The act providing for a civil government for Alaska 1 made such laws applicable, subject to regulations to be prescribed by the secretary of the interior, and also provided that parties who had previously located mines or mineral privileges therein should not be disturbed, but should be allowed to perfect their claims. Prior to the passage of this act patents for mining claims in Alaska could not be obtained.3

1 May 17, 1884–23 Stats. at Large, p. 24.

$4 Land Decisions, p. 128; Meydenbaur v. Stevens, 78 Fed. 787, 789. 'Commissioner's letter-Copp's Min. Dec., p. 215.

Lindley on M.

CHAPTER V.

FOURTH PERIOD: FROM THE ENACTMENT OF THE LAW OF MAY 10, 1872, TO THE PRESENT TIME.

8 68. The act of May 10, 1872.-On May 10, 1872, congress passed a law entitled "An act to promote the "development of the mining resources of the United

States," which reaffirmed the policy of the government as to the exploration, development, and purchase of its mineral lands by its citizens, or those who had declared their intentions to become such, yet, particularly with respect to lode claims, it made a radical departure. This act is practically embodied in the Revised Statutes of the United States, and, to all intents and purposes, constitutes the present system. It is printed in full in the appendix, where will also be found the various sections of the revision embodying its terms. It is not our purpose here to deal with it analytically. The entire treatise will practically be devoted to a discussion and exposition of it. It is our present purpose

to simply outline its salient features, draw attention to the changes in the law made by the act, and give it its proper place in the history of mining legislation.

2 69. Declaration of governmental policy.—With reference to the declaration of governmental policy, it embodies the spirit of the preceding enactments, making such changes in expression as were necessitated by substituting one enactment, embracing all classes of mineral lands, for two practically separate ones, dealing with two distinct classes.

The act of 1866 declared that the mineral lands of the public domain should thenceforward be free and open to exploration and occupation by all citizens and those who had declared their intention to become such, and granted the privilege to the claimants of a vein, or lode, of obtaining title to the mine. The act of 1870 extended like privileges to the owners of placer and other forms of deposit. The act of May 10, 1872, declares that all mineral deposits in land belonging to the United States are hereby open to exploration and purchase, and the lands in which they are found to occupation and purchase.1 The language in italics, particularly the last sentence, "the lands in which they are "found," seems to foreshadow the intent of the act in its radical departure from the method theretofore in vogue of locating lode claims. As a declaration of policy, however, we can see no essential difference in the spirit of the old and that of the new. The latter was, to all intents and purposes, a reaffirmance of the former. Let us briefly examine and discuss the changes made by the act in other respects, bearing in mind that

1 Campbell v. Ellet, 167 U. S. 116, 17 Sup. Ct. Rep. 765; Calhoun G. M. Co. v. Ajax G. M. Co., 182 U. S. 499, 508, 21 Sup. Ct. Rep. 885; Doe v. Waterloo M. Co., 54 Fed. 935, 937; Parrot S. and C. Co. v. Heinze, 64 Pac. 326, 329, 25 Mont. 139.

it is not our present intention to critically discuss the latter law in all its aspects. We simply wish to invite attention to the principal modifications of the old system, and enumerate the salient features of the new.

8 70. Changes made by the act - Division of the subject. We can best deal with the subject by distributing it into three distinct heads :

(1) Changes made with regard to lode claims; (2) Changes made with regard to other claims; (3) New provisions affecting both classes of claims. We will discuss these in the order enumerated.

71. Changes made with regard to lode claims.The act of 1866 left the manner of locating these claims to local regulation, limiting the linear extent of each individual claim to two hundred feet, except in case of the discoverer, and to a maximum of three thousand feet to an association of persons.

We have seen that under the local rules locations were made of the vein and a given number of linear feet on the course was claimed; also, that prior to patent the locator could follow that vein, wheresoever it might run, to the extent claimed. His surface ground was for the convenient working of his lode, and its extent was regulated entirely by local custom. His right to the vein in length or depth was not dependent upon the form or extent of the surface ground. When he applied for and received a patent, he received title to but one lode, and could only follow that on its course to the extent which it was included within his surface lines. While end lines were implied, his right to pursue the vein in depth was not based upon their substantial parallelism.

The new law changed all this. As was said by Judge Beatty, "Disagreeable as the awakening may be, it is

"time we are opening our eyes to the fact that a new "system has been introduced."1

Under the act of 1872 the miner locates a surface which must be so defined as to include the top, or apex, of his lode. Failing in this, he obtains nothing. If he mistakes the course of his vein, it is his loss. He can only hold the vein on its course to the extent that the top, or apex, thereof is found within his boundaries.2 He may thus acquire a superficies fifteen hundred feet in length by six hundred feet in width, if local regulations do not restrict these measurements.

In other words, under the old law he located the lode. Under the new, he must locate a piece of land containing the top, or apex, of the lode. While the vein is still the principal thing, in that it is for the sake of the vein that the location is made, the location must be of a piece of land including the top, or apex, of the vein. If he makes such a location, containing the top, or apex, of his discovered lode, he will be entitled to all other lodes having their tops, or apices, within their surface boundaries. His end lines, must be parallel, and crosswise of the vein; otherwise, he cannot pursue his lode or lodes on their downward course beyond vertical planes drawn through his surface side lines, (and perhaps, these side lines produced, as in such case the side lines perform the functions of end lines). The law in terms does not so state; but this is the interpretation reached by the courts.*

The foregoing states the essential differences in 1Gleeson v. Martin White M. Co., 13 Nev. 442, 459.

* Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 84, 18 Sup. Ct. Rep. 895; Montana Ore Purchasing Co. v. Boston and M. C. C. and S. M. Co., 20 Mont. 336, 51 Pac. 159; Lellie Lode Mine Claim, 31 L. D. 21.

Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 88, 18 Sup. Ct. Rep. 895; Calhoun G. M. Co. v. Ajax G. M. Co., 27 Colo. 1, 83 Am. St. Rep. 17, 59 Pac. 607; Id., 182 U. S. 499, 508, 21 Sup. Ct. Rep. 885.

See, post, § 586.