Upon application for patent, the monuments may be moved and the lines drawn in to cast off the excess.1

An excessive location cannot be said to be a fraud upon others. It cannot take away rights already acquired by prior appropriation. A location within the statutory limit cannot accomplish this. As to subsequent locators, they can measure the ground from the preliminary discovery notice, which is universally posted at, or in reasonable proximity to, the point of discovery. This notice itself, as a rule, specifies the linear distance claimed from the discovery point, and where it does not, the locator can only claim seven hundred and fifty feet along the vein on each side of his discovery notice.3

If the prior locator has too much ground, it is easy to discover it; and all the benefit that a subsequent locator can claim is, that he shall be entitled to maintain his right to the excess.*

In a locality where neither state law nor district rules require the posting of a preliminary notice at the discovery point, a case might arise where a location, as

Butcher, 4 Mont. 299, 1 Pac. 714; Leggatt v. Stewart, 5 Mont. 107, 109, 2 Pac. 320; Lakin v. Dolly, 53 Fed. 333, S. C. on appeal, 54 Fed. 461; Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 107, 11 Fed. 666; Atkins v. Hendree, 1 Idaho, 95; Burke v. McDonald, 2 Idaho, 646, 33 Pac. 49; Stemwinder M. Co. v. Emma & L. C. M. Co., 2 Idaho, 421, 21 Pac. 1040, (affirmed on appeal to U. S. Sup. Ct., 149 U. S. 787, 13 Sup. Ct. Rep. 1052, Law. Co-op. ed., book 37, p. 941); Hanson v. Fletcher, 10 Utah, 266, 37 Pac. 480; Howeth v. Sullenger, 113 Cal. 547, 45 Pac. 841; Taylor v. Parenteau, 23 Colo. 368, 48 Pac. 505; Stephens v. Wood, 39 Or. 441, 65 Pac. 602.

1In re Empey, 10 Copp's L. O. 102; Howeth v. Sullenger, 113 Cal. 547, 45 Pac. 841. See Golden Reward M. Co. v. Buxton M. Co., 79 Fed. 868; Credo M. and S. Co. v. Highland M. and M. Co., 95 Fed. 911, where this rule was applied.

Ante, § 350.

Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. Rep. 560.

"Atkins v. Hendree, 1 Idaho, 95, 100.

Ante, § 350.

marked, includes so large an area as to give rise to the suspicion of bad faith. In such a case, where such preliminary notice is wanting, there would be nothing to guide the subsequent locator, and the excessive location should be held worthless for any purpose. A fifteenhundred-foot claim cannot be shifted from one end to the other of a two-thousand-foot claim, as circumstances might require, to cover the discovery of a third person within the two-thousand-foot location.2

As we have heretofore stated, however, the general, if not universal, rule is to hold this class of location void only as to the excess.

2363. Surface conflicts with prior unpatented locations. In the first edition of this treatise the author thus expressed his views on the subject of surface conflicts with prior locations::

"As a mining location can only be carved out of the "unappropriated public domain, it necessarily follows "that a subsequent locator may not invade the surface "territory of his neighbors and include within his "boundaries any part of a prior valid and subsisting "location. But conflicts of surface area are more than "frequent. Many of them arise from honest mistake, "others from premeditated design. In both instances "the question of priority of appropriation is the con

trolling element which determines the rights of the "parties. Two locations cannot legally occupy the "same place at the same time. These conflicts some"times involve a segment of the same vein, on its "strike; at others, they involve the dip-bounding "planes underneath the surface. More frequently, "however, they pertain to mere overlapping surfaces. "The same principles of law apply with equal force "to all classes of cases. Such property rights as are "conferred by a valid prior location, so long as such 'Ledoux v. Forester, 94 Fed. 600.

Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. 714; Leggatt v. Stewart, 5 Mont. 107, 109, 2 Pac. 320.

"location remains valid and subsisting, are preserved "from invasion, and cannot be infringed or impaired "by subsequent locators. To the extent, therefore, "that a subsequent location includes any portion of the "surface lawfully appropriated and held by another, "to that extent such location is void."

The decisions of the courts rendered since the appearance of the first edition, as well as those of the land department, taking its text to some degree at least from the judicial exposition of the law, require a modification of the author's previous views.

It is well settled that a junior locator cannot by invading the limits of a prior grant, and attempting to make a location conflicting with such grant, acquire any rights which might in any way infringe upon those of the previous locator. However regular in form such a junior location might be, it is of no effect as against rights conferred upon the prior locator so long as the prior location is subsisting.1

As was said by the supreme court of the United States in this behalf,

"A valid location appropriates the surface, and the rights given by such location cannot, so long as it "remains in force, be disturbed by any acts of third parties. Whatever rights on or beneath the surface passed to the first locator can in no manner be dimin"ished or affected by a subsequent location." 2

66

It does not necessarily follow from this that a junior locator may not lay any of the lines of his lode location over, upon, or across the lines of a senior location for

'Belk v. Meagher, 3 Mont. 65, S. C. on appeal, 104 U. S. 279; Garthe v. Hart, 73 Cal. 541, 15 Pac. 93; Souter v. Maguire, 78 Cal. 543, 21 Pac. 183; Aurora Hill Cons. M. Co. v. 85 Mining Co., 12 Saw. 355, 34 Fed. 515; Stewart v. Rees, 25 L. D. 447; Argentine M. Co. v. Benedict, 18 Utah, 183, 55 Pac. 559; Kinney v. Fleming (Ariz.), 56 Pac. 729.

Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 79, 18 Sup. Ct. Rep. 895.

the purpose of acquiring rights not in conflict with the claim having priority. It is now well settled that the lines of such junior locator may be so laid as to create a surface conflict with the prior location for the purpose of defining for or securing to such junior location underground or extralateral rights not in conflict with any rights of the senior location.1

A simple illustration of this principle will suffice. Figure 31 represents three lode claims, A, B, and D, with priorities in the order named. The underground

segment of the vein c-c' and g-h' has not been appropriated by either A or B. D has located by the lines describing the parallelogram b-m-g-c, inclosing the triangle b-c-g, which is free unappropriated public land containing the apex of a discovered vein. In doing so, a part of his surface overlaps the claim of B, and the conflict area, b-m-g, contains a part of the apex of the vein.

In making the location in this way, D has deprived B

1 Del Monte M. and M. Co. v. Last Chance M. Co., supra.

of nothing. If B should ultimately abandon the location, the conflict area would not fall to D.1

D might subsequent to the abandonment of the conflict area by B amend his location and include the overlapping surface, but, without some act on his part manifesting an intention to make a new appropriation or acquire a new right after the abandonment or for-feiture became effectual, this area would not by mere gravity become a part of the junior location,3 except for the purpose of defining the extralateral right.

The placing by D of the location lines across and upon B's surface is not necessarily a trespass.* It may be conceded that such a conflicting junior location may not be made by a forcible entry upon the actual possession of the senior. Perhaps the senior locator might prevent the making of the junior location so far as the placing of the lines over the prior claim was concerned." But an entry upon the surface of the senior claim, openly and peaceably and in good faith, claiming nothing as against the prior claim, gives no cause of complaint to the senior claimant.

46

"Certainly if the rights of the prior locator are not infringed upon, who is prejudiced by awarding to the "second locator all the benefits which the statute gives "to the making of a claim?'"'6

The circuit court of appeals for the ninth circuit expresses the following views:

'Belk v. Meagher, 104 U. S. 279, 285; Oscamp v. Crystal River M. Co., 58 Fed. 293, 295; Jordan v. Duke (Ariz.), 53 Pac. 197; Reynolds v. Pascoe (Utah), 66 Pac. 1064.

'Johnson v. Young, 18 Colo. 625, 34 Pac. 173.

Pralus v. Pacific G. and S. M. Co., 35 Cal. 30, 36.

'Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 83, 18 Sup. Ct. Rep. 895; Cleary v. Skiffich, 28 Colo. 362, 365, 65 Pac. 59, 60. Bunker Hill and Sullivan M. and C. Co. v. Empire State-Idaho M. and D. Co., 109 Fed. 538, 541.

Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 84, 18 Sup. Ct. Rep. 895.