claim had fixed surface boundaries. But the fact that two ledges existed within the bounds was required to be first established before the subsequent claimant had any lawful right to invade the surface boundaries of the senior locator.1 In all patents issued under the act, a recital was inserted restricting the grant to the one vein, or lode, described therein, and providing that any other vein, or lode, discovered within the surface ground described should be excepted and excluded from the operation of the grant. 59. Construction of the act by the land department. -Shortly after the passage of the act the commissioner of the general land office issued "circular "instructions" for the guidance of the registers, receivers, and surveyors-general in carrying the law into effect. These instructions provided for the establishment of end lines at right angles to the ascertained or apparent general course of the vein, and permitted the applicant to apply for patent to a vein without any inclosing surface, the estimated quantity of superficial area in such cases being equal to a horizontal plane, bounded by the given end lines and the walls on the sides of the vein. As was said by the commissioner of the general land office, an applicant for a patent under this act might include surface ground lying on either or both sides of the vein as part of his claim, or he might apply for a patent for the vein alone. His rights upon the vein and in working it were precisely the same, whatever might be the form of his surface ground, or whether he had any or none.3 1 Atkins v. Hendree, 1 Idaho 107. January 14, 1867—Copp's Min. Dec., p. 239. "As might be expected, the patents issued under this "statute described surface areas very different and "sometimes irregular in form. Often they were like a "broom, there being around the discovery shaft an "amount of ground deemed large enough for the con"venient working of the mine, and a narrow strip "extending therefrom as the handle of the broom. This "strip might be straight or in a curved or irregular "line, following, as was supposed, the course of the vein. "Sometimes the surface claimed and patented was a "tract of considerable size, so claimed with a view of "including the apex of the vein, in whatever direction "subsequent explorations might show it to run. And, "again, where there were local rules giving to the dis"coverer of a mine possessory rights in a certain area of "surface, the patent followed those rules, and conveyed "a similar area. 991 As to the effect of such patent, when issued, the department took the view that the patentee was fully invested with the title to his lode for the linear extent specified in the grant, whatever course the vein might be found to pursue underground; 2 and that he might follow the particular lode named in the patent to the number of feet expressed in the grant, although the ledge in its course should leave the surface ground described in the patent. In other words, the department inclined to the opinion that the right of a lode claimant to pursue the vein to the extent of the number of linear feet claimed, whatever might be its course, was the same after patent as before. 3 Under this construction of the law, patents were issued in several instances describing a small area of surface, upon which the improvements were erected, within Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 64, 18 Sup. Ct. Rep. 895; and see Calhoun G. M. Co. v. Ajax G. M. Co., 59 Pac. 607, 612, 27 Colo. 1, 83 Am. St. Rep. 17. Flagstaff Case-Copp's Min. Dec., p. 61. •Commissioner's letter-Copp's Min. Dec., pp. 154, 201. An which surface a few hundred linear feet of the lode only was included, the remainder of the feet claimed being indicated by a line extending beyond the defined surface area in the direction and to the extent claimed.1 example of a patent issued under this interpretation is found in the case of the famous Idaho mine in Grass Valley, California. We present for illustrative purposes a copy of the plat accompanying this patent (Figure 1): This patent described the surface ground shown on the plat, and granted "the said mineral claim, or lot of "land, above described, with the right to follow said "vein, or lode, to the distance of thirty-one hundred "linear feet, with its dips, angles, and variations, "although it may enter the land adjoining." Just what was in fact granted by the patent to a line might be the cause for serious controversy, even if the line correctly followed the outcrop of the vein. But subsequent development proved that this outcrop, or top, was considerably north of the patented line. Litigation arose between 'Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 64, 18 Sup. Ct. Rep. 895; Calhoun G. M. Co. v. Ajax G. M. Co., 59 Pac. 607, 612. the Idaho and the Maryland, adjoining on the east, as to where the right of the Idaho on the vein terminated and that of the Maryland began, and as to what was the bounding plane on the dip between the two companies. Under the interpretation followed by the land department, it would seem that the Idaho company could follow the vein in whatever direction it ran, after leaving the surface boundaries, to the extent of the thirty-one hundred feet. The trial court ruled that the diagram fixed the position of the lode, and that the bounding plane on the lode between the two companies was to be drawn through the point at the eastern terminus of the lode line shown on the plat. The case was compromised during the trial. It is cited simply to show some of the embarrassments flowing from the early interpretation by the land department of the act, and the difficulties encountered in later years where coterminous proprietors are brought into controversy with these old locations or with patents granted under this act. Frequently the land department went to another extreme on this subject of surface ground. Patents were issued covering a few hundred feet of a lode, embraced within irregular surface boundaries which covered an area of several hundred acres. Figure 2 presents an illustration of this. It is taken from a patent issued by the department, based upon a claim to the lode, originating under the act of 1866, upon proceedings completed and entry made prior to the passage of the act of May 10, 1872. So long as the act of 1866 was in force, which granted but the one lode, the legal controversies likely to arise over a proper construction of such a patent were not particularly serious. But when we consider that the act of 1872 purports to grant to the holder of such a patent all other lodes which have their tops, or apices, within the patented surface area, it will be seen that many complications might arise as to end-line planes and dip rights between coterminous proprietors. All of this, however, will be reserved for future discussion. Our object has been simply to illustrate the rules of interpretation which prevailed in the land department. 2 60. Construction by the courts.-The courts of last resort have uniformly overruled the interpretation of this act adopted by the land department, and have established the rule that surface lines, both side and end, were contemplated by the act of 1866, and that when a patent was once obtained the patentee was not permitted to follow the vein on its course beyond the surface boundaries.1 The Flagstaff lode claim, in reference to which, on application for patent, the land department announced its interpretation that the patentee might follow the lode to the linear extent claimed, whatever might be its course, came before the courts after the patent was issued, in two cases, one of which reached the supreme court of the United States. As the Flagstaff case is a McCormick v. Varnes, 2 Utah 355; Flagstaff M. Co. v. Tarbet, 98 U. S. 463; Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55; Montana Ore Purchasing Co. v. Boston and M. C. C. and S. M. Co., 20 Mont. 336, 51 Pac. 159; Lillie Lode M. Claim, 31 L. D. 21. 'Copp's Min. Dec., p. 61. |