Gleeson v. Martin White Mining Co.

Hawley, C. J.,

concurring:

I concur in the conclusions reached by the court that the judgment of the district court ought to be affirmed; but I am unwilling to give an unqualified approval of the construction given to the mining laws of the United States.

If I entertained the opinion, as expressed by the court, that “it is a surface parallelogram not less than fifty feet in width that must be located; ” that the location on a vein *471“must be made by taking up a piece of land to include it;” that a vein “can only be located by means of a surface claim, and held only to the extent that it is included in the surface lines,” and if — upon these points — I agreed “ entirely with the views of counsel for appellant,” I should be inclined to agree with their conclusions that it is the surface location that “must be distinctly marked on the ground so that its boundaries can be readily traced.”

But I do not believe that it was the intention of congress, by the passage of the several acts referred to in the opinion of the court, to produce an entire revolution in the system of locating mining claims. Some very important changes have been made, and the rights of the locators have been enlarged and made more specific; but, in my judgment, it is — as it was under the old system — the vein of quartz, the lode that is the principal thing constituting the location. The surface ground is but an incident thereto. The location of such a mining claim is distinctly marked on the ground so that its boundaries can be readily traced,” by the placing of stakes along the lode and at the ends of the location, or by such other monuments or marks as will clearly designate the number of feet in length and the particular lode located. In my judgment the location need not, necessarily, be the taking up of “ a piece of land ” in the form of a parallelogram. When the vein or lode is sufficiently identified and marked, as above stated, the laws of the local district fix the number of feet in width — of the surface ground — to which the locator is entitled. It being, of course, understood that: “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.”

I differ with the court upon another point discussed in the opinion. I think that after the vein or lode is properly located the locator thereof has the right to fifteen hundred feet along the course of the lode, “in whatever direction it runs, irrespective of the vertical side lines of the surface boundaries ” (Dissenting Opinion, Golden Fleece v. Cable Con*472solidated, 12 Nev. 331), and that he would only be entitled to fifteen hundred feet in length, although the vein took such a course as to embrace more than fifteen hundred feet within the end lines of his surface location.