Judge Hallett is of the opinion that the right of the original locator to resume work and prevent forfeiture lapses, unless the right is exercised before another has taken possession of the property with intent to relocate it,1 and Mr. Morrison shares these views,2 which, in our judgment, are sound.3

A discussion of what constitutes "resumption" is deferred for treatment in another chapter. Successive relocations may, of course, be made as often as the relocators fail on their part to comply with the law. Where one has made a relocation and permits the time to elapse without performing the requisite work, he should be debarred the same as an original locator from again relocating. Whether or not such is the law depends upon the correctness of our theories advanced in a preceding section.1

8409. Right of second locator to improvements made by the first. When the estate of the first locator becomes extinguished by his failure to comply with the law, and the second enters and perfects his relocation, the dominion and control over the property passes to the latter. If the former thereafter remains in possession, unless at the time of the relocation he had resumed work, he is a mere occupant without color of title, and the completion of the second location, if effected peaceably and in good faith, operates in law as an ouster of the prior occupant.5 Thereafter, the relocator is clothed with "the exclusive 'Little Gunnell M. Co. v. Kimber, 1 Morr. Min. Rep. 536, Fed. Cas. No. 8402.

Morr. Min. Rights, 10th ed., p. 91.

The supreme court of Montana discusses this section and disagrees with the conclusions reached. McKay v. McDougall, 25 Mont. 258, 87 Am. St. Rep. 395, 64 Pac. 669, 672. See Klopenstine v. Hays, 20 Utah, 45, 57 Pac. 712; Justice M. Co. v. Barclay, 82 Fed. 554.

Ante, § 405.

Belk v. Meagher, 3 Mont. 65, 80, S. C., on appeal, 104 U. S. 279, 284; ante, §§ 218, 219.

Lindley on M.-47

"right of possession and enjoyment of all the surface "included within the lines of the location."'1

Such improvements or betterments as have been placed upon the property by the original locator, if they fall within the class designated as fixtures, become a part of the realty, and the subsequent appropriation of the land carries with it, necessarily, whatever may be affixed to it. Prior to the determination of his estate by the perfection of a relocation, it cannot be doubted that the prior locator may sever and remove all machinery, buildings, and other improvements which, by the manner of their attachment to the soil, have become a part of the freehold. But his right of entry for that purpose ceases when his estate is terminated.

It is a general rule of law that all improvements of this character upon public lands of the United States pass to the purchaser from the government, and the relocator of a mining claim holds his estate by purchase. One cannot set up equities in improvements against the government, or a purchaser from it, and state statutes which permit their removal after the land has passed into private ownership are void, as interfering with the primary right of disposal of the soil reserved to the United States upon the admission of the several states."

It is unnecessary to enter into a detailed discussion of what constitutes fixtures. It has been frequently held, that machinery, such as engines, boilers, hoisting-works, mills, pumps, and things of a like character annexed to

1 Rev. Stats., § 2322.

Collins v. Bartlett, 44 Cal. 371; Pennybecker v. McDougal, 48 Cal. 163; McKiernan v. Hesse, 51 Cal. 594; Treadway v. Sharon, 7 Nev. 37; Winans v. Beidler, 6 Okl. 603, 52 Pac. 405.

3 Meyerdorf v. Frohner, 3 Mont. 282, 320; ante, § 233.

Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. Rep. 95; Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. Rep. 102.

Collins v. Bartlett, 44 Cal. 371.

the soil for mining, become part of the freehold.1 As such, they will pass to the relocator.

While this is undoubtedly true, upon application for a patent the relocator will not be permitted to include in his estimate of the value of improvements required by law to be made as a condition precedent to patent any of the labor done or improvements made by the original locator.2

A grant from the original locator to one who has effected a valid relocation is ineffective for this purpose.

3

Expenditures for such purpose must have been made by the relocator or his grantees.*

ARTICLE XII. LODES WITHIN PLACERS.

§ 413. Right to appropriate lodes 415. Width of lode locations within placers. within placers.

§ 414. Manner of locating lodes

within placers.

413. Right to appropriate lodes within placers.That the two classes of mineral deposits, those falling within the designation of lodes, or veins, and those usually called placers, frequently exist in the same superficial area is a matter of common experience.

That when so found they may be held by the same or different persons, is well settled by both judicial and departmental decisions."

1 Merritt v. Judd, 14 Cal. 60; Treadway v. Sharon, 7 Nev. 37; Roseville Alta M. Co. v. Iowa G. M. Co., 15 Colo. 29, 22 Am. St. Rep. 373, 24 Pac. 920.

Acting Commissioner Holcomb, Copp's Min. Lands, p. 300; Commissioner Burdett, 1 Copp's L. O. 179; Russell v. Wilson Creek Cons. M. Co., 30 L. D. 321; Yankee Lode, 30 L. D. 289.

3 Yankee Lode, 30 L. D. 289.

4 Rev. Stats., § 2322.

5 Reynolds v. Iron S. M. Co., 116 U. S. 687, 695, 6 Sup. Ct. Rep. 601; Aurora Lode v. Bulger Hill Placer, 23 L. D. 95.

While it is undoubtedly true that a mining location, whether lode or placer, is property in the highest sense of the term, and when perfected is equivalent to a grant from the government,1 yet it does not follow that the thing granted is the same in both classes of locations, nor that things reserved from the operation of one grant are likewise excepted from the operation of the other.

There is a marked distinction between the surface rights acquired by a lode location and those flowing from a placer location. In the former, there is a grant of the exclusive right of enjoyment of the surface and everything within vertical planes drawn downward through the surface boundaries, subject only to the extralateral right of outside apex proprietors to pursue their veins underneath such surface. No subsequent locator, either lode or placer, can invade such surface, though he may openly and peaceably enter for the purpose of laying his lines in such a manner as to properly define his extralateral right. On the other hand, lodes found within the placer surface, or underneath it, if their existence is known prior to the application for placer patent, are not the subject of a placer grant. Therefore, the placer claimant may not own everything upon the surface or found within vertical planes drawn downward through the surface boundaries. The policy of the government with reference to lodes is to sever them from the body of the public lands, and to deal with them and the land

1 Belk v. Meagher, 104 U. S. 284; Gwillim v. Donnellan, 115 U. S. 45, 5 Sup. Ct. Rep. 1110; Mt. Rosa M. M. and L. Co. v. Palmer, 26 Colo. 56, 77 Am. St. Rep. 245, 56 Pac. 156.

2 Ante, §§ 363, 363a.

3 Reynolds v. Iron S. M. Co., 116 U. S. 687, 6 Sup. Ct. Rep. 601; Iron S. M. Co. v. Mike & Starr M. Co., 143 U. S. 394, 12 Sup. Ct. Rep. 543; Dahl v. Raunheim, 132 U. S. 260, 10 Sup. Ct. Rep. 74; Clary v. Hazlitt, 67 Cal. 286, 7 Pac. 701; Mt. Rosa M. M. and L. Co. v. Palmer, 26 Colo. 56, 77 Am. St. Rep. 245, 56 Pac. 176.

immediately inclosing them as separate and distinct entities.1

The location of mining ground for placer purposes does not effect such severance. The placer claimant may, in the absence of a discovery and location by others, obtain the title to the lode, but he has not such right by virtue of his prior placer appropriation, unless the existence of the lode remains unknown until the application for a placer patent is filed. This right to appropriate the lode must flow from the discovery of the lode. Whosoever first discovers the lode may appropriate it by complying with the laws conferring privileges upon such discoverers. If he fails to do so, it is open to the next comer; and this rule applies to the placer claimant as well as to strangers. If, having discovered it, he fails to manifest his intention to claim it by appropriating it under the lode laws, it may be the subject of appropriation by others, the same as if it were upon the public domain; provided, always, that such appropriation is made and perfected peaceably and in good faith. In this respect, the same rules of law which govern the location of mineral land occupied or claimed by others under inchoate agricultural holdings are to be applied. We have fully discussed this subject in preceding articles. It is unnecessary to here repeat what is there said.1

There is no reason why a placer claimant may not locate a lode claim within his unpatented placer claim, or consent that others may do so."

The issuance of a placer patent containing within its

1 McCarthy v. Speed, 11 S. Dak. 362, 77 N. W. 590; Waterloo M. Co. v. Doe, 82 Fed. 45, 50.

2 Aurora Lode v. Bulger Hill Placer, 23 L. D. 95.

McCarthy v. Speed, 11 S. Dak. 362, 77 N. W. 590; Mt. Rosa M. M. and

L. Co. v. Palmer, 26 Colo. 56, 77 Am. St. Rep. 245, 56 Pac. 176.

Ante, §§ 206, 216, 219.

8

McCarthy v. Speed, 11 S. Dak. 362, 77 N. W. 590, 592.