noted one, and has served as a precedent in a number of controversies, we herewith present a diagram (Figure 3)1 illustrating the several controversies.

The Flagstaff patent granted a superficies one hundred feet wide by twenty-six hundred feet long, with the right to follow the vein to the extent of twenty-six hundred feet. It appeared that the lode crossed the side lines, as indicated on the diagram. Two controversies arose; one with the Nabob, on the west, and the other with the Titus, on the east. In each case the Flagstaff company contended that they had a right to the lode for the length thereof claimed, though it ran in a different direction from that in which it was supposed to run when the location was made.

1 This diagram, so far as it relates to the case of Flagstaff M. Co. v.
Tarbet, is taken from a certified copy of the map used at the trial. The
Nabob claim is designated thereon from the description given in Mc-
Cormick v. Varnes, 2 Utah, 355.

The supreme court of Utah passed upon both cases, the Nabob case alone being reported, so far as that court was concerned. It held in that case that the Flagstaff patented ground did not cover or embrace any part of the vein on its course, or strike, outside of and beyond the side lines.

The Titus case was decided on parallel lines, and was appealed to the supreme court of the United States,2 where the ruling was affirmed, and the doctrine firmly established that the right to the lode only extended to so much of the lode as is found within the surface boundaries. If the patentee located crosswise of the lode, and his claim was only one hundred feet wide, that one hundred feet is all he had a right to.*

3

Prior to this decision of the supreme court of the United States, the supreme court of Colorado had announced the same doctrine as the supreme court of Utah, but without referring to the Utah cases. It is more than probable that the two courts reached the same conclusions without either having knowledge of the action of the other.

The doctrine of the Flagstaff case has been applied frequently to cases of somewhat similar character, and was fully discussed approvingly by the supreme court of the United States in two interesting cases.

1 McCormick v. Varnes, 2 Utah, 355.

Flagstaff M. Co. v. Tarbet, 98 U. S. 463.

'See Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. Rep. 285; Montana Ore Purchasing Co. v. Boston and M. Co., 20 Mont. 336, 51 Pac. 159.

See, also, Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. Rep. 895; Walrath v. Champion M. Co., 171 U. S. 293, 18 Sup. Ct. Rep. 909.

Wolfley v. Lebanon, 4 Colo. 112; Johnson v. Buell, 4 Colo. 557. Walrath v. Champion M. Co., 63 Fed. 552; S. C. (C. C. A), 72 Fed. 978; Dunderberg v. Old, 79 Fed. 588; Larned v. Jenkins, 113 Fed. 634. 'Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. Rep. 895; Walrath v. Champion M. Co., 171 U. S. 293, 305, 18 Sup. Ct. Rep. 909.

It will be thus seen that until a locator defined his claim for purposes of patent, under the act of 1866, he could follow the lode in any direction it might take to the length claimed; but after patent he was confined to the lines of his survey. As was said by the circuit court of appeals for the eighth circuit:

"A discoverer of a vein cannot be permitted to locate "his claim, present his diagram, and obtain a grant for "the lode and the land he claims, and then disregard "the limitations of the grant and follow the lode without "his location wherever it happens to lead."1

As to the extent of the dip or extralateral right under locations held and patents issued under the act of 1866, we reserve the discussion for a succeeding chapter. To a considerable extent this act and the titles issued under it are brought into connection, and are at least partly blended with the later, or present, legislative system and the titles held thereunder.

61. Local rules and customs after the passage of the act. It will be observed that the act left to local regulation all the details of location, limiting, however, the linear extent of an individual location to two hundred feet, with an additional claim to the discoverer, and providing that not more than three thousand feet should be taken in any one claim by any association of persons. The law also granted to the locators the right to follow the vein to any depth, with all its dips, angles, and variations. This was the rule in most mining districts before the passage of the act, although in certain localities lode claims were required to be "square," with no right to follow the vein on the dip beyond vertical planes drawn through the surface boundaries. As the act did not apply to placers, this class of claims continued to be

1 Larned v. Jenkins, 113 Fed. 634, 636. See, also, Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 64, 18 Sup. Ct. Rep. 895.

entirely governed by local rules until the passage of the placer law of July 9, 1870. Lode claims continued to be so governed within the limitation as to length of claim and the extent which might be held by location on a given lode by any association.

2 62. The act of July 9, 1870.-This is commonly known as the placer law, in contradistinction to the lode law of 1866, and was amendatory of and supplemental to that law. It provided, in terms, that claims usually called “placers," including all forms of deposit, excepting veins of quartz or other rock in place, should be subject to entry and patent under like circumstances and conditions and upon similar proceedings as were provided for vein or lode claims, with the exception that a survey was not necessary where the proposed entry conformed to legal subdivisions. It fixed the price for such lands at two dollars and fifty cents per acre, and authorized their subdivision into ten-acre tracts. It limited the extent of a placer location, whether by an individual or an association of persons, to one hundred and sixty acres. Hitherto no limitation had been imposed as to the area which might be included in a location. It also provided, that where a person or association of persons shall have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the state or territory where the same may be situated, evidence of possession and working of the claims for such period should be sufficient, in the absence of adverse claims, to entitle the applicant to a patent. In other words, possession and working for the statutory period, with

1 St. Louis Smelting Co. v. Kemp, 104 U. S. 636.

2

The land department construed this provision to apply to lode claims as well as placers. Circ. Inst.-Copp's Min. Dec., p. 253.

out location, ripened into an equitable title against the government itself.

As we have heretofore observed, placer claims were first patentable under this act.1

The historical importance of the act (the full text of which will be found in the appendix) lies in the extension of the right to patent to placers and other forms of deposit not included within the lode law of 1866.

63. Local rules and customs after the passage of the act.-Under the placer law, placer locations were still to conform to local rules as to the extent of the claims, subject to the limitation that no more than one hundred and sixty acres could be located by an individual or an association of persons. In this respect individuals and associations seem to have been placed upon the same footing; that is, either might take up one hundred and sixty acres.2

With this limitation, and the requirement that placer locations upon surveyed land should conform to the public surveys, the manner of locating, working, and conditions under which forfeiture arose were left to local regulation. The act remained in force less than two years, when it was superseded by the general mining act of May 10, 1872, which preserved its essential features.

264. Accession to the national domain during the third period. The purchase of Alaska from Russia, in March, 1867, was the only accession to the public domain within this period. It was not until 1884 however, that the laws relating to mining claims and rights incident thereto became operative in this district.

'Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. Rep. 95; Moxon v. Wilkinson, 2 Mont. 421.

'St. Louis Smelting Co. v. Kemp, Fed. Cas., No. 12,239A.