locators from appropriating as many locations on the same lode as they may be able to find independent discoveries upon which to base them, but no location may exceed the statutory limit as to length and width.

3

% 362. Location. covering excessive area.—It frequently happens that the locator marking his surface without the aid of chain or compass includes within his boundaries an area in excess of the statutory limit.

The courts uniformly hold that such a location, where it injures no one at the time it is made, and where it has been made in good faith, is voidable only to the extent of the excess.4

1 Morr. Min. Rights, 10th ed., p. 22.

Ante, § 250 (2).

Copp's Min. Dec. 207.

The federal laws applicable to the Philippines, however, provide "that no holder shall be entitled to hold in his, its, or their name, or in "the name of any other person, corporation, or association more than "one mineral claim on the same vein or lode."' The laws of Oregon (Hill's Annotated Laws, 1892, § 3829) limit the locator to one claim in the same vein. We do not think this is a matter which may be controlled by state legislation. See Appendix.

Rose v. Richmond M. Co., 17 Nev. 25, 27 Pac. 1115; Richmond M. Co. v. Rose, 114 U. S. 576, 580, 5 Sup. Ct. Rep. 1055; Glacier Mt. S. M. Co. v. Willis, 127 U. S. 471, 481, 8 Sup. Ct. Rep. 1214; Hauswirth v.