COLORADO. 



113 



patent granted by act of Congress, that its 

 intention was to grant a lode, and that the 

 grantee had a right to follow it within its side 

 lines, although it should in its depth pass into 

 the adjoining lands ; but outside of those side 

 lines he had no title to it, and it became the 

 property of any one who has subsequently 

 located it. Chief Justice Thatcher said : 



The declaration contained three counts, in the first 

 of which the appellee claimed title in fee, and in the 

 second and third he claimed title by preemption, 

 occupation, possession, and purchase under and by 

 virtue of the local laws, custom, and usages of miners 

 in Griffin Mining District, the laws of Colorado, and 

 those of the United States. In support of the second 

 and third counts, much evidence was introduced, 

 which, however, the Court charged the jury to dis- 

 regard in the following instructions : 



" After the issuing of the patent, all previously 

 acquired rights by the patentee under the local laws, 

 usages, and customs of the particular district in which 

 the claim is located, are merged in the patent ; and 

 the plaintiff having put in evidence a patent from 

 the United States, you must not consider the right 

 or title acquired prior to the issuing of the patent, 

 such rights being merged in the patent." 



Whether this instruction correctly lays down the 

 law we need not now decide. It could not prejudice 

 the defendant. It is enough to say that by this in- 

 struction the jury were necessarily confined to the 

 issue made upon the first count. By their verdict 

 they found that the plaintiff was the owner in fee 

 of the property described in the declaration. This 

 verdict was responsive only to the first count. 



The evidence tended to show that the Ben Hard- 

 ing lode in its general course or strike departed from 

 the vertical side lines of the location described in 

 the patent, and represented by the plat incorporated 

 therein, and entered the Bell tunnel lode location, 

 which was patented under the act of Congress of 

 May 10, A. D. 1872. That the plaintiff had the right 

 to so follow the patented lode was affirmed in the 

 instructions of the Court. Upon this theory the case 

 was tried. To determine its correctness, reference 

 must be had to the act of Congress of July 26, 1866, 

 under which the Ben Harding lode was patented. 



At common law a grant of land carries with it all 

 that lies beneath the surface down to the center of 

 the earth. At his pleasure the owner of the soil may 

 apply to his own purposes whatever is included in 

 the segment of the earth carved out by his descend- 

 ing exterior boundary lines. Says Sir William Black- 

 stone (book ii., page 18), Gujus est solum, ejus est usque 

 ad codum, is the maxim of the law. Upward, there- 

 fore, no man may erect any building or the like to 

 overhang other land ; and downward, whatever is in 

 a direct line, between the surface of any land and 

 the center of the earth, belongs to the owner of the 

 surface, as is every day's experience in the mining 

 countries. 



By the rules of the common law, except so far as 

 such rules have been modified by statute, must the 

 extent of the plaintiff's patented grant be determined. 

 That there may, however, be a grant of mineral sep- 

 arate from the grant of the circumjacent land, and 

 vice versa, where the grantor manifestly intends that 

 each shall form a distinct possession and different 

 inheritance, admits of no doubt. The question re- 

 curs, What did Congress, by its declared will in the 

 act of 1866, authorize the United States to grant ? In 

 the light of a just interpretation of this act must the 

 Ben Harding patent be construed. If the patent is 

 broader than the law, it is to that extent ineffectual. 

 Based upon the statute, its validity, and the extent 

 to which it operates as a conveyance, must be deter- 

 mined by reference to the statute. 



Section 2 provides that it shall be lawful for the 

 claimant of a vein or lode " to file in the local land- 



VOL. xvm. 8 A 



office a diagram of the Bame, BO extended laterally 

 or otherwise as to conform to the local laws, cus- 

 toms, and rules of miners, and to enter such tract 

 and receive a patent therefor, granting such mine 

 together with the right to follow such vein or lode, 

 with its dips, angles, and variations, to any depth. 

 although it may enter the land adjoining, which land 

 adjoining shall bo sold subject to this condition. 



This section clearly permits the patentee to follow 

 the lode in its descending course to any depth, al- 

 though in its downward trend it is carried by its 

 dips, angles, and variations into the adjoining land. 

 Here is a departure from the common-law doctrine. 

 The qualifying words, however, " to any depth," 

 limit the direction in which the mine may be pur- 

 sued beyond the side lines. The claimant is required 

 to file in the land-office a diagram of his vein or lode. 

 This is his own act. The law contemplates that 

 before he prepares his diagram he shall so far expose 

 and develop the lode as to be able to trace its course. 

 The position that if the phvt made by the surveyor 

 does not cover the lode, the patentee should be per- 

 mitted to shift the lines of his patent so as to include 

 the lode, which he before through his ignorance or 

 indolence failed to locate, is, it is conceived, without 

 force. The error is not the mistake of a government 

 officer, but the mistake of a claimant, and others 

 ought not to be permitted to suffer by it. It is not 

 the province of the surveyor to either discover or 

 determine the course of the vein. He acts under 

 the directions of the claimant of the mine, who has 

 already furnished a diagram of his lode. His duties 

 are to survey the located premises, and make a plat 

 thereof, endorsed with his approval, disignating the 

 number and description of the location, the value of 

 the labor and improvements, and the character of 

 the vein exposed. (See section 3.) However tor- 

 tuous might be the course of the lode, the claimant 

 had a perfect right to follow it up and prepare his 

 diagram so as to include it, together with the surface 

 ground on each side thereof allowed by local laws. 

 There is no language in the act that requires the 

 diagram to be in the form of a parallelogram or in 

 any other particular form. 



From an examination of the entire act it seems to 

 us that the central idea of a mining location under 

 its provisions is, that there must be a discovered 

 lode within it whose locus in its general course is 

 embraced within its boundaries. 



An assumed mining location, which, in fact, con- 

 tains no mine, would be wholly false, and would 

 contravene the law. Until a patent issues, to the 

 extent only in its downward course that a discov- 

 ered lode j,s within the prescribed exterior boun- 

 daries of the claim, is the location^ itself unassail- 

 able. Patterson vs. Hitchcock decided this term. 

 The surface ground and the lode are not indepen- 

 dent grants. It is not the purpose of the act to grant 

 surface ground without a discovered ledge. The 

 lode is the principal thing, and the surface ground 

 incident thereto. In conveying a segment of the 

 earth located under the provisions of the act, it is 

 the intention of Congress to convey a mine contained 

 within that segment as the substance of the grant. 



The act appeals to the industry and enterprise of 

 the miner, to make sure that the lode is within his 

 location. The higher his diligence in this respect, 

 the greater will be his reward. If by lack of assidu- 

 ity and energy he makes an untrue location a loca- 

 tion not embracing the lode he seeks to secure he 

 can not be heard to complain that others have ex- 

 plored and discovered a lode thereon which might 

 have been embraced in his diagram. If, as the evi- 

 dence tends to show, the Bell tunnel lode is a con- 

 tinuation of the Ben Harding lode (after its depar- 

 ture from the vertical side lines), extending through 

 the adjacent location, upon what principle of justice 

 or law, in the absence of an express statutory provi- 

 sion, can the patentee of the lode last named claim 

 the right to encroach upon premises embraced by 



