A A iO ^ 10 i \ 7 I 2 i ^^^~ -< r l-b444t* m MX THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF HARRY G SADICOFF I A TREATISE ON THE AMEEICAX LAW RELATING TO MINES AND MINERAL LANDS "WITHIN THE PUBLIC LAXD STATES AND TERRITORIES GOVERNING THE ACQUISITION AND ENJOY^MENT OF MINING RIGHTS IN LANDS OF THE PUBLIC DOMAIN BT CURTIS H. LINDLEY Of the San Francisco Bar THIRD EDITION IN THREE VOLUMES VOLUME II "7 hold every man a debtor to his profession ; from the which, as men of course do seeJc to receive countenance and profit, so ought they of duty to endeavor themselves, by way of amends, to be a help and ornament thereto." Bacoti's Tracts. "Et opus desperatum, quasi per medium profundum euntes, coelesti favore jam adimplevimus." — From Dedication of Justinian's Institutes. SAX FEANCISCO BANCROFT-WHITNEY COMPANT 1914 Copyright, 1897, BY CUETIS H. LINDLEY Copyright, 1903, BY CUETIS H. LINDLEY Copyright, 1914, BY CXmTIS H. LINDLEY T I9l4- The Filmer Beothers Electeotype Company Typographers and Steeeotypess San rBANCisco CHAPTER II. LODE CLAIMS, OE DEPOSITS "IN PLACE.'» ABTica:^ L Introductoet. II. The Location and Its Requieements. m. The Discovery. IV. The Discovery Shaft and Its Equivalent. V. The Preliminary Notice and Its Posting. Vl. The Surface Covered by the Location — Its Form and Relationship to the Located Lode. Yn. The Marking of the Location on the Surface. VIIL The Location Certificate and Its Contents. IX. The Eecord. X. Change of Boundaries and Amended or Additional Looa* TioN Certificates. XI. Relocation of Forfeited ob Abandoned Claims, XII. Lodes within Placers. Aeticle I. Introductory. S 322. Introductory. occurring in veins as affecting thl S 323. The metallic or nonmetal- right of appropriation under the lie character of deposits laws applicable to lodes. § 322. Introductory. — ^Tn the preceding chapters of this work, it has been demonstrated that only the public mineral lands of the United States may be ap- propriated under the mining laws.^ While it is true that the words "public lands" are not always used in the same sense and their true meaning and effect are to be determined by the context in which they are used,^ yet, generally speaking, by "public lands" is meant such as are subject to sale or disposal under 1 Ante, § 112. « United States v. Blendauer, 128 Fed. 910, 913, 63 C. C. A. 636j United States v. Denver & Rio Grande R7. Co., 190 Fed. 825, 8i7. (731) 64S735 § 322 INTRODUCTORY. 732 general laws.* Land to which any claims or rights of others have attached does not fall within the designa- tion of ''public lands."* As was said by the supreme court of the United States, — Public lands belonging to the United States for whose sale or other disposition congress has made provision by its general laws, are to be regarded as legally open for entry and sale under such laws, un- less some particular lands have been withdrawn from sale by congressional authority or by an exec- utive withdrawal under such authority, either ex- press or implied.' 3 McFadden v. Mountain View M. & M. Co., 97 Fed. 670, 680, 38 C. C. A. 354; In re Logan, 29 L. D. 395; Nome Transp. Co., 29 L. D. 447; State of Louisiana, 30 L. D. 276. ♦ Ante, I SO; Newhall v. Sanger, 92 U. S. 761, 762, 23 L. ed. 769; Bardon v. N. P. E. E., 145 U. S. 535, 538, 12 Sup. Ct. Eep. 856, 36 L. ed. 806; Mann v. Tacoma Land Co., 153 U. S. 273, 283, 14 Sup. Ct. Eep. 820, 38 L. ed. 714; Wilcox v. Jackson, 13 Pet. (U. S.) 498, 510, 10 L. ed. 264; Cameron v. United States, 148 U. S. 301, 309, 13 Sup. Ct. Eep. 595, 37 L. ed. 459; United States v. Tygh Valley Land & L. S. Co., 76 Fed. 693, 694; James v. Iron Co., 107 Fed. 597, 603, 46 C. C. A. 476; Hartman v. Warren, 76 Fed. 157, 160, 22 C. C. A. 30; Kansas Pacific Ey. Co. v, Dunmeyer, 113 U. S. 629, 641, 5 Sup. Ct. Eep. 566, 28 L. ed. 1122; Teller v. United States, 113 Fed. 273, 281, 51 C. C. A. 230; Scott v. Carew, 196 U. S. 100, 110, 25 Sup. Ct. Eep. 193, 49 L. ed. 403; Northern Lumber Co. v. O'Brien, 139 Fed. 614, 616, 71 C. C. A. 598; affirmed on appeal, 204 U. S. 190, 196, 27 Sup. Ct. Eep. 249, 51 L. ed. 438; Union Pacific E. E. Co. v. Harris, 76 Kan. 255, 91 Pac. 68. 6 Lockhart v. Johnson, 181 U. S. 516, 520, 21 Sup. Ct. Eep. 665, 45 L. ed. 979. See Baca Float No. 3, 30 L. D. 497. In the nomenclature of the public land laws, the word "withdrawal" is generally used to denote an order issued by the president, secretary of the interior, commissioner of the general Tand office, or other proper officer, whereby public lands are withheld from sale and entry under the general land laws, in order that presently or ultimately they may be applied to some distinctly public use or disposed of in some special way. Sometimes these orders are not made until there is an immediate necessity therefor, but more frequently the necessity for their being made is anticipated. Hans Oleson, 28 L. D. 25, 31; In re Cox, 31 L. D. 193. For a discussion of executive withdrawals generally, see ante, § 200b. 733 INTRODUCTORY. § 322 We have also attempted to illustrate" the nature and character of the appropriation under laws (other than those exclusively applicable to the acquisition of min- eral lands) which operate as a segregation of a given tract from the body of public land, and inhibit its acquisition, although mineral in character, under the mining laws. What constitutes such an appropriation of mineral lands under these last-named laws as will remove them from the category of "public lands" and inhibit their acquisition by other mining claimants can be determined only after an analysis of the law regulating the acquisition of title to such lands. After we shall have outlined the methods provided by law for such acquisition, we shall endeavor to explain fully the nature and extent of the title so acquired, the tenure by which it is held, the property rights flowing therefrom, and the conditions under which such rights may be lost or extinguished. The general statement may here be properly made, however, that a perfected, valid appropriation of public mineral lands, under the mining laws, operates as a withdrawal of the tract from the body of the public domain, and so long as such appropriation remains valid and sub- sisting the land covered thereby is deemed private property.^ 6 Ante, §§ 112-219. T Gwillim V. Donnellan, 115 U. S. 45, 49, 5 Sup. Ct. E«p. 1110, 29 L. ed. 348, 15 Morr. Min. Rep. 482; Belk v. Meagher, 104 U. S. 279, 283, 26 L. ed. 735, 1 Morr. Min. Rep. 510; S. C, 3 Mont. 65; McFeters V. Pierson, 15 Colo. 201, 22 Am. St. Rep. 388, 24 Pac. 1076, 1077; Iron S. M. Co. v. Campbell, 17 Colo. 267, 29 Pac. 513; Seymour v. Fisher, 16 Colo. 188, 27 Pac. 240, 241; Fisher v. Seymour, 23 Colo. 542, 49 Pac. 30, 33; Garthe v. Hart, 73 Cal. 541, 15 Pac. 93, 94, 15 Morr. Min. Rep. 492; Souter v. Maguire, 78 Cal. 543, 21 Pac. 183; Armstrong V, Lower, 6 Colo. 393; Lebanon M. Co. v. Cons. Rep. M. Co., 6 Colo. 371; Faxon v. Barnard, 4 Fed. 702, 2 McCrary, 44, 9 Morr. Min. Rep. 515; Meydenbauer v. Stevens, 78 Fed. 787, 18 Morr. Min. Rep. 578; §323 INTRODUCTOBT, '34 We are now to consider the manner in whicli public mineral lands containing veins or lodes of quartz or other rock in place may be lawfully appropriated. § 323. The metallic or nonmetallic character of deposits occurring in veins of rock in place as affect- ing the right of appropriation under the laws applica- ble to lodes. — In defining what constitutes ''mineral land" within the meaning of the acts of congress, using that term as the legal equivalent of the various words and phrases of a kindred nature found in the mining laws,^ we have heretofore treated the subject regardless of the form in which the deposits occur — i. e., whether *'of rock in place," as in quartz veins, or not **in place," as in the case of auriferous gravels and other substances encountered in surface beds." Stratton v. Gold Sovereign M. & T. Co., 1 Leg. Adv. 350; S. C, 89 Fed. 1016, 32 C. C. A. 607; Matoa G. M. Co. v. Chicago Cripple G. M. Co., vol. 178 Min. & Scientific Press, p. 374; Cone v. Roxana G. M. Co. (Colo.), 2 Leg. Adv. 350; Mt. Rosa M. M. & L. Co. v. Palmer, 26 Colo. 56, 77 Am. St. Rep. 245, 56 Pac. 176, 50 L. R. A. 289, 19 Morr. Min. Rep. 696; Kinney v. Fleming, 6 Ariz. 263, 56 Pac. 723, 20 Morr. Min. Rep. 13; Gurney v. Brown, 32 Colo. 472, 77 Pac. 357, 359; affirmed. Brown v. Gurney, 201 U. S. 184, 191, 26 Sup. Ct. Rep. 509, 50 L. ed. 717; Farrell v. Lockhart, 210 U. S. 142, 146, 28 Sup. Ct. Rep. 681, 52 L. ed. 994, 16 L. R. A., N. S., 162; Bradford V. Morrison, 212 U. S. 389, 395, 29 Sup. Ct. Rep. 349, 53 L. ed. 564; Swanson v. Sears, 224 TJ. S. 180, 32 Sup. Ct. Rep. 455, 56 L. ed. 721; Porter v. Tonopah North Star T. & D. Co., 133 Fed. 756, 758 ; S. C, on appeal, 146 Fed. 385, 386, 76 C. C. A. 657; Malone v. Jackson, 137 Fed. 878, 880, 70 C. C. A. 216; Reed v. Munn, 148 Fed. 737, 757, 80 C. C. A. 215; Willitt v. Baker, 133 Fed. 937, 947; Zerres v. Vanina, 134 Fed. 610, 614; S. C, in error, 150 Fed. 564, 80 C. C. A. 366; Peoria & Colo- rado M. & M. Co. V. Turner, 20 Colo. App. 474, 79 Pac. 915, 917; Hoban V. Boyer, 37 Colo. 185, 85 Pac. 837; Nash v. McNamara, 30 Nev. 114, 133 Am. St. Rep. 694, 93 Pac. 405, 406, 16 L. R. A., N. S., 168; Moorehead v. Erie M. & M. Co., 43 Colo. 408, 96 Pac. 253, 255. « Ante, § 86. • Ante, § 95. 735 METALLIC OR NONMBTALLIC CHARACTER OP DEPOSITS. § 323 The conclusions there reached ^° were intended to ap- ply to all classes of deposits, without any attempt at classification as to form of occurrence. We are now called upon to consider a special class of mineral lands, and to determine to what extent, if any, the metallic or nonmetallic character of the deposits found in veins of rock in place controls the manner in which lands containing them may be appropriated. The act of July 26, 1866, provided for the acquisi- tion of title to veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, or copper. By necessary intendment it excluded all other classes of metallic substances, as well as all which were non- metalliferous. The placer law of July 9, 1870, ex- tended the right of entry and patent "to claims usu- ally called 'placers,' including all forms of deposit, excepting veins of quartz or other rock in place." The act of May 10, 1872, provided in terms for the appropriation of lands containing veins or lodes of quartz or other rock in place bearing gold, silver, cin- nabar, lead, tin, copper, or other valuable deposits. This is preserved in the Revised Statutes, which also contain the provisions of the placer law of 1870, here- tofore referred to. Therefore, under the existing law we find the classification to be as follows: — (1) Lands containing veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits ;^^ (2) Claims usually called "placers," including all forms of deposit, excepting veins of quartz or other rock in place." And in prescribing the method for 10 Ante, § 98. 11 Rev. Stats., § 2320; Comp. Stats. 1901, p. 1424; 5 Fed. Stats. Ann. 8. 12 Kev. Stats., § 2329; Comp. Stats. 1901, p. 1432; 5 Fed. Stats. Ann. 42. For an elaborate discussion of this classification, see Webb v. American § 323 INTRODUCTORY. 736 obtaining patents, both classes seem to have been grouped under the term "valuable deposits."" It may be said that, ordinarily, nothing but metal- liferous ores are encountered in veins of rock in place. There are, however, exceptions to this rule. Coal occurs in veins, and in many instances with as pro- nounced dip and strike as in the auriferous quartz lodes. But lands containing coal are sold under spe- cial laws.'* Marble, borax,'' onyx,'® asphaltum, gilso- nite," or uintaite (a species of asphaltum), gypsum, talc, graphite, rock phosphates,"^ chalk, marls, oil- stones, mica, asbestos, fluorspar, sulphur, and mineral paint are nonmetallic substances, and occur in veins of rock in place.'^ All of these have commercial value, and in many instances yield as much profit in propor- tion to the cost of exploitation and extraction as the Asphaltum Co., 157 Fed. 203, 84 C. C. A. 651; Henderson v. Fulton, So L. D. 652; Harry Lode M. Claim, 41 L. D. 403. 13 Eev. Stats., § 2325; Comp. Stats. 1901, p. 1429; 5 Fed. Stats. Ann. 31. 1* Leonard v. Lennox, 181 Fed. 760, 761. 15 See McCann v. McMillan, 129 Cal. 350, 62 Pac. 31, 33, 21 Morr. Min. Rep. 6. 16 Utah Onyx Development Co., 38 L. D. 504. 17 Webb V. American Asphaltum M. Co., 157 Fed. 203, 84 C. C. A. 651. 17a Harry Lode M. Co., 41 L. D. 403. 18 The circuit court of appeals in Webb v. American Asphaltum Co., supra, adopts the reasoning of the text as it appeared in the second edition of this work and applies the rule to a vein of gilsonite similar to the one shown in figure 30a, without, however, referring to the author. The same court applied the same reasoning to a bed of phosphate rock in San Francisco Chemical Co. v. Duffield, 201 Fed. 830, 836. See, contra, Duffield v. San Francisco Chemical Co., 198 Fed. 942, decided by a United States district court in another circuit. The land department follows and applies the rule to onyx occurring in veins, holding it to be subject to location as a lode. Utah Onyx Development Co., 38 L. D. 504. Also to well phosphates. Harry Lode M. Claim, 41 L. D. 403. 737 MET/SX,LIC OR NONMET.VLLIC CHARACTER OF DEPOSITS. § 323 metalliferous veins. When any of these substances occur in the form of superficial deposits, lands con- taining them may be appropriated under the placer laws, as they are not veins of rock in place. But sup- pose they occupy a vertical or pro- nounced inclined position in the mass of the mountain. A typical illustration showing the occurrence ° ' "'' of nonmetallic substances in veins FiGUKE 30a. is afforded by the deposits of Tiintaite, or gilsonite, found in Utah. Figure 30a is a cross-section taken from the monograph of Mr. George H. Eldridge on these deposits." So far as structure is concerned, it exhibits the highest type of a fissure vein, and if the vein-filling or gangue carried metalliferous ores it would respond fully to the scien- tific as well as popular definition of a true fissure vein. In the illustration the vein occupies practically a vertical position which eliminates from discussion the subject of the extralateral right. But a reading of Mr. Eldridge 's monograph shows that in many of these deposits the plane of the vein is inclined, ren- dering the discussion which follows pertinent. How is this class of deposits to be appropriated! If by the placer laws, and if they are on surveyed lands, they must be taken up in some subdivision of the gov- ernment sur\^eys. If the deposit should exist in the form of an ideal vein, there would be but one expos- ure upon which a discovery could be based, and nothing overlying the dip beyond the vertical plane drawn through the surface boundary of, for example, a 19 IT. S. Cfcolofjical Survey, 17 Ann. Eep., part 1, p. 932. Lindley on M. § 323 INTRODUCTORY. 738 twenty-acre tract, could be located without discovery, and discovery would be impossible except by sinking vertical shafts at great expense, with no adequate pro- tection in the meanwhile in the possession of the tract.^" We cannot see, since the act of 1872 was passed increas- ing the number of terms used in the prior law, that there is any foundation to support the contention that veins or lodes must be metalliferous in order to be appropriated under the lode laws. The extralateral right may be of as much value to the proprietor of a mica, rock phosphate, asphaltum, gilsonite, or talc vein as a gold vein. The act itself in terms makes no distinction based upon the chemical composition of the deposit. But it groups the classes according to the form in which the valuable deposits occur. In ^ our judgment, there is no more reason for insisting that veins or lodes of mica, graphite, asphaltum, gil- sonite, or other nonmetallic substance in place should be located as placers than it has to require cinnabar deposits to be located as lodes, independently of the form of their occurrence.^^ This is the view announced by the circuit court of appeals, eighth circuit, involving gilsonite occurring in a vein as indicated in figure 30a, supra.^"^ How shall they be appropriated? The term "deposits" used in section twenty-three hundred and twenty of the Revised Statutes is just as comprehensive as the same term found in section twenty-three hundred and twenty-nine. The deliberate addition in the statute of the term "valuable deposits" to the enumeration of metallic 20 Unless, perhaps, we are permitted to rely upon the California doctrine protecting oil placer locators to the full extent of their claims while they are engaged in boring or drilling for oil, discussed in § 218. 21 Copp's Min. Dec. 47, 60. 22 Webb V. American Asphaltum Co., 157 Fed. 203, 84 C. C. A. 651. 739 METALLIC OR NONMETALLIC CHARACTER OF DEPOSITS. § 323 substances is of itself evidence of the highest charac- ter that the intention of the lawmakers was to enlarge the scope of the lode laws, and embrace everj^ char- acter of deposit found in veins of rock in place which fall within the meaning of *' mineral" in its broadest sense. If the meaning of the term "valuable de- posits" was intended to be restricted to such sub- stances as were metallic in their nature, it is fair to presume that congress would have used the term "valuable metallic or metalliferous deposits."" Gold occurs in veins of rock in place, and when so found the land containing it must be appropriated under the laws applicable to lodes. It is also found in placers, and when so found the land containing it must be ap- propriated under the laws applicable to placers. Iron ore is found in veins of rock in place. It also occurs in beds and superficial deposits.^* "Where it is found in veins, lands containing it must be appropriated under the lode laws. "Where it is not found in veins of rock in place, the proceedings to obtain government title are the same as those prescribed for placers. ^^ Iron is not named in the act of 1872, nor in the cor- responding section of the Revised Statutes. Prior to the passage of that act, lands containing it were sold the same as agricultural lands. That act, as inter- preted by the land dejDartment, was comprehensive enough to include iron ore, and thenceforth lands con- 23 For a discussion of the term "other valuable deposits" and the application of the doctrine ejusdem generis, see Nephi Plaster Co. v. Juab County, 33 Utah, 114, 93 Pac. 53, 54, 14 L. R. A., N. S., 1043; Webb V. American Asphaltum M. Co., 157 Fed. 203, 205, 84 C. C. A. 651; Utah Onyx Development Co., 38 L. D. 504. 2* This illustration used in Nephi Plaster & M. Co., v. Juab County, 33 Utah, 114, 93 Pac. 53, 54, 14 L. R. A., N. S., 1043. 26 In re Stewart, 1 Copp's L. O. 34; Commissioner's Letter, Copp's Min. Dec. 235; Henderson v. Fulton, 35 L. D. 652; In re McDonald, 40 L. D. 7. § 323 INTRODUCTORY. 740 taining siicli substances were patented only under the mining laws.^^ The large number of nonmetallic substances men- tioned in a previous chapter of this work" have been held by the land department to fall within the defi- nition of "mineral" and "deposit," as these terms are used in the mining statutes. True, in the cases wherein this rule was established the substances oc- curred in the form of superficial deposits. But if it is once determined that they are "mineral" or "valu- able deposits," they then become subject to classifica- tion for the purpose of appropriation the same as the metallic substances enumerated in the act.^* The supreme court of Washington at one time held that in its judgment a mining claim, either placer or lode, could not lawfully exist or be patented unless it contained some of the metals,^^ a ruling which it subsequently retracted.^" Secretary of the Interior Hoke Smith, after criticising the Washington court for its first decision, ruled as follows : — It appears to me so plain that congress only con- templated lands that were valuable for the more precious metals should be patented as lode claims, that it needs no argument to convince one of the proposition.^^ This view was subsequently overruled in so far as it purported to limit the definition of "mineral" to 26 Commissioner's Letter, Copp's Min. Dec. 214. 27 Ante, § 97. 28 Webb V. American Asphaltum Co., 157 Fed. 203, 84 C. C. A. 651; Nephi Plaster Mfg. Co. v. Juab County, 33 Utah, 114, 93 Pac. 53, 54, 14 L. R. A., N. S., 1043; Utah Onyx Development Co., 38 L. D. 504; Harry Lode M. Claim, 41 L. D. 403; San Francisco Chemical Co. v. Duf- field, 201 Fed. 830. 29 Wheeler v. Smith, 5 Wash. 704, 32 Pac. 784. 80 State V. Evans, 46 Wash. 219, 89 Pac. 565, 10 L. R. A., N. S., 1163. 81 Wheeler v. Smith, 23 L. D. 395, 399. 741 METALLIC OR NONMETALLIC CHARACTER OF DEPOSITS. § 323 motallic substances or the ''more precious metals," and the rule adopted that the term ''mineral" in- cludes all classes of deposit, whether metallic or non- metallic.^^ Commissioner McFarland expressed the opinion that veins of clay or nonmotalliferous substances were not subject to location as lodes, but might be entered as placers.^' At a time when the department entertained the view that salt deposits were subject to location under the mining laws a ruling was made to the effect that when a deposit of rock salt was found in an inclined posi- tion in the mass of the mountain in the form of a ledge, it was subject to location under the lode laws.^* It is unnecessary for us to here reiterate the con- clusions heretofore reached by us^° as to what is meant by the terms "mineral land" and "valuable de- posits," as these terms are used in the mining laws. We think those conclusions were based upon the weight of authority. If they are correct, it follows that land containing any substance, metallic or non- metallic, which possesses economic value for use in trade, manufacture, the sciences, or in the mechanical or ornamental arts, if such substance exists therein in veins or lodes of rock in 'place in sufficient quantities to render the land more valuable for the purpose of removing and marketing the product than for any 32 Pacific Coast Marble Co. v. Northern Pacific R. R. Co., 25 L. D. 233. To same effect, Northern Pacific R. R. Co. v. Soderberg, 99 Fed. 506, 507, 104 Fed. 425, 427, 43 C. C. A. 620; S. C, 188 U. S. 526, 23 Sup. Ct. Rep. 365, 47 L. ed. 575; State v, Evans, 46 Wash. 219, 89 Pae. 565, 10 L. R. A., N. S., 1163. 83 Montague v. Dobbs, 9 Copp's L. O. 165. 34 In re Megarrigle, 9 Copp's L. O. 113; post, § 515. 38 Ante, § 98. §327 THE LOCATION AND ITS REQUIREMENTS. 742 other purpose, such land must be appropriated under the laws applicable to lodes. This we understand to be the rule now recognized by the courts and the land department as announced in the cases heretofore cited.^* Article II. The Location and Its Requirements. I 327. "Location" and "mining claim" defined. § 328. Acts necessary to consti- tute a valid lode location under the Eevised Stat- utes, in the absence of supplemental state legis- lation and local district rules. 329. 330. § 331. § 332. The requisites of a valid lode location where sup- plemental state legisla- tion exists. Order in which acts are performed immaterial ; time, when nonessential. Locations made by agents. Placer locations by power of attorney in Alaska. § 327. "Location" and "mining claim" defined. — "Location" and "mining claim" may not always or necessarily mean the same thing. The supreme court of the United States has said that a mining claim is a parcel of land containing precious metal in its soil or rock." A location is the act of appropriating such parcel according to certain established rules. The "loca- tion" in time became among the miners synonymous with the "mining claim" originally appropriated. If the miner has only the ground covered by one location, 36 The rule, however, does not apply to rock salt occurring in veins. See post, § 513. 37 St. Louis Smelting Co. v. Kemp, 104 U. S. 636, 648, 26 L. ed. 875. The use of the term "precious metal" in this connection is mani- festly of no controlling importance. The Revised Statutes enumerate a number of metals which are in no sense "precious," and, as such statutes are interpreted, they include a great variety of substances which are not metallic. 743 "location" and "mining claim" defined. §327 his ''mining claim" and his ''location" are identical, and the two designations may be indiscriminately used to denote the same thing. But if by purchase he ac- quires other adjoining "locations," and adds them to his own, then the term "mining claim" is frequently used colloquially to describe the ground embraced by all the locations. ^^ Judge Hillyer defined a "mining claim" to be that portion of the public mineral lands which the miner for mining purposes takes up and holds in accordance with the mining laws.^® As generally or colloquially used, the term "mining claim" has no reference to the different stages in the acquisition of the government title. It may include all mines contiguous to each other and held under one ownership, whether patented or unpatented, if ac- quired under the mining laws,*° or which is claimed under the mining laws, although the location may not as yet have been perfected; e. g., oil placer in process of development." Strictly speaking, "location" is the act or series of acts by which the right of exclusive possession of min- eral veins and the surface of mineral lands is vested in the locators." 38 St. Louis Smelting Co. v. Kemp, 104 U. S. 636, 648, 26 L, ed. 875, 11 Morr. Min. Eep. 673 ; McFetcrs v. Pierson, 15 Colo. 201, 22 Am. St. Eep. 388, 24 Pac. 1076. See, also, N. P. E. E. Co. v. Sanders, 49 Fed. 129, 135, 1 C. C. A. 192; In re Mackie, 5 L. D. 199. 39 Mt. Diablo M. & M. Co. v. Callison, 5 Saw. 439, Fed. Cas. No. 9886, Morr. Min. Kep. 616.