those of a senior lode location, the extension of the doctrine to patented mining claims, millsites, and agricultural lands was not only accompanied with no serious embarrassment, but such result was natural and logical. A valid unpatented mining location, as against every one save the government, is in effect a grant. The estate enjoyed is in the nature of an estate in fee.1

There is no reason which could be urged in support of permitting junior locators to lay the lines of their claims across prior unpatented claims which could not be invoked in behalf of similar doctrine as applied to patented claims of all classes. This is quite forcibly pointed out in the opinion of the secretary of the interior in the case of the Hidee lode,2 hereafter to be specially noted.

Judge Hallett, in his opinion dismissing the bill in the Del Monte case, (from whose decision an appeal was taken to the circuit court of appeals, which certified the case to the supreme court of the United States,) thus announced his views:

"I think that the lines of a claim may be located wholly or partly upon other territory,- that is, terri"tory which is not open to location,-for the purpose "of determining the extralateral questions. In other "words, the locator, in order to make a valid location, "is bound to locate his lines so as to be of a rectangular "form, and if in so locating them he gets upon the territory of other claimants, whether at the time of "such location the claims adjacent have or have not "been patented, his lines are well laid with reference "to the territory subject to location; . . . and even if "the lines fell upon other claims which had already "passed to patent, the result would be the same.

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Post, 539.

30 L. D. 420.

Not reported. Judge Hallett's opinion did not form a part of the record certified up to the supreme court of the United States by the circuit court of appeals, eighth circuit. The opinion, however, was

Lindley on M.-42

The secretary of the interior, in an ably prepared opinion in the Hidee lode case,1 reached the result concisely and comprehensively stated in the syllabus to the case as follows:

"The location lines of a lode mining claim are used "only to describe, define, and limit property rights in "the claim, and may be laid within, upon, or across the "surface of patented lode claims for the purpose of "claiming the free and unappropriated ground within "such lines and the veins apexing in such ground, and "of defining and securing extralateral underground "rights upon all such veins where such lines (a) are "established openly and peaceably, (b) do not embrace "any larger area of surface, claimed and unclaimed, "than the law permits." 2

A similar rule was subsequently prescribed with regard to placing the lines of a junior lode location over prior patented agricultural land. A contrary doctrine had been previously announced.*

Following the same line of reasoning, it was also held that an application for a patent to a lode mining claim may embrace ground lying on opposite sides of an intersecting millsite, with the proviso, however, that the lode or vein upon which the location is based has been discovered in both parts of the lode location which were not in conflict with the millsite."

The courts have approached the question determined in the case of the Hidee lode cautiously, and as yet it cannot be said that there is unquestioned judicial authority for the principle there announced.

before the court of last resort, it having been printed in the brief and argument of appellee (Messrs. Teller, Wolcott, and Vaile), from which the foregoing extract was taken. The secretary of the interior, in his opinion in the Hidee lode, refers to it (30 L. D. 420, 427).

130 L. D. 420.

Rule reannounced in Mono Fraction Lode Claim, 31 L. D. 122. 3 Alice Lodo Mining Claim, 30 L. D. 481.

Bimetallic Lode, 15 L. D. 309.

'Paul Jones Lode, 31 L. D. 359.

The circuit court of appeals for the ninth circuit upon one occasion, where the precise question was not necessarily involved, stated the rule laid down by the secretary of the interior without comment.1 In a subsequent case, where the point was directly raised, but not necessary to be decided, as the ultimate determination was reached upon grounds not involving the question, the same court, after announcing the doctrine of the Del Monte case, said: "And perhaps the same thing may "be done on patented claims where the lines are estab"lished openly and peaceably."2

The supreme court of Colorado expressed grave doubts as to the soundness of the secretary's decision in the Hidee case. While conceding the force of the doctrine of the Del Monte case as applied to junior locations overlapping prior unpatented claims, it fails to find in that case any support for the contention that the junior locator may have that privilege with reference to a senior patented claim. Said that court:

66

"After patent has issued, the legal title to the land conveyed by it has passed wholly from the govern66 ment. The holder of this title is wholly beyond the 'jurisdiction of the land department; and it would seem that no one can initiate by trespass upon his "tract any right whatever, whether it be committed ignorantly or not. . . . If the law is as counsel con"tend, then a patent does not convey an absolute "estate, but only a qualified fee, and leaves the land "still subject to some rights in the government, a doc"trine for which there seems to be no warrant in the "statute. So long as the land is not patented, the legal 'title is still in the government, and it may be argued "with some force that while held under location merely, "it is still within the jurisdiction of the land depart

'Bunker Hill and Sullivan M. and C. Co. v. Empire State-Idaho M. and D. Co., 109 Fed. 538, 542.

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

ment, and for that reason it is within the province of "its authority to say that a junior locator may law"fully go upon it and mark his boundaries and erect "his monuments upon its surface in order to initiate "rights in lands not carried by it."1

"We do not understand, however, how the United "States government may convey any right to lands by "consent of an adjoining owner under patent which it "could not convey without such consent."2

66

The case in which the language was used was an extreme one, wherein the doctrine of the Del Monte case, as well as the Hidee case, was put to a very severe test. But as the questions there involved were decided, "conceding for the purpose of the discussion" that the rule announced in the Hidee case was a correct exposition of the law, it cannot be said that the decision of the Colorado court is a precedent which condemns the Hidee rule where invoked in a proper case.

The application of these rules will confront us when we come to deal with the law on the subject of extralateral rights, where we shall have occasion to recur to this subject. The foregoing are all the expressions of both courts and land department touching these questions which have come under our observation. We have here been dealing exclusively with the privileges of junior lode claimants. Some discussion of these principles will be necessary when we reach the subject of placer claims.

364. Surface must include apex of vein-Location on the dip.-There can be no question but that the act of July 26, 1866, contemplated a linear location along the course of the vein as exposed at the surface, where there was an outcropping exposure, or along the top or 'State v. District Court (Colo.), 65 Pac. 1020, 1024. 3 Id., 1025.

upper edge of the vein nearest to the surface, where there was no outcrop.1

3

The existing laws require that the top, or apex, of the vein, to some extent at least, should be found within the limits of the location, as defined on the surface,2 at least as a condition precedent to the enjoyment of the extralateral right. We do not feel justified in asserting that a location on the dip of the vein which does not include any part of the apex is under all circumstances void. It might happen that the true apex of a vein is embraced within a prior grant of such a character as to prevent the owner from following the vein on its downward course out of his vertical boundaries, conditions such as are outlined or suggested in a preceding section; or the deposit may be a bedded vein, occupy-' ing a horizontal position in the mass of the mountain, without any definable apex, or where the inclination of the vein from the horizontal is so slight as to require extensive development in order to ascertain which is the top and which the side edge or bottom of the vein, as illustrated in the South Dakota and Idaho cases, discussed in section three hundred and ten, and to some degree in the Leadville cases, referred to in section three hundred and eleven. Under such conditions it is quite possible that by a surface location not covering the true apex the locator might acquire the exclusive right to the surface and the underlying vein as against all persons save those who fortuitously covered the true apex in such a way as to confer upon

1 Eureka Case, 4 Saw. 302, Fed. Cas. No. 4548; McCormick v. Varnes, 2 Utah, 355; Wolfley v. Lebanon, 4 Colo. 112.

'Flagstaff M. Co. v. Tarbet, 98 U. S. 463, 467; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478, 485, 2 Sup. Ct. Rep. 256; Iron S. M. Co. v. Elgin, 118 U. S. 196, 6 Sup. Ct. Rep. 1177; Doe v. Sanger, 83 Cal. 203, 23 Pac. 363; Watervale v. Leach (Ariz.), 33 Pac. 418; King v. Amy & Silversmith M. Co., 9 Mont. 543, 24 Pac. 200.

• Ante, § 312a.

•See Homestake M. Co., 29 L. D. 689.