But the location of January, 1875, was not an effort to secure to the claim as previously located, a greater width of surface. It was an abandonment of all of the original claim not covered by the relocation of one thousand five hundred linear feet. It was competent for the owner to abandon the original location and make a new location under the law of 1872. If, after he had made the location of 1875, any attempt had been made to confine him to the limits of the original location, he could have availed himself of the relocation. The relocation of March 10, 1876, of three thousand linear feet was in violation of the act of 1872, which limited all subsequent locations to one thousand five hundred feet. Applicants must claim under the law of 1866 or 1872. If under the act of 1866, his surface width must not exceed what was allowed under the provisions of that act; if under the act of 1872, the length of his claim must conform to this act; but his claim violates the act of 1866, in being wider than was allowed under the provisions of that act and the local regulations authorized by it; and it violates the act of 1872, in exceeding the length permitted by that act, and, therefore, violates both acts. When the act of 1872 took effect, the owner of this claim was entitled, under the laws then in force, to only three thousand by one hundred feet, equal to three hundred thousand square feet. The act of 1872 limited all claims thereafter located to one thousand five hundred by six hundred feet, equal to nine hundred thousand square feet; yet the affidavit in this case claims three thousand by six hundred feet, one million eight hundred thousand square feet, which is six times more than the quantity allowed by the laws prior to the act of 1872, and twice as much as is fixed as the utmost quantity allowed since the act of 1872. A territorial act is cited as authority for this attempt to set at naught the limitations which Congress has prescribed for mineral claims. It is hardly necessary to cite authorities to show that no Territorial or State legislature can thus nullify the acts of Congress. As the location of 1876 embraces all that was included in the location of 1875, nothing was abandoned by the location of 1876, and no reason appears why the location of 1875 is not still valid. The former decision made in this case by the acting commissioner appears to be correct, and, therefore, will not be changed. You will notify the applicant of this decision, and allow him sixty days from such notice in which to appeal. Very respectfully, J. A. WILLIAMSON, Commissioner. A few decisions cited and some remarks on the subject of location. In the Eureka v. Richmond case (4 Sawyer, 302), it is held that the statute requiring the end lines of a location to be parallel to each other, is merely directory, and no consequence is attached to a deviation therefrom. The present practice of the Land Office is to require all surveys for patent of locations, under the act of 1872, to show parallel end lines. It would therefore appear that while for the purpose of maintaining or defending an action for the possession of a mining claim, a deviation from this provision of the law might not be material, yet for the purpose of securing a patent from the United States, a survey must be made within the location, which will indicate a compliance therewith. In the case of Patterson v. Hitchcock (3 Cal. 533), the court held: "The principal lode constitutes the measure of the miner's right to the surface ground, as the surface ground when thus determined in turn constitutes the measure of his right to other veins, lodes, and ledges, subject to the express limitations of the law. It follows, therefore, that if the lode located terminates at any point within the location, or departs at any point from the side lines, the location beyond such point and to that extent is defensible, if not void." The survey of a mining claim for the purpose of applying for a patent from the United States, is the act of the claimant, and not of the government, and if he has applied for patent before sufficient development has been made to show the strike of his vein, and if thereupon after the patent issues the vein is found to depart from the survey lines, it is lost to the patentee. The surveyor acts for the claimant, and he is not required either to discover or show the course of the vein. Wolfly v. Lebanon M. Co., 4 Colorado, 112; Mining Co. v. Tarbet, 8 Otto, 463. In the case of Golden Terra Mining Co. v. Maher et al., First Jud. Dist., Dakota, it was held that the spirit of the act (of May 10, 1872) of Congress is to require as a condition precedent to a location of a mining claim, that a discovery of a vein, bearing valuable minerals, shall first be made within the limits of such location, independent of any other subsisting and valid location. It is unappropriated public land, the lands belonging to the United States, in which valuable mineral deposits are found, that are open to exploration, etc. That the vein is discovered when there is discovered a well-defined body of rock in place carrying gold, which body afterwards proves to be continuous. Before a quartz claim can be legally located, a lode must be discovered, and "before such discovery can be called a discovery, at least one well-defined wall or side of the lode must be found." Foote v. National M. Co., 2 Mont. 402. In Mining Co. v. Collision et al. (5 Sawyer, 439), the court defines a mining claim to be that portion of the public land which the miner takes up and holds, in accordance with mining laws, local and statutory, for mining purposes, and the term includes the vein specially located, all the surface ground located on each side of it, and all other veins or lodes having their apex inside the surface lines. Again, a mining claim is a piece of land supposed to contain in its soil or rock, gold or other precious metal. McKeon v. Bisbee, 9 Cal. 137. Land must be marked out and taken possession of before it can be called a mining claim. Mallett v. Uncle Sam Mining Co., 1 Nev. 194. Possession. A mining claim must be in some way defined as to limits before the possession of or working upon part gives possession to any more than the part so possessed or worked. But when the claim is defined, and the party enters in pursuance of mining rules and customs, the possession of part is possession of the entire claim. Attwood v. Fricot, 17 Cal. 42. No. 5. No. 6. No. 7. No. 8. CHAPTER III. APPLICATION FOR PATENT. An appropriation of the premises. Publication of notice of application must be made in a newspaper published nearest the claim. Publication must be continuous in one newspaper. Board for equitable consideration will not confirm case falling out of rule stated in No. 3. Publication must not be made without knowledge of the Register. An applicant, under the provisions of the mining law, not restricted to one claim. a. An application by one joint owner recognized. b. Acts of attorneys in legitimate prosecution of case recognized. d. Non-concurrence in decision of predecessor in Antelope case. No. 9. Several lode claims, separate in inception, should not be embraced in one application for patent. No. 10. Construction of section 2324, Revised Statutes. No. 11. Lode and placer claims, when separate premises, should not be included in one application. No. 12. Nunc pro tunc proceedings allowed in absence of protest or adverse claim. No. 13. Act of January 22, 1880, does not change manner of proving citi zenship. No. 14. Montana, under act of Territorial Legislature, locator entitled to No. 15. No. 16. No. 18. No. 19. Aliens, a. The judgment of a court on question of abandonment, not conclusive. b. The supervisory power conferred on the Commission of the G. L. O. sufficient authority to order hearings. No. 20. Manner in which certificate should issue on application of incorporated company, and by association of persons not incorporated. No. 21. a. In case of discrepancy in name, identity must be proved. b. Proof. Full copies of conveyances not necessary. c. Claimant who is to make affidavit of posting, etc. No. 21. d. Citizenship. Locators should possess qualifications of, or have declared their intention to become citizens. Application should state amount of surface ground to be included in entry, and should agree with published notice, plat, etc. Person out of 'possession can not apply for patent. See No. 1- No. 1. Effect of application. DEPARTMENT OF THE INTERIOR, WASHINGTON, D. C., June 29, 1875. SIR: I have considered the application of the Sapphire Silver Mining Company for patent for the "Great W. mining claim," embracing one thousand feet on the Dios Señor or Mount Hope lode, Carson City district, Nevada, which is resisted by the Daney Gold and Silver Mining Company, owning the Mammoth lode. The Mount Hope claim was located August 5, 1866, by five citizens of the United States, each taking an undivided interest of two hundred feet, one thousand feet in all, along the course of the lode, together with surface ground two hundred feet wide. Their title has since passed by regular mesne conveyance, to the Sapphire Silver Mining Company named above. After full preliminary compliance with the local rules and customs of miners, State and United States laws, application for patent was made October 16, 1866. The notice and diagram were duly posted on the claim and in the register's office, and the notice published the required length of time and no adverse claim filed. The application was not further pressed until June 19, 1874, when, on the application of said company, it was permitted to make entry of the premises. June 23, 1874, said company surrendered their duplicate receipt to your office and asked that patent issue to them. June 15, 1874, the Daney Gold and Silver Mining Co. filed an adverse claim and protest against the application for patent, alleging conflict to the extent of two hundred and fifty-eight feet in length by one hundred feet in breadth on the northern part of the Sapphire Co.'s claim. The notice and diagram of the Sapphire Co., which the Daney Co. claim are insufficient, are more definite than the |