the mining ground is placer ground is not open to litigation by private parties seeking to avoid the effect of the proceedings. Dahl v. Raunheim, (1889) 132 U. S. 262. Conflicting placer and lode patents or locations. In any conflict. between the title conferred by two patents, whether it be in law or in equity, the holder of the title under the elder patent has a right to require that the existence of the lode and the knowledge of its existence on the part of the grantee of the elder patent should be established. If the junior lode patent has been issued by the land department it cannot be presumed that at the time of the application for the senior placer patent the lode or vein was known. Iron Silver Min. Co. v. Campbell, (1890) 135 U. S. 292. Where each party has a patent from the government and the question is as to the superiority of the title under these patents, if this depends upon extrinsic facts not shown by the patents themselves, it is competent in any judicial proceeding where the question of superiority of title arises, to establish it by proof of these facts. Iron Silver Min. Co. v. As between a placer patent and subsequently located lodes, the presumption is in favor of the placer. Casey v. Thieviege, (1897) 19 Mont. 341. A stranger has no right to go upon a placer claim and, by sinking shafts or otherwise, explore for any lode or vein, and, on finding one, obtain a patent thereto. An entry upon a placer claim, against the will of the placer locator, for the purpose of prospecting, is undoubtedly a trespass, and such a trespass cannot be relied upon to sustain a claim of a right to veins or lodes. Clipper Min. Co. v. Eli Min., etc., Co., (1904) 194 U. S. 229. An act to authorize the entry of lands chiefly valuable for building stone under the placer mining laws. [Act of Aug. 4, 1892, ch. 375, 27 Stat. L. 348.] [SEC. 1.] [Entry of building stone lands under placer claims laws.] That any person authorized to enter lands under the mining laws of the United States may enter lands that are chiefly valuable for building stone under the provisions of the law in relation to placer mineral claims, Provided, That lands reserved for the benefit of the public schools or donated to any State shall not be subject to entry under this act. [27 Stat. L. 348.] SEC. 2. [Amends Act of June 3, 1878, ch. 151, sec. 1. LANDS AND FOREST RESERVES.] See TIMBER SEC. 3. [Forest reservations not affected. See TIMBER LANDS AND FOREST RESERVES.] An Act To authorize the entry and patenting of lands containing petroleum and other mineral oils under the placer-mining laws of the United States. [Act of Feb. 11, 1897, ch. 216, 29 Stat. L. 526.] [Entry of petroleum or other mineral oil lands under placer claims laws.] That any person authorized to enter lands under the mining laws of the United States may enter and obtain patent to lands containing petroleum or other mineral oils, and chiefly valuable therefor, under the provisions of the laws relating to placer mineral claims: Provided, That lands containing such petroleum or other mineral oils which have heretofore been filed upon, claimed, or improved as mineral, but not yet patented, may be held and patented under the provisions of this Act the same as if such filing, claim, or improvement were subsequent to the date of the passage hereof. [29 Stat. L. 526.] "It is explained in House Report No. 2,655, 54th Cong., 2d sess., that under decisions of the interior department, there cited, public lands containing petroleum, with other mineral oils, were held subject to entry and patent under the placer-mining laws, R. S. sec. 2329. By a later decision the previous executive rule was reversed, rendering new legislation necessary to authorize the entry and patent of petroleum lands, as formerly." Compilers' note, 2 Supp. R. S. 549. - Federal jurisdiction. When it is shown that the respective parties to the suit are making adverse claims to the same land under the laws of the United States, and that the proper determination of those conflicting claims necessarily requires the application and construction of these laws, it is the duty of the federal court to entertain jurisdiction for the purpose of settling the conflicting claims, and such court will, under well-settled principles of equity, entertain and determine all incidental questions between the respective parties growing out of these conflicting claims, including the granting of an injunction and the appointment of a receiver where such a course is shown to be proper. Nevada Sierra Oil Co. v. Miller, (1899) 97 Fed. Rep. 681. But when the bill falls short of showing that the proper determination of the suit will unnecessarily involve the construction or affect any law of the United States, or that there is any fact in dispute between the respective parties in respect to the construction or effect of such law, it fails to show jurisdiction in the federal court over the cause of action. Dewey Min. Co. v. Miller, (1899) 96 Fed. Rep. 1. See also California Oil, etc., Co. v. Miller, (1899) 96 Fed. Rep. 12. Whether the patent alleged to have been issued by the officers of the United States is valid or invalid, and, if valid, whether the title thereby conveyed should be decreed to be held in trust for others and decreed to be conveyed to them, depends upon the proper application of the laws of the United States to the facts, and therefore presents a federal question of which the federal court has jurisdiction. Cates v. Producers', etc., Oil Co., (1899) 96 Fed. Rep. 7. Land is not vacant and open to settlement when parties are in occupancy of the land, claiming it to be mineral, and diligently at work to prove it to be such, though no discovery of any mineral has been made. Cosmos Exploration Co. v. Gray Eagle Oil Co.. (C. C. A. 1901) 112 Fed. Rep. 14. An Act Extending the mining laws to saline lands. [Act of Jan. 31, 1901, ch. 186, 31 Stat. L. 745.] [Entry of saline lands under placer claims laws.] That all unoccupied public lands of the United States containing salt springs, or deposits of salt in any form, and chiefly valuable therefor, are hereby declared to be subject to location and purchase under the provisions of the law relating to placer-mining claims: Provided, That the same person shall not locate or enter more than one claim hereunder. [31 Stat. L. 745.] An act providing for the sale of Saline lands. [Act of Jan. 12, 1877, ch. 18, 19 Stat. L. 221.] [SEC. 1.] [Saline lands to be sold at public auction or private sale.] That whenever it shall be made appear to the register and the receiver of any land office of the United States that any lands within their district are saline in character, it shall be the duty of said register and said receiver, under the regulations of the General Land Office, to take testimony in reference to such lands to ascertain their true character, and to report the same to the General Land office; and if, upon such testimony, the Commissioner of the General Land office shall find that such lands are saline and incapable of being purchased under any of the laws of the United States relative to the public domain, then, and in such case, such lands shall be offered for sale by public auction at the local land office of the district in which the same shall be situated, under such regulations as shall be prescribed by the Commissioner of the General Land 48 office, and sold to the highest bidder for cash, at a price not less than one dollar and twenty-five cents per acre; and in case said lands fail to sell when so offered, then the same shall be subject to private sale, at such land office, for cash, at a price not less than one dollar and twenty-five cents per acre, in the same manner as other lands of the United States are sold, Provided, That the foregoing enactments shall not apply to any State or Territory which has not had a grant of salines by act of Congress, nor to any State which may have had such a grant, until either the grant has been fully satisfied, or the right of selection thereunder has expired by efflux of time. But nothing in this act shall authorize the sale or conveyance of any title other than such as the United States has, and the patents issued shall be in the form of a release and quitclaim of all title of the United States in such lands. [19 Stat. L. 221.] Repeal. This Act is retained here, though it may be repealed by Act of March 3, 1891, ch. 561, sec. 9, which is as follows: "SEC. 9. That hereafter no public lands of the United States, except abandoned military or other reservations, isolated and disconnected fractional tracts authorized to be sold by section twenty-four hundred and fifty-five of the Revised Statutes, and mineral and other lands the sale of which at public auction has been authorized by acts of Congress of a special nature having local application, shall be sold at public sale." [26 Stat. L. 1099.] Grant or reservations of saline lands in states on their admission to the Union or SEC. 2. [Advertisements. See PUBLIC LANDS.] Sec. 2334. [Surveyor-general to appoint surveyors of mining claims, etc.] The surveyor-general of the United States may appoint in each land-district containing mineral lands as many competent surveyors as shall apply for appointment to survey mining-claims. The expenses of the survey of vein or lode claims, and the survey and subdivision of placer-claims into smaller quantities than one hundred and sixty acres, together with the cost of publication of notices, shall be paid by the applicants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The Commissioner of the General Land-Office shall also have power to establish the maximum charges for surveys and publication of notices under this chapter; and, in case of excessive charges for publication, he may designate any newspaper published in a land-district where mines are situated for the publication of mining-notices in such district, and fix the rates to be charged by such paper; and, to the end that the Commissioner may be fully informed on the subject, each applicant shall file with the register a sworn statement of all charges and fees paid by such applicant for publication and surveys, together with all fees and money paid the register and the receiver of the land-office, which statement shall be transmitted, with the other papers in the case, to the Commissioner of the General Land-Office. [R. S.] Act of May 10, 1872, ch. 152, 17 Stat. L. 95. Sec. 2335. [Verification of affidavits, etc.] All affidavits required to be made under this chapter may be verified before any officer authorized to administer oaths within the land-district where the claims may be situated, and all testimony and proofs may be taken before any such officer, and, when duly 5 F. S. A.-4 certified by the officer taking the same, shall have the same force and effect as if taken before the register and receiver of the land-office. In cases of contest as to the mineral or agricultural character of land, the testimony and proofs may be taken as herein provided on personal notice of at least ten days to the opposing party; or if such party cannot be found, then by publication of at least once a week for thirty days in a newspaper, to be designated by the register of the land-office as published nearest to the location of such land; and the register shall require proof that such notice has been given. [R. S.] 95. Act of May 10, 1872, ch. 152, 17 Stat. L. The right to personal notice of all proceedings is dependent upon having initiated a contest. Northern Pac. R. Co. v. Cannon, (C. C. A. 1893) 54 Fed. Rep. 252. Authority not conferred on notaries public. - By its terms this section expressly limits the general authority to verify affidavits before any officer authorized to administer oaths to the particular affidavits required or authorized by the chapter, and it can have no bearing upon a case in which the affidavit is not one that is so required or authorized. U. S. v. Manion, (1890) 44 Fed. Rep. 800. Sec. 2336. [Where veins intersect, etc.] Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection; but the subsequent location shall have the right of way through the space of intersection for the purposes of the convenient working of the mine. And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection. [R. S.] Act of May 10, 1872, ch. 152, 17 Stat. L. 96. Federal question. In an action brought by the grantee of part of the mining claim against the grantor, the decision of the state Supreme Court was clearly based upon the estoppel deemed by that court to operate against the grantor upon general principles of law and the state statute in respect of such conveyances, and this was an independent ground broad enough to maintain the judg ment irrespective of any federal question. Gillis v. Stinchfield, (1895) 159 U. S. 658. This section does not conflict with section 2322, R. S., but supplements it. It imposes a servitude upon the senior location, but does not otherwise affect the exclusive rights given the senior location. It gives a right of way to the junior location. "To what extent, however, there may be some ambiguity; whether only through the space of the intersection of the veins, as held by the Supreme Courts of California, Arizona, and Montana, or through the space of intersection of the claims, as held by the Supreme Court of Colorado in the case at bar. It is not necessary to determine between these views." Calhoun Gold Min. Co. v. Ajax Gold Min. Co., (1901) 182 U. S. 505. See also Consolidated Wyoming Gold Min. Co. v. Champion Min. Co., (1894) 63 Fed. Rep. 546; Book v. Justice Min. Co., (1893) 58 Fed. Rep. 128. This section and section 2322, R. S., are in complete harmony. This section is designed to give a new right where lodes in fact cross, and not to define and settle prior existing rights at the space of intersection. In other words, if a lode on the junior location intersects, on its strike, within the boundaries of the senior location the lode of such location, then the junior locator may take all the ore in the first mentioned lode within the bound aries of both the senior and junior location, except at the space of intersection, notwithstanding that section 2322, R. S., limits the locator to his own boundaries except when pursuing a lode on its dip, and to this extent this section repeals section 2322. The intersection has reference to the intersection of veins and not locations of claims. Watervale Min. Co. v. Leach, (Ariz. 1893) 33 Pac. Rep. 422. This section has a controlling effect over section 2322, R. S., and limits the right of the first locator of a mine in and to cross and intersecting veins to the ore which may be found in the space of intersection. If there are in fact two lodes crossing each other in these locations, the party having the elder title by patent has the better right and it is limited as last stated. If there are two veins uniting in their downward course, this section is applicable. Hall v. Equator Min., etc., Co., (1879) 11 Fed. Cas. No. 5,931. See also Branagan v. Dulaney, (1885) 8 Colo. 408; Lee v. Stahl, (1886) 9 Colo. 208; Calhoun Gold Min. Co. v. Ajax Gold Min. Co., (1899) 27 Colo. 1. But see Wilhelm v. Silvester, (1894) 101 Cal. 358; Watervale Min. Co. v. Leach, (Ariz. 1893) 33 Pac. Rep. 418. This section and section 2322, R. S., to some extent are in conflict with each other. If this section contained the only provision bearing on the subject it would undoubtedly mean that where two veins cross each other, the junior location would only be entitled to the ore at the space of intersection of the veins; and that the owners of the cross-lode would be entitled to all ore found in their vein within the side lines of the senior location save at the actual space of vein intersection. This construction. however, seems to be in conflict with the literal interpretation of section 2322. In such a case the fore going construction should be adopted under the arbitrary rule or construction that, as between conflicting statutes, the latest in date will prevail, and as between conflicting sections of the same statute the last in order of arrangement will control. Branagan v. Dulaney, (1885) 8 Colo. 408. See also Pardee t. Murray, (1882) 4 Mont. 235. It will be presumed that there was a valid location prior to the issue of the patent, and evidence of the proceedings had in the United States land office, upon which the patent is based, was immaterial in the contest between the patentee and the locator of an adjoining claim whose location was subsequent to the date of the patent. Champion Min. Co. v. Consolidated Wyoming Gold Min. Co., (1888) 75 Cal. 78. "The words 'intersect' and 'cross,' as used in this section, are not strictly synonymous, and in using both it must be presumed intended to provide for different conditions. Veins might intersect, either on their strike or dip, and not cross; in that event, it was necessary to provide which location should have the ore at the space of intersection, and it was declared that the prior location should have the ore within that space. In case they crossed, then a further provision was necessary, and it was provided that the junior location should have the right of way through the space of intersection for the convenient working of the mine." Calhoun Gold Min. Co. v. Ajax Gold Min. Co., (1899) 27 Colo. 16. The word "below" cannot be construed to mean "beyond." The words " below the point of union" do not apply to veins uniting on the "strike," or on a horizontal extension, but to veins which unite on the "dip," or in their downward course. Lee v. Stahl, (1889) 13 Colo. 178. This section does Kinds of intersections. not undertake to give to any person the right to make a valid location of a quartz ledge across either the surface ground or a lode of a prior locator. It merely assumes that there may be instances where there may be certain kinds of intersections of land where both the prior and the latter locators may have some rights. "There are two kinds of intersections of quartz ledges. They sometimes intersect, and sometimes unite, in their horizontal extension, or, as the miners call it, their strike; but they may also intersect or unite on their dip; that is, they may intersect laterally in their downward course. Now, when they intersect laterally, as last above stated, the owner of each ledge has rights at the point of intersection entirely consistent with all of the provisions of section 2322. In such a case the owner of a claim on land adjoining that of a prior locator would have a right to follow his ledge as it dipped laterally underneath the surface ground of his neighbor, and if his ledge intersected the ledge of the prior locator he would have the right of way through it under the statute, the older locator merely having the quartz at the exact point of intersection; but his right to thus follow his vein underground would be an entirely different thing from the right asserted in the case at bar by appellant to enter upon the surface of defendants' prior lecation and locate a claim the top or apex of which was within the surface location of defendants' ground. And to such an intersection the provision of section 2336 can be readily applied in perfect consistency with the provisions of section 2322." Wilhelm v. Silvester, (1894) 101 Cal. 361. Rights of junior claimant in space of intersection. The provisions of this section refer to the intersection or crossing of veins either upon their strike or dip; the space of intersection, in determination of ownership of ore within such space, means either intersection of veins or conflicting claims according to the facts of each particular case, and grants a right of way to the junior claimant for the convenient working of his mine through such space upon the veins which he owns or controls outside of that space. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., (1899) 27 Colo. 22. See also Lee v. Stahl, (1889) 13 Colo. 174. "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 on his vein within the side lines of the senior location except at the space of intersection of the two veins. 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-vein.' Morgenson v. Middlesex Min., etc., Co., (1887) 11 Colo. 178. The patentee of a location, if it be proved that the vein thereof actually intersects or crosses another vein, is entitled to follow his vein and extract ore therefrom within the patented limits of the other location, except within the space of actual intersection of the two veins, notwithstanding he did not adverse the application for a patent to that other vein. Lee v. Stahl, (1889) 13 Colo. 177. See also Lee v. Stahl, (1886) 9 Colo. 210. Priority in case of three veins. When two veins for two mining claims belonging to one person unite, and the vein thus formed continues down until it strikes a third vein belonging to another, the priority will be determined as between the date of the earliest of the two former claims and that of the third claim. Little Josephine Min. Co. v. Fullerton, (C. C. A. 1893) 58 Fed. Rep. 521. On conveyance of part of claim. This section cannot be applied to a case where a party conveys part of his mining claim to another, for in such case there is no "prior location." In such case the ordinary rules which govern grants of land must of necessity apply, and if the intersection takes place on part of the land conveyed, the grantee takes all the mineral within the space of intersection. Stinchfield v. Gillis, (1895) 107 Cal. 89. The size of the vein in the prior location is immaterial when considered with reference to the legal rights attached to the ownership. Stinchfield . Gillis, (1892) 96 Cal. 37. This section has no reference to the case of a single vein. - Omar v. Soper, (1888) 11 Colo. 380. |