fined to such portions thereof as lie between vertical planes drawn downward, as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect the exterior parts of such veins or ledges. And where two or more veins intersect or cross each other, priority of title (location) governs, and the party making the prior location is entitled to all ore or mineral contained within the space of intersection; but the party who made the subsequent location is entitled to a right of way through the space of intersection for the purposes of the convenient working of the mine. R. S. 2322, 2336.

Ordinarily, the owner of a mining claim in which is found the top or apex of a lode may follow the vein within or without his side lines on its dip to any depth; yet if the same vein has been previously discovered and located on the dip, such discovery will prevail against a junior discovery, though located on the apex of the vein.

Van Zant v. Mining Co., U. S. C. Ct. for Colorado; Copp's Mineral
Lands, p. 410.

And where the location of a mining claim obliquely crosses the vein or lode which is claimed, the side lines become the end lines, beyond which the claimants can not go.

Van Zant v. A. M. Mining Co., Mining Record, Oct. 1880, p. 259. In the case of the Elgin Mining and Smelting Company v. The Iron Silver Mining Company, recently decided in the United States circuit court of Colorado, the effect of a failure to have the end lines of a mining claim parallel with each other is considered, and Judge Hallett holds that claims which fail to have the end lines of the location parallel with each other are defective and void, in so far as the owner seeks to follow his vein on its dip beyond his side lines, and into or under adjoining territory, and that the law will not by inference or construction supply end lines to conform to the statute, but will leave the locator or owner to the consequences of his error.

Copp's L. O., March, 1883, p. 245.

Where several persons as tenants in common locate a mining claim upon the public lands, and by failure to comply with the local mining laws forfeit the same, it may be relocated by a part of the first locators along with others who were strangers to the first location, and the tenants in common whose names are left out in the notice of relocation cease to have any interest in the mine.

Strange v. Ryan, 40 Cal. 33.

.

§ 606. Annual Expenditure.-See "Mining Claims before Land Offices." Labor and improvements are deemed to have been put upon a mining claim where they are made for its development, though in fact such labor and improvements may be at a distance from the claim. The statute requires an annual expenditure; and in estimating the $500 expenditures essential to authorize entry, improvements made by former locators who had abandoned can not be included. The statute contemplates no interruption of the annual improvement until entry and payment of the purchase money. No person out of possession can obtain a patent, and no one in possession can obtain one except in the prescribed form. One of these requirements is the annual expenditure, and the manner prescribed by the statute precludes every other mode. The first annual expenditure upon all claims located since the tenth day of May, 1872, becomes due at the expiration of one year from the first day of January next following the time of location. When the $100 expenditure is made each calendar year, the claim is not subject to location, but the work must be performed during that year. Letter of Commissioner, August 1, 1880; Sickels' Mining Laws, pp. 374, 392.

§ 607. Sometimes the owners of a mining claim, although it may be very valuable, do not choose to ask of the government a patent thereto; and they are entitled to the possession, enjoyment, and profits of such mine for an indefinite period without seeking a patent, and may maintain such rights in the courts, provided they comply with the mining laws in other respects. The only advantage arising from a patent is that the title is then unassailable in a court of law; and a patent stops the necessity for annual expenditure. In every legal proceeding respecting mines, the same rules of law govern as in other cases, except where modified and changed by statute. Of course the proceedings on adverse claims are governed by statute law so far as the same extends. Prior possession alone is sufficient to enable plaintiff to recover in an action of ejectment against a mere intruder. And where plaintiff avers title in fee, proof of possession is evidence of seisin in fee in him; no further or higher evidence of title is required until the defendant shows an anterior possession, or has traced title to a paramount source. Hence, if a less estate than a fee is averred, proof of possession is presumptive evidence of seisin under such averred title.

Sears v. Taylor, 4 Col. 38.

CHAPTER XXXIV.

MINING CLAIMS BEFORE COURTS.

ADVERSE CLAIMS.

§ 608. Notice of Application for Patent; Filing Adverse Claim; What It must Contain; Suit on Adverse Claim.

§ 608. Notice of Application for Patent.-It is the duty of the register of the land office, upon the filing of an application, plat, field-notes, notices, and proper affidavits for a patent to a mining claim, to publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim, and he must also post such notice in his office for the same period.

R. S. 2325.

What Adverse Claim must Contain.-Where an adverse claim is filed during the period of publication above mentioned, it must be upon oath of the person or persons making the same, and must show the nature, boundaries, and extent of such adverse claim, and upon the filing of claim all proceedings before the land office will be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived.

Suit on Adverse Claim.—It is the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do will be a waiver of his adverse claim.

R. S. 2326.

After suit is commenced on an adverse c'm in a court of competent jurisdiction, the court has exclusive jurisdiction of the question as to which one of the two parties is entitled to the possession of the tract in controversy, and if the court errs, the error can only be corrected by the proper appellate tribunal, and not by the land office or department of the interior.

Letter of Secretary Teller, Copp's L. O., Dec. 1882.

By the judiciary act (section 910, revised statutes), it is provided that no possessory action between persons in any court of the United States for the recovery of any mining claim, or for damages to the same, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States, but each case shall be adjudged by the law of possession.

§ 609. Analysis of the Statute.-Mining claims are treated by the government as land, and mining patents are issued for so much land, but there are three important distinctions between. the laws relating to mineral lands and those relating to other lands:

1. No local rules or regulations like miners' laws are known or recognized in the laws relating to other lands.

2. The mining laws provide for a reference and transfer of all controversies respecting the right of possession of mines to the courts; and no laws in relation to public lands, other than mineral, contain such provision.

3. The law in relation to mineral lands creates in certain cases an estoppel before the issue of patent; but there is no similar provision in reference to agricultural lands. Aud where lands are acquired under the homestead or pre-emption laws it sometimes occurs that the legal title may be in one person and a superior equity in another, but it seems that this can never occur under the mining laws.

§ 610. Notice and Diagram.-Section 2325, revised statutes, provides the manner and the necessary steps to be taken in order to obtain a patent, including a diagram and published notice. The purpose of the diagram and notice is anologous to a legal summons, by which any and all parties are notified that unless within a given time they come forward and claim and defend any right or interest they may have in certain premises, their right to do so shall be barred, and judgment rendered for claimant. This being the case, the importance of having the notice and diagram very carefully prepared will at once be perceived.

Sickels' Mining Laws, p. 501.

The description of the premises in the application for patent, in the notice and diagram filed with the register, and in the notice published by the register should all correspond.

Sickels' Mining Laws, p. 501.

A protest is a challenge of the applicant's own showing, and does not, like an adverse claim, authorize a trial of unascertained rights; in other words, it performs in the land office the same service and occupies the same place that a demurrer does in a court.

Publication of Notice.-Published notice of thirty days is uniformly required of parties who seek agricultural entry on lands withdrawn as mineral. The same rule (thirty days) prevails where a railroad company makes application for selection of land in a mineral region, and during the period of publication any person may come forward and allege under oath that the land is mineral.

The burden of proof will be with the party alleging the land to be mineral.

Commissioner's Letter, July, 1880, Sickels' Mining Laws, p. 501.

§ 611. The Eureka Case.-It was held by the supreme court of the United States, in the case of Shepley v. Cowan, 1 Otto, 338, that where two parties are contending for the same property (agricultural land), the first in time in the commencement of proceedings for the acquisition of the title, whe the same is regularly followed up, is deemed to be the first in right. It was afterwards held in the Eureka Case, Justice Field delivering the opinion, that this principle is qualified in its application to mining ground by provisions in the act of 1872 for the settlement of adverse claims before the issue the pate t. Under that act, when one is seeking a patent for his mining location, and gives proper notice of the fact as therein prescribed, any other claimant of an unpatented location objecting to the patent of the claim, either on account of its extent or form, or because of asserted prior location, must come forward with his objections and present them, or he will afterwards be precluded from objecting to the issue of the patent. "While, therefore, the general doctrine of relation applies to mining patents so as to cut off intervening claimants, if any there be, deriving title from other sources, such perhaps as might arise from a subsequent location of a school warrant, or a subsequent purchase from the state, the doctrine can not be applied so as to cut off the rights of the earlier patentee under a later location, where