be permitted.1 Or, at the utmost, the lode claimant would only be entitled to an easement over the placer ground, upon the principle that a reservation of a thing out of a grant is a reservation of whatever may be necessary to its enjoyment.

But the mining laws contemplate no such conditions. The only method by which the lode may be located is by defining a surface inclosing it.2

Since the Department rendered its decision in the case of the Aurora Lode v. The Bulger Hill and Nuggett Gulch Placer (supra), the question has been referred to in several cases.3

In the case of the North Star lode, Acting Secretary Ryan said:

"The difficulties in reaching a correct solution of "this question are such that the department believes it "better to withhold a decision thereof until a case is "reached wherein the opposing views and arguments are fully presented, so that the decision may be based 66 upon full consideration thereof."'5

The last expression of opinion by the secretary will be noted after stating the conclusions reached by the courts.

So far as the decisions of the courts are concerned, we have noted but one reported case which analyzes the statute and announces a definite solution of the question. We refer to a decision participated in by a majority of the supreme court of Colorado in the case of Mt. Rosa Mining and Milling and Land Co. v. Palmer.

Dower v. Richards, 73 Cal. 477, 480, 15 Pac. 105.

2 Ante, §§ 71, 361.

We

Elda M. and M. Co. v. Mayflower G. M. Co., 26 L. D. 573; Cape May M. and L. Co. v. Wallace, 27 L. D. 676.

428 L. D. 41, 44.

5 The last expression of opinion by the secretary will be noted after stating the conclusions reached by the courts.

26 Colo. 56, 77 Am. St. Rep. 245, 56 Pac. 178.

quote so much thereof as is necessary to show the conclusion reached and the reasoning on which it was based :

"The question was also involved upon the trial of "the case of Campbell v. Iron S. M. Co., in the circuit "court of the United States, for this district, Judge "Riner presiding. He entertained the view, and in"structed the jury to the effect, that a lode claimant, "in case of a recovery, was entitled to no more than the "vein or lode, and fifty feet of ground, extending fifteen "hundred feet in length.

"We think this instruction correctly defines the "amount of surface ground to which a lode located "within the boundaries of a placer is entitled, under "the provisions of section twenty-three hundred and "thirty-three. As was said in Reynolds v. Iron S. M. "Co., (supra): 'This section made provision for three "distinct classes of cases: (1.) When the applicant ""for a placer patent is at the time in possession of a ""vein or lode included within the boundaries of his "placer claim he shall state that fact, and, on payment ""of the sum required for a vein claim and twenty-five ""feet on each side of it, at five dollars per acre, and two "'dollars and fifty cents for the remainder of the placer "claim, his patent shall cover both. (2.) It enacted "that, where no such vein or lode is known to exist at "the time the patent is applied for, the patent for a 'placer claim shall carry all valuable mineral and "'other deposits which may be found within the bound"'aries thereof. (3.) But, in case where the applicant ""for the placer is not in possession of such lode or vein "'within the boundaries of his claim, but such vein is "known to exist, and it is not referred to or mentioned "'in the claim or patent, then the application shall be "'construed as a conclusive declaration that the claim"ant of the placer mine has no right to the possession "of the vein or lode claim.'

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"We think it is manifest that the lode or vein "referred to in the first and third provisions is "the same thing, and that whatever a placer claim"ant would acquire by availing himself of the

Lindley on M.-48

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"privilege accorded him by the first provision of "the section, is reserved by virtue of the third pro"vision; in other words, that the same extent of surface 66 ground that is incident to such lode or vein, if located "and patented by the placer claimant, is reserved from "the placer patent in case of his failure to claim and "patent the same. If he elects to patent the lode, he is "required to take twenty-five feet on each side of the "center of the vein, and pay therefor at the rate of five "dollars per acre. This is a privilege accorded to him, "which he may avail himself of, or not, as he sees fit. If he elects to waive this privilege, he may do so in one of two ways-either by expressly excepting the "lode from his placer location and application for patent, or remaining silent in regard to it. If silent, "then by implication he declares that he makes no "claim to such lode and by such silence is bound to the same extent, and in the same manner, but no further, "than he would have been by an express declaration. By electing to make no claim to a known lode, or express declaration in regard to it, he must be under"stood as claiming, for placer purposes, the greatest "possible area within the boundaries of his placer claim "and should be held to have relinquished only that "which he might have taken, which is the lode, with "the amount of surface ground provided. Why should "there be any difference between the rights of claim"ants of known lodes within the boundaries of a placer? "We know of none. The object of excepting known "lodes from placer locations was to prevent titles to "such lodes being obtained under the guise of a placer; "at the same time, in order to protect claimants to each "character of mineral locations to the greatest extent, "and preserve to each that which was most valuable "for particular purposes in connection with each class "of claims. The lode, for convenient working, could "not be limited to less than twenty-five feet on each side "of the center of the vein; and the placer, which would "be valueless without such surface rights, is permitted "to take title to the remaining area accordingly. Those "who controvert this view base their contention upon "the provisions of section twenty-three hundred and

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twenty, which it is said governs the length and width "of all lode claims, whether made within the bounda"ries of a placer claim or not.

"An act on a particular subject must be con"strued as a whole. Section twenty-three hundred "and twenty refers to the location of lodes not "conflicting with any other class of mineral loca"tions; while by section twenty-three hundred and

thirty-three special conditions with reference to con"flicts between the two classes of mineral claims are "specially provided for; and, to that extent, construing "the act as a whole, is a limitation or qualification of "the provisions of section twenty-three hundred and twenty, which relates, as stated, to the width of lode "claims generally, and regulates the width of lode "claims when made upon lodes within the boundaries "of a placer, whether such lodes are located by the "owner of the placer or strangers to that title. By "this construction full force and effect is given to both "of these sections, and the purpose of the statute is "carried out. The government receives for its mineral "lands the price fixed for lodes and placers, respective"ly, and the superior right to the surface area of the "placer claimant, acquired by his prior location or patent, is protected. It is the conclusion of a majority "of the court that the limitation of the width of a lode "claim in section twenty-three hundred and thirty"three is not only applicable to the placer claimant, "but applies as well to others who locate a lode within "the boundaries of his previously located placer.

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"Chief Justice Campbell declines to express an opinion upon this question, because, in his judgment, "the stipulation entered into by counsel eliminates it "from the case.

"It follows that the court below erred in adjudging "to appellee surface ground in excess of twenty-five "feet on each side of the lodes in question. For this reason, the judgment is reversed, and the case re"manded, with directions to enter judgment in accord"ance with the views we have expressed." 1

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1

1 Mt. Rosa M., M., and L. Co. v. Palmer, 26 Colo. 56, 63, 56 Pac. 176.

The views thus entertained by the supreme court of Colorado have recently received the approval of the secretary of the interior in a communication addressed by him to the attorney-general.1 This communication requested that proceedings be instituted in behalf of the United States to cancel a patent issued for a lode claim within a prior located placer, upon the ground, among others, that a surface covering a width of three hundred feet had been patented, whereas the surface width should have been limited to twenty-five feet on each side of the center of the vein. The secretary calls the attorneygeneral's attention to the views of the department as previously expressed in the cases heretofore commented on, and then gives his unqualified sanction to the doctrine announced by the supreme court of Colorado, in the following language:—

"This decision, coming from the court of last resort "of one of the principal mining states, is entitled to grave weight, and upon careful consideration of the reasons assigned for the conclusions reached, the "department is of the opinion that the interpretation given the statute in said decision is correct."

With this consensus of opinion of the courts and the land department the rule may be considered as practically settled.

April 1, 1902, not reported.