"It is the settled law that for the purpose of acquir"ing the extralateral rights conferred by the statute a "locator may place his lines on a prior mining location "with the consent of such prior locator, or when it is "done openly and aboveboard without objection on his part, which in reality constitutes consent."1

66

To what limit this doctrine may be applied is a question difficult to determine. Some unique contentions are made with regard to it which will be considered in the discussion of the extralateral-right problems.

The land department has elaborated this doctrine to some extent, and in passing upon patent applications has recognized the right of a junior locator to cross a senior location, the patent issuing to the junior proprietor for the tract described, excepting and reserving the area in conflict with the senior location.

The following figures illustrate the present views of the department on the subject.

Figure 32 exhibits the Hallett and Hamburg lode claims for which a patent was applied, and which were in conflict with the numerous prior locations shown on the diagram. The patent application excluded the area in conflict with the locations having priority. A protest was filed against the issuance of the patent on the ground, among others, that the end-lines and corners of the claims applied for were within and upon the surface of valid prior locations. The secretary dismissed the protests, upholding the validity of the locations in the form shown on the figure, citing the Del Monte case 2 as authority for his ruling. It requires more intimate familiarity with the properties delineated on the diagram than the author possesses to determine

1 Empire State-Idaho M. and D. Co. v. Bunker Hill and Sullivan M. and C. Co., 114 Fed. 417, 419.

$171 U. S. 55, 18 Sup. Ct. Rep. 895.

Hallett and Hamburg Lodes, 27 L. D. 104.

just what passed by the patent to the Hallett and Hamburg claims after deducting the conflicting areas.

Figure 33 presents a later case involving the same method of location. The Hustler and New Year claims, shown on this figure, were contiguous and held in common ownership. A group patent was applied for. Owing to the conflict between the Hustler and Fort Wilcox, the latter being the prior location, the commissioner of the general land office, directed the drawing in of the Hustler end-lines, and making a new end-line, c-d. This destroyed the contiguity of the group applied for, and as the applicant accepted for the time being the com

missioner's ruling, he received a patent for the New Year alone. He subsequently repented of his action, and applied to the secretary of the interior for a reinstatement of his entry and requested that patent issue for the Hustler, after deducting conflicts with senior locations. The secretary reversed the action of the commissioner, principally on the ground that the ruling cut the claimant off from two small triangular areas marked A and B on the figure, which were embraced within the original location. Patent was directed to issue in accordance with the claimant's application. The Del Monte case was cited as authority for this decision.1

1 Hustler and New Year Lode Claims, 29 L. D. 668.

In the case of the War Dance lode,1 a junior location, which ran entirely across a senior location and terminated in another junior but excepted claim, was passed to patent on the strength of the Del Monte case and the decision of the secretary in Hallett and Hamburg lodes (supra), as there was a small parcel of free ground outside of the conflicting and excluded area which was within the limits of the original War Dance location. It is manifest from a consideration of the series of decisions handed down by the secretary of the interior on this subject that the rule announced by the supreme court of the United States in the Del Monte case has been applied with extreme liberality, and in several instances at least to conditions which did not fall within either the motive or rationale of the judicial decision upon which the later departmental rulings were based. In the light of the later revelation, it would be difficult to conceive of a case of junior conflicts with senior locations which would not receive the sanction of the department. Evidently the simplicity of the rule announced by the author in the first edition of the work, and quoted at the beginning of the section, has given way to one of complexity by a progressive method of interpretation.

Prior to the decision of the Del Monte case, the land department enforced the rule that the rights of the junior locator did not extend beyond an end-line passing through the point where the lode intersected the exterior line of the senior location,2 and that the surface right as an adjunct to the lode could not extend beyond that point.3

If a junior lode location so intersected a prior claim as to divide the later claim into two parts, the claim

129 L. D. 256.

Engineer M. and D. Co., 8 L. D. 361; Consolidated M. Co., 11 L. D. 250; Correction Lode, 15 L. D. 67; Stranger Lode, 28 L. D. 321.

Pleona Lode, 11 L. D. 236.

ant was either compelled to elect which of the two disconnected parts he would take or the entry was confined to that part containing his discovery.1

The Del Monte case did not in terms purport to decide anything more than that a junior locator might, for the purpose of defining an extralateral right not secured by prior location, place his end-lines upon the senior claim. The land department permits the laying of such lines entirely across the senior claim, not only for this purpose, but for the purpose of acquiring surfaces not covered by the older location. When the patent issues for this class of claims, it necessarily reserves all property rights pertaining to the senior claim. We do not conceive that there is any wrong done to any one by the adoption of this rule. An interpretation of this kind seems the only possible solution of some of the difficulties surrounding locations in districts situated as in Cripple Creek, Colorado, with its intricate network of veins running in every conceivable direction. In fact, the "cross-lode" questions arising in this district, and the difficulty of their solution, have undoubtedly influenced the later departmental rulings. Such rulings have received the sanction of the courts,2 and the practice based thereon may be said to be definitely settled.

363a. Surface conflicts with prior patented mining claims, millsites, and agricultural lands.-The rule having once been sanctioned that junior lode claimants might lay the lines of their locations upon or across

Andromeda Lode, 13 L. D. 146; Bimetallic Lode, 15 L. D. 309; Mabel Lode, 26 L. D. 675.

Calhoun G. M. Co. v. Ajax G. M. Co., 27 Colo. 1, 22, 83 Am. St. Rep. 17, 59 Pac. 607, 616, S. C. on appeal, 182 U. S. 499, 21 Sup. Ct. Rep. 885; Bunker Hill and Sullivan M. and C. Co. v. Empire State-Idaho M. and D. Co., 109 Fed. 538, 541; Id., 106 Fed. 471, 472, S. C. on writ of error, sub nom. Empire State-Idaho M. and D. Co. v. Bunker Hill and Sullivan M. and C. Co., 114 Fed. 417, 419; Crown Point M. Co. v. Buck, 97 Fed. 462.