8 176. What constitutes a mine or valid mining claim within the meaning of section twenty-three hundred and ninety-two of the Revised Statutes.-Section twentythree hundred and ninety-two of the Revised Statutes provides that no title can be acquired under the townsite laws to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession under existing laws. What is meant by the term "mine," as used in this section? We have heretofore had occasion to discuss the meaning of the word "mine" in its etymological sense, and have shown that the word is not a definite term, but is susceptible of limitation, according to the intention with which it is used. We have also traced what we have called the evolution of denotation, showing the gradual extension of the meaning, from an underground excavation made for the purpose of getting minerals, to its use as an equivalent for "vein," "seam," or "lode. "1 A valid mining claim can only be based upon a discovery within the limits of the claim, and the existence of mineral in such quantities as to render the land more valuable for mining than for any other purpose, or as will justify a prudent man in the expenditure of time and money in its exploitation and development.2 The existence of a mere location is not of itself evidence of the mineral character of the land.3 The character of the land being thus established, its proper location, marking of boundaries, and compliance with the local laws, if any such exist, is necessary to perfect a valid mining claim. In order to exempt such veins, lodes, or claims from 'See, ante, §§ 88, 89. 8 See, ante, §§ 98, 106; post, §§ 207, 392. the operation of the townsite laws, they must at the time of its issuance be known to be valuable for their minerals. To use the language of the supreme court of the United States: 66 "We say 'land known at the time of the sale to be "valuable for its minerals,' as there are vast tracts of public land in which minerals of different kinds are found, but not in such quantity as to justify expend"itures in the effort to extract them. We also say "lands known at the time of their sale to be thus valu"able, in order to avoid any possible conclusion against "the validity of titles which may be issued for other “kinds of land in which years afterwards rich deposits "of mineral may be discovered." 1 "It is established by former decisions of this court "that under the acts of congress which govern this case, "in order to except mines or mineral lands from the "operation of a townsite patent, it is not sufficient that "the lands do in fact contain minerals, or even valuable "minerals, when the townsite patents take effect, but "that they must at that time be known to contain min"erals to such extent and value as to justify expendi"tures 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 valu"able for such purposes does not defeat or impair the "title of persons claiming under the townsite patent." 21 The case from which the last quotation is made was taken to the supreme court of the United States on writ of error to the supreme court of California. It appears from the facts in this case that the defendant, Dower, claimed that the portion of the lot which was in his possession was not granted by the patent, 'Deffeback v. Hawke, 115 U. S. 392, 404, 6 Sup. Ct. Rep. 95. 'Dower v. Richards, 151 U. S. 658, 663, 14 Sup. Ct. Rep. 452, (citing Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. Rep. 95; Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628). Quoted in Harkrader v. Goldstein, 31 L. D. 87, 95. being reserved or excepted out of its operation, by reason of the fact that it contained a gold-bearing quartz vein, the existence of which was known at and before the date of the patent. The defendant did not claim under a location made prior to the patent to the townsite, but his asserted rights accrued under a location made subsequent to the issuance of such patent. It appeared that at one time during the history of the town, but prior to the patent, the lode in question was successfully and profitably worked, but that it had been abandoned, and work thereon had ceased for a number of years before the defendant's location. Upon this state of facts the supreme court of the state of California thus announced its views: "Assuming, then, that at the date of the issuance of "the townsite patent that part of the Wagner ledge "embraced in these lots was regarded as worked out "and as of no further value for mining purposes, we "find that the predecessors of plaintiffs purchased the "lots from the patentee, went into possession of them, "fenced them, divided them into different inclosures, "built valuable houses and outhouses upon them, planted them with fruit-trees, filled up the old min"ing excavations, and, in short, devoted them to the purposes of a home. 66 66 After fifteen years, and more, during which there "" was a complete cessation of mining on the lode, the "defendants entered upon the possession of the plain"tiffs, made a location of the ledge, claiming three "hundred feet of surface on each side of the croppings, "a strip of six hundred feet in width across plain"tiffs' lots,-and proceeded to dig up their garden and "orchard, demclish their fences, and undermine their "houses. "All this the defendants justify upon the ground that "the ledge and adjacent surface which they have "located was reserved by the United States out of the "land patented to the townsite trustee. It remains to "consider whether they are correct in their construc"tion of the law upon this point. 66 "The question, then, is reduced to this: What was a "mine of gold within the meaning of the act of 1867? "Without the aid of any judicial or legislative construction, we should say, without hesitation, that one “essential requisite of a gold mine would be a natural deposit of rock or earth containing a sufficient quantity of gold to admit of profitable working. If lands "are known to contain precious metals, but in quan"tities so small as not to justify the attempt to extract them, they are not properly called mineral lands; and even if they might be mined at a very small profit, "but are clearly of more value for agriculture than for mining, they are agricultural rather than mineral "lands."1 66 66 In a later case a similar rule was declared by the same court: "The term 'mine of gold, silver, cinnabar, or "'copper,' as used in the exception found in the act, and "in the reservation of the patent, means a paying mine "known to exist at the time of the grant to the county judge, or one which there was good reason to believe "then existed.' 192 The supreme court of the United States announced similar doctrines in reference to "known mines," as that term was used in the pre-emption act of 1841,3 and with reference to lodes within patented placers known to exist at the time of the application for patent, and which are unclaimed by the applicant.* Following the construction given to placer patents Richards v. Dower, 81 Cal. 44, 49, 22 Pac. 304. 'Smith v. Hill, 89 Cal. 122, 125, 26 Pac. 644. 131. Colo. C. and I. Co. v. United States, 123 U. S. 307, 328, 8 Sup. Ct. United States v. Iron S. M. Co., 128 U. S. 673-683, 9 Sup. Ct. Rep. 195; Iron S. M. Co. v. Mike & Starr Co., 143 U. S. 394-404, 12 Sup. Ct. Rep. 543. Lindley on M.-20 reserving lodes known to exist prior to the filing of the placer application and not claimed by the applicant, it would seem that where a location of a vein or lode of mineral or other deposits has, prior to the issuance of a townsite patent, been made under the law, and its boundaries have been specifically marked on the surface so as to be readily traced, and notice of the location has been recorded in the usual books of record, that vein is such a "mine" as is, under the terms of the law, reserved from the operation of the townsite patent, although personal knowledge of its existence may not be possessed by the applicant for patent. The information which the law requires the locator to give to the public must be deemed sufficient to acquaint the placer applicant with the existence of the vein or lode.1 If it were a valid perfected lode claim, it would be embraced within the last clause of section twenty-three hundred and ninety-two of the Revised Statutes, and there is no necessity to resort to the rule in the case of lodes within placers for analogy. But where there is no location embracing it, if we accept the analogies of lodes within placers, the vein, or lode, or "mine," if falling within the designation as heretofore defined, is just as much excepted from the operation of the townsite patent as if it were a located lode. If it is such a known vein, it may be located at any time. This is the rule applied by the supreme court of the United States in the case of known lodes within patented placers.2 As to the valid mining claim which is reserved from the operation of the townsite patent, it must necessarily 2 1 Noyes v. Mantle, 127 U. S. 348, 8 Sup. Ct. Rep. 1132. Iron S. M. Co. v. Mike & Starr etc. Co., 143 U. S. 394, 12 Sup. Ct. Rep. 543. |