Montana Ore Purchasing Co. v. Boston & Montana Consolidated Copper & Silver Mining Co.

Buck, J. The vein or veins at the point where the ores are in dispute lie about 300 feet from the westerly end line of the Barus lode claim, as located, and underneath its located surface. Appellant contends that, even though the Johnstown owner, under its patent, acquired the surface of the ground in controversy containing said ores, nevertheless the Barus patent conveyed all the veins whose apexes were within the exterior boundaries of that claim as originally located. It in [341] sists that the surface portions of the Rams conveyed by its patent, namely, the two areas, constituting 2.98 acres, shaded in yellow (see diagram No. 1), cannot be regarded as detached from each other so far as the official survey of the claim or the patent itself is concerned, but must be regarded as connected by the intervening ground of the claim as originally located, although the surface of such intervening ground was conveyed to the Johnstown patentees. In other words, it is insisted that lot No. 179, as the official survey of the Rams was designated for the purpose of patent, coincided as to its exterior boundaries with the Rarus claim as originally located, and that, therefore, the patent to the Rarus conveyed all the veins whose apexes were within the surface of its original location. In support of its position, it also contends that, in the issuance of patents to lodes, the mining laws of the United States authorize a severance of the minerals from the surface of the ground containing them, when conflicting claims demand it. While it is true that the surface of mining ground is often spoken of in the decisions of the courts as an incident to the vein whose apex lies within or under it, we are clearly of the opinion that the mining statutes of the United States contain no authority for the conveyance of the lodes or veins embraced in a located quartz claim independently of the surface ground connected with and containing or overlying them. Neither is the subject of• patented grant by itself. Appellant calls to our attention various expressions, occurring in different sections of the United States mineral land statutes, for the purpose of showing that the surface is not regarded as an essential incident of the lode or vein in or below it. It is no doubt true that those statutes, taken as a whole, give greater prominence verbally to the lode or vein than to the surface connected therewith; but this naturally results from the fact that the lode is the main subject treated. Such expressions and such prominence, however, cannot avail to permit the grant of lodes or veins embraced in a located quartz [342] claim regardless of the surface connected therewith. In support of this ruling, we deem it necessary to cite only from a most valuable treatise on mines which has just been- published. In Section 780, Yol. 2, Lindley on Mines, and Sections 58-60, Vol. 1, Id., the author most ably discusses the subject of the relationship of the surface to the lode, and collates the federal and state decisions directly pertaining thereto. Want of space alone prevents our giving his language in full. What did the Rarus patent convey % Let it be conceded that the corners and exterior boundaries of the official survey, lot No. 179, coincide with the corners and exterior boundaries of the claim as located. It does not follow that the patent granted the claim as located. The patent is sufficiently unambiguous to speak for itself. If it were not, however, in the application for a patent to the Rarus claim, lot No. 173, the official survey of the Johnstown claim, surveyed and approved prior to the survey of the former, is expressly excepted. This application asks for a patent to 2.98 acres of area only. See Golden Reward Mining Co. v. Buxton Mining Co., 79 Fed. 868. The patentees of the Rarus paid to the United States $15 only. The patent conveys an area of 2.98 acres and no more. Moreover, it expressly excepts from the grant the Johnstown survey, lot No. 173. In so far as the patent attempts to convey the Rarus lode on its strike, independently of the granted surface of 2.98 acres, it is void and of no effect. The order appealed from is affirmed. Affirmed. Hunt, J., concurs.