The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1915-05-06
FOR PLACERS
EXCLUDE KNOWNLODEs
AN INTERESTING SUBJECT DIS.
cUssE0 IN RECENT DECISION
IN A MONTANA CASE.

In the recent case of Clark Montana
Realty Co. VS. Ferguson Els Fedora
Reporter 959, the United States district
court for the district of Montana de
cided the following matters pertaining
to lodes within placer claims:
An Unwarranted Clause.
When placer patent is applied for
the land department requires evidence
in relation TO the character Of the land
AttidaVits are presented by the appli
cant. If the proof is that lodes ar
known to exist within the placer claim
the applicant is required to survey
them, and if not claimed, and as know
lodes included in his application he Is
required to exclude them, whereupol
he enters and pays for only the net
area of his placer claim and patent is
sues to him, conveying said net ares
alone. Ii the proof is that lodes arr
mot known to exist within the placer
claim, the applicant enters and pay
for the entire area of his placer claim
and patent issues to him. conveying
the whole thereof, but the land de
partment inserts in the nature of AZ
exception that should any lode be
known or claimed to exist when the
patent was applied for, It is expressly
excepted although not detined) from
the grant, There Is no warrant in Law
for this insertion and 1t Is broader thar
the law implies, If the statute implies
Iany exception. Perhaps the reason
that it is held that the law doe
imply an exception Of known lodes
contrary to the holding in tho
matter of patents by virtue of analog
Gus laws and inappropriate lodes ant
mineral lands, is that this land depart
ment practice confronted in the frs
case involving this question, if no
given undue weight, at least suggeste
the eXceptlon-more suggested it tha'
did settled principles Of construction
Since lodes known to exist are except
ed from a placer grant, title to ther
continues in the United States an
they are open to location as lodes II
public land and by any one at any
time.
Must Prove Known Lodes.
IF located in any controversy in
volving the respective rights of tn
lode claimant and the placer patented
the burden Is on the lode claimant t.
prove the lode was known to exis
for. And the proof in effect impeach
ing the patent proceedings, If not thu
patent, for fraud, seeking to Withdraw
from a solemn grant over the seal
the United States premises prima faci,
conveyed by it, must be clear an
convincing, in quality and quantit,
that inspires confidence and produce.
conviction.
ITO establish that a lode known t
exist when the placer patent was ap
piled for, 1t must appear that at thai
time the lode was clearly ascertainet
and defined, and Of such known exten
and content that in view of all circum
stances and conditions affecting it.
worth, such as the importance attach.
ed locally to like lodes under similar
conditions, ease or difficulty of devel-
opment, facilitates for ore treatment
cost Of mining and reducing ores, rea-
sonable probabilities or development,
and the like, it then would have justi.
fed location, development, and ex.
ploitation, and because of which Il
and the area attaching to or excluded
with 1t then We're valuable, and more
valuable than for placer mining pur-
poses.
Value Must Be Shown.
"Float, outcrop, lodes and aband-
oned lode locations, separately or com
bined, are not sufficient to constitute
lode known to exist within the eXcep
tion Of a placer patent. In addition
must be the known quality above de-
fined And the reason Is that lode'
exist Throughout the mining country