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DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,
WASHINGTON, D. C., May 4, 1880.

ALBERT JOHNSON, U. S. Surveyor General, Denver, Colorado. SIR: Referring to your letter of February 4, 1880, submitting tracings of two surveys, which you say appear to come directly under the ruling of this office, in the case of the Helvetia Lode, Lot No. 212, dated March 6, 1879, and asking for instructions with regard to approving the same, as shown by the tracings, is at hand, and has been considered.

Regarding the location of lode claims, section 2320 of the U. S. Revised Statutes reads as follows: "A mining claim, located after the tenth day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface. * * * The end lines of each claim shall be parallel to each other."

Must be substantially a parallelogram.

The location contemplated by the law above quoted must have been essentially a parallelogram. The wording of the law evidently presupposes such a figure, or it would not have been made to read, fifteen hundred feet in length by three hundred in width on each side of the middle of the vein at the surface. Had the complicated figures shown in your tracings have been thought possible or likely to occur, the law would have been differently framed, in order to meet just such contingencies, for, as I shall endeavor to show, it is only when certain peculiar conditions exist that such location can be made to satisfy the intent of the Mining Act.

Locators' rights of possession and enjoyment are defined by section 2322 of the U. S. Revised Statutes to be as follows, to wit: "Locators shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their location, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines, extended downward vertically, although such veins,

lodes, or ledges may so far depart from a perpendicular in their downward course as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes, drawn downward, as above described, through the end lines of their location, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another."

The intent of the above-quoted section of the Revised Statutes was held by the Supreme Court in its decision in the case of the Flagstaff Silver Mining Company of Utah v. Helen Tarbet, Copp's Land Owner, June, 1879, page 42,* to be as follows:

Lengthwise of vein.

"That mining locations on lodes or veins shall be made thereon lengthwise, in the general direction of such veins or lodes on the surface of the earth where they are discoverable, and that the end lines are to cross the lode and extend vertically downward, and that the right to follow the dip outside the side lines is based upon the hypothesis that the direction of those lines corresponds substantially with the course of the vein or lode at its apex on or near the surface."

"It was not the intent of the law to allow a person to make his location crosswise of a vein so that the side lines shall cross it, and thereby give him the right to follow the strike of the vein outside his side lines; that would subvert the whole system sought to be established by the law.

"As the law stands, we think that the right to follow the dip of the vein is bounded by the end lines of the claim properly so called, which lines are those which are crosswise of the general course of the vein on the surface. The Spanish mining law confined the owner of a mine to perpendicular lines on every side, but gave greater or less. width according to the dip of the vein; but our laws have endeavored to establish a rule, by which each claim shall be *8 Otto, 463. No. 9. Decisions S. C.

so many feet of the vein lengthwise of its course, to any depth below the surface, although laterally its inclination may carry it ever so far from a perpendicular." Such a location as the one shown in survey No. 709 was evidently never contemplated by the law as above quoted, which clearly means that the claim must be contained between parallel end lines indefinitely extended, for the right of possession to the outside parts of such veins or ledges, as may extend in their downward course outside the vertical side lines of the surface location, is based upon the supposition that such right of possession is limited and confined by the vertical planes drawn downward through the parallel end lines of the surface location extended indefinitely.*

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By referring to the diagram of Sur. No. 709, it will be seen that only the part designated a, b, c, d is contained between parallel end lines indefinitely extended, that portion of the claim designated a, e, f not being limited as prescribed by law between parallel end lines; the claimant would be restrictedwere such a location allowable-to perpen

dicular side lines. But it is not contemplated by the law * Vein can not be followed beyond the side lines of patent.-The Ben Hardin lode was patented under the act of 1866. The Bell Tunnel lode was patented under the act of 1872. The vein of the former on its strike crossed its side lines and entered within the side lines of the Bell Tunnel lode, the developments tending to show identity of the veins: Held, that the vein of the Ben Hardin lode could not be followed beyond its side lines into the side lines of the Bell Tunnel lode; 2. That the grant of the vein, made under an act authorizing the following of the vein in its downward course to any depth, excluded the inference that the vein could be followed beyond the survey lot on its strike, or otherwise than on its downward course or dip; 3. Any local custom which might have existed, allowing the owner to follow the course of the discovered lode, would be in subordination to the acts of Congress, and could not enlarge the grant of a patent under the terms of the act of 1866. Wolfly v. Lebanon M. Co. 4 Col.

that he shall be so restricted, and therefore a location which on its face defeats the intent of the law is necessarily illegal.

A location made as shown in the annexed figure would, for the same reason, be illegal. The end lines extended would form one and the

same line; the initial

planes of the end lines would be identical-con

tingencies never contemplated by the law, and not applicable under its conditions.

Attention is called in your letter to red lines drawn through the middle of each of the surveys, Nos. 462 and 709, marked "center of vein," and the deputy says: "The discovery shaft is found in the former to be about 95 feet southerly from the center of the vein, and the center of the vein is in the middle, between the side lines of said survey. and that the red lines indicate the center of the lode."

In the very nature of the thing a lode or vein, in its unworked and undeveloped stage, can not be known and surveyed so as to plat it and make a diagram of it.

No developments or workings are shown upon the lines indicated in the tracings as the center lines of the veins, although in both instances shafts are shown at a considerable distance therefrom.

Particularly is this the case with survey No. 462.

In neither case are any workings indicated or proof offered to show that the lodes or veins make the extraordinary departures from a straight course shown upon the tracings; a line is simply drawn through the center of the claim and called the "center of the vein."

Middle of vein ascertained by actual exploration.

This assumption that the middle of the vein is in an unexplored position is unwarrantable. The middle of the vein must be ascertained by actual exploration and development, or the discovery shaft must, for executive purposes, be taken as the middle of the vein, and the lateral measurements made therefrom.

Concerning the diagrams forwarded by you, and not herein before specifically explained, I may best remark that the statute contemplates a lode location to be substantially a parallelogram; and that the several calls of the statute, the grant of right, the limitation of rights, and the theory of the law, all point to this conclusion.

I do not intend to be understood as construing the law as requiring a perfect parallelogram, but it must not vary largely from that figure, for such material variance involves conditions which, in a greater or less degree, according to circumstances which at the date of location, and patent even, are most frequently unknown quantities, conflict with the theory of the law, render uncertain the property rights of adjoining owner or owners in the vicinity, and in a patent which should convey the property in that form which will at least render an application of the law to its subsequent use possible, result in rich and apt material for litigation.

A portion of a side line can not properly be made an end line. Lodes and veins do not separately run in the tortuous manner represented in the diagrams of surveys Nos. 462, 709, and 212.

If the topography of the country does not permit the claimant to take under the law all he claims, yet he must abide by the law.

One vein the basis of a location.

The law contemplates that he shall make his location on one vein, and while certain rights attach to other veins. whose top or apex is found within his surface boundaries, yet but one vein can be made the basis of his location,

It is from the middle of that vein that his lateral measurements must be made. The surveys Nos. 462, 709, and 212 indicate the probability that they were made with the intent to embrace therein different and distinct lodes. An examination of the attached plat of the Jay Lode, lot No. 169, Boulder county, Colorado, indicates the ease with which surveys, such as you submit, could include several separate and distinct veins, and as a geological proposition

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