Rico-Aspen M. Co. v. Enterprise M. Co., 53 Fed. Rep. 321.

605. A second location made by the original locators and others does not necessarily operate as an abandonment of the first location. Weill v. Lucerne M. Co., 11 Nev. 200; 3 Mor. Min. Rep. 372.

606. The owner of a valid location is entitled to its exclusive use and possession, and a stranger who enters thereon for the purpose of mining, cutting timber, or otherwise interfering with the owner's use or possession, is a trespasser. Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240; Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482.

607. A locator's possessory right is subject to taxation. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183; State v. Moore, 12 Cal. 56; 14 Mor. Min. Rep. 110; Hale & Norcross G. & S. M. Co. v. Storey County, 1 Nev. 104; 14 Mor. Min. Rep. 115; Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240.

608. The purchaser of a mining location who relocates substantially the same ground

is entitled to the benefit of work done on the ground by his grantor. Tam v. Story, 21 L. D. 440.

609. The act of 1866 (sec. 2329, U. S. Rev. Stat.) does not grant to ditch owners on the public land any right not recognized and acknowledged by local customs, laws and decisions of the courts, and does not authorize the

construction of a ditch across the prior mining location of another. Titcomb v. Kirk, 51 Cal. 288; 5 Mor. Min. Rep. 10. (Affirmed in Jennison v. Kirk, 98 U. S. 453; 4 Mor. Min. Rep. 504.) 610. A location upon land covered by a prior location is invalid. Souter v. Maguire, 78 Cal. 543; 21 Pac. Rep. 183.

611. "A location to be effectual must be good at the time it was made." Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65; Upton v. Larkin, 5 Mont. 600; 6 Pac. Rep. 66; S. C., 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; Omar v. Soper, 11 Colo. 380; 18 Pac. Rep. 443; 15 Mor. Min. Rep. 496.

612. A mining location, invalid when made, by reason of the land being reserved, is a nullity and no rights can be claimed under it, even after the reservation is thrown open. Kendall v. San Juan S. M. Co., 9 Colo. 349; 12 Pac. Rep. 198.

613. All of the necessary acts must be performed before a legal location exists. Gonu v. Russell, 3 Mont. 358; 12 Mor. Min. Rep. 630.

614. The right to a mining claim vests by the taking thereof in accordance with local rules. McGarrity v. Byington, 12 Cal. 426; 2 Mor. Min. Rep. 311 (1859); Dutch Flat Water Co. v. Mooney, 12 Cal. 534 (1859).

615. The law does not make actual possession necessary for the protection of the title acquired by a valid location. Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65.

616. The right of location upon the mineral lands of the United States is a privilege granted by Congress, but it can only be exercised within the limits prescribed by the grant. Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65.

617. The acts required as evidence of possession of mining claims are those usually done. A miner may hold possession by his agents or servants. English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202; Strepy v. Stark, 7 Colo. 614; 5 Pac. Rep. 111; 4 West Coast Rep. 663.

618. The title acquired by a valid location legation and proof to the contrary. is presumed to continue in the absence of alRenshaw

v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345.

619. The valid location of a mining claim is a grant from the government to the person making the location. The location is the inception of the grant and the patent is its consummation. The grant is kept alive by representation (work). A failure to represent forfeits the grant and makes void the title acquired by location, and the ground thereupon becomes again subject to location and purchase. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345.

620. Where a junior location overlaps a senior location it is not validated as to the conflicting ground by the abandonment of the senior location. In order to secure a right to such ground, the junior locator must relocate it. Omar v. Soper, 11 Colo. 380; 18 Pac. Rep. 443; 15 Mor. Min. Rep. 496.

621. A. takes possession of mineral land but does not locate. B. makes a location of the land. A. has no rights as against the location of B. Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65; Chap

man v. Toy Long, 4 Sawy. 28; 1 Mor. Min. Rep. 497; Morenhaut v. Wilson, 52 Cal. 263; 1 Mor. Min. Rep. 53; Horswell v. Ruiz, 67 Cal. 111; 7 Pac. Rep. 197; 15 Mor. Min. Rep. 488; Hopkins v. Noyes, 4 Mont. 550; 2 Pac. Rep. 280; 15 Mor. Min. Rep. 287; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153. (See 130 U. S. 291.) Patterson v. Tarbell, 26 Oreg. 29; 37 Pac. Rep. 76; McCornick v. Varnes, 2 Utah, 355; 9 Mor. Min. Rep. 505. 622. "A subsequent locator cannot object that all steps necessary to a valid location of the mining claim were not performed at the time of its location, provided they were afterwards performed before other rights attached." North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep.

411; Zollars & Highland Chief Cons. M. Co. v. Evans, 2 McCrary, 39; 4 Mor. Min. Rep. 407; Faxon v. Barnard, 2 McCrary, 44; 1 Colo. Law Rep. 147; 9 Mor. Min. Rep. 515; McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329.

623. A location based upon a discovery tunnel not on the claim is invalid. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.)

624. The locator of a lode has no right to work another lode which dips under his claim without regard to whether or not the right to work it belongs to any other person. Montana M. Co. v. Clark, 42 Fed. Rep. 626.

625. The first locators of mining ground can work the mine with reasonable care and diligence; but a mining custom which would allow the total destruction of a junior location on ground which was vacant, in a gulch | below the prior location, cannot be maintained under any statute or common mining law. Lincoln v. Rogers, 1 Mont. 217 (1870).

626. One who locates a claim in the names of himself and others, even without their consent, makes such others co-owners with himself, and cannnot deprive them of their interests by destroying the location notice and posting a new one, omitting their names. Morton v. Solambo M. Co., 26 Cal. 527; 4 Mor. Min. Rep. 463.

627. If land is claimed under the mineral land laws at date of definite location of the Northern Pacific Railroad Company, the land

so claimed is excepted from the grant to the company, even though said claim is subsequently shown to be invalid. N. P. R. R. Co. v. Sanders, 49 Fed. Rep. 129.

628. In order to entitle a locator to follow the lode on its dip into the claim of another, the continuity of a body of ore from the apex which has been located to the point in controversy must be shown. Iron Mine v. Loella Mine, 2 McCrary, 121; 3 Fed. Rep. 368; 1 Colo. Law Rep. 16. (Also reported as Iron S. M. Co. v. Murphy, 1 Mor. Min. Rep. 548.)

629. After a legal location neither a continuous actual occupation nor a possessio pedis are necessary to retain possessory title. Strepy v. Stark, 7 Colo. 614; 5 Pac. Rep. 111; 4 West Coast Rep. 663; English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202.

630. Locations of lodes or veins within

placer claims, prior to application for placer patent, when perfected under the law, are the property of the locators or their assigns, and are not, therefore, subject to disposal by the government. Sullivan v. Iron Silver M. Co., 143 U. S. 431. (Citing and quoting Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510.)

631. The legal location of a placer mining claim will not prevent the location of lode claims therein by other persons at any time previous to application for patent for the placer. Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95.

632. Possessory title to a mining claim is real estate, and must be conveyed by deed. It is a grant by the government to the locator of an interest in the public domain, and the thing granted must be real estate. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196; Hopkins v. Noyes, 4 Mont. 550; 2 Pac. Rep. 280; 15 Mor. Min. Rep. 287. (Distinguishing Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 198; 9 Mor. Min. Rep. 457.)

633. Compliance with miners' regulations and customs in force is necessary to the validity of a location. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304 (second trial, 17 Colo. 243; 29 Pac. Rep. 173); Sullivan v. Hense, 2 Colo. 424; 9 Mor. Min. Rep. 487; Cons. Republican Mtn. M. Co. v. Lebanon M. Co., 9 Colo. 343; 12 Pac. Rep. 212; 15 Mor. Min. Rep. 490.

634. A location must be made in compliance with the United States laws and with

Rep. 887; Leadville M. Co. v. Fitzgerald, 4 Mor. Min. Rep. 380; Iron Silver M. Co. v. Elgin M. & Sm. Co., 118 U. S. 196; 15 Mor. Min. Rep. 641; Cheesman v. Shreeve, 37 Fed. Rep. 36. Contra, Montana Co. v. Clark, 42 Fed. Rep. 626. 653. The question as to relative rights of

claimants to follow a lode on the dip is one of priority of location under section 2336, United States Revised Statutes. Tyler M. Co. v. Sweeney, 54 Fed. Rep. 284; 4 U. S. App. 329. 654. A junior locator on the apex may not enter a senior location on the dip. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 8 Fed. Rep. 725; 4 Mor. Min. Rep. 441.

655. A subsequent location on the dip is invalid as against a prior location on the apex. Pardee v. Murray, 4 Mont. 234; 2 Pac. Rep. 16; 15 Mor. Min. Rep. 515.

656. Where two veins, each located and owned by the same person, unite on the dip, the lode below the point of union goes with the title to the senior location, and if below that point it unites with still another lode, the point to decide would be, which was first, the senior location of the first party or the location of such other lode. Little Josephine M. Co. v. Fullerton, 19 U. S. App. 190; 58 Fed. Rep. 521.

657. Section 2336, United States Revised Statutes, was not intended to limit or define the rights of a person in mere possession of a tract of mining ground where there is more than one vein, or to prescribe the effect of a conveyance by the locator of a claim of a portion of his location containing one of such veins. The objects of the statute were to supplement the provision of section 2332, and to prescribe rules under which different locations by different proprietors should be held, and to determine the rights of such proprietors in case of intersecting veins. Stinchfield v. Gillis, 107 Cal. 84; 40 Pac. Rep. 98; S. C., 96 Cal. 33; 30 Pac. Rep. 839.

658. In a controversy as to ownership of the vein on the dip, issuance of patent does not prove the correctness of the Land Department records as to date of location, but this must be proven as any other matter would be. Champion M. Co. v. Cons. Wyoming G. M. Co., 75 Cal. 78; 16 Pac. Rep. 513; Last Chance M. Co. v. Tyler M. Co., 61 Fed. Rep. 557; 9 U. S. App. 613; Kahn v. Old Telegraph M. Co., 2 Utah, 174; 11 Mor. Min. Rep. 345.

659. Although the act of 1872 enlarges the right of a locator by a grant of all veins, lodes and ledges the top or apex of which lie within his surface lines, his right to surface ground and to other lodes is dependent upon the principal lode, the one forming the basis of the location. Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542.

660. Under section 2322, United States Revised Statutes, the locator of a mining claim on the apex of a lode may follow the lode on its dip, even though it dips into a claim held under a senior patent. Colorado Central Cons. M. Co. v. Turck, 50 Fed. Rep. 888; 4 U.S. App. 290; 12 U. S. App. 85; Iron Mine v. Loella Mine, 2 McCrary, 121; 3 Fed. Rep. 368: 1 Colo. Law Rep. 16. (Also reported as Iron S. M. Co. v. Murphy, 1 Mor. Min. Rep. 548.)

661. The locator on the dip of a lode has no right as against a locator on the apex, the dates of respective patents being immaterial. Colorado Central Cons. M. Co. v. Turck, 50 Fed. Rep. 888; 4 U. S. App. 290; 12 U. S. App. 85; Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390.

662. When veins cross, the prior locator need not adverse to secure his rights to the vein at the point of intersection; but by failure to adverse he loses surface rights. When two veins join on the strike there must be surface conflict. Hence, the rules as to surface conflicts apply to conflicts between cross-lodes. Lee v. Stahl, 13 Colo. 174; 22 Pac. Rep. 436. (Affirming S. C., 9 Colo. 408; 11 Pac. Rep. 77.) Morgenson v. Middlesex M. & M. Co., 11 Colo. 176; 17 Pac. Rep. 513.

663. Where a vein outcrops in two mining claims the first locator has the better right. Argentine M. Co. v. Terrible M. Co., 122 U. S.. 478.

664. A lode claimant has no right to follow his lode on its dip under an agricultural claim which was entered prior to the location of the mining claim. Colorado Central Cons. M. Co. v. Turck, 50 Fed. Rep. 888; 4 U. S. App. 290; 12 U. S. App. 85; Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348; Amador-Medean G. M. Co. v. South Spring Hill G. M. Co., 13 Sawy. 523; 36 Fed. Rep. 668.

665. "Whether the ore is loose and friable, or very hard, if the inclosing walls are country rock, it may be located as a vein or lode. But if the ore is on top of the ground, or has no other covering than the superfi

666. Each locator is entitled to follow the dip of his lode or vein to an indefinite depth, though it carries him outside of the side lines of his location; but this right is based on the hypothesis that the side lines substantially correspond with the course of the lode or vein at the surface; and it is bounded at each end by the end lines of the location crossing the lode or vein, and extended perpendicularly downward indefinitely in their own direction. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607.

667. A locator working subterraneously into the dip of a vein belonging to another locator, who is in possession of his location, is a trespasser, and liable to an action for taking ore therefrom. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607.

668. "Under Secs. 2322, and 2336, U. S. Rev. Stat., when a junior mining location crosses a senior location, and the veins therein are cross veins, the junior locator is entitled to all the ore found in his vein within the side lines of the senior location, except at the space of intersection. In such a case a junior locator has a right of way for the purpose of excavating and taking away the mineral contained in the cross veins." Branagan v. Dulaney, 8 Colo. 408; 8 Pac. Rep. 669; Lee v. Stahl, 9 Colo. 208; 11 Pac. Rep. 77; Pardee v. Murray, 4 Mont. 234; 2 Pac. Rep. 16; 15 Mor. Min. Rep. 515; Morgenson v. Middlesex M. & M. Co., 11 Colo. 176; 17 Pac. Rep. 513. Contra, Watervale M. Co. v. Leach, 33 Pac. Rep. 418 (Arizona); Wilhelm v. Sylvester, 101 Cal. 358; 35 Pac. Rep. 997.

669. A location of a mining claim upon a lode or vein of ore should be laid along the same lengthwise of the course of its apex, as well under the mining act of 1866 as under that of 1872. If located otherwise the location will only secure so much of the lode or vein as it actually covers. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607; McCornick v. Varnes, 2 Utah, 355; 9 Mor. Min. Rep. 505; Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542.

670. If a claim is located across instead of along the lode, the side lines become the

463.) Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607.

671. A location is not good beyond the point where the lode upon which it is based departs from the claim. Johnson v. Buell, 4 Colo. 557; 9 Mor. Min. Rep. 502; Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282.

672. If a lode departs from the side line of a claim, the claimant may voluntarily abandon his claim beyond the point of such departure and establish an end line at that point. Last Chance M. Co. v. Tyler M. Co., 15 U. S. App. 456. (See 157 U. S. 683.)

673. Where the vein crosses the side line of a location the strike is terminated by the plane of such side line, and the right to follow the vein on its dip is determined by a vertical plane parallel to the end lines, drawn downward, and which takes effect at the point where the apex intersects the side line. King v. Amy & Silversmith Cons. M. Co., 9 Mont. 543; 24 Pac. Rep. 200. (Reversed, 152 U. S. 222.)

674. The purchaser of a lode claim from a prior locator is entitled to all the mineral veins and lodes in such claim, and to the benefit of all expenditures made by his grantor in the development thereof; and the right to such benefit is not defeated by a subsequent amended location wherein the purchaser makes use of a discovery of his own within the limits of said purchase and on a junior location embraced for the greater part within the boundaries of said purchase. Tam v. Story, 21 L. D. 440.

675. An expenditure of $500 is required on every separate location of twenty acres or less of placer mines. Amendment to Circular of Sept. 22, 1882, 9 C. L. O. 163.

676. Five hundred dollars' expenditure is required on each claim, but not on each location embraced therein. Smith Brothers, 7 C. L. O. 4.

677. Where several contiguous claims held in common are embraced in one application for patent, an expenditure of $500 upon every one of such locations need not be shown if that sum has been expended upon some one or more thereof for the development of the