limits a lode known to exist prior to the patent application, which lode is not claimed and applied for by the placer claimant as a lode, does not cut off the right to appropriate it in hostility to the patentee. His failure to include it in his placer application is a conclusive declaration that he has no right to it.1

The courts seem to make a distinction between the right to enter openly and peaceably within the limits of a prior placer claim for the purpose of perfecting the location of a previously discovered lode and the privilege of entering upon the placer surface for the purpose of prospecting or searching for undiscovered lodes. The supreme court of Colorado, while conceding that a stranger may so enter within the placer boundaries to locate a lode previously known to exist therein, holds that he may not make such entry for the purpose of searching for lodes whose existence may be suspected but not demonstrated.2

In this respect the court follows the doctrine applied by the courts to locations made under the act of July 26, 1866, under which only one lode could be claimed. Before a stranger to the original location could enter for the purpose of locating a second lode, the fact that two lodes existed within the boundaries was required to be first established.3

If a placer claimant has abandoned his claim, or waived the trespass, or by his conduct is estopped from

Rev. Stats., § 2333; Sullivan v. Iron S. M. Co., 143 U. S. 431, 434, 12 Sup. Ct. Rep. 555; Reynolds v. Iron S. M. Co., 116 U. S. 687, 6 Sup. Ct. Rep. 601; Iron S. M. Co. v. Mike & Starr G. and S. M. Co., 143 U. S. 394, 402, 12 Sup. Ct. Rep. 543; Iron S. M. Co. v. Reynolds, 124 U. S. 374, 8 Sup. Ct. Rep. 598; United States v. Iron S. M. Co., 128 U. S. 673, 9 Sup. Ct. Rep. 195; Noyes v. Mantle. 127 U. S. 348, 353, 8 Sup. Ct. Rep. 1132.

2 Clipper M. Co. v. Eli M. Co. (Colo.), 68 Pac. 289.

Atkins v. Hendry, 1 Idaho, 107.

complaining of it, the subsequent lode location will be considered valid.1

The principles discussed in previous sections,2 concerning the right to enter upon prior claims for the purpose of laying lines or establishing monuments with a view to acquiring something not claimed by or embraced within the prior location, can be aptly applied to the case of lodes "known to exist" within placer claims.

While the land department at one time held that with the issuance of the placer patent its jurisdiction terminated, and thereafter it had no right to entertain a subsequent application for a patent to a lode claim within the patented placer limits, it subsequently changed its ruling to conform to the legal results necessarily flowing from the exposition of the law by the supreme court of the United States.4

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3

The same rule is now applied to known lodes within townsites. A finding by a court in an adverse suit brought by a lode claimant against the placer applicant, that there was no known lode, will be treated by the department as an adjudication of the matter. The land department is reluctant to reopen the question of placer character of land at the instigation of a lode claimant where years have elapsed since entry for patent as a placer claim."

Clipper M. Co. v. Eli M. Co. (Colo.), 68 Pac. 289.

2 §§ 363, 363a.

3 Rebel Lode, 12 L. D. 683; Pike's Peak Lode, 14 L. D. 47; South Star Lode, 17 L. D. 280.

South Star Lode, on review, 20 L. D. 204; Butte and Boston M. Co., 21 L. D. 125; Cripple Creek G. M. Co. v. Mt. Rosa M. M. and L. Co., 26 L. D. 622; Alice M. Co., 27 L. D. 661; Cape May M. and L. Co. v. Wallace, Id. 676; Ryan v. Granite Hill M. Co., 29 L. D. 522.

• Ante, §§ 173, 177; Pacific Slope Lode v. Butte Townsite, 25 L. D. 518; Gregory Lode Claim, 26 L. D. 144.

Alice M. Co., 27 L. D. 661. Post, § 720.

Meaderville M. and M. Co. v. Raunheim, 29 L. D. 465.

It is not our purpose to here define what is meant by a "lode known to exist within the boundaries of a placer claim," as that phrase occurs in section twenty-three hundred and thirty-three of the Revised Statutes. This will be fully discussed when dealing with the subject of placer patents and the nature and extent of title conferred by placer locations. We are now concerned simply with the manner of locating lodes within placers, their existence being confessedly known prior to the application for the placer patent.

We are justified in deducing from the foregoing the following conclusions:

(1) A perfected placer location does not confer the right to the possession of veins, or lodes, which may be found to exist within the placer limits at any time prior to filing an application for a placer patent;

(2) Such lodes may be appropriated (a) by the placer claimant, or (b) by others, provided the appropriation is effected by peaceable methods and in good faith;

(3) Where a lode is known to exist within the limits of a placer location at any time prior to the placer application for patent, and is not claimed in the application as a lode, the title to such lode does not pass by the patent, but it may be located by any one having the requisite qualifications, provided the location is made peaceably and in good faith.1

It frequently happens that after the issuance of a placer or an agricultural patent a valuable lode is discovered within the patented limits. By reason of the nature of the grant, this lode cannot be followed on its downward course beyond the vertical bounding planes. Under such circumstances attempts have been made to surrender or reconvey to the government the title

Mt. Rosa M. M. and L. Co. v. Palmer (Colo.), 56 Pac. 176.

deraigned through the patent so as to render a lode location with the accessory extralateral right possible. This phase of the subject will be discussed in a subsequent section.1

2 414. Manner of locating lodes within placers.With the exception of determining the quantity of surface which may be taken in conjunction with a lode found within a placer claim, a question to be presented in the next section, there is no difference between the manner of locating such a lode and any other found within the public domain. It must be discovered and developed, the location must be marked upon the surface, and all other formalities required by federal or state legislation must be complied with to the same extent as in case of lodes situated elsewhere. As the right necessarily flows from discovery, to perpetuate such right the subsequent acts resulting in a perfected location must be complied with.

As to the surface lines inclosing the lode, while the inclosed area may possibly be limited, yet their general direction with reference to the discovered vein must conform to the general rule governing lode locations.2 In placer locations, except upon unsurveyed lands, and under certain specified conditions to be hereafter noted,3 the boundaries must conform to the public surveys, without regard to the course or direction of veins which may be found therein. Such boundaries perform a different function from those required in the case of lode claims.

Whatever may be the dimensions of a placer location which, when participated in by an association of persons, may cover an area of one hundred and sixty acres, a

Reynolds v. Iron S. M. Co., 116 U. S. 687, 694, 6 Sup. Ct. Rep. 601. 3 See next chapter.

Rev. Stats., § 2330.

lode location within a placer cannot exceed the statutory limit as to length-that is, fifteen hundred feet. Endlines must be established within this limit, and, in order to acquire extralateral rights, should cross the located lode and be parallel to each other, or non-divergent in the direction of the dip. A placer boundary may be coincident with a lode boundary if so claimed and marked. But the rights upon the discovered lode will be defined only by the lode boundaries, established and marked as such. In this respect, the statute makes no distinction between lodes within placers and other lodes. In considering this class of lode location, the only debatable question is the quantity of surface which the locator may appropriate for the purpose of inclosing his lode. In all other respects the general rules apply.

415. Width of lode locations within placers. - As to the amount of surface which may be appropriated in connection with a lode discovered within a previously located placer claim, the statute seems to be somewhat ambiguous, and its proper construction has been a matter of serious embarrassment to the land department as well as to the courts.

The limit of the superficies of a lode location on the public domain under the federal law is fifteen hundred feet along the lode and three hundred feet on each side of the middle of the vein.

The section providing for the acquisition of title to lodes within a placer location is as follows:—

"Where the same person, association, or corporation "is in possession of a placer claim and also a vein or "lode included within the boundaries thereof, applica"tion shall be made for a patent for the placer claim "with the statement that it includes such vein or lode, "and in such case a patent shall issue for the placer 1 Post, § 582.

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