In 1936 and 1938 defendant and his predecessors in interest located three placer claims
Expert testimony, and that of practical miners, was introduced by both parties
The trial court found that the exterior boundaries of the contested area lie within the 8 to 10 square mile surface dimensions of a mass of pyroxenite, and igneous rock containing several different minerals; that listed according to average percentage by volume, these minerals are pyroxene (60%), biotite (15%), magnetite (10%), perovskite (10%), and lesser amounts of apatite and ilmenite; that the minerals are distributed unevenly throughout the pyroxenite so that there are a great number of relatively high mineral segregations arranged in a generally haphazard fashion;
The findings of fact have complete support from the testimony of the defendant’s experts,
The general mining laws of the United States provide two methods of locating and acquiring unappropriated mineral lands. Lode mining claims are required
“Section 2318 provides that all ‘lands valuable for minerals’ shall be reserved from sale, except as otherwise expressly directed. Section 2319 declares that ‘all mineral deposits in lands’ belonging to the United States shall be open to exploration and purchase. Section 2320 specifies the method by which ‘veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits’ may be secured, and section 2329 provides that ‘claims for placers including all forms of deposit, excepting veins of quartz or other rock in place may be entered and patented.’ The ‘mineral deposits’ treated in this legislation include nonmetalliferous deposits, alum, asphaltum, borax, guano, diamonds, gypsum, resin, marble, mica, slate, amber, petroleum, limestone, and building stone, as well as deposits bearing gold, silver, and other metals, and the term ‘lands valuable for minerals’ in the law means all lands chiefly valuable for any of these mineral deposits rather than for agricultural purposes. Northern Pacific Ry. Co. v. Soderberg,188 U.S. 526 , 534-537,23 S.Ct. 365 ,47 L.Ed. 575 ; Pacific Coast Marble Co. v. Northern Pacific R. R. Co., 25 Land Dec.Dept.Int. 233, 240. Thus it clearly appears that the plan of this legislation was to provide two general methods of purchasing mineral deposits from the United States • — one by lode mining claims where the valuable deposits sought were in lodes or veins in rock in place, and the other by placer mining claims where the deposits were not in veins or lodes in rock in place, but were loose, scattered, or disseminated upon or under the surface of the land. The test which Congress provided by this legislation to be applied to determine how these deposits should be secured was the form and character of the deposits. If they are in veins or lodes in rock in place, they may be located and purchased under this legislation by means of lode mining claims; if they are not in fissures in rock in place but are loose or scattered on or through the land they may be located and bought by the use of placer mining claims. Reynolds v. Iron Silver Mining Co.,116 U.S. 687 , 695,6 S.Ct. 601 ,29 L.Ed. 774 ; Clipper Mining Co. v. Eli Mining & Land Co.,194 U.S. 220 , 228,24 S.Ct. 632 ,48 L.Ed. 944 ."
There can be no unyielding rule of thumb definition of a vein or lode; each case must be decided with reference to its own peculiar facts. Lindley on Mines, Vol. 1, 3d Ed., § 289.
“Thus the two essential elements of a lode are (a) the mineral-bearing rock, which must be in place and have reasonable trend and continuity, and (b) the reasonably distinct boundaries on each side of the same.” [102 Colo. 230 ,78 P.2d 968 .]
However, the boundaries or walls do not have to be visually discernible, but instead can be established by assay analysis. Hyman v. Wheeler, C.C.Colo.,
The three placer claims were located for the mineral vermiculite, a form of altered mica, and a good grade of vermiculite was tested and developed in nearby mills.
It is quite evident here that plaintiffs’ claim covered no well-defined veins or lodes as those terms are ordinarily used, unless it can be said that the entire area was a single lode. The record discloses that we are dealing with a large, shapeless, coarsely grained mass of ore which, with the possible exception of the disintegrated top portion, is “in place” in the sense that it is in a fixed position. However, the mass extends over several miles of country and has no known dimensions or boundaries and none of the ordinary lode characteristics, not even as to the method of recovering the minerals. The theory that the entire mass is a lode in place with undetermined boundaries would create a single lode covering somewhere between 8 to 12 square miles.
The import of the testimony of plaintiffs’ witness Griffith, who made some of the locations for the plaintiffs on deposits of black iron,
Concern is expressed that, in effect, the trial court’s findings and conclusions establish the broad principle that mineral-bearing rock in place may never be located as a lode unless there is a conventional vein formation, and that they permit a placer location on mineral-bearing rock in place. We think the decision goes no further than to find that there were no lodes or veins in the mineralized mass and that the entire mass of pyroxenite was not shown to be a single lode or vein.
There is no merit in plaintiffs’ contention that the trial court erred in striking the testimony of the witness Koch or in giving consideration to the placer patent issued on ground within the same area and in refusing to consider three nearby patented lode claims.
Koch, an employee of the Bureau of Land Management, testified on the issue of whether the ground was locatable as placer or as lode. The court struck the testimony when the witness refused on cross-examination to produce a report which he had made following his examination of the premises and had submitted to the Bureau. We need not consider the court’s action in striking this testimony, because if there was error, it was not prejudicial, as the testimony was merely cumulative of other evidence and added nothing new to plaintiffs’ case. Grand Valley Water Users’ Ass’n v. Zumbrunn, 8 Cir.,
Complaint also is made of the court’s action in largely disregarding evidence admitted to show that lode locations had been made within the disputed area. The weight to be given that evidence was for the trial court, whose determination in that regard did not constitute error. Nor did the trial court commit error by considering a Colorado District Court decision which held that a nearby area was placer, for, while not conclusive, it could be considered the same as any other case involving similar facts.
Affirmed.
Notes
. These claims were known as “Tar Baby-Placer No. 1,” “Tar Baby Placer No. 3,” and “Northside No. 13 Placer Mining Claim,” and they contained a total of 480 acres.
. The U. S. Department of the Interior Geological Survey of the area, 'written by E. S. Larsen, describes it as follows:
“One of the most prominent characteristics of the pyroxenite is its variability: Almost any exposure a few feet long will show in different parts conspicuous differences in texture and to a less extent in the proportion of minerals. Less common bodies carry variable amounts of minerals not found in the normal rock. The different types are present in streaks, many of them less than a foot across, and in bunches mostly less than a few tens of feet across. Many of the variations show sharp contacts, and the different kinds of rock appear to intrude one another in a most complex way. Some of the streaks and many of the less regular bunches show a gradational zone, usually narrow, to the normal pyroxenite.”
. Illustrative of this evidence describing the deposit is the testimony of a mining engineer, which was as follows:
“A. Because, as 1 say, to me it is a big huge massive deposit that is spread over this whole area. It is a complex deposit, that is true, and it is variable, but it covers the whole area.
“Q. What are the various different minerals that you found when you examined this area? A. Magnetite, the various mica minerals, vermicuiitc, perov-skite, it is very difficult with the naked eye to separate perovskite from magnetite.
“Q. Were you able to find any walls in between those various minerals that you have mentioned? A. I would not describe them as walls. As I say, there is a variation in grade, and to me there are no walls there, and, if there are, if there could be a difference, it would be so grada-tional that you could never pin it down either vertically or horizontally.”
. Referring to the acceptance of judicial definitions of lode deposits or placer locations, Lindley said:
“The danger lies in accepting the definitions of either as broadly comprehensive or rigidly restrictive, and attempting to apply them to conditions not within the reasonable contemplation of the law, or in attempting to deprive a locator of the benefit of his discovery, if the thing discovered cannot be forced into the mold of arbitrary definition, either popular or scientific.”
. In the Cheesman case, the court quoted Justice Field in Eureka Consolidated Mining Co. v. Richmond Mining Co., Fed. Cas.No. 4,548, as follows:
“ * * * ‘It is difficult to give any definition of this term as understood and used in the acts of congress, which will not be subject to criticism. A fissure in the earth’s crust, an opening in its rocks and strata made by some force of nature, in which the mineral is deposited, would seem to be essential to a lode in the judgment of geologists. But to the practical miner, the fissure and its walls are only of importance as indicating the boundaries within which lie may look for and reasonably expect to find the ore he seeks. A continuous body of mineralized rock lying within any other well-defined boundaries on the earth’s surface, and under it, would equally constitute, in his eyes, a lode. We are of the opinion, therefore, that the term as used in the acts of congress is applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock.’ * * * ”
. The record does not show the mineral characteristics of “black iron.”
. Alfred G-. Hoyl, an experienced mining engineer and geologist who was familiar with the land and had done assessment work thereon, testified that in his opinion it should be considered “placer ground.” By way of explanation, he testified:
“Q. Would you state the reasons for that opinion? A. Well, my reasons are quite practical. To begin with, the area is rather large in extent. Now, over this large area almost all of it is ore. Now, it varies in grade over this area and laterally as well as vertically. There is a considerable variation, but it is still ore. Now, the alluvial placer covers a considerable part of the area as well as the eluvial placer. Furthermore, there have been a tremendous number of cuts, you might say, for a mining property such as this made over the whole extent of the property, and most of those have been made with a dozer or hand pick and shovel, and in addition to that we have drilled approximately 10 holes in this ground varying from about 12 to 145 feet in depth, and we find that this weathering extends for some distance into the ground. It has been our understanding that in areas nearby in similar geologically, in this geological igneous stock that there are patented placer claims.
“Q. How large an area does this stock cover? A. It covers approximately 12 square miles I would say.
“Q. You say that your drilling discloses the fact that weathered and soft material existed down under the surface for soma distance. How far does that extend?
A. Well, in some holes we have encountered it at depths of approximately 100 feet. I would like to qualify that in that we found this large crystalline structure, that is, from the standpoint of rock it is quite incompetent and will break down very easily. We have had our holes eroded just from the air used in drilling and widen out and produce a considerable amount of drill cuttings more from the erosion of the air than from the drilling. $ 3$ $
“Q. Are you familiar with the so-called, what the plaintiff refers to as veins of magnetite-perovskite that extend in this area and are seen on the surface? A. I don’t know just what he does refer to, because to me they are not veins. This material extends over this whole area in varying degrees both vertically and horizontally, and the important minerals are magnetite, perovskite, and vermiculite.
“Q. They extend through in the entire area, is that correct? A. Yes, Sir.”
. The witness defined “eluvial” and “alluvial”, as follows:
“ * * * A. Eluvial means that we are dealing with a weathering process or disintegration of a rock body which has been caused by the weathering forces which are present in the environment where the rock is located, and when we refer to an eluvial placer we in general mean that there has been very little transportation of the material. Of course, there will have always been some if from no other source than wind.
“Alluvial placers, we generally imply that transportation has been involved; the disintegration of the rock particles was caused by much the same forces which cause disintegration of the material in eluvial placers. In- addition, there may be — -there may have been some more disintegration caused by the transporting medium, wind, water, glacial ice, and so on.”
. The court used this language: “So here, if the deposit, this mineral deposit occurs in veins or lodes of rock in place, of necessity the claims would have to be located as lode claims. Otherwise, they would be locatable as placer claims under the terms of the statute.”