Colorado Paper - Imaginary Boundaries

In my paper on " End-Lines and Side-Lines in the Mining Law," read at the New York meeting of February, 1889 (Trans., xvii., 787), I discussed certain points involving the rights of a locator, B, who had located and surveyed a piece of ground, X + Y, of which only Y was properly subject to location, X being already held by another claimant, and had applied for and received a patent, granting X + Y, " excepting and excluding X." The paper concluded with the following questions : " Is there any difference in effect between the grant to him of Y simply and the grant of X + Y, ' excepting and excluding X' ? Why should any mining locator stake out his boundaries upon another location, and thus appear to assert a claim which he immediately withdraws? What is the legal force of such boundaries, established upon the land of another?" After calling attention to the fact that the entrance upon another's land for such a purpose is a trespass, and the principle that no trespasser can create by his trespass any right which he would not have without it, I reserved to another occasion a review of the history of the absurd practice of imaginary boundaries for mining claims, and a discussion of their legal effect. This practice is founded, of course, in the regulations and decisions of the United States General Land Office. There is nothing in the Revised Statutes which hints at it. On the contrary, the terms of Section 2322, giving to a locator " the exclusive right of possession and enjoyment" of the surface of his claim, seems clearly to forbid the use of that surface for the boundary-stakes of another locator. But the Act of 1866, though it provided for the issue of patents upon payment to the Government of so much per acre, and really by implication (as I have always believed) involved the absolute grant of the surface, was not so construed by the courts generally, or by the Land Office. Surveys were laid one over another in inextricable confusion, and the United States sold at $5 per acre the