599 tion be, for any purpose of defining the rights of parties, if it could thus be made to cover a lode or vein which runs entirely away from it? Though it should happen that the locator, by sinking shafts to a considerable depth, might strike the same vein on its subterranean descent, he ought not to interfere with those who, having properly located along the vein, are pursuing their right to follow the dip in a regular way. So far as he can work upon it and not interfere with their right, he might probably do so; but no farther, and this consequence would follow irrespective of the priority of the locations. It would depend on the question as to what part of the vein the respective locations properly cover and appropriate.

We do not mean to say that a vein must necessarily crop out upon the surface, in order that locations may be properly laid upon it. If it lies entirely beneath the surface, and the course of its apex can be ascertained by sinking shafts at different points, such shafts may be adopted as indicating the position and course of the vein; and locations may be properly made on the surface above it, so as to secure a right to the vein beneath. But where the vein does crop out along the surface, or is so slightly covered by foreign matter that the course of its apex can be ascertained by ordinary surface exploration, we think that the act of Congress requires that this course should be substantially followed in laying claims and locations upon it. Perhaps the law is not so perfect in this regard as it might be; perhaps the true course of a vein should correspond with its strike, or the line of a level run through it; but this can rarely be ascertained until considerable work has been done, and after claims and locations have become fixed.

The course of a vein is that which is indicated by surface out

crop.

The most practicable rule is to regard the course of the vein as that which is indicated by surface outcrop, or surface explorations and workings. It is on this line that claims will naturally be laid whatever be the character of the surface, whether level or inclined.

If these views are correct, the Titus claims, belonging to the defendant in error, were located along the vein or lode in question in a proper manner; and the Flagstaff claims,

belonging to the plaintiff in error, were located across it, and can only give the latter a right to so much of the vein or lode as is included between their side lines. The court below took substantially this view of the subject, and ruled accordingly.

As this is really the whole controversy in the case, it is unnecessary to examine more minutely the different points. of the charge, or the instructions asked for by the plaintiff in error. The question was presented in different forms, but all to the same general purport.

Judgment affirmed.

No. 10. CAMPBELL v. RANKIN.

(Reported in 9 Otto, 261.)

1. While the record of a mining district is the best evidence of the rules and customs governing its mining interests, it is not the best or the only evidence of the priority or extent of a party's actual possession.

2. The fifth section of the act entitled "An Act to promote the development of the mining resources of the United States," approved May 10, 1872 (17 Stat. 91), gives no greater effect to the record of mining claims than is given to the records kept pursuant to the registration laws of the respective States, and does not exclude as prima facie evidence of title proof of actual possession and of its extent.

No. 11. MINING COMPANY v. TAYLOR.

(Reported in 10 Otto, 37.)

1. In ejectment for an undivided interest in a mining claim in Nevada, where both parties derive title from the original owner, the validity and regularity of his location are not in question.

2. Where the plaintiff was a tenant in common with the defendants, their possession of the claim was his possession until he was ousted. The Statute of Limitations would then run against him, but not bar his recovery, unless after such ouster their adverse possession was maintained two years before the commencement of the suit.

The statute of limitations of that State, as construed by its Supreme Court, excepts from its protection a foreign corporation.

3. A conveyance in writing is not necessary to the valid transfer of a mining claim.

No. 12. IVANHOE MINING COMPANY v. KEYSTONE CONSOLIDATED MINING COMPANY.

In error to the Circuit Court of the United States of the District of California.

Mr. Justice Miller delivered the opinion of the court.

The action in this case was brought originally in the State court of California by Daniel W. Gillette against the present defendant in error, to recover possession of the east half of section thirty-six, in township seven north, range ten east of Mount Diablo meridian, and in the progress of the case it was transferred to the circuit court of the United States, where judgment was rendered in favor of the defendant. The plaintiff in error having been substituted for Gillette, as his successor in interest, the case was submitted to the court by the parties waiving a jury.

The plaintiff asserted title to the land in controversy under a patent from the State of California, and the defendant under patents from the United States. The title of California rests upon the act of Congress granting that State the sixteenth and thirty-sixth sections of every township for school purposes, and that of defendant on the acts of Congress concerning the possession and sale of the mineral lands.

As the question to be decided necessarily involves the title to much other mineral land in California, in which the authorities of the State of California and the officers of the land department of the United States entertain and act upon conflicting views of the rights of the State and the general government, the State of California, by her counsel, and the United States, by the Attorney-general, have been permitted to take part in the argument.

The defendant only claims part of the land embraced in plaintiff's patent, and denies possession of that for which no title is asserted, and as no possession is proved beyond that for which the defendant defends, only that is in controversy.

The court below finds that this is mineral land, and that the patent of the United States was issued to defendant for three several mining claims, to wit, the Spring Hill, the Geneva, and the Keystone. That the Spring Hill was located in May, 1851, the Keystone in 1853, and the Geneva

in October, 1863; and that the original locators of said claims and their grantees have held undisturbed possession thereof ever since, and by such possession and the working of said mines, the possessory title was vested in defendant at the time it filed its application for said patent in the land office of the United States at Sacramento, January 6, 1871, unless the State of California had acquired title to section thirty-six by grant from the United States. It also appears that on the land thus claimed by plaintiff a mining town, called Amador city, exists, of about four hundred or five hundred people, which began in 1850, and reached the number mentioned in 1853, with many dwelling-houses, and some forty acres cultivated by the owners of the Keystone mining claim.

On the eighteenth of June, 1870, one Henry Casey applied to the State authorities to purchase the half-section of land on which this town and these mining claims were located, and a State patent was issued to his vendee, Gillette, October 3, 1872.

The township in which this land was surveyed in the field in March, 1870, the survey approved September 3, 1870, and a plat filed in the United States land office at Sacramento, October 7, 1870; and within three months after this latter date the application of the defendant was made for patents for the three mining claims, and the patents issued July 14, 1873.

The right to these patents, and the claim of the town of Amador city, were contested before the Register and Receiver, the Commissioner of the General Land Office, and the Secretary of the Interior, by the State of California, and the parties claiming under her, and the decision was adverse to the title of the State.

The question, and the ouly question, presented for our consideration, is very sharply presented by this statement of facts and by the acts of Congress pertinent to the subject; and it is whether under these acts the title of the land in question became fixed and vested absolutely in the State of California on the ascertainment by the survey of 1870, that it was part of the thirty-sixth section of the township in which it lies.

The act of March 3, 1853, under which the right of the

State of California to the school land arises, has been the subject of construction in this court more than once heretofore, and the decision of the question before us requires a further critical examination of its provisions. The first five sections of it provide for the establishment of the offices of Surveyor-general, two land offices, with Registers and Receivers, and for the organization of the general land system of the United States, including surveys; and it then proceeds to lay down the rules by which rights to the public lands may be acquired. The granting clause of the sixteenth and thirty-sixth sections of the public lands as thus surveyed, to the State of California, is as follows:

"SEC. 6. And be it further enacted, that all the public lands in the State of California, whether surveyed or unsurveyed, with the exceptions of sections sixteen and thirtysix, which shall be, and hereby are, granted to the State for the purposes of public schools in each township, and with the exception of lands appropriated under the authority of this act, or reserved by competent authority, and excepting, also, the lands claimed under any foreign grant or title, and the mineral lands, shall be subject to the preemption laws, of fourth September, eighteen hundred and forty-one, with all the exceptions, conditions, and limitations therein, except as is herein otherwise provided; and shall, after the plats thereof are returned to the office of the Register, be offered for sale, after six months' public notice in the State of the time and place of sale, under the laws, rules, and regulations now governing such sales, or such as may be hereafter prescribed."

Section seven of the act may as well be read here, as it is important to a true solution of the question under consideration.

"SEC. 7. And be it further enacted, that where any settlement, by the erection of a dwelling-house or the cultivation of any portion of the land, shall be made upon the sixteenth and thirty-sixth sections, before the same shall be surveyed, or where such sections may be reserved for public uses or taken by private claims, other lands shall be selected by the proper authorities of the State in lieu thereof, agreeably to the provisions of the act of Congress approved on the twentieth of May, eighteen hundred and