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a trust on the townsite patent, or, perhaps, an application to the land department, to institute a suit to vacate the patent pro tanto." 21

The California Supreme Court, however, would seem to be right in deciding that a valid mining location existing at the time of townsite entry is excepted from the townsite patent, even though it was not known at the time of townsite entry that the claim contained minerals of sufficient value to justify expenditure for extracting them.22 If there is mineral enough to sustain the location, the latter is excepted from the townsite entry, even though the claim cannot be worked at a profit. It is, of course, true under all the acts that a townsite patent vests in the town absolutely the title to minerals not then known to exist in the patented area, and a subsequent discovery of minerals will not permit third persons to make a mining location.23

The fact that minerals underlie the streets will not prevent the passing of the minerals to the town, if they are unknown at the time of patent. They will pass to the town, and then will stay in the town, if according to the laws of the state where the town is situated the fee to the street is in the town, or, if the abutting landowners get the fee to the streets, with an easement for highway purposes in the town, will pass from the town to the abutting landowners at the time the latter derive title to the abutting lands.2 This is clearly the intent of the provision in section 2387, Rev. St. U. S., that the execution of the townsite patent trust as to the disposal of lots and their proceeds by the proper authorities shall be "conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated."

21 1 Lindley on Mines (2d Ed.) p. 316, § 177.

22 Callahan v. James, 141 Cal. 291, 74 Pac. 853. See Cascaden v. Bartolis, 146 Fed. 789, 77 C. C. A. 496. But see Horsky v. Moran, 21 Mont. 345, 53 Pac. 1064; Harkrader v. Goldstein, 31 Land Dec. Dep. Int. 87.

23 Bonner v. Meikle (C. C.) 82 Fed. 697; McCormick v. Sutton, 97 Cal. 373; 32 Pac. 444. See Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. 628, 35 L. Ed. 238; Larned v. Jenkins, 113 Fed. 634, 51 C. C. A. 344.

24 Where the grantor of lands to a city reserved the minerals under the surface of the street, and then granted to a third person a lot which abutted on the street, the grantee was held to get the minerals under the half of the street immediately in front of his lot. Tousley v. Galena Mining & Smelting Co., 24 Kan. 328; Snoddy v. Bolen, 122 Mo. 479, 24 S. W. 142, 25 S. W. 932, 24 L. R. A. 507; Snoddy v. Clark, 122 Mo. 479, 25 S. W. 935. Where land is dedicated to the public for a street in Colorado, the statute gives the city the fee to the street, and not to the land, and hence the dedicator still has the right to extract minerals beneath the street, so far as he does not interfere with street uses. City of Leadville v. Bohn Mining Co., 37 Colo. 248, 86 Pac. 1938. This is not true, however, in a state where the title to the land passes by dedication. Union Coal Co. v. La Salle, 136 Ill. 119, 26 N. E. 506, 12 L. R. A. 326;

THE LOCATION OF KNOWN VEINS IN TOWNSITES.

29. Known veins can be located in the town limits prior to the townsite patent, if the location is made peaceably, and after townsite patent issues previous mining locations may be patented. Whether "known veins" in patented townsites may be located -query?

Known veins are not even reserved under the act of 1891, unless they are of gold, silver, cinnabar, copper, or lead, or are validly located prior to the townsite entry. "Known mines" under the townsite reservations, prior to the act of 1891, meant that, to be excepted from the townsite patent, "it is not sufficient that the lands do in fact contain minerals, or even valuable minerals, when the townsite patent takes effect, but that they must at that time be known to contain minerals of such extent and value as to justify expenditures for the purpose of extracting them; and, if the lands are not known at that time to be so valuable for mining purposes, the fact that they have once been valuable, or are afterwards discovered to be still valuable, for such purposes, does not defeat or impair the title of persons claiming under the townsite patent." 25 Known veins of gold, silver, cinnabar, copper, or lead, under the act of 1891, must doubtless accord with the foregoing test.26 If they do, then, as was the case with known mines under the earlier acts, they are excepted from the townsite patent as completely as if they were actually located at the time.27

The only question about known veins under the act of 1891 that remains, and it does not seem to be as simple as it might be, is whether such known lodes can be located after the townsite patent. The question seems to be much the same as that in regard to Mexican land grants covered by the act of March 3, 1891. Indeed, the townsite act and the Mexican land grant act, both approved March 3, 1891, show a common design to give the surface to the patentee and reserve the mineral. In the case of Mexican land grants Congress seems to reserve unknown minerals, but in the case of townsites only known ones. Under the Mexican land grant act of 1891, no location of minerals can be

City of Des Moines v. Hall, 24 Iowa, 234; Trustees of Hawesville v. Hawes' Heirs, 6 Bush (Ky.) 232.

Ct. 452, 38 L. Ed.

25 DOWER v. RICHARDS, 151 U. S. 658, 663, 14 Sup. 305. See Larned v. Jenkins, 113 Fed. 634, 51 C. C. A. 344. But see Callahan v. James, supra.

26 See Brophy v. O'Hare, 34 Land Dec. Dep. Int. 596.

27 See Callahan v. James, 141 Cal. 291, 74 Pac. 853; Hulings v. Ward Townsite, 29 Land Dec. Dep. Int. 21; Lalande v. Townsite of Saltese, 32 Land Dec. Dep. Int. 211.

made without the surface owner's consent until Congress shall act. What about the townsite case? Mr. Lindley says the case is like that of a known lode in a placer; but, unfortunately, there is this marked difference: That in the case of a known lode in a placer Congress las reserved a surface strip of at least 50 feet, 25 feet of surface on each side of the vein or lode,28 but in the case of a town. site no surface is reserved. The question then arises: Can a lode be located without a surface to include it? The Montana Supreme Court has several times asserted that it cannot,29 and the conclusion of that court seems to be sound. Section 2319, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1424), providing for the location of mining claims “requires the location of surface ground, including the minerals sought to be obtained." 80 It has been decided in at least one case that under the townsite laws prior to the act of 1891 known mineral land in a patented townsite cannot be located,* and the provision in the act of 1891 forbidding entry where the owner or occupier of the surface. ground on a patented townsite shall have had possession of the same before the inception of the title of the mineral vein applicant would seem to show that a location was not to be permitted in such case.

As has several times been noticed, the provisions of Rev. St. U. S. § 2392 (U. S. Comp. St. 1901, p. 1459), reserved from the townsite patent "any valid mining claim or possession held under existing laws," and the act of 1891 has repeated the reservation. That reserves only locations that are not void for uncertainty. Such reserved locations are so fully protected that they may not even protest against the townsite patent successfully as they cannot be prejudiced by its issu

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28 Rev. St. U. S. § 2333 (U. S. Comp. St. 1901, p. 1433).

29 TRAPHAGEN v. KIRK, 30 Mont. 562, 77 Pac. 58; Montana Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 20 Mont. 336, 51 Pac. 159; State v. District Court, 25 Mont. 504, 65 Pac. 1020. See Hill v. Martin (Tex. Civ. App.) 70 S. W. 430; Gleeson v. Martin White Min. Co., 13 Nev. 442. 30 Traphagen v. Kirk, 30 Mont. 562, 573, 77 Pac. 58, 60. *Board of Education v. Mansfield, 17 S. D. 72, 95 N. W. 286, 106 Am. St. Rep. 771; Carter v. Thompson (C. C.) 65 Fed. 329. See Duffy Quartz Mine, 18 Land. Dec. Dep. Int. 259. For the rule applicable to certain townsites specially reserved by act of Congress, see Instructions, 31 Land Dec. Dep. Int. 154. 31 TOMBSTONE TOWNSITE CASES, 2 Ariz. 272, 15 Pac. 26; Blackmore v. Reilly, 2 Ariz. 442, 17 Pac. 72.

32 Lalande v. Townsite of Saltese, 32 Land Dec. Dep. Int. 211.

CHAPTER VIII.

DEFINITIONS OF PRACTICAL MINING TERMS.

80. Lode Mining Terms.

(a) Terms Relating to the Working of a Lode Claim.
(b) Terms Relating to the Vein or Lode.

(c) Terms Relating to the Ore and Its Treatment.

31. Placer Mining Terms.

A student of American mining law should acquaint himself at the outset with various technical mining terms used by those engaged in mining the precious metals and in treating those metals after their extraction. It is well to consider first lode mining terms and then placer mining terms.

PRACTICAL MINING TERMS.

30. LODE MINING TERMS.-(a) Terms relating to the working of a lode claim: Adit, back stoping, bottom, breast, chute, cribbing, cross cut, down cast, drift, face, floor, heading, incline drift, lagging, lateral drift, level, lift, man hole, mill hole, open cut, overhand stoping, raise, roof, set work, shaft, stoping, stulls, sump, timber, tunnel, underhand stoping, up cast, winze.

Lode mining starts usually with a "shaft," a perpendicular excavation similar to a well, sunk either on a vein or to reach it, or with a "tunnel"-a horizontal excavation like a railroad tunnel-run into the mountain either on the vein,1 or to reach it. If the tunnel is driven into the "country rock"-i. e., the ordinary solid part of the mountain-in order to cut across the course of a vein, it is called appropriately a "cross cut." 2

1 This kind of tunnel Messrs. Morrison and De Soto seemingly would call an adit, and not a tunnel. Morrison's Mining Rights (13th Ed.) 43. There is no doubt that such a tunnel, run to do the discovery work, is an adit, within a statute allowing an adit to take the place of a discovery shaft. Gray v. Truby, 6 Colo. 278. But it seems to be none the less a tunnel.

2 Messrs. Morrison and De Soto recognize no tunnel except a cross cut, or what would be a cross cut if it were not so long. They say: "The words 'cross cut' and 'tunnel' are identical terms, except that the former is usually applied to short workings and the latter to those of greater length." Morrison's Mining Rights (13th Ed.) 43. Of course, it has to be borne in mind that they are speaking there of statutes allowing discovery work by an open cut, adit, cross cut, or tunnel.

Sometimes the work on a lode begins with an "adit," or an "open cut." Before the case of Electric Magnetic M. & D. Co. v. Van Auken, it was supposed that an adit had to be, in part, at least, under cover; but that case says that it does not. An open cut, of course, is not under cover, and accordingly, as Messrs. Morrison and De Soto point out, the effect of the above decision "is to confuse all the distinctions between an adit and an open cut."

Where a shaft is sunk, the miners at regular intervals in their descent make horizontal excavations on the vein, called "levels" or "lateral drifts." These are known, according to depth underground, as "the 50-foot level," the "100-foot level," etc. The space between two levels is known as a "lift," while a shaft, other than the main one, sunk from a level, is called a "winze." The "breast," "face," or "heading" of a drift or tunnel is the end where the work of excavating is going on or is to be continued. A ventilating shaft for the air to ascend through is called an "up cast," and one for it to descend through is called a "down cast." When a shaft or winze is made by working from below up, it is called a "raise." A "man hole" is an opening of the right size to permit a man to get from one place of working to another. Where a shaft is sunk a little below a level, to form a cavity for the collection of water found in the level, it is called a "sump." An "incline drift" is one run at an incline for drainage purposes.

Between a level and the surface, or between levels, the ore is taken out by "stoping"; that is, either by digging and blasting it up from the "bottom," "floor," or "sole," of the drift, or by digging or blasting it down from the "roof," "top," or "back" of the level, and following that roof up by the aid of timbering and waste rock. The first kind is "underhand stoping," and the second "overhand or back stoping." Timbers replace the back or roof of the level in overhand stoping, and thereafter the roof or back being stoped is known as the "roof of the stope." Passages left in the stope for throwing down rock or ore are known as "mill holes."

It is often necessary to "timber" a mine. That consists in putting poles on the four sides of a shaft or winze as a lining to keep rock and dirt from caving in on the workers below, in putting poles on the sides and roofs of tunnels for the same purpose, in lining mill holes so that ore will go down readily, etc. "Cribbing" is the name

39 Colo. 204, 11 Pac. 80.

4 Morrison's Mining Rights (13th Ed.) 43.

It seems that everything below the 50-foot level and above the 100-foot level is, for stoping purposes, called the "100-foot level." Cambers V. Lowry, 21 Mont. 478, 54 Pac. 816.

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