The word "lode" and the word "vein" are used indiscriminately in the Acts of Congress as well as in the popular language, to signify the same thing. In Bainbridge on Mines, the text1 defines them in the same sentence: "A mineral lode or vein is a flattened mass of metallic or earthly matter, differing materially from the rocks or strata in which it occurs." A note to the same suggests the use of the word "vein" as incorrect, when applied to such deposits as those of anthracite coal. But the note is not justified, for the word "vein" is universally used to include coal, and other flat, non-metallic deposits, while the word "lode" is not so used. This is the principal distinction in the use of the words. The word "lode" is of Cornish origin,2 "vein" is Latin. In the Eureka case,3 where it is said every known definition was presented to the Court, the opinion does not intimate any difference to their meaning, but says: "Those Acts give no definition of the term 'lode.' They use it always in connection with the term 'vein.' "4

1 Bainbridge on Mines, p. 2. 2 Bullion Co. vs. Croesus Co., 2 Nev., 176.

3 Eureka Case, M. R., 578.

The word "ledge" came into use in California after the discovery of the quartz mines, because they were generally found in the hills above the gulches, and were often identified with protruding outcrop. The word "reef" not used in the Acts, is the popular equivalent for lode or ledge in Australia and South Africa. The word "range" is much used in the lead districts of the Mississippi Valley.5

The provisions in the Federal Statutes as to the location of lode claims are as follows: "Mining-claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining-claim located after the tenth day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining-claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen hundred and seventy-two, render such limitation necessary. The end-lines of each claim shall be parallel to each other."6

4 Morrison's Mining Claims, p. 162. 5 Raisbeck vs. Anthony, 4 K. N. W., 72.

6 U. S. Rev. Stat., Sec. 2320.

In general, it may be said that a lode or vein is a body of mineral or mineral body of rock, within defined boundaries in the general mass of the mountain. The thinness or thickness of the matter in particular places does not affect its being a vein or lode. If there is a general and pervading continuance of this mineral matter, with a casual and occasional interruption, but pursuing the same general course, bounded by the same rocky material above and below as far as you can trace that until it breaks off totally and is interrupted for a very large distance, it is a vein of rock or mineral matter.7

A vein or lode that has never been claimed; that has not been located; that has not been marked out by metes and bounds, and in which there has been no actual development, or, to use the language of the statute, "discovery of a vein or lode within the limits of the claim located," is not a vein or lode such as is described in this section.8

A vein or lode cannot be in place, within the meaning of this section, unless it be within the general mass of the mountain. It must be inclosed by, or held within, the general mass of fixed and immovable rock. It is not enough to find the vein or lode lying on the top of fixed or immovable rock, for that which is top is within, and that which is without the rock in place cannot be said to be within it.9

The statute prescribes two prerequisites to the vesting in a competent locator of the complete possessory title to a lode mining claim. They are the discovery upon unappropriated public land of the United States within the limits of his claim of a mineralbearing lode, and the distinct marking of the boundaries of his claim so that they can be readily traced. No appropriation of the land is made until both these requirements are fulfilled, and until that time the lode and land sought are open to location and appropriation by any competent locator; but when these requirements have been complied with the land is no longer public, but the possession, and the right to acquire the title, are irrevocably vested in the locator. There is no requirement in the legislation of Congress that the discovery shall be made before the location, or that the location shall precede the discovery.10

7 Stevens vs. Williams (1879), 1

McCrary (U. S.), 488. 8 Iron Silver Min. Co. vs. Sullivan (1883), 16 Fed. Rep., 829.

9 Leadville Min. Co. vs. Fitzgerald (1879), 15 Fed. Gas. No. 8,168.

A location can only rest upon an actual discovery of the vein or lode.11

Subsequent discoveries may validate earlier locations, and the latter may then inure to the benefit of the locators as against the United States and all parties whose claims were initiated subsequent to the discoveries. But they would inure to their benefit as of the dates of the discoveries and not as of the dates of the locations, and they would neither destroy nor affect intervening rights. The marking of boundaries and filing of location certificates may precede discovery or discovery may precede them, but no location is valid until both are complete. The earlier act then inures to the benefit of the locator as of the date of the later, subject to all rights which have intervened between them.12

"When a locator of a mining claim finds rock in place containing mineral in sufficient quantity to justify him in expending his time and money in prospecting and developing the claim, he has made a discovery, within the meaning of the statute, whether the rock or earth is rich or poor, whether it assays high or low, with this qualification, that the definition of a lode must always have special reference to the formation and peculiar characteristics of the particular district in which the lode or vein is found" 13

10 Erwin vs. Perego (C. C. A., 1899), 93 Fed. Rep., 608.

11 King vs. Amy, etc., Min. Co.

(1894), 152 U. S., 227; Echardt vs. Boaro (1885), 113 U. S., 536.

12 Uinta Tunnel Min., etc., Co. vs. Creede, etc., Min., etc., Co. (C. C. A., 1902), 119 Fed. Rep., 169.

The locator's rights of possession and enjoyment are thus defined by the Federal Statutes: "The locators of all mining locations heretofore made or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as they comply with the laws of the United States, and with State, Territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, . lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical sidelines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical places drawn downward as above described, through the end-lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges.

13 Bonner vs. Meikle (1897), 82 Fed. Rep., 697; Muldrick vs. Brown (1900), 37 Oregon, 185.

And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another."14

"The estate acquired by the locator of a mining claim is an interest in real property, and although the paramount title remains in the government, the courts have universally recognized such interest as a freehold; and in all controversies arising between the locator and other persons as to any right or claim thereto, he is treated as the owner in fee." 15

Upon the death of the owner of a mining claim, the right of possession is to be deemed and treated as an interest in real estate and must descend accordingly. That the right of possession descends to the administrator cannot be inferred from the use of the term "legal representative." 16

"The interest in a mining claim, prior to the payment of any money for the granting of a patent for the land, is nothing more than a right to the exclusive possession of the land based upon conditions subsequent, a failure to fulfill which forfeits the locator's interest in the claim. We do not think that under the Federal statute the locator takes such an estate in the claim that dower attaches to it." 17