delivered the opinion of the court.
The contest in this case is between the Oregon Mining Claim and the Butte Mining Claim. Both locations were made prior to the enactment of the law of 1872, respecting mining locations. The Butte was prior in time, as it was ■located on the 9th day of August, 1870, and the Oregon was located on the 20th day of September, 1871. The Butte Claim was afterwards patented, and against the procuring of which patent the Oregon claimants did not protest. The sur*57face grounds of these claims conflict, but the Butte Lode and the Oregon Lode are separate and distinct veins. The Oregon Lode extends within the boundaries of the Butte location, and hence the respondent lays claim thereto. The respondent began work upon the Oregon Lode, but within the boundaries of the Butte Patent. Thereupon the appellant obtained a temporary injunction, which, upon motion of respondent, was dissolved. From the order dissolving the injunction this appeal is brought.
A person who makes a valid location of a mineral ledge or lode, and complies with the laws and the local mining rules in respect thereto, obtains a vested right to such property, of which he cannot be divested.
The act of the 10th of May, 1872, says “ that nothing contained in this act shall be construed to impair, in any way, rights or interests in mining property acquired under existing laws.” 17 U. S. Statutes at Large, p. 96, § 16; U. S. Bev. Stat., § 2344.
The law of 1872 says further, that Mining claims “ 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 locations.” 17 U. S. Statutes at Large, p. 96, § 2; U. S. Bev. Stats., § 2320.
Under the law as it stood prior to the act of 10th May, 1872, there is no question as to what the relative rights of the parties would have been, for under that law each locator was entitled to but 'one vein, whereas under the law of 1872 he is entitled to all veins having the top or apex inside his surface lines. The only question is as to whether the law of 1872 changes' these relative rights.
The application for patent was based upon a location made under the law of 1866, which gave the party but one vein, and prior to the law of 1872 the rights of parties claiming other veins could not have been affected by any patent that the applicant could obtain. These rights of plaintiff to this separate vein being, by the last section of the act of 1872, as we have *58seen, expressly reserved and protected from any barm by that act, it was not necessary that he should protest. Had he protested, he could have secured no more than is secured to him by the law without his protesting.
, Under the law of 1866 he had the right to the full length of his claim as located along the vein. As that right is not impaired in any way by the law of 1872, the appellant still has that right.
Nor do we see that it was necessary that he should have done work on that part of his vein embraced within the surface boundaries of the respondent. It is not denied that this portion of the vein was within his location claim. He had made his location, according to law and mining rules, and the doing of work upon any part thereof, and being in possession thereof when such work was done, and claiming to the full extent of his location, would be sufficient. The appellants, therefore, had under the statute the right to that part of the Oregon Lode' which entered the land of respondent, and the respondent had no right whatever thereto.
But the patent itself, which the respondent sets up as the basis of his action, does not purport to grant the Oregon vein to respondent, but it says that the grant is “ subject to the right of other parties to follow any other vein or lode, with its dips, angles and variations, legally held under a location made prior to such date.”
If this provision had been left out of the patent, the position of the parties would not have been affected, as their rights are governed by the law. But when a patent is presented which, on its face negatives the claim of the patentee to other valid locations, it would seem that respondent’s want of title to any such other vein was clearly manifest.
For the reasons given, we think that the order of the court below should be reversed with costs.
EmeesoN, J., concurred.