A treatise on American law relating to mines and mineral lands within the public land states and territories and governing the acquisition and enjoyment of mining rights in lands of the public domain

Lindley, Curtis H. (Curtis Holbrook) · 1897 · Historical

Et opus despcratum, quasi per medium jyrofunduin euntes, ccelesti favorc jam adimplevimus. Et opus despcratum, quasi per medium jyrofunduin euntes

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A TREAjriSE

j 2 ON THK

' American Law Relating To Mines

And Mineral Lands

I Within The

PUBLIC LAND STATES AND TERRITOklES

And

GOVERNING THE ACQUISITION AND ENJOYMENT "; OF MINING RIGHTS IN LANDS OF

I The Public Domain

By

Curtis H. Lindley

'' Of the San Francisco Bar

In Two Volumes

VOIiUME II

hold every man a debtor to hu p'ofession; from the which, as men of coiirftc do tteek to receive countena7icc and profit, so ought they of duty to endeavor themttelves, by way of amends, to be a help and ornament thereto,*

it

*Et opus despcratum, quasi per medium jyrofunduin euntes, ccelesti favorc jam adimplevimus.

— From Dedication of Justinian'8 IwttHtites.

San Francisco

Bancroft -Whitney Company

Law PVRLI8HER8 AND LaW BOOKSELLERS

The New York

w

mm

Ast')R. Tildkn

Lenox Am) Foindations 1946 L

Oopybioht, 1897,

By

Cubtis H. Lindley.

Chapter Iii.

The Extra Lateral Right.

Article I, Introductory.

ii. extralaterat. rlqhts on the original lode under Patents Issued Prior to May 10, 1872.

III. Extralateral Rights Plowing from Locations Made

under the Act of May 10, 1872, and the Revised Statutes.

IV. Extralateral Rights on Other Lodes, Conferred

BY THE Act of 1872 on Owners of Claims Previously Located.

V. Construction of Patents Applied for Prior, but Issued Subsequent, to the Act of 1872.

VI. Legal Obstacles Interrjjpting the Extralateral Right.

Article I. Introductory.

564. Introductory.

5()5. Orifi:in and use of the term extralateral.

i 566. The " dip right under local rules.

5J 567. The right to pursue the vein

in depth, prior to patent, under the act of July 26,

§ 568. Nature of estate in the vein, created by grant of the dip or extralateral right.

g 564. Introductory. — The extralimital rights of a lode locator, other than the right to pursue the vein on its downward course out of and beyond his vertical bounding planes, are few and comparatively unimpbrtant. The right to locate and hold a millsite in connection with a located lode under the first clause of section twenty-three hundred and tliirty-seven of the Revised Statutes, may be said

§ 565 Introductory. 672

to be extralimital. It is wholly dependent upon lode ownership. A loss of the lode location by forfeiture or abandonment would undoubtedly destroy the right to the associated millsite, unless it had thereon a quartz mill or reduction works, when an entry might be made thereof under the second clause of that section.

But the selection of a millsite is an independent act.* It is a privilege which may or may not be exercised. The same may be said of the permission granted by the act of June 3, 1878, to cut timber for mining purposes upon public lands, which is a mere transitory privilege, not to be classified distinctively as a right.

The principal right which may be exercised beyond the boundaries of a lode location is that which is now commonly designated by the term " extralateral."

In determining the nature and extent of this right, it will be necessary to consider not only the provisions of the Revised Statutes, but also the act of July 26, 1866. As we have heretofore observed, to a considerable extent this act and the titles issued under it are brought into connection, and are at least partly Wended with the later, or present, legislative system and the titles held thereunder.

§ 666. Origin and use of the term ''extralateral." —

The word extralateral does not appear in any of the standard dictionaries. We are indebted to Dr. Raymond for its introduction into the mining literature of the period."* Its etymological signification is obvious. Its application, to denote the right to pursue a vein on its downward course, outside of and beyond vertical planes drawn through the side lines of a lode location, into and underneath the surface of adjoining or contiguous land, affords us a simple and comprehensive term with which to express a somewhat

See, ante, § 521.

20 Stats, at Large, 88. Amended, Aug. 4, 1892, so as to apply to all public land states and territories. 'See, aiite, g 60, p. 71.

Law of the Apex, Trans. Am. Inst. Min. Eng., vol. xii., p. 387.

673 THE "dip right" under local rules. §566

complex idea. The phrase "right of lateral pursuit," employed by Mr. Willard Parker Butler/ is an equivalent. Either expression, when used in connection with the federal mining laws, is free from ambiguity and sufficiently explicit.

g 566. The "dip right" under local rules.— The "dip " right" of the early miner was the parent of the modern extralateral right. Whether, in framing their local regulations on this subject, the pioneers of the west drew their inspiration from the traditions of early German customs, which sanctioned the inclined location,* received their suggestions from mining on " rake veins " in Derbyshire, or were induced to provide for following their vein on its dip indefinitely, on the consideration that the miner might obtain more that was valuable by this method than any other, is not at this late day necessary to inquire.

The fact remains, that ever since the discoverv of the auriferous quartz veins of California, the "dip right" in some form has been an all-important attribute of the ownership of lodes and lode locations. The local regulations which established and governed this right, as well as all others during that period, were not framed with serious regard to precision of expression. The locator was entitled to so many linear feet on the lode, in whatever direction it might be found to run, " together with all the dips, spurs, " angles, and variations of the vein."

Sometimes additions were made to this vocabulary. For example: The miners of Reese River, Nevada, provided that, —

" Each claimant shall be entitled to hold by location " two hundred feet on any lead in the district, with all " dips, spurs, and angles, offshoots, depths, widths, varia- " tions, and all mineral and other valuables therein con- "tained.""*

'School of Mines Quarterly, July, 1886. 'See, ante g 43.

J. Ross Browne's Mineral Resources, 1867, p. 247.

Rr

§ 56G Introductory. 674

These terms were supposed to be comprehensive enough to take laterally what the miner failed to obtain longitudinally. Much controversy arose in the earl}' days over rights asserted under the claim to "spurs"; but generally speaking, the extent and character of the "dip right" was weir understood and recognized. The exercise of the right was not hampered by bounding planes. As a rule, no surface lines were marked, and no surface occupant ever dreamed of contesting the privilege of a lode claimant of following his vein underneath such surface. Such privilege was sanctioned by the "American common law of " mining for the precious metals."*

Where surface boundaries were established, as they sometimes were, they were not looked upon as controlling any rights upon the located lode, either in length or depth.

If there were disputes as to the common bounding plane between two claimants on a lode, they were usually adjusted by common consent, or resulted in consolidation of interests and the establishment of a common system of development. The law reports covering this period are barren of cases touching this subject.

To assert that end lines were inferred, and that these should be drawn across the lode at a right angle, or at any other angle, to the general course of the lode, is a matter of speculative theory. Lodes did not then, any more than now, pursue a uniform course. The first locator on a continuous vein might comply with this supposed theory, but a claimant locating a part of the same vein some distance removed from the original locator, at a point where the vein had changed its course, would be compelled to accommodate himself to local conditions, leaving intermediate locators with end lines either converging towards or diverging from those established by one or the other of the previous locators.

Whatever may be said of the rule of implied end lines of locations made under the act of July 26, 1866, and their direction with reference to the course of the vein, it cannot

1 King V. Edwards, 1 Mont. 235. *See, ante, 59.

675 Bight To Pursue Vein In Depth, Prior To Patent. § 567

be demonstrated that any definite rule ever actually prevailed during the period when local rules and customs held unquestioned sway.

The nature and extent of the dip right, as established and recognized by the local customs and rules of miners during the period antedating legislation by congress, were substantially as above indicated.

g 667. The right to pursue the vein in depth, prior to patent, under the act of July 26, 1866. — Section four of the act of July 26, 1866, contained the following provision : —

" No location hereafter made shall exceed two hundred " feet in length along the vein for each locator, with an " additional claim for discovery to the discoverer of the " lode, with the right to follow such vein to any depth, " with all its dips, variations, and angles, together with " a reasonable quantity of surface for the convenient work- " ing of the same, as fixed by local rules. . .

This act was but the crystallization of the miners' rules and customs.* It in no respect enlarged the right of the claimant beyond that which the rules of the mining district gave him. It restricted the locator to one lode,' but made no provision for the establishment of surface boundaries as an act of location.

We are instructed by Judge Field, that although not in terms mentioning end lines, such were necessarily implied.*

Where surface land was appropriated in connection with a linear location on the ledge, it was intended solely for the convenient working of the mine, and did not measure the miner's right, either to the linear feet upon its course, or to follow the dips, angles, and variations of the vein.*

Jennison v. Kirk, 98 U. S. 453; Broder v. Natoma Water Co., 101 U. S. 276; Blake v, Butte S. M. Co., 2 Utah, 355.

Eureka Case, 4 Saw. 323.

Jd.; Eclipse G. & S. M. Co. v. Spring, 59 Cal. 304; Walrath v. Champion M. Co., 63 Fed. 552.

Eureka Case, 4 Saw. 323. See, atUe, i 58.

§ 567 Introductory. 676

The line of the location the number of linear feet claimed along the course of the vein, measured his right as to length.

While the act clearly granted the privilege of pursuing the vein in its downward course, there was no attempt at defining the bounding planes which limited the right.

While, as heretofore observed, end lines may have been inferred, for the simple reason that the miner's pursuit of the vein on its strike must cease at some point, the direction to be given to the lines and the angle at which they were to be drawn with reference to the course of the vein were not necessarily inferred. We have the highest authoritv for the statement that these end lines were not required to be parallel.

Judge Field has said in the Eureka case, that lines drawn vertically down through the ledge, or lode, at right angles with a line representing its general course at the ends of the claimant's line of location, will carve out, so to speak, a section of the ledge, or lode, within which he is permitted to work, and out of which he cannot pass. If the general course is to be considered as a straight line connecting the linear extremities of the location indicated thus, —

Vein.

by the dotted line, x rr, the application of Judge Field's rule would necessarily result in a parallelism of end lines, which he sayjs is not required. If each end line is to be drawn at right angles to the local trend, as indicated at the respective points where the linear measurement on the vein begins and ends, they never could be parallel, except in the case of ideal veins pursuing a uniform course.

While we may concede, for the purpose of argument, that the theory of the law of 1866 was to give to the miner only

1 Eureka Case, 4 Saw. 323; Iron S. M. Co. v. Elgin M. Co., 118 U.S.

677 Nature Of Estate Created By Grant Of The Dip. § 568

SO much of the vein underneath as he had appropriated upon the surface, the act did not define in what manner the bounding planes were to be established. The method suggested by Judge Field, applied to the ideal lode, would accomplish this result, the lines being parallel. The same object would be gained by drawing parallel lines across the vein at any angle. The truth is manifest. The act is crude and imperfect. Congress never anticipated the numerous intricate questions which might possibly arise under it, and the courts were compelled to exhaust their ingenuity in construing it so as to prevent the destruction of the large property interests which had grown up under the system of local rules which congress intended to perpetuate through the medium of congressional law.

What we have thus far said with regard to dip rights under the act of 1866 applies only to unpatented claims located under the act. The proceedings culminating in a patent gave greater precision to the location, and as a rule, definitely fixed that which theretofore was more or less uncertain.

There are but few instances, at the present time, of mining claims originating under this act which have been continuously perpetuated without applying for a patent.

Our object in presenting a review of the law was simply to show the historical evolution of the present extralateral right.

g 668. Nature of estate in the vein, created by grant of the dip or extralateral right. — Before proceeding to a detailed discussion of the nature and extent -of the dip or extralateral right as sanctioned by the legislation of congress, it is of considerable importance that we understand the underlying theory upon which the right is based. A proper conception of this theory will, in our judgment, materially aid us in reaching a correct solution of some of the complicated questions arising out of this element of the federal law.

In discussing some of the incidents of the ownership of

§ 568 Introductory. 678

veins, or of land containing them, the courts frequently refer to the common law rule of property, and in commenting upon that feature of the American mining law which awards under certain conditions the right to the pursuit of a vein outside of and beyond vertical planes drawn through the surface boundaries, draw the conclusion that this socalled dip or extralateral right is in contravention of the common law. Strictly speaking, this is inaccurate. The grant of the right of lateral pursuit is, in legal eflFect, a severance of the estate in the vein from the ownership of the soil into which it penetrates after passing beyond the vertical planes drawn through the surface boundaries of the location or patent.

The government being the owner of the fee may carve from it the ownership of the vein. It may grant the surface to one and the vein to another.

There was nothing in the common law which prohibited this severance. In fact, it was expressly sanctioned, as we have heretofore shown.

" Nothing was more common than to sell or demise a " piece of land, excepting the mines, and when the surface " and underlying mines or the different strata of the sub- " soil were differently owned, they were separate tenements, " with all the incidents of separate ownership — a distinct " possession and distinct inheritance.'

Therefore, when the government grants a vein with the right to pursue it in depth indefinitely, the title to the vein is severed out of the adjoining land into which it penetrates, and the estate in the land overlying the dip is to that extent lessened. Instead of being in derogation of the common law, this class of grants is in absolute harmony with it. it is not true, therefore, that the statute should be strictly construed because it contravenes the common law. This dip or extralateral right is not a mere easement. The estate thus granted in the vein is of the same dignity as that of a title in fee. It is a title in fee as to the vein granted. This grant of the fee in the vein may

' See, ante, I 9, and authorities cited in notes.

The Right To Patent Under Act Of 1866. § 572

be accompanied by certain easements. To illustrate: The right to follow the vein into adjoining lands frequently cannot be exercised without disturbing some portion of the inclosing rocks. The grant of the vein necessarily carries with it whatever is reasonably required for its enjoyment and without which the grant would be ineffectual. But the estate in the vein is a fee simple estate.

It may be said that these are elementary rules. This is quite true, but they are frequently either overlooked or ignored.

The act of 1866 was, in effect, a proclamation severing veins and lodes of the character specified from the body of the public domain. It was the announcement of a governmental policy, whereby ledges within the earth were to be considered as distinct entities, and to be dealt with as such in administering the public land system.

This policy has never been changed. It is as much a part of the existing system as it was of the one which it succeeded.

Article II. Extralateral Rights on the Original

Lode under Patents Issued Prior

TO May 10, 1872.

572. The right to patent under the act of 1866, and its restriction to one lode.

J 573. The functions of tlie diagram and the surface lines described in the patent as controlling rights on the patented lode.

J 574. Rights of patentee under the act of 1866, where the end

lines converge in the direction of tlie dip.

575. Rilits where tlie end lines diverge in the direction of the dip.

§ 576. Under the act of 1866, parallelism of end lines not rerequired — Doctrine of the Eureka case.

9 577. Conclusions.

g 672. The right to patent under the act of 1866, and its restriction to one lode. — The act of July 2G, 186G, contained the following provision: —

§572 Extralateral Rights On Original Lode. 680

" Whenever any person or association of persons claim " a vein, or lode, of quartz, or other rock in place, bearing " gold, silver, cinnabar, or copper, having previously occu- " pied and improved the same according to the local cus- " toms or rules of miners in the district where the same is situated, and having expended in actual labor and im- " provements thereon an amount of not less than one thou- " sand dollars, and in regard to whose possession there is " no controversy or opposing claim, it shall and may be " lawful for said claimant or association of claimants to file " in the local land oflSce a diagram of the same, so ex- " tended laterally or otherwise as to conform to the local " laws, customs, and rules of miners, and to enter such " tract and receive a patent therefor, granting such mine, " together with the right to follow such vein, or lode, with " its dips, angles, and variations, to any depth, although it " may enter the land adjoining, which land adjoining shall " be sold subject to this condition."

In another portion of this work we have commented upon the construction given to this section by the land department, and have there illustrated some of- the results flowing from the earlier attempts to administer the law.*

While the method of location sanctioned by this act has long since passed into history, and we are not necessarily called upon to speculate upon the subject of dip rights as applied to individual claims prior to patent, beyond the historical summary outlined in a preceding section, there is left us a legacy of numerous patents issued under th provisions of the repealed law, which, to some extent at least, demands serious attention. We shall always have these patents with us. While for many years they havb existed unobtrusively, in recent times, particularly in the older quartz camps of California, a revival of the mining industry has brought them to light, and the attention of the courts is directed to the adjustment of controversies arising out of rights asserted under them. They are entitled to more than a passing consideration. It is not to be expected that we should anticipate every possible question that may arise out of the peculiar form of some of

>See, antCj 59, figs. 1 and 2.

681 The Function Of The Diagram. §573

these early patents. Our purpose is to establish, if possible, the general rules of construction, to be applied to them as afiFecting the dip or extralateral right, but not to suggest grounds of attack or defense in individual cases, unless the points involved have heretofore forced themselves upon the notice of the courts.

With the exception of the hypothetical case discussed in a succeeding section, we are to construe these patents, at present, solely in the light of the act under which they were issued, without regard to any supplemental or additional rights conferred upon their owners by virtue of the act of May 10, 1872. They granted but one lode, which we call the original, to distinguish it from other lodes which might be ultimately discovered within the surface limits. These patents uniformly contained the following restrictive clause: —

grant hereby made is restricted to one vein, or

lode, with the surface ground ; to wit, the ledge,

" upon which the required improvements are found; and " that any other vein, or lode, should such be discovered " within the above described lot of land, shall be, and " hereby is, expressly excepted and excluded from these " presents."

g 673. The function of the diagram and the surface lines described in the patent as controlling rights on the patented lode. — It is unnecessary to elaborate what we have heretofore noted in the historical portion of this work, with reference to the effect of a patent issued under the act of 18G6, upon the right to pursue the vein on its course. We are now dealing with the pursuit of the vein in depth. The diagram required to be filed defined with certainty the extent of the miner's claim upon the lode. It also gave precision to the extent of surface which he was permitted to take in connection with the lode, under the local rules in force in the district. Where these rules fixed a uniform width of so many feet on each side of the vein, the

See, post, i 576. See, ante, I 59

§573 Extralateral Rights On Original Lode. 682

diagram as prepared, and the patent as subsequently issued, presented ypon the surface a symmetrical figure in the form of a parallelogram. In many districts, however, no definite area was fixed. In such cases, the claimant was authorized to select, adjoining his lode or some portion of it, such a quantity of surface as was reasonably necessary for his use in connection with the proper working of his vein. This was construed to mean ground for dumpage purposes, the erection of mills, the deposit of tailings, and other purposes connected with the conduct of mining operations, and resulted in passing to patent surface areas of all conceivable forms. The boundaries were fixed without regard to the course of the vein, nor was it originally contemplated that in fixing them they would control the miner*s rights upon his discovered vein. This came to him as a revelation after patents were issued and the courts commenced to construe them. Frequently, during the pendency of patent proceedings, adverse claims intervened, causing diminution of the area as shown upon the posted diagram, producing irregularity of form where, as originally applied for, it was regular. In many instances, no regard was paid to the direction given to the lines which we call end lines, marking the linear limits on the located lode. There was nothing in the letter of the law requiring the locator to treat this as an essential requirement.

These circumstances produced four classes of patents: —

First — Those which defined a small surface area upon which the improvements were situated, the length of the lode claimed being represented by a line produced as shown in the case of the Idaho mine, in figure 1 on page 67;

Second — Those whose end lines were substantially parallel, crossing the lode as shown in the case of the Providence mine, a diagram of which is shown in a succeeding section ;

Third — Those whose end lines crossed the lode, but converged ill the direction of the dip;

683 Rights Of Patentee Under Act Of 1866. §574

Fourth. — Those wherein such lines crossed the lode, but diverged in the direction of the dip.

Those of the first class are few in number. We are not aware that they have been involved in any controversy beyond that suggested in the Idaho-Maryland case in a preceding section.* They are relatively unimportant. This fact, together with motives of professional delicacy, excuse the author from discussing them.

Patents of the second class conform to the ideal standard, and present no possible ground for discussion.

The third and fourth classes, particularly the latter, require serious consideration.

As preliminary to the treatment of these two classes, we announce the view, that the direction of the end lines as defined in the patenty whether converging or diverging in the direction of the dipy control define, and limit the extralateral right. That is to say, the extent of the extralateral right is to be determined by reference to these end line boundaries, and not by imaginary or hypothetical planes, regardless of the direction of the patented end lines. Our reasons for this will be noted when dealing with the respective classes under consideration.

g 674. Rights of patentee under the act of 1866, where the end lines converge in the direction of the dip.

— It requires no argument to determine the extent of the extralateral right accorded to a patentee under the act of 1866, where the patented end lines converge in the direction of the dip. Our attention has not been called to the precise case where a patent of this character was issued prior to the passage of the act of May 10, 1872, but there are several instances where patents were issued upon proceedings instituted while the act of July 20, 1866, was still in force. The patent issued to the Wyoming mine, in Nevada county, California, which was involved in the case of Consolidated Wyoming Mining Co. v. Champion Mining Co.,-

See, ante, 59. '63 Fed. 540.

§574 Extralateral Rights On Original Lode.

was of this class. While the problem is so simple that illustration is almost superfluous, we present, in figure 31, a diagram showing the surface boundaries of the Wyoming mine and the course of the lode, which crossed both end lines.

Vertical planes drawn through these end lines, produced in the direction of the dip, indicated by the arrow, gave to the patentee the segment of the vein indicated in horizontal projection on the diagram by the triangle a b g.

It was conceded in this case, that whatever rights the Wyoming Company might have had prior to its application for patent, when it had its claim surveyed by the United States surveyor, and permitted him to give the

end lines the direction indicated, it was estopped under its patent from any further claim outside of the lines which were fixed by the surveyor; that as vertical planes drawn downward through these end lines, produced in their own direction, intersected along a perpendicular line represented by the point 6, the extralateral right ceased at this line of intersection.

A similar instance is illustrated in figure 15, page 417, which represents the patented surface area of the North Star mine, with converging end lines. In this case,* Judge J. H. Beatty, commenting upon this convergence, said, —

" That the end lines are not parallel, cannot be the basis " of an objection, because their convergence, when extended " in the direction of the dip of the vein, would give defend- " ant less, instead of more, than the law provides for."

J Carson City G. & S. M. Co. v. North Star M. Co., 73 Fed. 697.

Figure 31.

685 Rights Of Patentee Under Act Of 1866. §575

It would be absurd to say that the courts can readjust the patented lines so as to perfect the grant to a uniform length throughout the depth. Courts cannot grant anything; their function is limited to the interpretation of the instrument of conveyance.

It is unnecessary to here discuss the force and eflfect of a patent issued upon proceedings pending and undetermined at the time the act of May 10, 1872, was passed. We shall have occasion to consider this question in a subsequent article. The rule announced by Judge Beatty, which had been conceded in the Wyoming-Champion case, is undoubtedly the correct one to be applied to patents issued under either act.

§ 676. Rights of patentee under the act of 1866, where the end lines diverge in the direction of the dip.

— For the purpose of illustrating a case where the end lines diverge in the direction of the dip, we may take the patented surface area of the Wyoming mine, shown in figure 31, simply reversing the direction of the dip, as indicated by the arrow. Producing these end lines indefinitely in their own direction, as shown on the accompanying diagram, figure

32, it is manifest, that

the farther these lines

s

are produced, the /

greater the length of the lode included be- k tween them, so that, if vertical planes drawn through these extended end lines define the extralateral right, the patentee receives more of the vein in length

beyond his side lines than he has within his surface boundaries. As the courts cannot convey to a patentee more than his patent lawfully covers, they cannot deprive him

Figure 32.

(

§575 Extralateral Rights On Original Lode. 686

of anything legally embraced within it. The sole question involved is, What passes by such an instrument? We are not particularly concerned with the phraseology of the patent. The land department is but an agent of the government, and its powers can only be exercised within the linxits fixed by the act. The patent cannot be broader than the law.

It may be assumed, that the instrument of conveyance describes the surface boundaries, and grants the tract thus described, together with the right to follow the vein, or iode, to the distance expressed in linear feet, which may be assumed to represent the length between the two end lines, " with its dips, angles, and variations to any depth," as specified in the statute.

The question presented by the hypothetical case under consideration suggests several methods of solution, out of which the true one is to be selected.

(1) As by the direction given to the end lines the claimant has asserted a right to more linear feet of the vein in depth than he has included within the surface boundaries, therefore he shall have none of the vein beyond the vertical planes drawn through the surface boundaries. In other words, the patentee's rights are exclusively intralimital, as in the case of irregular locations under the act of 1872.

(2) As the theory of the act was, that the patentee should only have so much of the length of the vein throughout its entire depth as he has linear feet within his surface boundaries, the courts must whet the judicial carving-knife and lop off, at one end or the other, such a segment of the vein as will rectify the inequalities of length.

(3) The patentee is entitled to so much of the vein throughout its entire depth as is found within vertical planes drawn through the end lines, extended in their own direction, regardless of their divergence or non-divergence in the direction of the dip.

1 See, ante, I 552.

687 Parallelism Not Required By Act Of 1866. § 576

However plausible may be the reasoning in support of one or the other of these suggested methods, no solution will be accepted which is not in consonance with principles which have received the highest judicial sanction, nor which does violence to the rules of interpretation which, by reason of their frequent reiteration, have become axiomatic. What are these principles and rules which may be fairly invoked in aid of a correct solution, and which maybe stated without begging the question? There are at least two, which, in our judgment, cannot be challenged. They may be thus enunciated: —

First — Under the act of 1 866 y parallelism of end lines was not required:

Second — The extent of the lights conferred by the patent mtist be measured with reference to the direction of the surface lines as described in that instrument There can be no arbitrary or conventional readjustment of such lines after patent for any purpose.

If these propositfons are correctly stated, and their binding force is unequivocally established, they may afford, in connection with their corollaries, the key to the situation. We will consider them in the order named.

g 676. Under the act of 1866, parallelism of end lines not required — Doctrixie of the Eureka case. — There is probably no single case found in the books which is more familiar to the mining practitioner than the one generally known as the "Eureka case," tried before Justice Field and Judges Sawyer and Hillyer, three of the most eminent mining judges of the west. The opinion written by Justice Field has always been regarded as a judicial classic. Therein was announced the first judicial definition of the words "lode" and "vein," subsequently adopted by the supreme court of the United States, and reannounced by the courts of last resort in all the raining states and territories. We are presently concerned with so much of the opinion only as affects the subject of the dip or extra-

§576 Extralateral Rights On Original Lode.

lateral right as applied to mining claims acquired under the act of July 26, 1866.

In order to apply the doctrine of that case to the hypothetical one under consideration, as well as for purposes of convenience, we herewith reproduce the diagram accompanying the opinion.*

Figure 33.

For illustrative purposes, we have produced the east end lines of the At Last and Margaret claims in the direction of the dip, as indicated by the dotted line, thus showing a state of facts similar to thaf now under consideration and exhibited in figure 32.

The Eureka Company, plaintiff in the case, asserted the right to so much of the "Potts Chamber" as lay to the east of a vertical plane drawn through the west end lines

U Saw. 302; 9 Morr. Mid. Rep. 578; 8 Fed. Cases, 819.

689 Parallelism Not Required By Act Of 1866. § 576

of the Champion, At Last, and Margaret claims, produced, that is, the line W X C.

Objection was taken by defendant to the validity of the patents to these two claims, because the end lines ot the surface locations as patented are not parallel, as required by the act of 1872, both patents having been issued subsequent to the passage of the act. When the locations were made upon which the patents were based does not appear. It must be noted that the Eureka Company as plaintiff in the case was compelled to affirmatively establish its right to the ore bodies in dispute. Therefore, the extent of its extralateral right was necessarily involved. We quote so much of the opinion of the court as deals with this particular branch of the case.

"Within the end lines of the locations, as patented in " all these cases, when drawn down vertically through the " lode, the property in controversy falls. Objection is taken " to the validity of the last two patents, because the end lines of the surface locations patented are not parallel, as " required by the act of 1872; but to this objection there " are several obvious answers. .

" In the first place, it does not appear upon what loca- " tions the patents were issued. They may have been, and " probably were, issued upon locations made under the act " of 1866, whete such parallelism in the end lines of surface loca- " tions was not required. The presumption of the law is, " that the officers of the executive department specially " charged with the supervision of applications for raining " patents and the issue of such patents, did their duty; and " in an action of ejectment, mere surmises to the contrary " will not be listened to. If, under any possible circumstances, a patent for a location without such parallelism " may be valid, the law will presume that such circum- " stances existed. . . .

" In the second place, the provision of the statute of " 1872 requiring the lines of each claim to be parallel to " each otlier, is merely directory, and no consequence is " attached to the deviation from its direction. Its object is " to secure parallel end lines drawn vertically down, and " that was effected in these cases by taking the extreme " points of the respective locations on the length of the " lode.

ss

§576 Extralateral Rights On Original Lode. 690

" In the third place, the defect alleged does not concern " the defendant, and no one but the government has the " right to complain."

When the case reached the supreme court of the United States on writ of error, that court, speaking through Chief Justice Waite, said: —

" Upon the face of the patents, the United States has " granted to the Eureka the right to all veins, lodes, and " deposits, the tops, or apices, of which lie on the inside of " its surveys as patented, throughout their entire depth and " wherever they may go, provided it keeps itself within the " end lines of the surveys. The findings, that the ground " in dispute is within the end lines, and that the apex is " within the surface, settles the rights of the parties be- " tween themselves, as well under their patents as under " their compromise agreement."*

In the Elgin case, the same court, speaking through Justice Field, modified the views of the trial court expressed in the Eureka case (without referring to it), with respect to the efifect of non-parallelism of end lines, under the act of 1872, but re-announced the rule, that such parallelism was not required under the act of 1866."

The rule has ever since been fully recognized and followed in the circuit courts.'*

What are the logical results flowing from this doctrine as applied to the exercise of the extralateral right in cases of diverging end lines, as illustrated in the hypothetical case under consideration? The statement of the rule, that parallelism of end lines was not required under the act of 1866, is the announcement of something more than a mere abstraction. The necessity for parallelism was not urged in any of the cases heretofore cited, for the purpose of assailing any intralimital rights. Even under the act of 1872, which requires parallelism, a disregard of this requirement does not afifect this class of rights.

Richmond M. Co. r. Eureka M. Co., 103 U. S. 839, 847.

'Iron S. M. Co. v. Elgin M. Co., 118 U. S. 196, 208.

s Walratb v. Champion M. Co., 63 Fed. 552, 556; Cons. Wyoming G. M. Co., Id. 540, 550; Carson City G. <fc S. M. Co. v. North Star M. Co., 73 Fed. 597,599. *See, ane, }552.

691 Parallelism Not Required By Act Of 1866. § 576

The conclusion drawn from the adjudicated cases is irresistible, that a patentee under the act of 1866, with diverging end lines, is entitled to pursue his vein on its downward course, outside of and beyond a vertical plane drawn through his side boundaries. The only remaining question to be determined is. Within what limits may the right be exercised?

Judge Field, speaking of the local rules before the court in the Eureka case, said : —

" What the miners meant by allowing a certain number " of feet on a ledge was, that each locator might follow his vein for that distance on the course of the ledge, and to any depth within that distance. So much of the ledge he " was permitted to hold as lay within vertical planes, drawn downward through the end lines of the location, and could be measured anywhere by the feet on the surface. If this were not so, he might, by the bend of his vein, hold under the surface along the course of the ledge double and treble the amount he could take on the surface. Indeed, instead of being limited by the number of feet prescribed by the rules, he might, in some cases, oust all his neighbors and take the whole ledge. No construction is permissible which would substantially defeat the limitation of quantity on a ledge, which was the most important provision in the whole system of rules."*

And yet he sustained the Eureka's right, under its patent, to an ore body lying outside of the surface boundaries, within diverging end line planes, and the appellate court assigned as one of its reasons for aflBrming the judgment, that the ore body in dispute was so situated between such planes.

Suppose the ore body in dispute had been found to the west of and immediately adjoining the extended easterly end line of the Margaret and Last Chance at the point 2, on figure 33, and the Eureka had been called upon to affirmatively prove its right to it, would not the same rule be equally applicable? Would not the doctrine apply to any ore body, part of the continuous vein,

1 Eureka Case, 4 Saw. 302.

§676 Extralateral Rights On Original Lode. 692

encountered at any intermediate point between the extended end line planes? It seems to us that the doctrine of this case gives to the patentee all portions of the vein embraced between the two planes; and the fact, that it gave him more in depth than he had on the surface, cannot be invoked to control or qualify the plain proposition of law announced by the court. The fad, that the courts upheld the contention of the Eureka Company as to the effect of the compromise agreement, which was also involved in the case, does not militate against the force of its ruling as to that company's rights under the patent. Both questions were involved, were separately discussed, separately considered and decided.

We do not conceive that Judge Field intended to convey the idea, that while the extralateral right might be exercised to some extent in the case of diverging end lines, the courts could define that extent in an action between private parties by constructing an end line plane and cutting off an underground segment of the vein at one end or the other, so as to equalize the length throughout. There can be no arbitrary or conventional readjustment of lines after patent. The courts cannot make locations for mining claimants. They cannot relocate the claim and make new side lines or end lines/ This rule is just as applicable to patents issued under the act of 1866 as it is to those acquired under the existing system. This follows as a logical deduction from all the decisions promulgated since the FlagstafF-Tarbet case.

It seems to us, that the patentee of a lode claim issued in the form and under the conditions illustrated by figure 32, is entitled to all the vein betweeen the end line planes extended in their own direction. Congress contemplated that such results might legally flow from patents issued under the act of 1866, and to prevent the future possibility of such inequalities arising, inserted in the act of 1872 a mandatory provision requiring all end lines thereafter to

'King V. Amy ifc SUversmith M. Co., 152 U. S. 222, 228.

693 Conclusions. § 577

be parallel. If the courts were permitted to readjust lines under the prior law, so as to avoid such results, there would have been no necessity for this provision of the later act. The mischief under the old law was, the possibility of a patentee obtaining more of the vein in depth than he had on the surface. The remedy was found in the provision requiring end lines to be parallel.

It may be said, that patents issued under the act of 1866 did not contain any granting clause giving to the patentee all parts of the vein lying between vertical planes drawn through the end lines, extended in their own direction. This is quite true. If such were not the legal effect of the patent, the act of May 10, 1872, supplied this clause.

Section three of this act* provided that, —

" The locators of all mining claims heretofore made . . . " shall have the exclusive right of possession and enjoy- " ment of all the surface included within the lines of their " locations, and of all veins, lodes, and ledges throughout " their entire depth, the top, or apex, of which lies in- " side of such surface lines extended downward vertically, " although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to " extend outside of the vertical side lines of such surface " locations; but their right to possession to such outside " parts of such veins, or ledges, shall be confined to such " portions thereof as lie between vertical planes drawn " downward through the end lines of their locations, so " continued in their own direction that such planes will " intersect such exterior parts of such veins, or ledges."

The grant is not confined to locations theretofore made, the end lines of which were parallel, but included all mining locations theretofore made.

The provision for parallelism of end lines is found in section two of the act," and of course applies only to claims located subsequent to its passage.

g 677. Conclusions. — We think we have shown abundant justification for the conclusion, that whatever may be the form of a surface area described in a patent issued

1 Rev. Stato.. I 2322. Rev. StaU., 2320.

§ 581 Extralateral Rights Under Act Of 1872.

under the act of 1866, the extralateral right of the patentee is to be defined by drawing vertical planes through the end lines, produced in their own direction indefinitely. The end lines are such as cross the originally located lode. Whatever segment of the lode may be found between these end line planes belongs to the patentee.

If by any process of reasoning this doctrine may be qualified, no one but the government and the patentee can complain. Neither subsequent appropriators of the surface overlying the dip beyond the patentee's side lines nor adjoining locators have any cause of complaint.'

Article III. Extralateral Rights Flowing from

Locations Made under the Act of May 10,

1872, AND the Revised Statutes.

i 581. Introductory.

i 582. Parallelism of end lines a condition precedent to the exercise of the extralateral right.

i 583. Entire width of apex to be included in the location — " Broad lodes."

i 584. Vein entering and depai*ting through the same side line.

i 585. The extralateral r igli t applied to the ideal lode.

J 586. Vein crossing two parallel side lines — The Flagstaff case.

?587. Same— The Argentine-Terrible case.

§ 588. Same — The King-Amy case.

589. Deductions from side-end line cases — Extralateral

right in such cases defined by vertical planes drawn through the side-end. lines produced.

2 590. Vein crossing two opposite non-parallel side lines.

1 591. Vein crossing one end line

and a side line.

2 592. Vein with apex wholly within

the location, but crossing none of its boundaries, or entering at one end line and not reaching any other boundary.

2 593. Extralateral right as to veins other than the one upon which the location is based.

i 594. Conclusions.

g 681. Introductory. — We are now to consider the subject of extralateral rights flowing from locations initiated

1 Eureka Case, 4 Saw. 302.

695 Parallelism Of End Lines Essential. §582

subsequent to the passage of the act of May 10, 1872, and to note the conditions and limitations under which they may be exercised. No branch of the mining law presents so many intricate and varied questions, and there is none more difficult to treat comprehensively and concisely. Certain important principles governing it have been established, and are beyond the domain of speculation. Others await the decision of the supreme court of the United States, the final arbiter upon all questions arising under tlie federal laws.

Manifestly, the application of the law to individual cases requires the consideration of physical conditions existing in each. Where a patented surface area is invaded, the patentee need but produce the instrument under which he deraigns title from the paramount proprietor, to put the invader upon proof of justification; but where, in pursuit of his vein on its downward course, out of and beyond vertical planes drawn downward through his surface boundaries, his right is challenged, he is called upon to show something more than appears upon the face of the patent, and establish facts, tlie existence of which are not even, pHma facie, presumed from that instrument.

Naturally, therefore, the discussion leads us into geological questions, sometimes simple, at others complex. The peculiar facts found in one case may never have their precise parallel. For that reason, each case presented must be analyzed in the light of the facts established, or as they appeared to the court deciding it. We may have to reach the ultimate goal by circuitous routes and easy stages, but we do not anticipate meeting with insurmountable obstacles.

Let us first consider the circumstances under which there is a total denial of all extralateral rights, thus eliminating this class of cases from the necessity of future consideration.

582. Parallelism of end lines a condition precedent to the exercise of the extralateral right. — It is needless to quote the language of sections twenty-three hundred

§ 582 Extralateral Rights Under Act Of 1872. 696

and twenty, and twenty-three hundred and twenty -two of the Revised Statutes. The former prescribes the nature and extent of the location, and the latter defines the extent of the extralateral right. The law does not in terms impose as the penalty for failure to parallel the end lines, the deprivation of all extralateral right, but the courts construing the two sections together have announced the conclusion, that such parallelism is essential to the exercise of the right. When we speak of end lines, we mean such lines as are crossed by the lode on its course. As we have heretofore noted, side lines niay become end lines, or as we have called them, side-end lines,* for descriptive purposes.

The leading case -upon the subject of non-parallelism, and the consequences flowing from it, is that t)f the Iron Silver Mining Company v. Elgin Mining Company, decided by the supreme court of the United States, familiarly known as the " Horseshoe case," the illustration of which is photographed upon the brain of every mining practitioner.

The doctrine there announced is as follows: —

"Under the act of 1866, parallelism in the end lines of " a surface location was not required, but where a location " has been made since the act of 1872, such parallelism is " essential to the existence of any right in the locator or " patentee to follow his vein outside of the vertical planes " drawn through the side lines. His lateral right by the " statute is confined to such portion of the vein as lies "betwe such planes drawn through the end lines and " extended in their own direction ; that is, between parallel " vertical planes. It can embrace no other."

We reproduce the diagram for illustrative purposes.

The case arose, as did all others in which the Iron Silver Mining Company was involved, out of conflicting rights to certain portions of the blanket deposits of Leadville. Dr. Raymond discusses the case fully in his monograph, " Lode Locations." '

'See, ante, § 367. 'Trans. Am. Inst. Min. Eng., vol. xv., p. 272.

118 U. 8., 196.

Parallelism Of £Nd Likes Essential.

§582

It appears that the line marked " apex " in figure 34 represents a vein exposure caused by the erosion of California gulchy the only exposure found in that neigborhood. The

Figure 34.

vein on its downward course had a slight inclination from the horizon in the direction of the Gilt Edge. The form assumed by the line of vein exposure may be illustrated in a homely way by a bite taken out of a sandwich.

In another portion of this treatise/ we have presented geological cross sections illustrating the position in the earth of this form of deposit, showing the difBculties of determining which is the strike and which is the dip of

See, ante, pp. 404, 405.

§ 582 Extralateral Rights Under Act Of 1872. 698

the vein. Assuming the vein exposure to be an apex, the predecessor in title of the Iron Silver Mining Company laid his location along what he supposed to be the course of the vein, producing the fantastic results shown in the figure, being unable to draw a line at the southwestern terminus of the so-called apex, which would be across the apex and at the same time be parallel to the northwest end line, X y. The so-called apex crossed the line, v i, which was not parallel to x y, the two lines diverging at an obtuse angle in the direction of the dip. Therefore, the right to pursue the vein underneath the Gilt Edge claim was denied. A strenuous plea was made in the case for the judicial readjustment of the boundaries, so as to give to the Iron Company a segment of the vein in depth, but the court held, as we have heretofore observed, that it had no power to make locations, but that the miner must stand or fall upon the one he makes himself.

While the local conditions out of which this case arose were peculiar, there is no reasonable expectation that the doctrine of the case, as hereinbefore quoted, will be disturbed where the lines crossing the lode diverge in the direction of the dip.

It has been applied by Judge Knowles to a location having the form of a triangle, and will undoubtedly control all forms of locations, varying from a square to a crescent, where the production of the end lines would create exaggerated inequalities in length as the vein is followed in depth.

Where, however, the two lines crossing the lode converge in the direction of the dip, intersecting as they are produced, at some point beyond the side lines, we cannot see upon what principle the doctrine can be maintained. Where the reason of the rule ceases, the rule itself should cease. It is absurd for the courts to say to a claimant with converging end lines: "The law permits you to take as " much of the vein in its downward course, beyond the

1 Montana Co., Limited, v. Clark, 42 Fed. 626.

699 Parallelism Of End Lines Essential. §582

" side lines, as you may include within parallel surface end " lines. You have taken less than you might have acquired, " therefore you shall have nothing."

What we have heretofore said upon this subject of converging end lines under the act of 1866,* applies with equal force to locations made under the later laws.

With this qualification, there can be no question as to the scope and meaning of the rule announced in the Elgin case.

We have heretofore uoted, that the supreme court of California, following the dictum of Judge Field in the Eureka case, has stated that the provisions of the act of 1872, requiring the end lines of each claim to be parallel, is mere y directory, and no consequence is attached to a deviation from its direction.'

In the case wherein this was announced, the controversy was over the possession of the surface. It involved only intralimital rights, and as fully explained in preceding sections,* this class of rights is not affected by the form of the location, so long as the area included is within the statutory limit.

The requirement of the statute as to parallelism does not necessarily} imply that the lines should be drawn on the surface with absolute mathematical precision. A reasonable compliance with the law is all that is required. A substantial parallelism should satisfy the law.

The statute, in defining the extent of the extralateral right, refers to locationf< only, and does not in terms mention patents; but, of course, a patent is but the evidence of a perfected location. A right conferred by patent cannot be defeated by showing a want of parallelism of the end lines of the claim as originally located. The location will be conclusively presumed to have been made in the form described in the patent.**

See, ante, § 574. Rev. Stats., § 2322.

See, ante, 365, p. 472. Doe v. Waterloo M. Co., 54 Fed. 935, IMO.

Horswell v, Ruiz, ti7 Cal. 111.

*Sec, ante, H 365, 552.

§ 582 Extralateral Rights Under Act Of 1872. 700

Conversely, if the form of the surface boundaries as described in that instrument, taken in connection with the physical facts shown, is of such a character as to prevent the exercise of the extralateral right, the patentee cannot be permitted to appeal to his location as originally marked to control, vary, or modify the terms of the patent.

The term "location," therefore, as found in this section of the statutes, is intended to apply to the status of the location as to form as it appears at the time rights asserted under it are brought into question. The production of the patent simply dispenses with the necessity of proving the antecedent facts culminating in its issuance — facts that, in the absence of such an instrument, would have to be proved independently,such as discovery, marking of the boundaries, and performance of such other acts as may be required under local or state regulations as conditions precedent to the completion of a valid location. The term "survey" is sometimes found in the decisions when referring to the exterior form of a location. This refers, of course, to. the patent survey, the field notes of which are embodied in the patent as ultimately issued.

It may not be out of place to call attention to the fact, that in the absence of a patent, the extent of the extralateral right is not necessarily to be determined by the lines of the location as they were originally established in the field. If a locator has any apprehension as to the suflSciency of his original location, there is no reason why he should not be permitted to modify or amend it, if it can be accomplished without prejudice to the rights of others.* For the purpose of obtaining parallelism, the lines may be at least drawn in, so that, as finally surveyed for patent, the location will be perfected in strict compliance with the law. We have fully discussed the circumstances justifying

' See, antey ? 397.

Doe V. Sanger, 83 Cal. 2a3, 214; Doe v. Waterloo M. Co., 54 Fed. 935, 940; rryler v. Sweeney, Id. 284; Latat Chance M. Co. r. Tyler, 61 Fed. 557; Philadelphia M. Claim v. Pride of the West, 3 Copp*s L. O. 82.

701 Entire Width Of Apex Included In Location. § 583

a change of boundaries, in a preceding article/ and the manner in which such changes may be effected.

g 683. Entire width of apex to be included in the location — "Broad lodes/' — A location may be regular in form, with its side lines constructed along the course of the vein, and the end lines crossing it, and yet physical conditions may exist which will prevent the exercise of the extralateral right. We refer to a case where the apex of the lode is either broader than the location, or where the locator mistakes the position of his vein, and instead of drawing his lateral boundaries with regard to its center, it is bisected by one of the side lines.

We have already observed, that if any portion of the apex is included within the lines of a location, such location is valid. The failure of the first discoverer and locator to include the entire width of the apex would not impair any of the intralimital rights. But the extralateral right may be affected by the absence of such physical conditions as the law contemplates must exist in connection with the location, such as the course of the vein through the ground, and the extent of apex in both length and width, which may be found therein. The extent of the rights of the junior locator, who appropriates that portion of the apex excluded from the senior location, depends altogether on the nature and extent of the right flowing from the senior appropriation.

We have heretofore defined an apex to be necessarily and always a surface.' Owing to the liberal definitions applied by the courts to the terms vein, or lode, this apex surface mav be wider than the maximum lateral limits of a claim allowed under the law. Cases of this character are not likely to occur, except in those localities where local legislation only permits narrow surfaces. Instances of this class are found in the books, and the extent of the

Tit. v., ch. ii., art. x., §§ 390-398. See, ante, § 309.

See, ante, im. '291-294.

§ 583 Extralateral Rights Under Act Of 1872. 702

lateral rights permitted under such conditions has been the subject of serious discussion.

Dr. Raymond, in his " Law of the Apex," assumes a case for illustrative purposes, where the apex was bisected by a side line, and as the principle involved in such a case is the same as in the instance of a lode wider than the lateral surface limits, we take the liberty of utilizing the diagrams employed by him as an aid to discussion.

Let figure 35 represent two contiguous locations, A. and B., with a common side line, 2 J, bisecting the apex of the

vein, the dip being in the direction of the arrow. Without intimating that the rights upon the located vein are to be determined by priority of appropriation, we mav assume such prioritv in favor of A., the footwall claimant. Both locations are regular in form. Both have included within their respective boundaries some portion of the apex. Unquestionably, A.'s intralimital rights are not afiFected by the Figure 35. subsequent location of B.

What, if any, are the extralateral rights of the respective parties? For the purpose of discussion, we assume both locations to have been made under the act of 1872.

When we consider the reported cases upon the subject, we find that two opposite views have received judicial sanction — one denying the extralateral right to either claimant, the other awarding it to the location senior in point of time.

We have heretofore called attention to the case of Hall V, Equator Mining Company in connection with the subject of cross lodes,* presenting a diagram of the property in controversy,'* and noted, that on the trial of the case upon its merits,' it presented an instance of one lode with part of its width in one location and part in the other.

See, ante, 568. Fig. 26, p. 660. See, ante, p. 663.

703 Entire Width Of Apex Included In Location. § 583

In addition to the decision of Judge Hallett, upon the motion for a preliminary injunction, which suggested, but did not deal with the aspect of the case now under consideration, the case was tried three times — the first time before that judge, whose decision is not found in any of the reports.

Carpenter's "Mining Code"* contains some excerpts from it, and Dr. Raymond gives us full quotations in his Law of the Apex," from which we quote so much as will illustrate Judge Hallett 's views: —

"As to all the disputed ground, the principal question " affecting the whole lode is, whether by locating a part of " the width of outcrop the whole may be taken. Of several " collateral locations on the course of a lode, where the top " or outcrop is of sufficient breadth to admit of more than "one, are not all of equal dignity? This question will " admit of but one answer, with such modifications as " may be hereafter suggested. The act of 1872 certainly " requires a location to be along the course of the vein and " to include the top of it, and it is believed that the act of " 1866 is of the same eff'ect. Defendants' location was " made under the act of 1866, and probably some discus- " sion of that view of the act would be appropriate in this " connection. But it may be enough to say, that defend- " ants assumed to take the whole lode into their location, " and if they failed to get the whole, either by their own " omission or because of some restrictive provision of the " local law, the result is the same. In either case thev can- " not now claim more than was taken by the location. " The same rule is applicable to plaintiffs' location, and as " to both of them, it is no answer to say, that the law would not admit a location of sufficient width to take " the whole lode. If the law is illiberal, it is not for that " reason the less controlling. If, however, a right to the " entire lode cannot be asserted under a location covering " a part only of its width, as seems to be obvious, the loca- " tion may be valid for the part described in it. If it is " on the top of the lode, it is within the act, and so it ought " to be good for the part within the lines extended down- " ward vertically, if for no more. . . . And thus it may " be true, that each of several locators on the same vein,

13d ed., p. 65.

§ 583 Extbalatkbal Bights Under Act Op 1872. 704

" or lode, will own all within his lines without being able " to go beyond them. For, aa to his right to go into other " territory, he can only do so in pursuit of a lode, or vein, " that has its top and apex wholly in his own ground, and " having but a part of the lode in his territory he cannot " comply with that condition. This appears to be a clear " inference from the language of the act. The right given " relates to veins, lodes, and ledges, the tops of which are " inside the surface lines, which obviously means the whole, " and not a part. If, then, two or more collateral locations " be made on one and the same vein, and the vein appear " to be homogeneous throughout its width,, we are author- " ized to say, that each shall be confined within his own " lines drawn down vertically. ..."

Dr. Raymond illustrates the effect of this rule by a simple geological cross-section, as shown in figure 36, drawn through the end lines, 1 2 and

through the common side line,

vSSBK* angular segment of the vein to

a., and a similar plane drawn

the extent of B.'a rights between

'''-Sfc. '" At the next trial of the case,

Justice Miller charged the jury

Figure 36. as follows: —

"There is introduced, both by plaintifTfl and defendants, evidence tending to prove that the claims of both parties are located on the same vein, or lode, of mineral-bearing rock in place, the general apex, or upper surface, of which is about one hundred feet wide.' If the jury believe this to be true, then I instruct you, as the law of this case, that plaintiffs, having the prior title from the United States to that portion of this lode within the lines of their patent, extended vertically downward to the earth's center, and the defendant having contested plaintiffs' right to receive a patent for the parts of the lode in controversy, 'Tlie clalma wers eacb Wg feet wide.

705 Entire Width Of Apex Included In Location. § 583

" in the court of the territory, according to the act of con- " gress on that subject, and failed in that contest, and hav- " iug accepted and read in evidence a patent for their " own claim, which expressly excepts out of its granting " clause the interfering parts in plaintiffs' said patent, " the law of the case is for the plaintiffs, and they are " entitled to all the mineral found within the side lines of their patent, extended downward vertically."*

When we consider that the defendants' location of the Equator was prior in point of time to the plaiutiflFs' Grand Central, if the defendants could lawfully base an extralateral right upon the part of the apex within the Equator, they could not be deprived of it by patenting to another the surface overlying the dip. Asserted underground rights are not the subject erf adverse claims.* Such controversies are confined to surface conflicts. Justice Miller's views are in practical accord with Judge Hallett's.

A case somewhat similar to the Grand Central-Equator controversy came before the supreme court of Utah territory.* The facts found by the trial court, which finding was accepted by the appellate tribunal, presented a case where the first locator had the apex of a vein entirely within the surface lines of his claim for a portion of its length, and the remaining portion partly within and partly without, the excluded portion being embraced within the boundaries of a coterminous junior location.

The majority of the appellate court held, that under the act of 1872,—

" The discoverer of any part of the apex gets the right " to its entire width, despite the fact that a portion of the " width may be outside of the surface side lines of his " claim, extended downwards vertically. While he has no " right to the extralateral surface, he has a right to the " extralateral lode beneath the surface."

Judge Boreman dissented, practically accepting the doctrine of Judge Ilallett in the Equator case.

>See note, 11 Fed. cases, Xo. 5931, p. 225.

Champion M. Co. v. Cons. Wyoming M. Co., 75 Cal. 78,82.

*Ballion, Beck A Champion M. Co. v. Eureka Hill M. Co., 5 Utah, 3.

Tt

§ 583 Extralateral Rights Under Act Of 1872. 706

The case of Rose v, Richmond Mining Company was decided by the supreme court of Nevada upon the assumption that the first locator took the whole lode to its entire width. No issue was raised as to this point. It was conceded by both parties to the litigation. The supreme court of the United States, in its opinion aflSrming the judgment, gave no consideration whatever to the subject.

Mr. Morrison, in his "Mining Rights,"' says, that in Colorado the rule announced by Judge Hallett in the Equator case is uniformly followed by the trial courts in that state. Dr. Raymond refers to the rulings by Judges Rising and Rives, district judges in Nevada, as supporting the broad lode theory. He undoubtedly had in mind the Rose-Richmond case, heretofore referred to.

Without doubt, in Nevada, prior to the act of 1866, and in fact after that act had been passed, locations were made of the vein without any attempt to draw side lines. The entire Comstock lode was located in this way, it being popularly conceded that the locus of the east wall of that remarkable zone could not be determined.

But the act of 1872 revolutionized this method, and ever since, the supreme court of the United States has uniformly emphasized the necessity for regarding surface boundaries as the prime factors in determining controverted questions arising out of the mining laws. In our judgment, the reasoning of Judge Hallett and the doctrine announced by him is in full accord with the spirit of the decisions since rendered by the supreme court of the United States, particularly in the Elgin and Amy-Silversmith cases. While the application of the rule may seem inequitable in individual instances, "the rule, whatever " hardship it may work, should be settled, and thus pre- " vent, as far as practicable, such uncertainty.*'

If the law possessed elastic properties, and the courts

' 17 Nev. 25.

Richmond M. Co. v. Rose, 114 U. S. 576.

'Bed., p. 112.

Iron S. M. Co. v. Elgin M. A S. Co., 118 U. S. 196, 207.

707 Vein Enters And Departs Throuqh Same Side. § 584

were permitted to act as a board of equitable arbitration, there are several methods suggested by Dr. Raymond by which individual hardships might be relieved; but considering the law and its interpretation by the highest tribunal in the land upon questions of a kindred nature, we can look for no other ultimate result than that announced by Judge Hallett. '

Where there are two veins within a lode, a condition which frequently arises, each vein is the subject of an independent appropriation, and the broad lode question cannot arise. It is only involved where, as suggested by Judge Hallett, the lode is homogeneous throughout its width. The "broad lode" theory is the legitim§.te offspring of the zone" theory, which had its genesis in the Eureka case.

g 584. Vein entering and departing throngh the same side line. — It seems hardly necessary to discuss the question of extralateral rights as applied to a case where the vein enters and departs through the same side line, as illustrated in figure 37.

Even invoking the theory, that under certain circumstances the courts may apply the plane drawn through the line crossed by the lode on its Figure 37.

course as it enters the location, to a line drawn parallel to it through the point on a boundary line crossed on its departure, we can find no room for such a plane in the illustrated case. The two planes in the case assumed would be coincident. Such plane would necessarily cut off the extralateral right.

Planes parallel to those drawn through 1 4. and J J could not be applied at the points x x, for the simple reason, that neither of them are crossed by the vein, and neither of such lines perform the functions of end lines. They are simply side lines, performing no office, except with

1 United States r. Iron S. M. Co., 128 U. S. 673, 680. See, anU ?

§584 Extralateral Rights Under Act Of 1872. 708

reference to the intralimital rights. Under the conditions assumed in figure 37, there can be no extralateral right.

A case somewhat analagous in principle to that shown in figure 37 was recently presented to the supreme court of Colorado, for its consideration."

The controversy arose out of the following state of facts, which may be readily understood by reference to figure 38, a reproduction of the diagram accompanying the opinion of the court.

Figure 38.

Plaintifif owned the Smuggler, defendants the Fulton and Mendota claims. The dotted line shows the apex through the claims. The dip is to the south. All the properties were patented, and there was no surface conflict involved. Defendants, in following the vein on its course downward, penetrated underneath the Smuggler surface and had extracted ore from the vein, the point of the alleged trespass being designated on the diagram by the letter A. The defendants justified their presence underneath the Smuggler surface by asserting ownership of the apex in the Fulton ground and the right to pursue the vein in depth by reason of such apex ownership. The court below sustained the contention of the defendant. Hence the appeal.

Catron v. Old, decided Feb. 3, 1897, not yet reported.

u n

709 Vein Enters And Departs Through Same Side. § 584

The appellate court, after reviewing most of the end line cases to be hereafter noted, reversed the judgment, thus expressing its views: —

" In the case at bar, no part of the Fulton vein runs " parallel or nearly parallel with the side lines of that claim, as staked upon the surface. The United States- " supreme court has said, that if the locator of a mining claim mistakes the direction of his vein, and locates accordingly, the courts have no power to make a new " location for him, but must determine his rights with reference to the location actually made. Developments subsequent to the location of the Fulton disclose that the " claim as located contains very little of the apex of the " vein, and such as it does contain does not cross either end " line, and does not run parallel or nearly parallel to the " side lines; so that in no aspect of the law can the Fulton " be allowed extralateral rights by reason of the apex of " the vein."

We shall have occasion to recur to the decision of the supreme court of Colorado in this case when dealing with instances where the vein crosses an end line and a side line.

We are not prepared to say, that in all cases, save those outlined in this and the preceding sections of this article,, there is necessarily some extralateral right. This would be too broad an assertion. Geological nature is too infinite in its variety to permit us to anticipate all possible conditions, natural and artificial, which may exist. At best, we may outline the general principles as we understand them in the light of adjudicated cases, utilizing for this purpose pronounced types, from which others maybe diff'erentiated. If we can determine precisely what is certain in the exposition of the law as applied to these types, the uncertainties which mav arise in other cases raav be reduced to the minimum. We are quite certain that in cases of the character heretofore presented there can be no extralateral right. We are equally convinced that in those which we are about to present the right exists to a greater or less extent.

§ 585 Extralateral Rights Under Act Of 1872. 710

g 585. The eztralateral right applied to the ideal lode. — We have, in preceding sections, given our conception of the ideal lode,* and have illustrated what we understand to be the highest type of a location embracing it," one which confers upon the possessor the greatest property right which may be acquired under tfie mining laws. With this ideal lode iu position within the boundaries of such a location, if we may assume that the vein in its descent into the earth to an indefinite depth is continuous, that its identity is unquestioned, and that there are no natural or legal obstacles intervening, we have presented a standard with which all cases of all classes may be compared and analyzed. It is upon the existence of such a theoretical lode and hypothetical location that the existing laws were framed.

As Dr. Raymond facetiously remarked, —

" If all mining properties presented this beautiful sim- " plicity of structure, and all mining locators exhibited a " corresponding simplicity of purpose, the application of " the law would be easy. But the naivete of the statute " fares badly between the freaks of nature and the tricks of " man."'

We need devote no time to the consideration of extralateral rights flowing from ideal locations embracing ideal lodes. This right may be curtailed, interrupted, and perhaps completely cut off by underground conflicts with prior appropriators of other segments of the same vein, or by encountering a vertical bounding plane of some prior grant, out of which the underlying vein was not-reserved, or its continuity may be brokenand its identity lost. But with these subjects we shall deal later. Eliminating these elements* from present consideration, the possessor of the ideal lode, ideally located, has the same length on the vein throughout its entire depth as he has included within his boundaries at the surface, and this was the unquestionable intent of the law, in providing that the end lines should

See, ante § 309. ' Law of the Apex.

See, ante, § 360.

711 Vein Crossing Two Parallel Side Lines. §586

be parallel. To this extent the locator becomes the owner of the vein. His estate therein is that of a fee.

g 586. Vein crossing two parallel side lines — The Tlagstaif case. — One of the most frequent disappointments which falls to the lot of tlie lode locator, arises from his mistaking the course of his vein, and constructing his location across, instead of along it. The first instance of this which was brought to the attention of the supreme court of the United States arose in the FlagstaflF case, in Utah, and involved the construction of a patent issued under the act of 1866. For the first time the miner was brought to a realizing sense that a United States patent issued under that act was not, according to his preconceived notions, a " thing of beauty and a joy forever." Its " ironclad potency " shattered his early idols, and there was a rude awakening to a new order of things. After having fixed his location on the surface, filed his diagram, and received his patent, he learned that his rights to the lode were to be determined and measured by the boundaries defined therein. He could no longer follow his lode on its course whithersoever it might run, regardless of lines, stakes, and monuments. He could only take so much on the strike of the vein as was included within his patented lines. What was excluded became the subject of appropriation by the next comer.

In a preceding section, we have presented in outline a diagram of the property involved in this case, for the purpose of illustrating this principle. As this case was the forerunner of several others — a mold into which others were ultimately cast, — it will not be out of place to . present a diagram, somewhat more elaborate in design than that appearing in the historical portion of this treatise.

Figure 39 shows the surface lines, the course of the outcrop, or apex, through the Titus and Flagstaff", and in horizontal projection, the nature and extent of the latters underground workings. The alleged trespass occurred in

See, ante, i 60, p. 70.

Extralateral Rights Under Act Of 1872.

the underground workings in the vicinity of the triangle, K J H, but the controversy necessarily involved all excavations of the vein lying easterly of the east side liue of the Flagstaff and south of the Titus south boundary. Neither party claimed the surface overlying this segment of the vein.

Figure i

The decision of the supreme court of the United States established two important basic principles: —

(1) A vein cannot be pursued on its course beyond the lines which it actually crosses. The patentee takes only 80 much of the vein as his location actually covers. Where such vein crosses two opposite side lines, these lines become, in law, the true end lines of the location;

713 Vein Crossing Two Parallel Side Lines. §587

(2) The right to follow the dip of the vein is bounded by the end lines, properly so called, which lines are those which are crosswise of the general course of the vein on the surface.

The segment of the vein in dispute was not within planes drawn through these side-end lines. It pertained to the overlying apex within the Titus ground. The judgment against the Flagstaflf was affirmed.

The same doctrine had been previously announced by the supreme court of Colorado, and by the supreme court of Utah, in the Flagstaff case,'* and in another case involving the Flagstaff patent.*

g 587. Same — The Argentine-Terrible case. — The case

of the Argentine Mining Company v.Terrible Mining Company'* seems to present a case on parallel lines with that of the Flagstaff case, so far as the physical facts are concerned. We herewith present a diagram (figure 40) of the properties involved, reduced from the atlas of Mr. Emmons, accompanying his great monograph, "Geology and Mining Industry of Leadville."

Reading the opinion of the supreme court of the United States in the Argentine-Terrible case, in connection with this figure, justifies the con-

1 Flagstaff M. Co. v. Tarbet, 98 U. S. 46.*.

Wolfley V, Lebanon M. Co., 4 Colo. 112, April, 1878.

'June, 1878, unreported.

♦McCormick v. Varnea, 2 Utah, 355, Feb. 1879.

§ 587 Extralateral Rights Under Act Of 1872. 714

elusion that the conditions shown upon Mr. Emmons' maps existed at the time of the trial of the case, and upon the state of facts thus illustrated the decision was based. Assuming that the course of the apex is correctly delineated by the line x a-, we have, as in the Flagstaff case, the lode crossing parallel lines, which the locator supposed were side lines, but which in law were end lines. The locations were all made under the act of 1872. The Adelaide was the prior location. The Argentine Company, owning the Pine and Camp Bird claims, extended its workings beyond its side-end-line planes, underneath the surface of the Adelaide, asserting its right to do so by reason of ownership of the apex within the boundaries of the Pine. A patent had been issued to the Pine, out of which there was excepted so much of the surface as conflicted with the Adelaide boundaries.

At the trial of the case. Judge Ilallett, in his charge to the jury, does not seem to have presented the questions upon which the appellate tribunal based its decision affirming the judgment. The trial judge took the position, that a prior location on the dip cut off the extralateral right of the junior apex locator, and the priority being with the Adelaide, the validity of its location having been established, verdict and judgment passed in favor of the owners of that claim.

The Supreme Court of the United States, after quoting the doctrine of the Flagstaff case, said: —

" Such being the law, the lines which separate the loca- " tion of the plaintiff below from the locations of the " defendant are end lines, across which, as they are " extended downward vertically, the defendant cannot " follow a vein, even if its apex or outcropping is within " its surface boundaries, and as a consequence, could not

Van Zandt v, Argentine M. Co., 8 Fed. 725.

'We have discussed tbis charge of Judge Hallett in a previous section (§ 364) wlien dealing with the necessity for including the apex within the boundaries of a location. With regard to the junior apex locator's right to pursue bis vein underneath a senior's, see, post art. vi., of tbis chapter.

Vein Crossing Two Parallel Side Lines.

§588

" touch the premises in dispute, which are conceded to be " outside of those lines and outside of vertical planes " drawn downward through them."

Manifestly, the Flagstaff and Argentine cases were identical as to the facts. The supreme court of the United States having in the former case emphasized the controlling force of surface lines as fixed by the patent, and established the rule, that when the lode crossed a line which the locator called a side line, such line became in law an end line, to the extent, at least, that the lode could not be followed beyond it, the application of the same principle to locations made under a law which required, as a condition precedent to a valid appropriation, the defining of a surface and marking of boundaries including the discovered lode, was logical and consistent.

g 688. Same — The King- Amy case. — Three years after the decision in the Argentine-Terrible controversy, what is familiarly know as the King-Amy or Silversmith case, came before the supreme court of Montana. The facts were precisely the same as in the Flagstaff and Argentine

K.

Figure 41,

§588 Extralateral Rights Under Act Of 1872. 716

cases; that is to say, the location was regular in form, and instead of being laid along the lode it was placed across it, so that the vein entered through one side line' and departed through the other, as shown in figure 41. The only variation observable is, that in the FlagstaflF and Argentine cases the lode crossed the two side lines, substantially at right angles, while in the King-Amy case the lode, X X, crossed the claim diagonally, the dip being in the direction indicated by the arrow.

There were three contentions presented for the consideration of the court: —

(1) That the Amy could not pass to the north of a vertical bounding plane drawn through the north side line, N J, invoking the doctrine of the Flagstaff and Argentine cases ;

(2) That a plane should be drawn at right angles to the course of the vein, through the point E, where the vein crossed the north side line, N J, producing the imaginary bounding plane, E F;

(3) The application, through the same point, of a plane parallel to the located west end line, M N, producing the imaginary plane, A A.

The trial court adopted, on its own motion, the second, or right-angle theory.

The supreme court of Montana, speaking through Judge De Witt, admitted that neither one of the three suggested solutions was absolutely free from possible criticism, but in a very interesting and ingenious opinion adopted the third theory, of applying a plane parallel to the one drawn through the line which the locator called an end line, but which was not, in fact, crossed by the lode. The court saw a marked difference between the facts of this case and the Flagstaff and Argentine cases. This difference is in the angle at which the vein crossed the side lines. The court did not clearly demonstrate where it would draw the east

' King V. Amy A Silversmith Cons. M. Co., 9 Mont. 548.

717 Veix Ckos8Ing Two Parallel Side Lines. § 5Ss

end line, in view of the crossing at G. The decision was an heroic attempt to fulfill what the court conceived to be the spirit of the statute, but it was unavailing. The supreme court of the United States adhered to its previous doctrine, and in reversing the judgment of the supreme court of Montana said : —

" The diflBculty in the present case arises from the course " of the vein, or lode, upon which the Amy location was " made. It is evident that what are called side lines of the " location, as shown in the diagram, are not such, in fact, " but are end lines. Side lines properly drawn would run " on each side of the course of the vein, or lode, distant " not more than three hundred feet from the middle of " such vein. In the Amy claim, the lines marked as side " lines cross the course of the strike of the vein, and do not run parallel with it. They therefore constitute end lines. . . . The most that the court can do, where the " lines are drawn inaccurately and irregularly, is to give " the miner such rights as his imperfect location warrants " under the statute. It cannot relocate his claim, and " make new side lines or end lines. Where it finds, as in " this case, that what are called side lines are, in fact, end " lines, the court in determining his lateral rights will treat " such side lines as end lines; but the court cannot make a " new location for him, and thereby enlarge his rights. " He must stand upon his own location, and can take only " what it will give him under the law."*

Necessarily, the supreme court of the United States considered the facts of this case to be parallel with those in the Flagstaflf and Argentine cases, although neither of these cases are cited in the opinion, resting its judgment on its opinion in the Elgin or **Horseshoe" case.

The opinion of Judge De Witt in the King-Amy case, or rather the reasoning upon which it is based, has, however, borne some fruit, as we will observe when dealing with cases where the vein crosses a side and an end line.

It mav be considered as absolutelv and finallv settled, that where a vein on its course crosses two opposite side lines, the vein cannot be followed either on its dip or

Kiug V, Amy & Silversmith Cons. M. Co., 152 U. S. 222.

§ 589 Extralateral Bights Under Act Of 1872. 718

t

strike beyond vertical planes drawn through the side-end lines, and that the angle at which it crosses these side lines makes no difiference in the application of the principle.

g 589. Deductfons from side-end-line cases — Extralateral right in such cases defined by vertical planes drawn through the side-end lines produced. — None of the side-end-line cases heretofore reviewed give countenance to tlie suggestion, that where a vein crosses two opposite parallel side lines, the locator is denied all extralateral right. On the contrary, the irresistible conclusion to be drawn from each of them is, that vertical planes drawn through the side-end lines, produced in the direction of the dip, will carve out a segment of the ledge throughout its entire depth, which will belong to the locator. So in the Flagstafif case, the side-end lines, d a and c 6, produced northerly indefinitely, bound the extralateral right. In the Argentine case, the original side lines of the Adelaide, extended southwesterly, define its limits. The extralateral right of the Pine, Camp Bird, and Charlestown is obstructed and cut ofif by a prior valid appropriation of that segment of the vein underlying the Adelaide apex. Were it not for such obstruction, their right of lateral pursuit would be defined by extending /teir 'side-end lines southerly.

In the King-Amy case, planes drawn through the sideend lines, N J and M I, produced indefinitely in the direction of K and L respectively, will bound the extralateral right.

A simple illustration of this is shown in figure j

planes in each instance being defined by the produced side-end lines,

a b 6', c d d'. These side- !

end lines are to be treat- cjr-

ed as if they were the Figure 42.

719 Deductions From Side-End-Line Cases. §589

original end lines. Being parallel, the right of lateral pursuit cannot be gainsaid. A location in such a form would be valid to the extent, at least, that it enclosed the apex. It is true, that the end-side lines may be more than three hundred feet from the center of the vein, but in any event, this would not render the location wholly void. The excess might be cast ofF, leaving the extralateral right unaffected. Subsequent locators of the apex on the outside of the crossed side-end lines could not complain.

As to patents issued in such form and under such conditions, we will consider them in a subsequent chapter.

Judge J. H. Beatty, in the last trial of Tyler Mining CJompany v. Last Chance Mining Company,' adopted the view herein announced as to bounding planes to be drawn through side-end lines.

In applying the decisions in these end-line cases we are forced to recognize the fact, that all theories based upon the true course or the true dip of veins are purely speculative. When the law says that end lines are those which are crossed by the lode, it does not impl}- that they shall be crossed at a right angle. So the downward course of the vein which may be followed in the exercise of the extralateral right is not necessarily at right angles to the true strike or course. It is that direction which the vein takes underneath the surface, on its downward course, between vertical planes drawn through the end lines, or the side-end lines, as the case may be. This gives a segment in length, throughout the depth, within vertical planes drawn through the parallel crossed lines, equal to the length of apex covered by the surface boundaries, measured, of course, on lines parallel to the course of the apex. In dealing with the subject of locations in a preceding chapter, we have shown that end lines may take any direction so long as they cross the veiii and are parallel.

See, ante, § 362.

'See, also, Lakin v. D0II3', r>3 Fed. 3.'J3; ante, I 306, p. 478.

71 Fed. 848.

♦See, ante 365.

§590 Extralateral Rights Under Act Of 1872. 720

g 590. Vein crossing two opposite non-parallel side lines. — In a preceding section, when considering the form of a surface location, we have indicated that there is no requirement of the law that side lines should be parallel, but have there said, that the parallelism or non-parallelism of the lines originally located as side lines might become an important factor if the locator makes a mistake as to the course of his vein and locates crosswise, instead of along its course. We had reference to the extralateral right.

If we have correctly stated the law applicable to cases of end lines converging in the direction of the dip, that is, that in such instances the vein may be pursued within vertical planes drawn through such end lines produced in such direction,andarejustified in thedeductions announced in the previous section, that parallel side-end lines may be produced in the direction of the dip for the purpose of defining the extralateral right, it follows as a corollary,' that in case of non-parallelism of side-end lines the extralateral right is granted where such lines converge in the direction of the dip, as shown in figure 43, and denied where they diverge, as illustrated in figure 44.

Figure 43. Figure 44.

In our judgment, there can be no possible objection to this rule. It logically flows from the reasoning which supports the decisions making the crossed lines, end lines in law, and harmonizes with th,e theories invoked in support of all the adjudicated cases. It gives to the miner as

1 See, anit 366, p. 478.

'See, anit 582, p. 6f)8. See, also, discussion of this subject as applied to the Wyoming case, anit fig. 31, 574, p. 684.

721 Veix Cros5Ixg Oxe End Uxe Axd A Side Une. § 591

mach of the vein as the imperfect manner in which his location is made will permit, in the light of established lal principles, and is in consonance with the underlying theories upon which these principles rest.

I 691. Yeiii crtmrnkg one end line and a side We are now called upon to consider the nature and extent of the extralateral right in cases where the vein crosses an end line and a side line, instances of which are quite common. In reaching a satisfactory solution of this important question, we must necessarily keep in mind the principles established and enunciated in the preceding sections, and recognize that a substantial departure from the doctrine of the adjudicated cases will necessarily produce inharmonious and inconsistent results.

As in the nature of the case to be discussed the crossed lines cannot under any circumstances be parallel to each other, there are but two possible solutions: —

(1) Either there is no extralateral right whatever, or

(2) The right is to be determineil with reference to one of the lines which is actually crossed bv the lode.

There is no possible compromise between these two methods.

For the purpose of presenting the subject in the light of the reported cases, we will avail ourselves of tlie diagram which illustrated the facts involved in the Ci\se commoulv known as the Tyler-Last Chance, and is a reproduction of the map accompanying the decision of the supreme court of the United States in the case of Last Chance Mining Co. r. Tvler.*

For the purpose of illustrating certain other questions which may incidentally arise in another portion of the work, we have added to the diagram a representation of the width of the lode, as shown upon the plat contained in the record upon the writ of error to the circuit court of appeals after the trial, which supervened subsequent to the

157 U. S. 683.

uu

§ 591 Extralateral Rights Under Act Op 1872.

decision of the supreme court of the United States on certiorari proceedings, in the case noted on preceding page.

While the question now under consideration was ultimately eliminated from the case by the decision of that court, the present state of the law, so far as it has been

adjudicated, has been evolved out of this controversy and the reasoning found in the numerous decisions rendered at different stages of its progress through the courts.

In the discussion of other classes of cases which involved no surface conflict, we have, as a rule, avoided injecting into them the question of priority as affecting the extralateral right. We have intended to deal with this subject when treating of the legal obstacles which interrupt the right of lateral pursuit. Where both parties have each a part of the apex of the same vein, conflicts between underground plaues frequently occur, which must be

723 Vein Crossing One End Lixe Axd A Side Line. § 591

settled by priority of apex appropriation, a subject to be fully discussed in a succeeding article/

To obtain the latitude required for the purpose of properly presenting the question, we will assume priority in favor of the Tyler, placing the Last Chance in the position of a junior appropriator owning the surface overlying the ore bodies in dispute. We shall also deal with the question regardl of the subsequent readjustment of the Tyler end line, 5 6; in other words, assuming the location to be in the form described by the original boundaries. We have, therefore, a vein, x x, entering the claim across the end line, 1 and passing out of the side line, 2 S.

Has the Tyler, under the assumed state of facts, any extralateral right? If so, how is it to be defined?

The dip, in the illustrated case, is to the south, although it makes no difference in the application of principles in which of the two possible directions, north or south, the vein descends into the earth.

Judge J. H. Beatty, district judge of Idaho, before whom the Tyler case was tried, decided the case on questions of priority in favor of the Last Chance, as established by a former judgment between the same parties.

The circuit court of appeals, ninth circuit, held this to be error, reversed the case, remanded the cause for a new trial, and expressed its views as to the extent of the extralateral right of the Tyler. The opinion was written by Judge Hawley and concurred in by Judges McKenna and Gilbert.* The court reviewed the opinions in the Flagstaff, Elgin, and Argentine cases, and reached the conclusion, that the theory adopted by Judge DeWitt, speaking for the supreme court of Montana in the King-Amy case, while not applicable to the facts shown in that case, as the lode crossed neither end line, afforded a clear, logical, and consistent solution of the question under consideration, when applied to a case where the lode in fact crossed one of the lines which the locator had selected as an end line.

See, po/, art. vi. of this chapter. 'Tyler M. Co. v. Sweeney, 64 Fed, 284.

§ 591 Extralateral Rights Under Act Of 1872. 724

In commenting upon the Elgin-Horseshoe case, Judge Hawley, speaking for the court, said: —

"The learned justice who wrote the opinion in the " Horseshoe case, when he said that the parallelism of the "end lines is essential to the existence of any right in " the locator or patentee to follow his vein outside of the "'vertical planes drawn through the side lines,* did not " mean that it was essential to such a right that the lode "should extend in its length from one end line to the " other of the location. If the lode in question, instead of " extending into the Last Chance location, had abruptly " broken off within the surface lines of the Tyler, near the " point where in fact it crossed the line, there could cer- " tainly be no question as to the right of the Tyler to " follow the lode, or vein, in its downward course for its " entire depth, outside of the vertical planes drawn through " the side lines. The fact that it continued its course and " crossed the side line does not in any manner change this " principle. In either case the locator is entitled to the " same rights. In such cases the end lines are not neces- " sarily those which are marked on the ground as such. " An end line may be drawn at the point where the lode " abruptly terminates within the surface lines, or at the " point where the apex of the lode crosses the side line of " the surface location. This, upon principle, justice, and " authority, it seems to us, is the only reasonable construc- " tion that can be given to the statute."

The court then draws attention to the decision by the supreme court of Montana in the King-Amy case, quoting the following from the opinion of Judge De Witt: —

"The law intends that the plane of the end line shall " operate as a boundary to the dip, and so operate at the " point where the strike is ended. If the strike reached " the original end line, as in a regular location, the bound- " ing plane would there operate upon the dip. If the " strike, by reason of its going out of a side line, falls short " of reaching the original end-line plane, that plane must " take effect where the strike in fact ends, that is, at a point " on the side line, . . . and if it takes effect there, its " parallelism must not be destroyed. We therefore have " the bounding plane operating at the point where the " apex leaves the north side line, and operating parallel " to the east end line, and retaining its parallelism as

725 Vein Crossing One End Line And A Side Line. § 591

" originally marked on the ground. It is not a new line or " plane, or one judicially constructed. It is determined by the location lines on the surface. There is never any " readjustment according to subsequent developments. " The parallelism of the end-line planes is fixed by location, and never varies. The point of departure of the strike from the surface lines fixes, the point where the " end-line plane is to perform its functions, whether that departure be at an end line, as contemplated by the " statute, or whether accident has fixed it at a point on a " side line."

The manifest distinction between the King-Amy and the Tyler-Last Chance cases is found in the fact, that in the former the end-line plane applied by Judge De Witt was not based upon any line actually crossed by the lode, while in the latter case one of the originally located end lines was so crossed.

The Tyler case was retried by Judge Beatty, resulting in judgment for the Tyler, which was affirmed on writ of error.* The case was then presented to the supreme court of the United States upon ceitiorari proceedings, wherein the previous ruling of the circuit court of appeals upon the end line question was fully argued. But the reviewing court did not feel called upon to determine it, as its ruling upon the effect of the former judgment between the parties established a priority which necessarily gave the segment of the vein in dispute to the Last Chance.

Said the court: —

"Our conclusions in this respect obviate the necessity of considering another very interesting and somewhat " diflBcult question presented by counsel. It will be seen " from the diagram, that according to the original location " of the Tyler claim, the vein enters through an end and " passes out through a side line, while by the amended " location it passes in and out through end lines. Of " course, if the latter is a valid location, the owner of the claim would unquestionably have the right to follow the vein on its dip, beyond the vertical plane of the side line. " But if it were not, and the original location was the only

Last Chance M. Co. v. Tyler M. Co., 61 Fed. 557.

§591 Extralateral Rights Under Act Of 1872. 726

valid one, has the owner the right, to follow the vein out- " side any boundaries of the claim extended downward? " It has been held by this court in the cases heretofore " cited, that where the course of a vein is across, instead of " lengthwise of the location, the side lines become the end " lines, and the end the side lines; but there has been no " decision as to what- extraterritorial rights exist if a vein " enters at an end and passes out of a side line. Is that " a case for which no provision has been made by statute? " Are the parties left to the old rule of the common law, " that the owner of real estate owns all above and below " the surface, and no more? Or may the court rely upon " some equitable doctrine and give to the owner of the " vein the right to pursue it on its dip in whatever direc- " tion it may go, within the limits of some equitably created end lines?

"If the common law rule as to real estate obtains in " such a case, then, of course, on the original location the " owners of the Tyler claim would have no right to follow " the dip of their vein outside of the vertical planes of any " of its boundary lines; and even if the amended applica- " tion was perfectly valid, the question would arise, wnQther " the rights acquired under it related back to the date of " the original location, or arose simply at the time of the " amendment, in which case there would be no doubt of " the fact that the owners of the Last Chance had, by years, " a prior location. However, in the view we have taken " of the other question, it is unnecessary to consider this."'

It may therefore be said, that the important question remains yet to be determined by the court of last resort, with at least a suggestion that its solution does not necessarily depend on the strict application of rules announced by that court in the previous end-line cases. It has unquestionably paved the way to the ultimate adoption of Judge De Witt's and Judge Hawley's views, and the courts in different State and federal jurisdictions have, with practical unanimity, taken advantage of the opportunity thus afforded to emphasize and apply the Tyler-Last Chance doctrine to cases of a kindred nature.

Judge Hallett, a few weeks prior to the announcement of the opinion by the supreme court of the United States

' Last Chance M. Co. v, Tyler M, Co., 157 U. S. 683, 694.

727 Vein Crossing One End Line And A Side Line. § 591

in the Last Chance-Tyler controversy, decided the case of the Del Monte Mining and Milling Co. r. New York and L. C. Mining Co./ wherein he applied the rules announced by the circuit court of appeals, above commented upon. We reproduce the diagram accompanying Judge Hallett's opinion, for purpose of convenient reference (figure 46).

Figure 40.

We quote Judge Hallett's views as applied to the facts shown in the diagram, as the importance of the subject requires us to search for and obtain all possible light on the question.

"If the strike of the lode in the New York location " kept its course from end to end of the location, the right " to follow the lode outside the location would not be de- " nied. As, however, it departs on its strike from the loca- " tion on the east side, and not from the north end, it is " said that the claim has no end lines, or at all events, " none that can be recognized as limiting the right to any part of the vein outside of the exterior lines of the claim.

66 Fed. 212.

BZllULATERAL RIQHTS UNDER ACT OF ]

"This is asserted as a proposition of law, deducible from " several decisions of the supreme court, that tlie Hues of a " location crossed by the apex of a vein on its strike shall, " as to such vein, be regarded as end lines, whatever their " position may be; and if this proposition be accepted, the " south end line and east side line intersected by the out- " crop of this lode are not parallel to each other, as de- " mandod by section twenty-three hundred and twenty of " the Revised Statutes. This, however, has not been the " interpretation of the law in the supreme court, or in any " court, so far as we are advised. It is true, tliat in the "Flagstaff case,' and recently in the Amy-Silversmith " case, the supreme court declared that the side lines of a " location shall be end lines whenever the lode ou its strike " crosses such lines; but these decisions do not affirm that " all lines of a location crossed by a lode on its strike shall " be end lines. The most that can be deduced from them " is, that opposite lines parallel to each other, when crossed " by the lode, shall be end Hues. Tiie case presented is not " within the principle of these decisions. We have a lode " extending on its strike on the general course of the loca- " tion and within its side lines a distance of ten hundred " and seventy feet. It is conceded that the south end line " of the location is well placed, and all parts of the lode " covered by the location are within the end lines as fixed "by the locator. The difficult arises from the circum- " stance, that the location extends in a northerly direction, " two hundred and eighty feet beyond the point where the " lode diverges from the side line. No reason is perceived " for saying, that this mistake in the length of the location " should defeat the right to follow the vein on its dip out- " side of the location. It is said that we cannot make a " new end line at the point of divergence or elsewhere, be- " cause the court cannot make a new location, or in any " way change that made by the parties. This, however, is "not necessary. We can keep within the end lines fixeii " by the locator, in respect to any extralateral right that " may be recognized, without drawing any line, and if there " be magic in the word 'line,' it will be better not to use it. " In this instance, as in moat controversies between adja- " cent owners, it ia necessary to ascertain what part of tho "lode is within the New York location; and this, accord- " ing to the map, appears to be ten liundred and seventy " fout. At all points on the dip of the lode into the ' 96 U. 8. 163. ' 153 u. s. as*.

729 Vein Crossing One End Line And A Side Line. § 591

" mountain westwardly, we can ascertain the length of the " lode within the end lines by measuring the same distance " from the south end line produced. In this proceeding, " there is no departure from the end lines of the New York " location as fixed by the locator, and there is no new line " of location drawn for any purpose whatever. We keep " entirely within the end lines of the location as required by the statute, and the circumstance that we are somewhat " short of the north end line, does not in any way affect " the principle to be followed in construing the statute."

Judge Hawley reannounced his views expressed in the Tyler-Last Chance case in the subsequent controversy between the Wyoming and Champion Mining Companies.*

Subsequent to the decision of the supreme court of the United States in the Tyler-Last Chance litigation, the supreme court of Montana was afforded an opportunity of applying the doctrine originally announced by it in the King-Amy case, to a controversy involving extralateral rights on a vein which crossed an end and a side line. The case of Fitzgerald v. Clark, which came before that

dutory

a:

Figure 47.

court, involved a contention between two lateral co-terminus lode claims — the Niagara and Black Rock — as shown in the accompanying diagram (figure 47), reproduced from the one accompanying the opinion.

' Cons, Wyoming G. M. Co. v. Champion M. Co., 63 Fed. 540. '17 Mont. 100.

§591 Extralateral Rights Under Act Of 1872. 730

The vein entered the west end line of the Black Rock, pursued an easterly trend, crossing through the common side boundary at A, and thence through the east end line of the Niagara, thus presenting a case where the vein on its course crossed an end and side line of each claim. As in King v. Amy & Silversmith Mining Co.,* Judge De Witt wrote the opinion of the court, and in doing so reviewed all the end-line cases which had been decided subsequent to the ruling in the Amy case. The same reasoning was applied to the solution of the Fitzgerald-Clark controversy as was invoked in the Amy case. The opinion is an earnest and forcible plea for the preservation of the extralateral right, in cases where, through honest mistake, one of the conditions contemplated in the case of ideal locations is not fulfilled to the letter. As we have heretofore observed, there was no denial by the supreme court of the United States of all extralateral rights in either the Flagstaff, Argentine, or Amy cases. This right was necessarily preserved by the extension of the side-end lines. The court of last resort simply determined that the privilege of lateral pursuit could not be exercised in the manner claimed in these cases, for the simple reason, that such an application of the law would have carried the claimant outside of and beyond the planes drawn through lines which were crossed by the lode, and would have granted a segment of the vein, practically on its strike, after it had passed out of the located boundaries.

In the Elgin case, it would have been impossible to construct a line at the extremity of the location parallel to either one which actually crossed the lode, for the reason that such a line would, when so applied, be coincident with the local strike, and therefore could not cross the vein.

Another suggestion as to the Elgin case. It arose out of a unique and peculiar geological condition, to which, it may be safely surmised, the law was never intended to apply. We are not convinced that rules announced as

9 Mont. 543. ' See, ante, i 589.

731 Vein Crossing One End Line And A Side Line. § 591

governing such an unusual condition should be arbitrarily applied to instances which have nothing in common with it.

Let it be conceded absolutely, that where a vein crosses any line of a location, the crossed line becomes an end line in the sense that it stops the right of pursuit on the course or strike, of the lode. All courts agree upon this.

The doctrine applied by Judge De Witt in the King- Amy and Fitzgerald-Clark cases, by Judge Hawley in the Tyler-Last Chance case, and by Judge Hallett in the Del Monte case, recognizes this fully. The doctrine, as contended for by them, constructs a plane, with reference to a boundary crossed by the lode, lawfully designated by the locator as an end line. It stops the pursuit of the vein on its strike, which result is also accomplished by the crossed line. It gives to the locator as much of the lode in depth as he has within his surface lines. It takes away nothing that could be lawfully appropriated by any one else. A case more forcibly illustrating the inherent equity of the rule than that shown in Fitzgerald v, Clark, could hardly be assumed.

If the extreme doctrine is to prevail, that no extralateral right is to be allowed where a vein crosses an end and a side line, the Niagara's rights are cut off by a plane drawn through its south side line, II B. This gives to the Black Rock an underground segment of the vein underlying its surface for its full length, with only a small portion of the apex. In other words, it holds more of the vein underneath, within its own boundaries, than it has overlying apex. But its pursuit of the vein on its downward course is cut off by the i)hine drawn through L M, its south side line. The remainder of the vein lying south of such vertical plane cannot bo thereafter ajpropriated by any one under the mining law.s, U;cau.se there is no upon which to pre<licate such a location. Either the Niagara or the Black Rock, had thev been able to obtain sufficient knowledge of the position and course of the vein, might have taken the full length and depth. But as they were mistaken in their .surmi.ses as to the course of the ''nd

§592 EXTKALCTEHmraHffRBls ACT OF 1872. 732

90 made their locations that it crossed the common side boundary, one receives practically nothing, and the other obtains something which the law did not intend he should liave, and fails to receive all of the vein underlying his apex, whicli the law contemplated that he should take.

If, on the contrary, Judge De Witt's theory is adopted, and a hounding plane, A K, parallel to the end line, H L, is applied at A, the point of crossing the side line, each locator receives a segment of the vein throughout its depth equal in length lo the apex within his surface boundaries. There is a com|jleto appropriation of the vein for the entire length and depth. Any subsequent location would be necessarily based upon a portion of the apex not included within the boundaries of either the Niagara or Black Rock, and such junior locator would have no just cause of complaint. This seems to fulfill the intent and spirit of the law. It gives to the locator as much of the vein as the irregularity and imperfection of his location will permit, without depriving others of any legal rights. It brings order out of chaos, and certainty out of uncertainty. It does substantial justice to all concerned. Is not this the true end and object of statutory interpretation?

The objection that this is a judicially constructed end line, seems to us to be plausibly met by the reasoning of Judges DeWitt, Hawley, and Hallett. The application of such a plane is neither arbitrary nor conventioual. The direction of it ia fixed by reference to the line properly designated by the locator as an end line. While the rule yet awaits the authoritative sanction of the supreme court of the United States, when we consider the practical unanimity with which both trial and appellate courts in the mining regions have accepted it as the only proper solution of the question, we express the belief that the court of last resort will not withhold its approval.

'i 592. Tela with apex wholly within the locatioQ, but crossing none of its bonndariea, or entering at one end line and not reaching any other boundary. — After

reading the opinions of Judges De Witt, Hawley, and Hallett, in the side-end-line cases, reviewed in the previous section, it is hardly necessary to consider under a separate classification the case of a vein having its apex wholly within tlie location, but crossing none of its boundaries, as illustrated in figure 47, or that of one crossing an end line and failing to reach any other boundary, as illustrated in figure 48.

'T

Figure 47.

Figure 48.

Wo are not aware of any adjudicated case such as is illustrated by figure 47. Such an instance was assumed, for the purpose of argument, by Judge Hallett in the Del Monte case,' wherein that judge was inclined to ridicule the idea, that any one would deny the right of the locator to follow the lode within his end lines, upon the ground that the lode did not reach either of such lines.

It would be exceedingly difficult to understand upon what theory the extralateral right could be denied in either this case or that illustrated in figure 48.

An instance of the latter class occurred in the suit of the Carson City Gold and Silver Mining Co. v. North Star Mining Co., tried before Judge J. H. Boatty, sitting as circuit judge in the nintii circuit.

We have presented, on page 417, a diagram illustrative of this case. It was demonstrated that the course of the vein through the location in the direction of the west end line was interrupted by what was locally termed a "cross- "ing," beyond which the fissure did not extend. No ore bodies were encountered west of this crossing. The court found that the apex of the vein ended at the point C,

§593 Extralateral Rights Under Act Op 1872. 734

under the mill, and applied at this point an end line plane parallel to the east end line, invoking the doctrine of the Tyler-Last Chance case, on the theory that the east end line was crossed by the lode. The practical result, so far as the North Star was concerned, would have been the same if the court had extended the west end line, as there was no segment of the vein lying between a plane drawn through that line and the one applied by the court at the point C.

A. similar case was assumed, for illustrative purposes, by Judge Hawley, in his decision in Tyler Mining Co. v. Sweeney.* It was there said, that there certainly could be no question in such a case as to the right of the locator to follow the lode in its downward course for its entire depth.

g 693. Eztralateral right as to veins other than the one upon which the location is based. — The law contemplates that there mav be found veins having their tops, or apices, within the boundaries of the location other than the one originally discovered, and upon which the location is predicated. Such instances are by no means rare. Sometimes they are parallel to the located vein, in which case there is but little room for controversy as to the bounding planes which define the extralateral right.

One thing is quite certain, and that is,

Figure 49.

154 Fed. 284,293.

735 Veixs Other Than Oxe Originally Located. §593

there can be but one set of end line planes, which must bound the extralateral right as to all lodes. A case in* volving this question was tried before Judge Hawley, sitting as circuit judge, ninth circuit, the facts of which may be illustrated by the use of a diagram (figure 49).

The Ural was an irregularly shaped surface, the original location of which was based upon the Ural vein, x x, called the ''contact vein,'* as it was found between a granite hanging and a slate foot wall. It was shown, that lying west of this, in the slate, was a separate and distinct vein — an extension of the Wyoming — which continued into the Ural ground as far as the point marked " hoist." There was a union in depth between the Wyoming and Ural veins, underneath the surface of the New Years mine, claimed by the Champion Company, which company had a portion of the apex of the contact vein in the New Years; and as the Ural and Wyoming were located prior to the New Years, the court was called upon to define the extralateral right.

The court followed the Tyler-Last Chance rule as to the bounding plane on the Ural, or contact, ledge, by applying a plane, A it, parallel to the produced line,c d e, at the point h, where the vein crossed the side line into the New Years ground, and a similar plane, y i, at the point where the Wyoming vein terminated in the Ural ground.

If there is anything illogical in this method of adjusting the iflBculty, it is found in the selection of the line c d as an end line. It was not such in law, as the contact vein did not cross it. The supreme court of Colorado, in commenting upon this decision, expresses the opinion that it is in irreconcilable conflict with the ruling of the supreme court of the United States in the King-Am\' case.*

The method pursued by Judge Hawley, however, as to the segment of the Wyoming ledge found within the Ural boundaries, illustrates the principle of bounding the extralateral right upon all lodes found within the location

Catron v. Old, Feb. H, 1897.

§594 Extralateral Rights Under Act Of 1872. 736

boundaries by planes constructed with reference to the direction of the end lines of the located lode, assuming, for purposes of illustration, that the plane applied to the contact vein at the point h was a true end-line bounding plane.

Justice Field, in his opinion in the Elgin case, says: —

" It oftea happens that the top, or apex, of more than one ' " vein lies within such surface lines, and the veins may "have different courses and dips, yet his right to follow " them outside of the side lines of the location must be " bounded by planes drawn vertically through the same end " lines."

Another instance Of the character under consideration will be noted in the next article, which will more clearly illustrate the views of Judge Hawley, and will enable us to close the discussion of this question.

g 694. Conclusions. — It is quite manifest, from a review of the foregoing sections of this article, that we have not undertaken to present all possible combinations arising from either the forms of location or the erratic course of veins through them. Hypothetical cases without number might be assumed, illustrated, and discussed, without material advantage to either the practitioner or the author. Many of them may be solved by the application of established principles. Others present individual types, which will, should they arise, perplex the courts, even in the absence of controverted questions of fact. It has leen our aim to confine our treatment of the subject to the exposition of the law, as found in the adjudicated cases, and applying the principles which seem to be sanctioned by the current of judicial authority to a few hypothetical cases which appear to us to be susceptible of solution by resorting

>Iron S. M. Co. Elin M. Co., 118 U. S. 196, 207.

Tbe cae of Cons. Wyomind v. Champion, discussed in this section, was appealed to the circuit court of appeals. Pending tiie appeal, the Champion Company purchased the entire property of the Wyoming, thus uniting all the claims under one ownership. The appeal was thereupon dismissed.

to such principles. We may admit that as to some of these hypothetical cases the position assumed by us is open to debate and criticism, but in the main we think wo have fairly presented the existing state of the law on this important subject, and are justified in deducing therefrom the following rules; —

(1) Under the act of 1866, parallelism of end lines was uot essential to the exercise of the extralatral right. The vein might be pursued in depth indefinitely between planes drawn through the end lines and such lines produced, whether they converge or diverge in the direction of the dip ;

(2) Under the act of 1872, parallelism of end lines is essential, except where the opposite boundary lines, crossed by the lode, converge iu the direction of the dip;

(3) In order to enjoy the extralateral right, tlie locator must include within his boundaries the apex of a discovered vein throughout its entire width;

(4) Where a vein crosses two opposite parallel side lines, the extralateral right is dehned by producing such side-end lines indefinitely in the direction of the dip, iind the angle at which the lode crosses these lines is of no moment;

(5) Where a vein, located under the act of 1872, crosses . two opposite non-parallel side lines, if such lines diverge in

the direction of the dip, there can be no extralateral right. Where, as produced, they converge and intersect beyond the limits of the location, the vein may bo pursued in its downward course to the line of intersection of the two planes, at which line the extralateral right ceases;

(li) Where such a vein crosses one of the lines designated by the locator as an end line, and departs through a side line, the extralateral right is defined by reference to the direction of the crossed located end line. A plane parallel to one drawn through such crossed end line, produced indefinitely in Ihe direction of the dip, applied at the point where the lode crosses the side line, will carve out a Bognient of the vein throughout its entire depth, which will belong to the locator;

§598

Rights Of Claims Previously Located.

(7) Where the apex of the located vein crosses none of the boundaries of the location, but lies wholly within such boundaries, or crosses one end line and fails to reach any other boundary, the extralateral right is defined by reference to planes drawn through the located end lines.

If these principles are fairly deducible from the adjudicated cases, the difficulties surrounding the application . of the law are reduced to a minimum. What is most essential is, certainty of the rule and uniformity in its application. It is better that the principle established should be certain and definite, even if it is not based upon incontrovertible logic or the perfection of human reasoning.

Article IV. Extralateral Rights on Other Lodes

Conferred by the Act of 1872 on Owners

OF Claims Previously Located.

1 598. Introductory.

2 599. Extralateral right on other

lodes where the end lines of the original location

cross the original lode an4 are parallel.

600. Same— Where the end lines are not parallel.

g 698. Introductory. — We have heretofore observed, that under the act of 1866 the locator was restricted to one lode, and that in all patents issued under that act a restricting clause was inserted in that instrument, limiting the conveyance to such lode.*

When the change in the manner of locating claims was inaugurated by the act of May 10, 1872, in order to prevent any question as to the ownership of such other veins as might be found within any surface area of claims previously located, to prevent conflicts from arising as to such other veins, and to bring as far as practicable all classes of locations theretofore or thereafter made under one general system, a clause was inserted in the act, conferring upon all locators of claims theretofore appropriated the same

See, antCf g 572.

END LlSm OP ORIGIJIAL GOVERN AI.I. LODES. §509

rights as to all lodes whose tops, or apices, might be found witbin the surface boundaries as were granted to locators of claims thereafter acquired. We have rjuoted this clause of the act iu a previous section,' and it is unnecessary to here rej>eat it

The application of this law to locations made under a system which exacted, as a condition precedent to the exercise of any extralateral right, that end lines should be parallel, has been surrounded with difBculties which at times have seemed almost insurmountable. But to apply & law framed upon the theory of parallelism to locations made and patents issued under a system which, as we have heretofore fully explained, contained no such requirement, presents additional complications.

In discussing the subject of locations made under the act of 1866, we have frequently called attention to the fact, that in many instances the location took the form of a many-sided figure — an irregularly shaped surface' — constructed without regard to the course of the vein. We have heretofore endeavored to demonstrate what we understand to be the correct rules to be applied with reference to the one lode, called by us the original, in defining the extralateral right.' But what doctrine may be invoked as to other lodes in cases where the location was made prior to the act of 1872, and where such location has been perpetuated in its original form? We will consider the subject in two aspects: —

(J) Where the end lines of the original location cross the original lode and are parallel;

(2) Where the end lines crossing the original lod'e are not parallel.

g 599. Extralateral right on other lodes where the end lines of the original location cross the original lode

and are parallel.— The cuso of Walrath v. f'Immpion

Mini

ng

Ciinjpiiiiy, commonly known a.'j the Providencc-

'8ee, ante, {573,

.nf.,H5;

§ 599 Kiqmts Op Claims Pbeviously Located. 740

Champion case, tried before Judge Hawley, sitting as circuit judge,' presented an instance of a patent issued under the act of 1866, with parallel end lines crossing the lode, and a subsequently discovered vein, which crossed neither end line. The case is best illustrated and explained by the Qse of a diagram (figure 50). The original lode is marked z z

Figure 50.

on the figure, and is locally known as the granite ledge. It crossed two parallel end lines, p and g h.

Some years after the passage of the act of 1872, another ledge, or vein, called the contact ledge, x x, was found to enter the Providence ground across the line / ff, pursuing a southerly course, but it is not shown to have reached on such course any of the other boundaries. The Champion Company, having subsequent to 1872 located that portion of the contact ledge lying within the New Years and New '63 Fed. 652.

Years Extension, a controversy arose us to the boundiug plane between the two companies on this ledge. There was BO controversy between the litigating parties as to the original, or granite, ledge. The Providence contended, that as the contact ledge crossed the line that Hue became in law an end line, and the vertical hounding plane should be drawn through the line / y, produced indefiuitely.

The Champion contended, that the rights of the Providence on ail ledges having their apices within its boundaries must be hxed with regard to the end lines of its location and Ihe general direction of such lines, as described in the patent and delineated upon the map accompanying it; that the only lines appearing upon the plat which at all fulfilled the natural or legal deBnitions of end lines, were the end lines crossed by the original lode, z z, to wit: g h and a p, and that they must be construed to be the "end Hues of the "location" referred to in the act of 1872; that the rule enunciated by tlie circuit court of appeals in Tyler v. Sweeney' was applicable to the case, and afforded the only consistent legal solution of the controversy between the parties. This rule would apply the plane through g h, at the point v, where the ledge in controversy crossed on its southward course the boundary linv,f g, giving the bounding plane, v v'.

The court declined to adopt either theory. It announced the following as its views: —

"The act of 1872, in granting all other veins that were " within the surface lines of previous locations, did not "create any new lines for such other veins, nor invest the "court wit*li any authority to make now end lines for such " other veins. And it is apparent from an examination of " the statute that the court has no power to make a new " location for every vein that may be found within the " surface lines of the location, and thereby enlarge the " rights of the original locators. When the end lines of a " mining location are once fixed, they bound the extralait- " eral rights to all the lodes that are thereafter found within

'Al Fed. -284.

S600

Rights Of Claims Pbevi0U8Lt Ldcatkd.

"the surface lines of the location. It necessarilj' follows, " that the end lines of the Providence survey must be con- '' sidered by the court as the end lines of any and all other " lodes, or veins, which lie 'inside of such surface lines;' "otherwise, endless confusion would arise in the construc- "tion of the statute. Eud lines would have to be cou- " etructed in different directions if the separate lodes, or " veins, found within the surface lines did not run parallel " with each other, and the result would be, tha.t these lines " extended might give to the owners of the claims a greater "length along the lode, as it extended downward, than " they had upon the surface. If the same end lines which " bind the extralateral rights of the Providence surface " survey apply to the contact vein, and to all other veins, if " any are hereafter found, then no such difficulty can arise. " This is the rule that applies to all locations made after " the act of 1872, and it ought not to be presumed that " congress, by its grant to prior locators, intended to give " greater rights to them than were given and granted to " subsequent locators under the same act.'"

This cose was taken to the circuit court of appeals,* where the judgment was practically affirmed. A modification was ordered, but it did not affect the principle involved or the interest of either party to Ihe litigation in any appreciable degree."

The principle announced by the circuit court is that suggested by Judge Field in the Elgin case, quoted in a preceding section.'

g 600. Same — Wliere the end Unee are not parallel. — If we are correct tbe conclusions reached in a preceding section,' that whatever may be the form of a surface area described in a patent issued or a location made and perpetuated under the act of 1866, whether the end lines converge or diverge in the direction of the dip, the extra-

WHlrvtli V. Clinrnplon M. Co., U3 Fed. 552. KiT.

'Wftlnili f. C'liitmpioii M. Co., TSFod. 978.

*Tbe Providence owners applied tr> tiie supreme onnrt of the United 8lBtit tor a writ ot ewtioritrl, whloh was denied. Suhseqaentiy an appeBl waa taken lo lliat lrll)iinl, wlildi Is now peudlDg.

See, ante,ias.

'See, tiJi(e, ( 677.

743 I'ATENTS CONSTRUEb AS IF ISSVKD rXDER PRIOR LAW. § 604

lateral right on the origiual lode is to be ilefiiied by drawing vertical planes through the eod lines produced ia their own direction, we cannot see liow we cnii escape the necessity of applying the same rule to ail other lodes whose apices aro found within the boundaries. The language of section twenty-three hundred and twenty-two of the Revised Statutes, quoted and commented on in a preceding section,' admits of but one construction. To say that the extralateral right as to the other lodes within the boundaries of a location made prior to May 10, 1372, could only be exercised in the event that the end lines of such antecedent locations should be parallel, is to import something into the statute. While this construction may at times be productive of awkward and. considered in the light of the existing system, exaggerated results, yet we cannot see who has the right to complain. Congress certainly had the power to grant the whole or any part of these veins which had not been previously appropriated and held under local rules or under the act of lS6(i. That the language of the section referred to is to be interpreted as a grant, is, in our judgment, beyond dispute. Those who come afterwards take in subordination to this prior grant.

ABTiri.E V. CON.ITRUCTIOX OF PATENTS Apl'I.IEl

Prior, but Issued Subseqcent, to THE Act ok 1872.

(004. Paten tH applied for under Ihe a

g 604. Patents applied for ander the act of 1866, but iBsaed after Hay 10, 1872, to be construed as if issued under the prior law. — At the time the act of July 20, 1S66, was repealed, ami the old syslein gave place to the new, s great many applications for patent were pending before the

!.}5Tfl.

J

§ 604 Patents Applied For Prior To Act Of 1872. 744

land department, based upon locations made either under the repealed law or prior to its enactment. In some instances, final entry and payment had been made, and the receiver's receipt or certificate of purchase had been issued, leaving nothing further to be done save the formal issuance of the patent. In other cases, action on the part of the land department was suspended, awaiting the determination of adverse conflicting claims. In still others, the preliminary steps had been taken, and only awaited the lapse of the requisite period enabling the applicant to make final entry and payment Recognizing these conditions, congress incorporated into the new law the following provisions: —

"Sections one, two, three, four, and six of an act en- " titled, *An act granting the right of way to ditch and " 'canal owners over the public lands, and for other pur- " ' poses,' approved July 26, 1866, are hereby repealed, but " such repeal shall not affect existing rights. Applica- " tions for patents for mining claims now pending may be "prosecuted to a final decision in the general land office; " but in such cases, where adverse rights are not affected "thereby, patents may issue in pursuance of the provisions " of this act; and all patents for mining claims heretofore " issued under the act of July 26, 1866, shall convey all " the rights and privileges conferred by this act, where " no adverse rights exist at the time of the passage of "this act."'

". . . Promdedy that nothing contained in this act " shall be construed to impair, in any way, rights or in- " terests in mining property acquired under existing " laws."-

This manifests the unequivocal intention of congress to preserve all rights previously acquired, and the act must be so construed.

There is nothing in the terms of the new act which required the applicant to institute proceedings de novo, or to go into the field and re-form the lines of his survey so as to include within his boundaries only so much surface as

Act of May 10, 1872, ? 9, 17 Stats, at Large, 94.

/d., §10.

'Eclipse G. & S. M. Co. v. Spring, 59 Cal. 304.

745 Patents Construed As If Issued Under Prior Law. § 604

was permitted under the act of 1872, where ilnder the preexisting law and local rules he might have been entitled to more. He was not required to republish a notice of his application for patent, and open the door to outside claimants who had been barred by the lapse of time under the previous law.

The object of the original act, as well as the one which superseded it, was to require the claims of all parties to be adjusted prior to the issuance of a patent. The proceedings before the land department are judicial in character, and the publication of notice as required, brings all parties into court; and if outside claimants stand by and allow the statutory time for filing adverse claims to elapse, their rights, so far as the same might have been determined in such proceedings, are forever lost.*

To insist that the applicant should abandon his proceedings initiated prior to the passage of the act of 1872, reopen his case, and proceed thereafter in strict conformity with the new law, would be to deprive him of a substantial right which was preserved to him by the law itself.

The land department, which had acquired jurisdiction under the original law, was not deprived of that jurisdiction under the new act. If it had power to issue the patent at all, in doing so it could only recognize the conditions as they existed at the time the application was filed.

We therefore encounter numerous patents, bearing date subsequent to the passage of the act of May 10, 1872, which describe surface areas of such form and extent as to be practically invalid if issued under that act, but which are not open to objection where it is shown that they were issued upon proceedings instituted while the act of 1866 was still in force. Such patents are to be construed as if they had been issued under the act of 18<36, while receiving the supplemental rights and privileges conferred by the act of 1872.

iRannaugh v. Quartette M. Co., 16 Colo. 341; Wolfley v. Ibanon M. Co., 4 Colo. 112.

§6

Obstacles Iktebbuptiko Bxtralatebal Bioht. 740

As a patent relates back to the inaugurfttion of the right,' the proceedings under which title originated may be proved. This ia no attack upon the patent.

Article VI. Legal Obstacles Intekkuttix

EXTBALATERAL RiGHT.

J 608.

Ctiissea of Itii pediments lnU>i-

surface bound

aryofaprior

riiptiiig tlie tight of Uterri

grant which grant did not

pursuit.

hi terms or

Inferent tally

Prior appro prlHtlon by a rei;-

resarve the right of under-

ular valid location of asat;-

grouuil inva.

menL of the Haine vein

nilninglocstlc

williont conflict as to sur-

class.

face area.

iai2.

Same — Prior

agrictillurl

Quail lien lion of tlie doctrine

thnt Hie extent of tbe extru-

Jhis-

Same - Other

classes of

iBtenil riglit of dllTerent

Inoators on the aame vein

S8I4.

Union of veins

on the dtp,

is to be determined by

iois.

Identity and c

intlnuitT of

priority of locution.

veins Involved In ths exer-

The eiitounteriOR of a vertical plana drawt] through a

cise or the Hghl.

extralaterol

?, 608. Glasaes of Impediments interrupting the right of lateral parsoit, — Thero are conditions under which the pursuit of a vein on its downward course, outside of and beyond the vertical planes drawn through the side lines, may be interrupted, and the extralaterat right absolutely cease, although the surface conditions as to apex, course of the vein, and the boundary lines, may approximate the ideal standard. Tlie legal obstacles which may thus be interposed to obstruct the right ace, generally speaking, referable to Uie necessity for recognizing prior grants and the application of the maxim, " First in time, " first in right."

8t. InlMSinoUingCo. v. Kemp, IfttU. 8. 63rt: Kalin v. Old Telegraph Co., i Utah, 1T4: Deno v. OritHn, SO Nev. 2i9; Eureka Case, 4 Sow. 302; Siuokehonae Ide aBa, Mont. aST; Talbot t'. King. Td. Td: Silver Bow M. & M. Co. V. Clarke, 5 Mont. STB.

>Sl. IjuuU Smelling Co. v. Kemp, KM tJ.S.nU; Kalin r.UldTelograpli Co., :: UiBb, 1T4: Last Uhance M. Co. if. Tyler, 01 Fed. RST.

747 Prior Appropriation By A Valid Location'. §609

We can ooiueive of three classes of such- obstacles: —

(1) Prior appropriation by a regular valid location of a segment of the same vein not involving any conflict as to surface area ;

(2) The encountering of a vertical plane drawn through a surface boundary of a prior grant, which grant did not in terms or inferentially reserve the right of underground invasion to the prospective proprietor of a lode location;

(3) The union on the dip of the vein of a junior with that of a senior locator.

g 609. Prior appropriation by a regular valid location of a segment of the same vein without conHict as to surface area. — It is axiomatic, that the government has no more power to grant the same thing twice than a private proprietor.*

It is bound by the same rules of good faith and good conscience which bind ordinary individuals. A patent issued for lands which have been previously granted, reserved from sale, or appropriated, is void.*

A valid mining location, perfected and maintained under the law, is a grant from the government,' and the estate granted in the vein in depth, beyond the boundaries, is of the same dignity as that conveyed within the boundaries.

A perfected valid lode location is predicated upon the existence, within the defined boundaries, of the apex of a discovered lode.* To the extent, at least, that this top, or apex, is included within vertical planes drawn through the surface boundaries, the lode is granted. If the position of the lode, with reference to the surface boundaries, is such that the locator is entitled, under the rules heretofore

. Fmnoni r. Flower, 17 Cal. 199.

'Xorloo r. SUte of Nebrmska, 21 Wall. 660; Dmvi r. Wiebbold. 139 U. S. 507; United States r. Winona A St. Paul R. R., 67 Fed. 94S. *8ee,a*i/e,i530.

§ 609 Obstacles Interrupting Extralateral Right. 748

enumerated, to pursue the vein on its dojvnward course beyond the vertical bounding planes, drawn through his side lines, he is granted such segment of the lode in its entire depth as lies between vertical bounding planes drawn through his end lines produced indefinitely in their own direction, subject only to the condition, that no portion of such segment has been the subject of a prior grant which is still valid and subsisting. Let us illustrate this by the use of a diagram.

a.

&

% t

6'

Figure 51.

p

In figure 51 we have represented a lode, x x, with a dip in the direction indicated by the arrow, passing on its onward course, or strike, through the respective locations of A., B., and C. Of these locations, B. alone conforms to the ideal standard. Its end lines cross the lode at right angles to its general course as it traverses the location. A. and C. each have parallel end lines crossing the vein, but at obtuse or acute angles. As we have heretofore observed,* this is no objection to either the validity or regularity of the locations. The law does not require that end lines

1 See, ante, i 365, p. 473.

749 Pkiob Appropriation By A Valid Location. §609

shall be at right angles to the course of the vein. It inflicts no punishment upon A. or C. for failure to so construct them. Individually considered in the eyes of the law, A. and C. are just as complete and regular locations as B. Each carves out a segment of the vein at the surface, fifteen hundred feet in length, included within parallel end lines, which are crossed by the lode on its onward course; and if found isolated and unaffected by rights asserted by neighboring locators, each would be entitled to that segment throughout its entire depth — that is, so much of the vein as is found between vertical bounding planes drawn through their respective end lines produced indefinitely.

The priorities as to title are in the order named, A. being prior in point of time to both B. and C, and B. being prior to C. Whenwe speak of priority of title, we mean priority of location.

A junior locator may have a patent, while the senior's title rests in a perfected and subsisting location. Under such circumstances the patent has been issued in subordination to the senior locator's rights. When the latter receives his patent, the title thus obtained will relate back to the date of his location.

A., being the prior locator, has secured by his perfected location a grant to the segment of the vein found between vertical bounding planes drawn through his end lines produced indefinitely in their own direction (a 6 6', c d d') — that is, the segment r.

The title to this segment of the lode in its entire depth, beyond the vertical plane drawn through the side line, b d, has been severed from the title to the superjacent soil, and no subsequent grant, appropriation, or reservation, whether of the overlying surface or of any other part of the lode, can curtail or abridge any of A's rights, so long as his

' Stark V, Starrs, 6 Wall. 402; Talbott v. Kinp, 6 Mont. 76; Jacob v. Irenz, 98 Cal. 332; Last Chance M. Co. v. Tyler M. Co., 61 Fed. 557; St. Louis Smelting Co. v, Kemp, 104 U. S. 636; Kahn v. Old Tele;rapb Co., 2 Utah, 174; Dodo v. Oriffin, 20 Nev. 249; Eureka Case, 4 Saw. 302; Smokehouse Lode Cases, 6 Mont. 397; Silver Bow M. & M. Co. v, Clarke, 5 Mont. 378.

S6

Obstacles Interbujting Kxtralateral Right.

location is preserved in its integrity. He has the right to the pursuit of this segment in depth until he encounters some legal obstacle interrupting its further pursuit, A subsequent grant is not such a legal obstacle. B., the junior locator, cannot locate a continuation of ihe outcrop, and so construct the end lines of his location that vertical planes drawn through them and their extension would intersect the vertical end-liue planes of A., tlie senior locator, and deprive him of any portion of the segment x. B., by his junior location, obtains title to the segment ;v, and 0., who follows him, takes the segment z. As was said by the supreme court of the United States in the Argentine-Terrible case, —

"Assuming tliat on the same vein there were surface " outcroppings within the boundaries of both claims, the " one first located necessarily carried the right to work the " vein." '

An inspection of the diagram (figure 40) presented on page 713, in connection with a previous discussion of this case, forcibly illustrates the rule. The prior valid appropriation by the Adelaide of a portion of the apex, as indicated in figure 40, interrupted the extralateral right of the junior locators holding a portion of the apex of the same vein in the Camp Bird and Pine claims.

As was said by Judge Hawley, speaking for the circuit court of appeals, ninth circuit, in the Tyler-Last Chance case, —

" In cases of controversy, where the right exists under each valid location to follow the lode in its downward course, it necessarily follows that both locations cauuot " rightfully occupy the same space of ground; and in all cases where a controversy of this kind arises, the prior locator must prevail, precisely as in cases of like controversy between locations overlapping each other lengthwise on the course of the lode."*

I ArgenUno M. Co. r. Tenible M. Co., 122 CI. 8. 478.

>Sce, anie,f 6BT.

' Tylor V. Sweeney, 51 Fed. SA, -JH5.

751 Prior Appropriation By A Valid Location. §609

A simplified diagram of the Tyler case will illustrate the doctrine, as applied to the hypothetical case under consideration.

.Jo

It

Figure 52.

Figure 52 is based upon the diagram appearing in connection with the opinion of the supreme court of the United States/ and which we reproduced with slight elaboration as figure 45, shown on page 722. It eliminates the triangular tract which involved a surface conflict between the Tyler and Last Chance claims, and presents the Tyler claim as patented, a claim regular in form, with the vein passing through two end lines. The Last Chance presents a location with the vein crossing two side lines. With the priority established in favor of the

Last Chance M. Co. v. Tyler, 157 U. S. 684.

§ 609 Obstacles Interrupting Extralateral Right. 752

Tyler, there can be no question but that the owners of that claim would be entitled to the segment of the vein found within vertical planes drawn through the end lines as produced {12 a and 5 6 b). With the priorities established in favor of the Last Chance, and assuming that the owners of the latter claim have>a right to produce their side-end-line planes westerly in the direction of c and d, respectively, of the correctness of which assumption there can be no doubt,* the extralateral right of the Tyler is interrupted and ceases when the vertical plane drawn through 10 7 encountered. As was said in this case by the supreme court of the United States: —

" On the assumption that the action of the owners of " the Tyler claim, in excluding from their application a " portion of their claim, was legal, obviously the priority " of location becomes a pivotal question. For while the " disputed ore is on the dip of the vein within the ex- " tended vertical planes of the end lines of the Tyler " claim, it is also within the legal end lines of the Last " Chance claim and on the dip of the vein as it passes " through that claim. Naturally, therefore, the contro- " versy in the circuit court was upon the priority of loca- " tion."

With respect to the rights of the Republican Fraction, with an assumed priority over the others, it will be observed, from an examination of figure 45, shown upon page 722, that the Republican location was based upon a part of the width of the apex, the apex being about three hundred feet wide.' This fact,* together with the form of the location, it having been made under the act of 1872,* deprives the locator of all extralateral right.

To what extent the Republican Fraction would, by reason of its priority, prevent the Tyler from penetrating underneath the surface of the former in the lateral pursuit

'See, ante J 589; Tyler v, Sweeney, U. S. Circuit Court of Appeals, Feb. 1, 1897.

157 U. S. 687.

'Republican M. Co. v. Tyler M. Co., U. S. Circuit Court of Appeals, Ninth Circuit, 1897. . See, ant, J 583. 6Jd., J582. Jrf.

753 liXTKALATKKAJ- UIUIIT OF DirrEKEKT LOCATORS. S GIO

of the vein, to tlie extent that the Intter held the apex in its full width, may be lieteiminetl from an application of the principles announced in the next section, and illustrated, by reference to figure 53.

It may be remarked, however, that the manner in which the apex is cut by the common side boundary presents a condition altogether diflerent from that illustrated and discussed in a previous section.'

610. Qualification of the doctrine that the extent of the extralateraJ right of different locators on the same vein is to be determined by priority of location. Wiiiit \vc liiive htTOtol'ure said upuu tiie aul)j(?ft of prior appropriation has been based upon the assumption of the existence of regular valid locations — that is, locations each embracing within its respective boundaries some portion of the apex of the same vein, each having the right of extralateral pursuit, to some extent at least.

It does not necessarily follow, nor is it to bo inferred from the authorities cited, that the existence of any portion uf the apex of a vein within the boundaries gives the owner of a prior location all of the vein whicli may be found within the vertical planes drawn through those boundaries. We have heretofore endeavored to show, that according to the spirit and intent of the existing law the owner of a lode location is entitled to only so much of the vein on its downward course as he has apex overlying it, and that the vertical planes bounding this right must under all circumstances be parallel, or, at least, non-divergent in tlie direction of the dip.

Wliat we now wish to establish ie, that any portion of t1i6 lode lying outside of and beyond these vertical endline planps, found underneath the surface of the prior location, will belong to a subsequent locator who, by a regular valid location, appropriates such part of the apex as is found outside of the boundaries of the first locator. That

'i*ee, arttt, I TiSS, Gg. 35, p. TO!!.

§ 610 Obstacles Interrupting Extralateral Right. 754

m

our meaning may be plain, let us again resort to the use of a diagram.

Figure 53 represents two locations (A. and B.) on the same vein, X x, A's being prior in point of time. As to A*s location, the lode crosses one end line, c d, and a side line, a e c,

nse

%

/

jr

Figure 53.

having within its boundaries, let us say, four hundred linear feet of the apex of the vein. If the views heretofore announced are sound, A's extralateral right is defined by vertical planes drawn through c d d! and e//'. What becomes of that portion of the vein lying underneath A's surface west of the vertical plane drawn through ejf It may be admitted that, prima facie, it belongs to A. But when B. makes liis location, including the apex, as shown on the diagram, without in any way conflicting with A's surface boundaries, is his right of extralateral pursuit interrupted and abridged by a vertical plane drawn through

>See, ante, 9 591.

755 Extralateral Right Of Different Locators. § 610

A's north side line, a e c? Such result would ensue if the vein crossed both side lines in the manner shown in the Flagstafif-Tarbet, Argentine-Terrible and King-Amy cases, because the side lines in that class of cases perform all of the functions of end lines. But in the case now supposed, the line aec does not perform all of such functions, because its direction does not, under any circumstances, operate to determine the limits of the extralateral right. It stops the pursuit of the vein on its onward course. But this is true of any line crossed by a vein on its course. It is our view of the law, that A. is, in the presence of junior locators, such as B,, entitled to only so much of the vein in depth as he has apex, i. e, four hundred feet. In other words, the segment of the vein underneath A*s surface, lying west of the bounding plane drawn through e /, is reserved by operation of law out of the grant to A., and B. owns the segment of the vein \vithin the bounding planes g h h' and k I V; although a portion of such segment underlies A*s surface. This is an instance where the question of priority is immaterial.

"This consequence would follow, irrespective of the priority of the locations. It would depend on the ques- " tion as to what part of the vein the respective locations " properly cover and appropriate."'

The circuit court of appeals for the eighth circuit, in the case of the Colorado Central Consolidated Mining Co. V, Turck, held, that the statute conferring the right to follow a lode outside of the side lines of a location, when the top, or apex, of the lode lies within the boundaries of the location, does not, in terms or by necessary implication, limit the exercise of that right, especially where mining claims are involved, to cases where the adjoining claims are held under junior locations or patents; and in the Providence-Cfliampion case, Judge Ilawley determined

Flagstaff S. M. Co. r. Tarbet, 98 U. S. 463, 469.

>50Fed.888.

>See, ante 1 364, p. 470, note 2.

Walrath v. Champion M. Co., 63 Fed. 552; S. C. on appeal, 72 Fed. 978.

§ 611 Obstacles Interrupting Extralateral Right. 756

that the Champion, the junior locator, might follow that portion of the contact vein underlying its apex, underneath that part of the Providence surface lying beyond the planes determined by the court to be the end-line planes of the location. The court awarded to the junior apex locator that segment of the vein on its dip underlying the parallelogram hi kh\ shown upon figure 50, on page 740, although such overlying surface was covered by the senior location and patent.

We think the doctrine is in consonance with the spirit and intent of the law.

The contrary rule applied to the hypothetical case illustrated in figure 53 would result in giving to A. practically fifteen hundred linear feet of the vein within the bounding planes drawn through his surface lines, with only four hundred feet of apex. If A. had simply located the parallelogram a e/6, he would acquire nothing as against B., because of the non-existence of apex within his boundaries. Should he be permitted to hold the segment of the vein underlying this parallelogram, as against the locator of the apex (B.), simply because he included at the end of his claim a small portion of the apex cut by one end line and one side line? We think not.

g 611. The encountering of a vertical plane drawn through a surface boundary of a prior grant, which grant did not, in terms or inferentially, reserve the right of underground invasion — Senior mining locations not of this class. — To say, that the right to pursue a vein on its downward course, outside of and beyond vertical planes drawn through the lateral boundaries, is interrupted when a plane drawn through the surface boundaries of a prior grant is encountered, which grant did not in terms or inferentially reserve the privilege of underground invasion, is but the statement of a self-evident proposition. In such a case the segment of the vein underlying the surface of the prior

1 See, ante 364.

757 Tde Enitousteriso Op A Vertical Plane. § 611

grant has been conveyed, the title to it has passed out of tho government, and the government cannot grant the same thing twice. This is elementary. The difficulty lies in determining to what extent, if any, this right of invasion is preaerved. In other words, when and -under what conditions is this underground segment of tiie vein deemed to be severed from the estate in the superjacent surface, so that a subsequent locator may acquire title to it by appropriating its apex?

As between mining proprietors, that is, where all the parties hold and claim under the mining laws of congress, it seems to be generally conceded, that the apex proprietor, having a location in such form and with his vein in such a position within the boundaries of his location as to warrant the right of lateral pursuit under ordinary circumstances, may follow such vein in its downward course, into and underneath the surface of all other mining locations, either lode or placer, whether they be prior in lime or subsequent, Utlpaleutod or patented. In other words, there is reserved, as a matter of law, out of every grant of an estate created uadcr the federal mining statutes, all portions of veins underlying the location, which veins have their tops, or apices, outside of the located boundaries.

To state the proposition in another form: The apex lode proprietor with a regular valid location is granted the right to pursue his vein on its downward course into and underneath the land adjoining. His boundaries may, in like manner, be invaded by outside apex proprietors. The right is reciprocal. A placer locator takes, subject to this privilege of a lode proprietor, present or prospective, for tho reason that the law under which he acquires the right to locate is found in the general body of the mining statutes, and must bo construed in connection with the entire system, of which it forms but a part.

The reservation of "known lodes" out of placers refers to such lodes as have their apices within the placer boundaries, and which are subject to appropriation within such

§ 611 OBSTACLES INTERRUPTING EXTRALXtERAL RIGHT. 758

boundaries, notwithstanding the existence of the placer location. A vein penetrating underneath a placer surface could not be so appropriated. Therefore, in dealing with placer locations and placer patents, it is not necessary that the underlying segment of the vein penetrating underneath the placer surface from an outside apex should be known to exist at the time of filing the application for a placer patent, in order to effect a reservation out of such patent. It is reserved by the tlieory of the law. It is severed from the public domain, and is subject to appropriation by the discoverer of the apex. It does not pass by the placer patent.

We think that the doctrine herein outlined finds ample justification in the authorities cited and reasoning applied in the preceding section. As was said by the circuit court of appeals, eight circuit, in a case heretofore referred to: —

" The statute conferring the right to follow a lode out- " side of the side lines of a location, when the top, or apex, " of the lode lies within the boundaries of the location, " does not, in terms or by necessary implication, limit " the exercise of that right, especially where mining claims " are involved, to cases where the adjoining claims are held " under junior locations or patents, and we think we would "not be justified in placing such a limitation upon the " right by construction. The practice of the general land " office for many years appears to have been opposed to " the existence of anj' such limitation."

And in another case between the same parties the same court reannounced the doctrine as follows: —

" If the patents were offered for the purpose of showing " that they were older than the patent for the Aliunde claim, "then the proof was immaterial, for the reason, that the " plaintiff 's riglit to the lode in controversy did not depend " upon the age of his patent, but upon the fact that the " apex of the lode was within the surface boundaries of the " Aliunde location." "

Colorado Cent. Cons. M. Co. v. Turck, 50 Fed. 888, 895. id., 70 Fed. 294, 298.

759 The Encountering Of A Vertical Plane. § 012

We think that a consideration of the elements presented and discussed in the next section clearly justifies the conclusions announced by the circuit court of appeals.

§ 612. Same — Prior agricultural grants. — Has the proprietor of a regular valid lode location the right to pursue his vein in depth, outside of his lateral bounding planes, into and underneath the surface of an agricultural grant, the title to which grant passed to the grantee prior to the discovery and location of the mining claim inclosing the apex? In other words, is the underground segment of the vein underlying such agricultural surface, the apex lying without it, reserved by the law out of the agricultural patent, although at the time of the issuance of such patent such vein had not been discovered or located? In fact, we suppose a case where the existence of such vein was absolutelv unknown.

The question has never been determined by the supreme court of the United States. It has been answered in the native by Judge Sawyer, late circuit judge in the ninth circuit, in a case, the facts of which were as follows: —

On June 15, 1874, one Ham mack entered at the local land office, and paid for, a tract of agricultural land, and received a certificate of purchasje, which the court very properly treated as the equivalent of a patent, although such patent did not in fact until September 13, 187fJ. On July IS. 1S7<>. one McKim hjcaUi and acquir*?'] the right to a gold mining claim ituat-e)'i on landi adja'rnt to the tract embracexl in Hammack* entrv. McKim panr. and the title of Hammack ultimately to the Amador-Medean d Mi l i rj g O.-m j#a7j y . Tb'r .V-/ut h S pri u; Hill in working ii% lode. ioi lowed ii on downward co'jtm; aerow the vertical I'iane drawn xhrouh lije boundary of the Hammack t ract . TL e a ci i in w a- i ecn m fr-n t . to re<:o v<r r tJbe poaaeHsiou of tLai portion of rn- vein Jyiij;' und'rrneatL

§612 OBSTACLES INTERBUPTIHO BXrBALATEBAI. RIGHT. 760

the surface of the agricultural patent. The patent contained, after the granting clause, the following: —

"And also subject to the rights of the proprietor of a " vein, or lode, to extract ami remove his ore therefrom " should the same be found to penetrate or intersect the " premises hereby granted as provided by law."

We may suggest, that the insertion of this reservation is of no particular significance. Independent of the question of its proper interpretation, unless the law authorized it, it could neither enlarge or abridge the rights conferred by the patent.

The patentee's right to follow the dip of his vein exists by virtue of the law, whether the express grant of such right is contained in ihe patent or not;' and conversely, if this right is reserved by the law out of a prior grant, it is immaterial whether any clause of exception or limitation is embodied in the patent. It is the law, and not the instrument of conveyance, which creates the reservation. As there is nothing cabalistic in tlie phraseology of the patent, it is an element of no moment, except in so far as it baa a tendency to exhibit the rule of construction applied by the land department to the law it is called upon to administer. The question under consideration is to be solved without regard to the precise language embodied in patents.

Upon the conceded state of facts above outlined, Judge Sawyer, in deciding in favor of the agricultural proprietor,

"The only question is, whether, under the Revised " :;tatutes,a party discovering and acquiring title by patent " from the United Hlates to a mineral gold-bearing vein, or " lode, having its apex witliiu the land purchased, is en- " titled to follow the vein, or lode, down on its dip, across " the boundaries of his own lands, into the agricultural " lands of an adjoining proprielor wlio has the elder title?

"and

pay

nent of Hai

icic, there being no known mine

on the land, the entire interest to the center of the earth

' vested in him, and there was nothing left in the L'nited

Uoo v. Waterloo M. Co., 54 fed. KtS, IMt.

761 The Encountering Of A Vertical Plane. §612

((

It

C(

u

u u

a

States for a subsequent grant to other parties to operate upon. The only exceptions in the patents relate to easements and other prior rights already vested in other parties before the date of the entry, as was held in the case of P. C. Milling and Mining Co. r. Sparge' No other exceptions are authorized by the statute to be inserted, and exceptions not so authorized, if inserted, would be void. Section twenty-three hundred and twenty-two of the Re- " vised Statutes, relied on by defendant, does not authorize any such exception, and it only applies, at most, to public lands and to rights acquired to such lands before other parties acquire interests therein. It certainly does not apply to agricultural lands disposed of years, perhaps " half a century, before, by the government, and before any easement or other right has become vested in other parties. The United States can undoubtedly grant easements and other limited rights in any portion of the " public lands, and subsequent purchasers must take them " Durdened with such easements or other rights; but when " it has once disposed of its entire estate in the lands to one party, it can afterwards no more burden it with other rights than any other proprietor of lands. The defendant acquired no rights in the premises in question under " the section cited, or any other statute of the United States " brought to the notice of the court, as against the prior "grant under which plaintiff holds.""

With all deference to the views of the distinguished jurist, we think that his opinion begs the question.

We may readilv concede all that is said bv him with reference to the subject of easements. We have followed his views in this behalf in a preceding section.' But we have also announced the view, based as we think upon

1 8 Saw. 045.

*Tbis cmse was ap|>ealed to the supreme court of the United States. When it came od for argument, the attorney for the South Spring Hill Co., plaintiir in error, called attention to the fact, that since the decision in the eireuit oonrt the control of both corporations, parties to the suit, had come into the hands of the same persons. Therefore, without considering or parsing upon the merits of the case in an\' respect, the appellate tribunal reversed the judgment, and remanded the case for further proceed- Sngsi, in oonformity to law.**

South Spring Hill G. M. Co. v. Amador-Medean G. M. Co., 145 U. S.

'See, aii/tf, {531.

it

sound reason, that the nature of the estate in the vein, created by a grant of tlie dip or extralateml right, is something more than a mere easement. It is a title in fee as to the vein granted.'

If the segment of the vein underlying the Hammack tract was, in fact, granted by the patent or by the certificate of purchase, which is the legal equivalent of a patent, it must be conceded that the subsequent location of the apex of the vein would not confer the right to enter underneath the surface of the agricultural entry in pursuit of the vein on its dip. Whether such patent conveyed such underground segment is to be determined, not from the inspection of the patent alone, but from a consideration of the state of the law as it existed when the certificate was issued; and this state of the law is not to be determined only from an examination of the particular statute under which the agricultural title was acquired, but from a fair consideration of the entire body of the federal taws providing for the sale and disposal of the public lalids — laws which are essentially in pari materia. A statute must be construed with reference to the whole system of which it forms a part.

" Where enactments separately made are read m pari "vialeria, they are treated as having formed in the mmds " of the enacting body parts of a counected whole, though " considered by such body at different dates and under " distinct and varied aspects of the common subject. Such " a principle is in harmony with the actual practice of "legislative bodies, and is essential to give unity to the " laws, and connect them in a symmetrical system,"*

We have heretofore said, that the act of 186 was, in effect, a proclamation severing veins and lodes from tlio body of the public domain; that it was the announcement of a governmental policy whereby ledges within the earth were to be considered as distinct entities, and to be dealt with as such Id administering the public land syslem.

'Hutborlxiid tin Sifttulory Coiihi ruction, .i. W., (2S8,

7fi3 THK KNTdUXTERTNG OF A VERTICAL PLANK. S(il2

That this act was btit a crystallization of the local rules and customs existing at the date of its passngo has been abundantly estblishe<t.' In construing a statute, aid may be derived from attention to the state of things aa it appeared to the legislature when the slatuLe waa enacted.'

What WHS this " state of things " existing in the mining regions when congress first reeogni/.ed these local rules and perpetuated the extralateral or dip right as it was enjoyed under these rules'? Judge W. H. IJeatty, speaking for the supreme court of the state of Nevada, in an opinion rendered in July, 1866, sheds some light upon the subject: —

" Whilst we depart from the rules of the common law " 80 far as to let the miner follow his lode of quart?, where- " soever it may go, even though it pans under public laud " which was in the occupancy of another before the mine " was located, on the other hand the occupier of the sur- " fecc is equally entitled to protection in the use of that "surface, if a miner having a senior location should, in " course of time, be found to run under his improvements. " The doctrine of the common law, that he who has a right " to the surface of any portion of the earth has also the " right to all beneath it and above that surface, has but a " limited application to the rights of miners and others " using the public lands of this state. Necessity has com- " pelled a great modification of that doctrine. The depar- " ture from those old and established doctrines of the law "will, doubtless, lead to many complications. To adhere " to common law rules on this subject is simply impossible. "To attempt to carry out common law doctrines on this " point would either give all the houses in Virginia City " to the mining corporations, or else all the most valuable " mines to those occupying the houses. The well-estab- " lished custom of miners, to locate veins of mineral, claim- " ing to follow them with all their dips, spurs, and angles, " without reference to the occupancy of tlie surface, has "compelled a'departure from the common law rules.

'Sm. (in(tr, ji'iO,

United SMIea v. Union Po. 1{. H., 61 U. .S. 72; riatt i: U R. R., 09 U. S. 4S: Smith i>. Townsend, MS U. S. -IWi JolmHloii

'Bullion M.Co. p. CnsiJsG, AS. M. Co., 2 Nev. IttS, ITS.

If it be true, and as we have shown in the preceding sectiOQS the courts seem to so decide, that the senior location may be invaded by the junior apex proprietor pursuing his vein on its downward course outside of liis lateral boundaries, why should not the same rule be applied to senior agricultural grants? There is no particular magic in the position a given statute occupies in a cognate system.

As is said by Mr. Sutherland in his work on statutory construction,' it is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions. Title ihirty-two of the Revised Statutes of tlie United States embraces alt legislation of a general and permanent character on the subject of public lands which was in force on the first day of December, 1873. It is subdivided into chapters, each dealing with a particular branch of the system, including the method of acquiring title to agricultural, mineral, townsite, and other lands. Subsequent legislation on the same subject becomes a part and parcel of the system. It would be impossible to administer and execute these public land laws on intelligent or symmetrical lines unless the entire system is considered, and each part is construed in the liglit and according to the spirit and intent of the whole.

In comparing* the federal land system and the governmental theories upon which it is based, we have noted ' that, unlike the regalian system prevalent in England. France, Spain, and Mexico, a grant or conveyance by the United States carries all the minerals, unless reserved expressly or by implication in the law or instrument purporting to pass the title. The doctrine for which we are now contending is in harmony with this rule. We simply affirm that lodes, or veins, having tlieir apices outside of the agricultural grant are, to the extent that such lodes, or veins, on their downward course uuderiy it, reserved by law out of such grant. Nor does this doctrine militate again.st the well-

i m, and uuseM ufled In iiole 5. 'Seu, time, NO, |i. 33.

765 TSE rsyyrsYTmis>', or a txsticjll flaxi.

rc> of Ia. itxi ih r<dL:eni is cr-noi'iisiTr evidence of ibe iJTrt- of -L-e lin-i. Th* Ijiii-i covered by

calturaL bai iLi* no? ncessarilv inir-Iv ha: :i under ii$ sorfKe, *r*iiiis outside of :i. &nnc4 w wsrrri wiiboat impefcchinc iL* n:c£i and changing ih character of ibe lan*i. The ito c!as?ift5 of srani? mav ex without conflicdng. in a 5i5e. As a msner of course, the apicaltur.\l grin;*5e niy insist upn :he dcicuine of lateral and ab'a<!er:: scrion- as this :s nrcBasarilv involved in the severance of ;he ifile :o the un deriving vein, and is one of the esseniia: c:*i:>>=i:ianis of the ex:rtla:eral right.

1613. Burnt — Other dates of grmmtr — We mav

admit, without de:er:ora:ing from the doctrine announc?d in the p*recedicg see;:oii. Tba; grants of all classes?, the title? to which became vesieti rrior to the pas&ge of the act of 1M6. form exceptions to :::e rule, for the simple reason. that according :o :he s'laTe of :he liw :heretofore existing there wa? no rec->zn:Z'=-: Irci-'ir ie:".Ara:::r. ii:::h>r:rin or sanctioriinz s-ic'. a rerriti.r- In ;':.-r ozise of Mexican gran IS. we w:"/. y.r.-rr-lr: :hi: :hr rule i:*r-? n:-: apply, for two rea**>ns: The :::'e them oriziniiei pr::r to the enactment of anv .:-:r-ZTe*::ni'. .i<-s. i;:-i their sui-sei.uent c.nTevan': br ::.r jTT-rrr-nirr.: ihr o-or.nrrnre? was in

w

of coneress rroviiir.c: : :r :hr r::.rn:rn* of rrivaie land claims are sr*::.*! :n ::.rir ni:.:re. in : firm n:* r*Ar: :f ;he public land rvTn:- W.th r-rferrn:- rai'riai zrants and jrrant* f :r ei .::-a::vr.?.: i'.:rrK-ses. :hr -:::r if the 'aw at the time thr- zr--r.ts ::ikr -f?-::. ar : rirtioular tracts, will control their i :rn:ri:-:r:\:::n '

t may r..- s: : :r. it :.Mr : ::r:r.r r:i::ca.. an-n tr.a: :ts application wi.l cirrv .:- t-rvoni the linii: -jiicial c-inservatim. This :? f r.> riioier.: if :htr ruie befour. ie-J in logic and reas.n. I: ur-heid bv manv able and

§ 614 Obstacles Interrupting Extralateral Right. 766

earnest men in the active walks of professional life, who are impressed with the conviction that the established policy of the federal government, traditional and legislative, on the subject of the dip or extralateral right, has released us from the thraldom of the common law.

g 614. Union of veins on the dip.— The last clause of section twenty-three hundred and thirty-six of the Revised Statutes provides, that " where two or more veins unite, " the oldest, or prior, location shall take the vein below the " point of union, including the space of intersection." This, of course, refers to a union on the dip.* We have heretofore fully considered the subject of cross lodes, such as intersect or cross on the strike — a class of cases provided for in the first clause of the section of the Revised Statutes referred to.*"*

The law defining the rights of the parties in cases of veins uniting on the downward course, seems to be clear and unambiguous. The object of the statute was to supplement the provisions of section twenty-three hundred and twenty-two and to prescribe rules under which diflferent locations by different proprietors should be held, and to determine the rights of such proprietors in case of intersecting veins.' When such an intersection is established, priority of location governs. The senior title takes the entire united vein below the line of junction.

The problem is so simple that diagrams are hardly required to exhibit the practical application of the law. But even the statement of plain propositions may often be emphasized by apt illustration. The case of the Little Josephine Mining Co. v. Fullerton, considered by the circuit court of appeals for the eighth circuit,' affords us such an

Lee V. Stahl, 13 Colo. 174.

See, ante, g§ 557-560.

'Stinchfield v. Gillis, 107 Cal. 84, 89.

Champion M. Co. v. Cons. Wyoming M. Co., 75 Cal. 78; Cons. W3'o- ring M. Co. v. Champion M. Co., aS Fed. 540; Stinchfield v. Gillis, 96 Cal. 33; IJttle Josephine M. Co. f. Fullerton, 58 Fed. 521.

*58Fed.521.

rXlOS OF VEIN'S OS THE DIP.

StU4

excellent opportnoity of representiDg actual conditions to which the law has been applied that we consider it not aUogetJier inappropriate to illustrate it.

Figure 54 shows, approximately, the relative position on the sorCacc of the three locations involved, the veins dipping respectively in the direction of the arrows.

1 —

1 — 1

lk

R

i<i

—

k

Figure 55, is a cross section, exhibiting the junction of veins underneath the surface.

§ 615 Obstacles Interrupting Extralateral Right. 768

As to the priorities, the Slaughterhouse was located in 1866 and patented in 1871. The Fagan was originally located in 1876, and an amended location was made in 1887. The Little Josephine's rights dated from 1877. As the Slaughterhouse and Little Josephine were both held by the Little Josephine Company, the court did not undertake to determine the priorities between the Fagan and the Little Josephine. The Slaughterhouse, being the older location, took the entire vein below the junctions. With priorities in favor of the Fagan, the right of lateral pursuit of the Slaughterhouse would be interrupted at the point of junction. It would absolutely cease if the Slaughterhouse vein did not cross and continue below the line of junction. As it was, the ext.ralateral right of the Fagan was lost at this point or line, unless it demonstrated that the vein passed through the Slaughterhouse and continued downward in the direction of the dotted lines. This fact was asserted, but not satisfactorily proven at the trial. Had it so passed through, the ore through the space of intersection from wall to wall would have been the property of the Little Josephine Company, but the Fagan would have had the right of way through the space of lode intersection. These diagrams illustrate the rule more forcibly than pages of descriptive geology.

The embarrassment surrounding this class of cases arises from the difficulty of establishing the facts. If the union of the veins occurs at a point underneath the surface of neither of the contending parties, there are no presumptions indulged in. The burden of proof would naturally rest with the party having the affirmative of the issue.

g 616. Identity and continuity of yeins involved in the exercise of the eztralateral right. — Whenever the extralateral right of an apex proprietor is challenged, he is called upon to establish, —

(1) The existence of an apex within his boundaries, to the extent accessary to cover the disputed segment of the vein ;

769 Identity And Continuity Of Veins Involved. § 615

(2) The identity and continuity of the vein from its top, or apex, within his own boundaries to the point in dispute.

As to the length of apex required to be shown, it is not necessary that it should be physically demonstrated that the vein passes through both, or even either, of the end lines, so long as it appears that the course of the vein through the location is not such as prevents the exercise of the extralateral right. It will be suflBcient if apex is shown to the extent that is necessary to cover the underground portion of the vein in dispute within the end-line bounding planes. If a lode proprietor with a location fifteen hundred feet long follows the vein on its dip underneath the surface of a parallel location seven hundred and fifty feet in length, apex need only be shown to the extent of the seven hundred and fifty feet, or to the extent that the claims parallel each other/

Where a vein passes through an end line of a claim and extends for a considerable distance in a general direction parallel to the side lines of the location, there being no evidence to show that the vein departs through a side line, the presumption will be indulged in that the vein continues regularly on its course.'

Where a vein was shown to abruptly terminate against a "crossing," near the west end of the claim, but from the crossing easterly pursued a uniform course for a considerable distance practically parallel to the side lines to a point within one hundred feet of the east end line, it was said that the presumption was, that the vein crossed the east end line.'

While an apex proprietor pursuing his vein on its dip underneath adjoining lands is called upon to overcome certain legal presumptions flowing from surface ownership,

Hyman v. Wheeler, 20 Fed. 347.

Argonaut Cons. M. Co. r. Turner, 23 Colo. — , cited in Catron v. Old, Sap. Ct. of Colo., Feb. 3, 1897.

Carson City G. A S. M. Co. r. North Star M. Co., 73 Fed. 597.

Ieadville M. Co. v, Fitzgerald, 4 Morr. Min. Rep. 380; Iron S. M. Co. V, Campbell, 17 Colo. 267; Cheesinan v. Slireve, 37 Fed. SO; Clieesman v. Hart, 42 Fed. 98; Jones v. Prospect Mt. T. Co., 21 Nev. 339; Bell v, Skillioorn, 28 Pac. 768.

§ 615 Obstacles Interrupting Extralateral Right. 770

SO far as the conditions within his own boundaries are concerned he is entitled to such presumptions of fact as rationally flow from other facts satisfactorily established.

The supreme court of Colorado has gone as far as to announce, that when one has discovered a lode upon the unappropriated public domain and has within the proper time, and in good faith, performed all of the subsequent acts essential to a valid location as provided by law, he is entitled to the presumption that his lode extends throughout the full length of the claim,* it having been established that the apex existed within the location, and its course was shown to a slight extent.'

Many patents are issued which include a description of the lode line as surveyed, with reference to which the side lines are constructed, and it is quite common for the official plat to show this line. Strictly speaking, in the nature of things, this is but the representation of the hypothetical course of the lode.

"The court cannot presume that the land department " determined the course of the lode. The marking of an " ideal line across the survey and diagram did not have the effect of putting a lode into the ground if there was " no vein there."'

One whose territory is invaded has a right to show the actual course of the lode, independent of the lode line established by the surveyor. The course of a vein through a location is not the subject of adverse claim, and outside claimants are not concluded, in this respect at least, by the issuance of the patent.

Slight interruptions and dislocations will not disturb the legal identity or continuity of a lode. As was said by the supreme court of the United States: —

"A vein is by no means always a straight line, or of " uniform dip, or thickness, or richness of mineral matter,

Armstrong r. Lower, 6 Colo. 393, 399. 2 Jd., on rehearing, 6 Colo. 581, 586.

"Cons. Wyoming G. M. Co. r. Champion M. Co., 63 Fed. 540, 552. *See, also, Stevens fe Ieiter v. Williams, 1 McCrary, 480; Fed. Cases, No. 13,413.

771 Identity And Continuity Of Veins Involved. § 615

" throughout its course. The cleft, or fissure, in which a " vein is found may be narrowed or widened in its course, " and even closed for a few feet and then found further on, " and the mineral deposit may be diminished or totally suspended for a short distance; but if found again in the same course, with the same mineral, within that distance, " its identity may be presumed."*

A vein to be followed upon the dip must be continuous only in the sense that it can be traced by the miner through the surrounding rocks.'

The occurrence of intrusive dykes, faults, and casual displacements do not destroy the legal continuity or identity of the vein.'

>Iron S. M. Co. v. Cheesman, 116 U. S. 529.

Cheesman v. Sbreve, 40 Fed. 787.

'Stevens & Leiter v. WiUiaius, 1 Morr. Min. Rep. 557.

Chapter Iv.

THE NATURE AND EXTENT OP PROPERTY RIGHTS CONFERRED BY PLACER LOCATIONS.

i 619. Rights conferred by placer locations as compared with lode locations.

g 619. Rights conferred by placer locations as compared with lode locations. — The rights conferred by a valid placer location differ in degree from those inuring to a lode locator, owing to the difference in the nature of the thing appropriated. While the estate is of the same dignity and is held by the same tenure, there are no extralimital privileges accruing to a placer locator, and the intralimital rights may, under certain conditions, be abridged. Veins having their apices within the limits of a placer claim, whose existence becomes known prior to the filing of an application for placer patent, do not vest in the placer claimant by virtue of his placer location. Should he fail to discover and claim such veins, the placer claim maybe entered by others, who may locate them, thus subjecting the placer claim to delimitation to the extent of such surface inclosing the lode as may be selected by the lode claimant. The subject of locating lodes within placers, has been fully presented in a preceding article.* and repetition is unnecessary. With the exception of the right to locate known veins, which may be exercised by strangers, the placer claimant has the same dominion over the located surface as a lode locator has over the surface of his lode claim; and as in case of lode claims, the placer boundaries

iSee, an(6, ;j 413, 415.

773 Rights Conferred By Placer Locations. §619

underneath the sarface may be invaded by the proprietor of a vein, or lode, having its apex outside of the placer boundaries, in the exercise of the extralateral right.

It is unnecessary to assert that neither a placer location nor a placer patent, as such, will confer extralateral rights as to any lodes, the tops, or apices, of which are found within the limits of a placer clan. In order to confer such rights, the lode must be located the same as if it were situated elsewhere upon the public domain. In such case, the extralateral right as to the lode is defined by the lode boundaries, which may or may not be coincident with some of the placer boundaries. Should veins, or lodes, having their apices within the limits of a placer claim be discovered after patent, the placer claimant will hold only so much of them as may be included within vertical planes drawn through his surface boundaries.

The rights flowing from a perfected placer location may be thus briefly stated : —

The discovery and location of a placer mining claim establishes in the owner the right to the possession of the superficial area within its boundaries for all purposes

" connected with and incident to the use and operation of the same as a placer mining claim. Such location, however, does not operate to give title or right of possession to veins, or lodes, within its limits, or preclude the right

" of discovery and location thereof by others."*

*See, ante, i en.

'Aurora Lode r. Bulger Hill Placer, 23 L. D. 95.

u tt

it u

Chapter V.

Perpetuation Of The Estate By Annual Develop-

Ment And Improvement.

1 623. Annual labor under local rules — Provisions of the federal law.

§ 624. Requirement as to annual labor imperative.

2 625. Annual labor upon placer claims.

§ 626. Supplemental state legislation.

1 627. Division of the subject.

2 628. "Claim'' defined.

I 629. Work done within the limits of a single location.

i 630. Work done within tlie limits of a group of claims in furtherance of a common system of development.

i 631. Work done outside of the boundaries of a claim or group of claims.

2 6M2. Period within which work must be done — Can preliminary work required by state laws as an act of location be credited on the first year's work?

i 633. By whom labor must be performed.

2 634. Circumstances under which performance of annual la- .bor is excused.

2 635. Value of labor and improvements— How estimated.

2 636. Proof of annual labor under state laws.

g 637. Obligation to perform labor annually ceases with the final entry at the land offlce.

§638. Millsites.

g 623. Annual labor under local rales — Provisions of the federal law. — From the earliest period of mining in the west, the locator of mining claims of all classes was required to perform a certain amount of labor, or expend a certain amount of money in betterments and improvements upon, or for the benefit of, his located claim, as a condition upon which he might continue in the possession and enjoyment of the mining ground appropriated by him. A failure to perform the necessary work required by the local rules or customs amounted to an abandonment of the

775 Annual Labor Under Local Rules. §023

claim, and thereapon it might be oceapied and appropriated by another/ The regulations of miners which required that 90 much work should be performed upon each claim were conditions subsequent, subject to which the locator acquired his rights. So long as he complied with these conditions, the right to possess and mine his claim remained with him. The nature and extent of the work required to be performed varied according to the character of the ground appropriated. The periods within which the expenditure was required to be made also varied. Certain classes of claims, such as placers, on the beds, bars, and banks of streams, could onlv be worked at certain seasons of the year, while quartz claims might be exploited at any time. Different rules obtained in different localities, but in all there were regulations and customs well understood and generally observed, compliance with which was insisted upon to protect the claim from being "jumped" or appropriated by another.

As noted in a previous section,' discovery was made the source of title, and development or working the condition of the continuance of that act. This development work was called by the miners " assessment work," and the performance of it a representation of the mine; that is, when the work had been performed for a given f>eriod, the claim was represented for that period. Both of these terms are frequently encountered in the decisions of the courts, and they each have a recognized meaning.

The congressional law of July 26, 1866, made no attempt to legislate on the subject of working mining claims, leaving it entirel}' to local district or state regulation.

The act of May 10, 1872, however, made provision for the performance of work annually on all claims theretofore or thereafter located.

Depay v. Williams, 26 Cal. 310, 314; Kramer v. Settle, 1 Idaho, 485; Ck>DS. Repub. M. Co. r. Lebanon M. Co., 9 Colo. 343; Jennison v. Kirk, 98 . U. 8. 453; St. John v. Kidd, 26 Cal. 263. >King V. Edwards, 1 Mont. 235, 240. *8ee, ante, i 335, p. 434.

As originally passed, this act required that, on all claims located prior to its passage, ten dollars" worth of labor should he performed, or improvements made each year, for each one hundred feet in length along the vein, until a patent issued. On each claim located after the act went into effect, and until patent should issue, not less than one hundred dollars' worth of work was required to be performed, or improvements made, during each year.

By the phrase "each year," as applied to pre-existing locations, was meant each year from and after the passage of the act. Work done before the act went into effect could not be estimated.' By the several amendments subsequently passed,' the time for making the first annual expenditure on previously located claims was extended to January 1, 1875,

As to claims located since the act of May 10, 1872, the year within which work was required to be performed was computed from the date of the respective locations, until, by an act passed January 22, 1880,' congress provided that the period within which the work to be done annually on all unpatented claims located since May 10, 1872, should commence on the first day of January next succeeding the date of location of such claim.

The object of the act of 1880 was to render the annual periods for performing work uniform as to all mining claims, by reference to the calendar year.' It did not act retroapectively.soastosaveaclaim from forfeiture incurred before its passage, nor to divest a right already acquired under the existing law:* but the exemption of claims from the performance of labor for a portion of a year, in certain cases, was a necessary result of tlie act,'

Tliompsou V. Jutmbs, 3 tllali, 24t(.

>HArc1)3, ieiT, ITilAM. at L&rye, -ISSj June6, 1674. ISSUId. mt Luro, 61. '21 Stata. U. Ltrge, (II. HcaiuiilH v. Kgbett, 8 Colo. II. SlBvonUn M. Co. v. Vnoaviob, 7 Saw. aiT. ttallr. IlHli>.SColo. 3GI.

' MoOlniiis V. Egbert. Colo. 41, dUiig Wade'a Am. Min. Ijw. J! 28, p, G4, Sickle'* MID. Lnwa, p. 3Sa. See, also, iUlI v. Hala, 8 Colo. JOl.

T77 RWJCIBEMKST A3 TO ANSLAL LAltOR IMPERATIVE. §624

This act of January 22, 1880, is now in force, and in coDoection with such valid supplenienUil slate legislation, if an;, as exists in the several local jurisdictions, is operative BB to alt locations made since the passage of the act of May 10, 1872. It is not likely that there are now many claims located prior to that date which still remain unpatented. There is no necessity for giving this class of locations any further consideration. We shall discuss the law as it applies to present conditions.

624. RequlremeDt as to amiQal labor imperative. — The requirement to the performance of annual labor is imperative. While a timely resumption of work may save a forfeiture, the law contemplates that the labor or improvements, actual and valuable, to the amount of one hundred dollars in each year, computed from the first day of January next succeeding the date of location, should be performed in good faith.'

There is probably no single provision of the law wliich is evaded to a greater extent than this one. While, of course, there are many exceptions, the average locator exhausts his ingenuity in attemptiugto avoid this plain and wholesome requirement. The courts are disposed to deal with these drones in the hive with much more leniency than they deserve. The statute is too frequently applied on sentimental lines. Forfeitures, say these tribunals, are odious, and in many cases the reluctance with which they enforce the law encourages, rather than deters, the systetcmatic evasion of it.

The statute is extremely liberal as to the time iu which the specified amount of work shall be performed. A location made on January 1, 1807, may, in the absence of state laws or local rules requiring development work to be performed as an act of location, be held without a stroke of labor until December 31, 1898, and in no case is the period less than a full year. It would seem that a more

Morgnn v. TillotlBoii, 73 Cal, hiQ-. Jookson i-. Roby, llHi U. 8. 440; ChBintwrB t>. Hurrinfttou, 111 U. S. 390; Authoay v. Jlll.ioii, S3 C'kL 290.

§ 625 Perpetuation Of The Estate. 778

rigid enforcement of the rule would not only command more respect for the law, but would, in a great degree, tend to promote the general object and intent of the mining statutes — the development of the mining resources of the country. As was said by the supreme court of the United States, speaking through Justice Miller, —

" Clearly, the purpose was ... to require every per- " son who asserted an exclusive right to his discovery or claim to expend something of labor or value on it as " evidence of his good faith, and to show that he was not " acting on the principle of the dog in the manger."

As it was in the days when mining privileges upon the public domain were governed by local rules, so it is now the invariable rule, that the locator's only right to possession depends upon the performance annually of the specified labor. The grant flowing from a perfected valid location is only perpetuated by " representation."'

g 626. Annual labor upon placer claims. — The language of the statute under consideration does not in terms specify that placer claims are to be subjected to the provisions of the law requiring the performance of annual labor. Acting Commissioner Curtis originally expressed the view, that under the act of 1872 it was the intention of congress to require annual expenditures only upon lode, or vein, claims, leaving placers as they had been, previous to the passage of that act, subject to the operation of the local laws; but later instructions issued by the land department insist that annual expenditures must be made upon placer claims as Well as lode claims.*

The courts have uniformly held that the law was alike applicable to both classes of locations.® In section twenty-

Chambers v. Harrington, 111 U. S. 350, 353.

Du Prat V, James, 65 Cal. 555, 557.

Rensliaw v. Switzer, 6 Mont. 464.

♦ 1 Copp's L. O. 18.

*Min. Circ, March 24, 1887, 8 L. D. 505.

Carney v. Arizona G. M. Co., 65 Cal. 40; Jackson v, Roby, 109 U. S. 440; St. Louis Smelting Co. v. Kemp, 104 U. S. 636; Sweet v. Webber, 7 Colo. 443; Morgan v. Tillottson, 73 Cal. 520.

779 Supplemental State Legislatiox. §626

three hundred and twentv-nine of the Revised Statutes it is declared, that claims usually called placers shall be subject to entry and patent under like circumstances and conditions and upon similar proceedings as are provided for vein, or lode, locations. This removes all doubt and ambiguity, if any exist, in the previous sections.*

g 626. Supplemental state legislation. — By the terms of section twentv-three hundred and twentv-four of the Revised Statutes, which is but a re-enactment of section five of the act of May 10, 1872, the amount of work necessary to hold possession of a mining claim may be controlled by local regulation, subject, however, to the requirements of the federal law, that the amount shall be at least one hundred dollars each vear for each claim. As we have heretofore observed, no state has a right to decrease the amount of labor which the congressional law requires to be done annually on a mining claim.'

Before passing to a discussion of the character of the work and improvements which will satisfy the law and preserve the locator's estate, it is advisable to briefly epitomize the nature of supplemental state and territorial legislation upon the subject. In doing so, we have at present no reference to the preliminary development work required by the several states and territories as an act of location a subject fully discussed in a preceding article.' We are to consider the scope of state legislation upon the subject of the annual or assessment uvrk\

There is no legislation of this character in either Idaho, Montana, Nevada, New Mexico, California, or Utah.

In Arizona, North Dakota,' and South Dakota,* provisions are found which in terms adopt the federal law. This,

' Carney v, Arizona G. M. Co., 65 Cal. 40. See, ante, I 250, p. 316. See, ante, H 343-346. StaU. 1895, p. 5.3, § viii. Rev. Code, 1885, § 1438.

Pol. Code of Dak. 1887, p. 442, § 2009. Adopted by South Dakota — Laws of 1890, ch. cv., J 1.

§62(i

Perpetuation Of Tr

of course, gives no additional force to the requirements of the congressional law; but the effect is to prevent the adoption of local district regulations increasing the burdens imposed by the acts of congress. Other states require detailed consideration.

<Morado, — There is no legislation on the subject as to lode claims. As to placers, the legislature in 1879 passed an act requiring, tbat on each claim of one hundred and sixty acres, or more, there must be at least one hundred dollars' worth of work done annually before August lat of each year; the amount of work on smaller claims to be in proportion, except that not less than twelve dollars' worth be done on any claim. Where two adjoining claims are owned by one person, the work may all be done on one claim. The work may consist of building or repairing ditches, or making other improvements' This law was held by the supreme court of Colorado to contravene the federal law, and to be therefore void." The objection to it is two-fold. It limits the period in which the work is to be performed, and except where a claim embraces one hundred and sixty acres or more, requires less work than ia demanded under the congressional act. Colorado has therefore no valid state legislation on the subject.

Oregon. — A statute of this state' requires that every person or company of persons, after establishing their claims, shall, within one year after recording or " taking " such claim or claims, work, or cause the same to be worked, to the amount of fifty dollars for each and every claim. The fulfillment of this requirement, in connection with tlie making and tiling of an affidavit that such work has been performed, gives to the claim the legal status of "real estate." To this extent, and for this purpose, the act may not be obnoxious to the federal law. But manifestly, u failure to comply with its provisions would not subject the claim to relocation, for the obvious reason, ' Hill's Annot. Stnw., .'Mj30.

781 Supplemextal State Legislation. §626

that as the act requires less annual work than is specified in the congressional mining law, as a condition upon which the estate of the locator is perpetuated, and also fixes a different period within which such labor is to be performed, the state law is repugnant to the federal, and is therefore inoperative.

Wyoming. — The laws of the state of Wyoming* divide placer claims into two classes: (1) those not situated in an organized district, and (2) those which are so situated. Upon claims of the first class, containing an area of one hundred and sixty acres, not less than one hundred dollars' worth of work must be performed within the period fixed by the federal law. On claims having less than one hundred and sixty acres, the amount of annual assessment work is fixed at sixty-two and a half cents per acre, provided that the total amount to be annually expended be in no case less than fifteen dollars. Upon claims of the second class, i. e. those situated in an organized mining district, the amount of assessment work is to be regulated entirely by the district laws, regardless of the state laws fixing the amount to be performed on claims not so situated.

It is quite manifest that this statute is amenable to the same objections urged by the supreme court of Colorado in construing a similar law, heretofore referred to.

Washington, — In this state a law appears upon the statute books which practically embodies the terms of the federal statute, with the exception, that it provides that the first year shall date from the date of the location of the claim. As the object of the federal law was to fix a uniform period, regulated according to the calendar year, commencing with the first day of January next succeeding the date of the location, we do not think that the individual states have the power to destroy this uniformity.

>Iiaw8 of 1888, pp. 90, 91, g 23. ' see, ante, J 623.

'Hill's Annot. Stats., i 2213.

Chapter Iv.

THE NATURE AND EXTENT OF PROPERTY RIGHTS CONFERRED BY PLACER LOCATIONS.

619. Rights conferred by placer locations as compared with lode locations.

g 619. Bights conferred by placer locations as compared with lode locations. — The rights conferred by a valid placer location diCFer in degree from those inuring to a lode locator, owing to the difference in the nature of the thing appropriated. While the estate is of the same dignity and is held by the same tenure, there are no extralimital privileges accruing to a placer locator, and the intralimital rights may, under certain conditions, be abridged. Veins having their apices within the limits of a placer claim, whose existence becomes known prior to the filing of an application for placer patent, do not vest in the placer claimant by virtue of his placer location. Sliould he fail to discover and claim such veins, the placer claim may be entered by others, who may locate them, thus subjecting the placer claim to delimitation to the extent of such surface inclosing the lode as may be selected by the lode claimant. The subject of locating lodes within placers, has been fully presented in a preceding article.* and repetition is unnecessary. With the exception of the right to locate known veins, which may be exercised by strangers, the placer claimant has the same dominion over the located surface as a lode locator has over the surface of his lode claim; and as in case of lode claims, the placer boundaries

iSee, ane, 22 413, 415.

RlOtrre COXFERRED BY PLACER LOCATIONS.

underneath the surface may be invaded by the proprietor of a vein, or lode, having its apex outside of the placer boundaries, in the exercise of the extralateral right,'

It is unnecessary to assert that neither a placer location nor a placer patent, as such, will confer extralateral rights as to any lodes, the tops, or apices, of which are found within the limits of a placer clan. In order to confer such rights, the lode must be located the same as if it were situated elsewhere upon the public domain. In such case, the extralateral right as to the lode is defined by the lode boundaries, which may or may not be coincident with some of the placer boundaries. Should veins, or lodes, having their apices within the limits of a placer claim be discovered after patent, the placer claimant will hold only so much of them as may be included within vertical planes drawn through his surface boundaries.

The rights flowing from a perfected placer location may be thus briefly stated: —

"The discovery and location of a placer mining claim " establishes in the owner the right to the possession of the "superficial area within its boundaries for all purposes " connected with and incident to the use and operation of " the same as a placer mining claim. Such location, how- " ever, does not operate to give title or right of possession " to veins, or lodes, within its limits, or preclude the right " of discovery and location thereof by others."-

§627 Perpetuation Of The Estate. 782

It will thus be observed that, strictly speaking, there does not exist any valid supplemental state legislation regulating the extent of annual labor. In enacting these laws, as heretofore outlined, the several states seem to have overlooked the fact that the public lands belong to the government; that the paramount proprietor is alone competent to prescribe rules for their primary disposal; that the individual states cannot interfere with this right, or exercise any privilege, unless under the terms of the federal law the power is delegated to them. The scope of permissive state legislation is limited and defined by the congressional acts. Any attempt to exceed the power therein granted necessarily results in inoperative and void state legislation. The period during which states and local assemblages absolutely controlled the possession and right of enjoyment of the public mineral lands has long since passed into history. As we have heretofore said, if the state may prescribe any additional or supplemental rules, increasing the burdens or diminishing the benefits granted by the federal laws in lands of the public domain, it is simply because the government, as the owner of the property, sanctions, expressly or by implication, the exercise of such powers.*

§ 627. Division of the subject. — Assuming that the nature and extent of annual labor and improvement which will suffice to perpetuate the estate of the locator is to be determined by reference solely to the federal laws, the subject may be considered in three different aspects: —

(1) Work done within the limits of a single location, or claim ;

(2) Work done within the limits of a group of claims in furtherance of a common system of development;

(3) Work done outside of the boundaries of a claim, or group of claims.

See, antCy i 249.

783 "claim'' defined. §628

I 628. "Olaim"' defined. — Before entering upon a discussion of the subject of annual labor, it is necessary to determine what is meant by the word '' claim/' as used in section twenty-three hundred and twenty -four of the Revised Statutes, upon which the required work must be annually performed.

In a preceding section,* we have noted the different shades of meaning between " location " and " mining claim," and have there observed, that if the miner has only the ground covered by one location, his " mining claim " and his location are identical, and the two designations may be indiscriminately used to denote the same thing. But if by purchase he acquires other adjoining " locations '' and adds them to his own, then his " mining claim " covers the ground embraced by all the locations.

In applying the law upon the subject of annual labor, it is obvious that this statement requires qualification. For example: A., B., and C. each perfect a lode location on the same vein, the locations being contiguous. Each is required, under the law, to work, or represent, his individual claim to the extent of one hundred dollars annually. A. subsequently purchases the locations of B. and C, and the three locations constitute his "claim," in a colloquial sense. But he will not be permitted thereafter to hold all three by performing simply one hundred dollars' worth of work within the limits of one, or distributing that amount in labor and improvements over the three* It is obvious, that by purchasing from B. and C. he has simply stepped into their shoes, and the full amount of statutory work must be done upon each, or three hundred dollars' worth for all. The word " claim," as used in the statute, must, in this instance, necessarily mean " location," as if the statute read, on each location.

The same rule applies to placers. The unit of placer locations is, as we have heretofore observed, twenty acres." But if appropriated by an association of persons, a location

See, ante, 827. ''See, ante, § 448.

r

§628 Perpbtuation Of The Estate. 784

may include one hundred and sixty acres, or any less number.

The individual locator of a twenty-acre tract must, necessarily, perform one hundred dollars' worth of labor on his claim annually. By a purchase of other contiguous locations, and thus augnieuting his surface area, we do not see how he can be relieved from fulfilling the requirement as to every individual location which may be ultimately grouped and constitute his "mining claim," in a colloquial sense. If such a rule were to prevail — as there is uo limit to the number of claims which one may acquire by purchase, — he might hold five hundred or more acres with the aggregate annual expenditure of one hundred dollars, and thus practically defeat the purpose of the law.

A location by an association of persons, embracing more than twenty acres, may undoubtedly be perpetuated by the performance of the same amount of labor required of an individual locator. Work need not be done on each twenty-acre tract of a location embracing one hundred and sixty acres made by such association.' But the appropriation by eight persons of one hundred and sixty acres is accomplished by one location. While this suggests an inequality of burdens, it is, in our judgment, the only consistent method of construing the statute. A lode claimant or an association of persons may locate a full claim of fifteen hundred feet in length. A location of less than the maximum would not decrease the burden as to the annual work. The volume of work is not gauged by the size of the claim located. There ia no sliding scale adjusting the matter according to area. In determining, therefore, the amount of annual work to be performed in connection with an aggregation of locations, each lovation is to be considered as u dniin within the meaning of the law, regardless of the superficial area comprised in any one or more of them,

Molkumia Moiituiiu Wood Co., H Monl. l*S,

785 Work Done Withix Umit Of Single Location', § 629

I SS9. Work done within the limits of a single loca* . — The object of the law requiring annual work is, that the holder of a mining claim shall give substantial evidence of his good faith/ The labor is not ruireil to be applied in any particular manner, so long as it is unquestionably devoted to the claim. It must not be such as to raise a question as to its purpose,* This labor may be in excavating, erection of works for mining, and placing machinerv.'

It ought not to be difficult in investigating the character of work done upon a mining claim to determine whether it is litimately done, with a view to develop or protect the claim, or whether it is a mere flimsy attempt to evade the law.

Commissioner Williamson, in a communication to the surveyor-general of Colorado, thu reflected the views of the land department: —

"All improvements made upon a mininic claim having "a direct relation to the development thereof may bo taken into consideration — . . . any building, niaehin- "ery, roadway, or other improvements used in connection " with, and essential to the practical development of the " claim. . . . Necessarily, however, improvements of the " character indicated must be associated with actual exca- " vations, such as cuts, tunnels, shafts, etc., so as to clearly " show that they are intended for use in connection with " the claims under consideration/'*

A liberal construction ehould be given to the mining laws, but it should not be so liberal as to authorize a claim to be held without representation.'

Labor and improvements within the meaning of the statute are deemed to be done on a mining claim, or lodo, when the labor is performed or improvements made for the purpose of working, prospecting, and developing the

' Royston v, MiUer, 70 Fed. 52. ' >Lookhardt v. RoUinN, 2 Idaho, 503, 509.

*7Copp'8L. O. 179. ReminiDgton v. Bandit, 0 Mont. 138; Honakor v. Martin, 11 Mont. 91.

yy

ground embraced in the locatiou.' or for the purpose of facilitating the extraction of the niiaeral it may contain,*

Work done for the purpose of discovering mineral, whatever particular form or character of the deposit which is the object of the fiearch, is within the spirit of the statute. So, work done within the limits of placer claims in search for lodes has been held to satisfy the law;* but when ground sought to be patented as placer la used exclusively for reservoir purposes for the storage of water to be conducted elsewhere, the cost of uonslructing such reservoir cannot be credited as work done on the claim.'

Picking rock from the walls of a shaft or from the outcroppings of a ledge, in small quantities, from day to day, making tests for the purpose of sampling it, breaking and examining it under a glass, crushing it in a mortar and panning it out, carrying it away and making assays of it in an attempt to find the " pay shoot," is not such as the law will permit the claimant to be credited with upon his account for annua! labor performed. Such labor does not add to the value of the claim, nor does it tend to the development of the mine.*

In an early case in California it was held, construing a rule requiring two days' work in every ten, that bona fide efforts of the owners to procure machinery for working the claim might be justly considered as work done upon the claim b}' relation and intendment;* but this is a manifest straining of the law. In later years the saihe court held that time consumed and money expended for traveling, in an endeavor to arrange for the conduct of water to the claim for mining purposes, did not satisfy the law.'

Placing upon the ground mining toola. implementa lumber, and other material, which are not used to any

' Book V. JllstifO M. Co., 5S Fed, lOfl. 117.

>St. Louis Mtileltllig Co. f. Kemp, lul V. S. I13(i, OHH.

'United Slutesc. Iron S. M. Co., W 6.

'Hnle'B Hlacor. R L. D.IiM; ChmHiHMi'ti Plaoer, SL. D. TTl.

V. HuMff (Ore.), 41 Pac, 93ii,

Piokr D. Itwtlon, 0 Cal. SOS.

) Dn Fm T, SHiaw, BS Ckl. SAG.

EtocATioN. g 629

extent and are subsequently removed, perhaps for the purpose of doing similar duty on acme other location, is a mere sliam and a fraud.'

Id a case decided by the supremo court of Montana,' an ambulatory building intruded itself ou the attention of the court, in regard to which Chief Justice Wade said: —

"An attempt seemed to have been made to make this " house & sort of a traveling representation of mines where- " ever it went. If it could represent the Kltnira claim, it " might have represented the others as well. If building " that house was one representation, taking it down might " liave been another; and so by building, taking down, "and rebuilding that house the plaintiff might have rep- " resented all the mines in that district, and this process " might go on for years, until sufficient building and "rebuilding had been done to entitle the party to a " patent before a stroke of work had been performed ou " the claim."

This class of cases illustrates the extremes to which locators will sometimes resort to save from relocation claims which they never Jnteuded to develop, and which they hold in utter defiance of the law.

It has been said that buildings erected upon mining claimB may be considered as improvements. This is no doubt true if they were erected for any purpose reasonably connected with mining operations.

To make such a building an improvement under the annual labor law, it must have been erected for the purpose of benefiting the claim and for its development. It is absurd to say that a building is an improvement ou such claim when it is not, and was not intended to be, of any use or benefit to the claim.'

Koadways are necessities, and where such have been constructed ou the claim for the manifest purpose of assisting in the development of the mine, such as transporting machinery and materials to, and ore from the mine, it is a

Ronaker v. Murlfn, II Mont. VI. RetumiDftton r. Bnudil, 6 Mom. \3S. *MoCnl|i B. Brjii, 10 Colo, 300,

§ 630 Perpetuation Of The Estate. 788

legitimate expenditure.* But manifestly, such a roadway constructed for the purpose of reaching other properties would not satisfy the law. So the construction of a flume over premises claimed as a mining claim, and their use as a deposit for the waste material from an adjoining claim owned by the same person, is not such an expenditure as is required by law regulating the performance of annual

The wages paid to a watchman employed to take care of and protect mining property while it is idle have been held to satisfy the law as to annual expenditure;* provided such services were necessary to preserve tunnels, buildings, or any structures erected to work themine, and which would be necessary in case active work was resumed. But if there was only a naked claim to be looked after, and a watchman were placed there merely to warn prospectors, and thus prevent relocation, the rule would be different/

g 630. Work done within the limits of a group of claims in furtherance of a common system of development.— Long before patents were allowed, indeed from the earliest period in which mining for gold and silver was pursued as a business, miners were in the habit of consolidating adjoining claims, whether they consisted of one or more original locations, into one, for convenience and economy in working them.* This method of representing groups of claims was perpetuated by the act of May 10, 1872, and is found embodied in section twenty-three hundred and twenty-four of the Revised Statutes, which provides that, "where such claims are held in common, such " expenditure may be made upon any one claim."

As was said by the supreme court of the United States: —

Doherty r. Morris, 18 Colo. 105; Emily Lode, 6 L. D. 220. Jackson V. Roby, 109 U. S. 440.

3 Lockhart v. Rollins, 2 Idaho, 503.

Altoona Q. M. Co. v. Integral Q. M. Co., 114 Cal. 100. &St. Louis Smelting Co. v. Kemp, 104 U. S. SQ.

789 Work Done Within Limits Of Group Claims. § 630

" It often happens that, for the development of a mine " upon which several claims have been located, expendi- " tares are required exceeding the value of a single claim, " and yet without such expenditures the claim could not " be successfully worked. In such cases it has always " been the practice for the owners of the diflferent locations "to combine and work them as one general claim; and " expenditures which may be necessary for the develop- " ment of all the claims may then be made on one of " them. ... In other words, the law permits a general " system to be adopted for adjoining claims held in com- " mon, and in such case the expenditures required may be " made or the labor be performed upon any one of them."*

In order to receive the benefit of the law in this behalf, certain conditions are essential : —

(1) The claims must be contiguous, so that each claim thus associated may in some way be benefited.-

(2) There must be a community of interest in each claim. This interest need not be of a strictly legal nature. Thus, it has been held, that though the names of three persons claiming to hold three mines in common did not appear in the location notice of each mine, but each mine was located in the name of one of such persons, and the legal title to each was therefore in the respective locator, all the locations having been made under an oral agreement that they should be located for the common benefit, each locator had such an equitable interest in the others as to make the work done on one mine for the development of the three, satisfy the mining laws, if sufficient in quantity and value but where a number of persons located fifteen hundred feet upon a lode, dividing the same into three parcels held in severalty, work done upon one of the parcels will not inure to the benefit of the others.* There

1 Jackson v, Roby, 109 U. S. 440; De Noon r. Morrison, Cal. 163; McNeil r. Pace, 3 L. D. 267; Nichols v, Becker, 11 L. D. 8; Dolles v. Uaiuberg Cons. M. Co., 23 L. D. 267.

Chambers v, Harrington, 111 U. S. 350, 353; Mt. Diablo M. & M. Co. v. CaUison, 6 Saw. 439; Royston v. Miller, 76 Fed. 50; Gird v. California Oil Co., 60 Fed. 5:u.

*£berle v. Carinichael (New Mex.), 42 Pac. 95.

SSeckendorf v, Hutchinson, 1 New Mex. 476.

$631

Perpetuation Op Trb Bstatb.

was a severance of the community of interest, and eacli parcel constitutes a separate claim.

(3) The aggregate amount of the expenditure of money or labor on one claim must equal in value that which would be required on all the claims if they were separate or independent.' The land department follows tliis rule in cases of both lode and placer claims, as to annual labor;* but it haff not been uniform in its rulings as to the aggregate volume of work or improvements required as a condition precedent to the issuance of a patent for group claims. We will consider this subject more fully under the head of patent proceedings.

(4) The work performed or improvements made must manifestly tend to the development of all the claims in the group.' The burden of proof is on the owner to show that the work done or improvement made does, as a matter of fact, tend to the development of the property as a whole, and that such work is a part of the genera! scheme of improvement.*

As to the nature and character of the work required to be performed, what we have said in a preceding section with reference to single locations applies with equal force to group claims. The quality required in both instances is the same, but the quantity in the case of groups depends upon the number of claims sought to be represented by means of a common system of development

g 631. Work done outside of the boundaries of a claim or group of claims. — By an act passed l'ebruary 11, 1875, commonly known as the "tunnel amendment,"*

Pac.

Chambers v. Harrington, 111 U. S. SfiO; £berl v. Carmlcliul, 4'i L. D. 3Mi Oooi] Botuni M. Co,, 4 : Jackaon v. Roby, 106 U. S. MO;

'Sweeney v. Northern Po. It, It., L. D. 22ii In re KiTiksli), 5 L. D, 26,

' McCorinliik v. Baldwin, iOi rl. : In rt Kolnom, 16 Copp'e L. 1 1. LTH.

' DolloH V. HaniberB Coub. M. Co., 2S L. D. aV7.

lesulH.al Ijirge,3IS.

Wobk Don8 Outside Op Tbb Boundaries. $631

section twenty-three hundred and twenty-four of the Revised Statutes was amended, —

"So that where a person or company haa, or may run, "a taanel for the purpose of developing a lode or lodes owned by said person or company, the money so expended " ID said tunnel shall be taken and considered as expended " on said lode or lodes, whether located prior to or since " the passage of said act, and such person or company " shall not be required to perform work on the surface of " said lode or lodes in order to hold the same as required " by said act."

This act did not affect the character of other work to be done or improvements to be made according to law as it stood before, except as it gave special value to working by tunnel.' The land department held, prior to the passage of this amendment, that development by means of a tunnel satisfied the law, although a contrary rule had been previously announced by Commissioner Drummond."

The rule is well settled, that work done outside of a claim or group of claims, if done for the purpose and as a means of prospecting or developing the claim, as in the case of tunnels, drifts, etc., is as available for holding the claim or claims as if done within the boundaries. One general system may be formed, well adapted and intended to work several contiguous claims or lodes, and when such is the case, work in furtherance of the system, whether done within or without the claim or claims, is work on the claims intended to be developed.*

Cliambei's V, Uarringlnn, 111 U. K. 3.S0, SSTi,

'/ni Coleman, 1 Copp's L.0.34.

Copp'B Min. Dbo. mi. 142,

' Mt. Diablo M. A M. Co. v. Calllson, S Saw. 39. 457; Jupiter M. Co. v. Bodle CotiH. M. Co., T Saw. 96, 116; Jackson v. Robf, 109 U. 8. 440i St. Louis Smelting Co, v. Kemp, IW U. S. 636; Do Noon tp, Morrison, 63 Cal. I63;ChainberBV. Harrington, 111 U.S. 350; Rein[iiloKloni>. Baudlt.HMonl. I3H; Ilarringtonp. ChRinl>ers, 3 tTub,n4:PBckert>. Uealon, 9Cal.56S; Hall Keu-nj-, IS Colo, .505; Dobertj' c. Moriis, IT Colo. 10i>; United States v. Iron 8. M. Co., 24 Fed. MS; Kramer v. Betlle, I Idalio, 4B5; Eberle tr. Carniicliael, 42 Pac. 04; Book v. Jiistlcs M. Co., GS Fed. 106; English v. Johnson, IT Cul. 107; Kirk e. Ctark, IT L. D. ISO; Emily Ide, S h, D. 220.

§631 Perpetuation Of The Estate. 792

Work done outside of the claim upon another {)patented claim, if for the benefit of the one unpatented, may be considered as work done upon it;* but where improvements not situated upon the claim are alleged to have been made for the development of such claim, it must be clearly demonstrated that such improvements have a direct tendency to siich development.' They must have direct relation to the claim, or be in reasonable proximity to it.

It is hardly necessary to enumerate the various methods by which mines may be worked under a common system, necessitating the performance of labor or the erection of improvements outside the boundaries of a claim or claims. It is not within the province of the courts to question the judgment of a property owner in the legitimate use of his property, or to determine whether one mode of use would be more beneficial than another. It depends largely upon local environment and the character of the ground to be developed.

As water is essential to the development and working of placers, expenditures made in constructing ditches, flumes, and pipe lines, for the purpose of conducting water to the property for use on such property, will undoubtedly satisfy the law. The cost of a survey preliminary to the location of a ditch for the development of the claim will not, however, be credited on the required statutory expenditure, where the ditch has not been dug.

Dams and reservoirs constructed upon outside lands, for the purpose of storing water or acquiring requisite pressure, the water to be conducted from such dams or reservoirs to, and used upon, the mining claim, are certainly legitimate expenditures, to be credited upon the claim where the water is used, or to be used, although the cost of constructing such dams under such circumstances could

Hall r. Kearny, 18 Colo. 505. Louise M. Co., 22 L. D. 603.

McGarrity v, Byiiigton, 12 Cal. 426, 432. Stone V, Bum pus, 46 Cal. 218.

Stork & Heron Placer, 7 L. D. 359.

793 Work Done Outside Of Tite Boundaries. § 631

not be credited to the land upon which they were constructed/

So a flume constructed for the purpose of carrying away tailings and waste material from a claim may be credited to the claim from which the material is taken in the conduct of mining operations; but is not considered as labor performed or improvements made upon the land whereon the flume is erected or tailings deposited.

A ditch constructed and actually reaching a claim, bat not used or intended to be used in connection with it, is not work for which the claim is entitled to credit.

As we have heretofore observed, roadways are necessary,* and where constructed in good faith and for the manifest purpose of aiding in the conduct of mining operations on the particular claims sought to be represented by this character of work, the cost of their construction in connection with active mining operations may be entitled to consideration; but this rule is to be applied cautiously and on the lines of obvious common sense. In a general way, all roads within a mining district are convenient and necessary; but to say that work done upon the general highways within a mining district may be done by mining locators and applied in lieu of assessment work on their respective claims, would be absurd. A road is not necessarily a mining improvement. The construction of a road, no portion of which is on the claim, and which is not intended to be used in connection with such claim, cannot be accepted as a compliance with the law relative to annual expenditure.®

Considering the manifest object and purpose of the law requiring annual development work as a condition upon

Hale's Placer, 3 L. D. 530; (hessnian's Placer, 2 L. D. 774.

'St. Louis Smelting Co. v. Kemp, 104 U. 8. (336; Jackson v. Roby, 109 U. S. 440.

' Jm re Downs, 7 L. D. 71; Triclcey Placer Claim, Id. 52.

*8ee, ante, § G29.

*Glrd r. California Oil Co.. 60 Fed. 531.

White Cloud C. M. Co., 22 L. D. 252. See, alo, Alice Kdith Lode, 6 L. D. 711.

which Ihe locator's estate is to be perpetuated, the courts aud the land department will readily discriminate between a bona fide effort to fulfill its requirements and a fraudulent attempt to evade it, and this applies to work done, or pretended to be done, without, as well as within, the limits of B particular claim or group of claims. The tribunals do not measure a locator's acts by hard and fast lines, but they will readily detect the difference between the genuine and the sham.

632. Period within which work muBt be done — Can preliminary work required by state laws as an act of location be credited on the first year's work? — The law fixes no time within the year when the work must be done. Consequently, if done at any time during the year, it is enough, and there can be no forfeiture until the entire year has lapsed,'

A local regulation requiring work to be performed every sixty daya contravenes the federal law, and is therefore void.*

We have heretofore noted that the state statutes enacted on this subject in Oregon and Colorado are open to this objection.*

As heretofore noted, the year within which work is to be performed is the calendar year commencing with the first day of January next succeeding the date of the location, and ending with the thirty-first day of December, A location made on January 1, 1897, need not be represented until December, 1898, thus permitting the claim to be held practically two years, without the necessity of performing any work whatever, except such preliminary development as may be required by the laws of the several states as an act of location.

Belle f. MeBKher. 3 Muut. eS: S. C. on appeiil, IM U. S. 279, 289; MoOinnli V. Kxbert,8Cola.41,1T; Alkins v. Hendree.l idalio.M: HMv. Hale. 8 Colo. -SSI; Mills v, Flelcber, 100 Cal, MS; Slavonian M. Co. v. Vawivlcli.TSaw. al7.

Original M. Co. r. WlnlUrop M, Co., BO Cal, 931.

'See, ante. iim.

795 Period Within Which Work Must Be Done. § 032

As to whether or not work performed during the year in which the location is made, that is, prior to the first day of January next succeeding the date of the location, may be credited on the first year's representation, is a matter involved iii some doubt. Logically, we can see no objection to the locator jierforming the full amount of the first year's labor at any time after the inception of his right by discovery. While his location is not perfected until all the requisite acts are performed, yet when completed his rights relate back to the date of his discovery, and that should be considered as the date of his location, as it is the inception of his right.' The object and intent of the law would seem to bo to require a certain amount of labor to be performed before the end of a certain period next succeeding the date uf location.

Comhiissioner Williamson at first accepted this construction of the law," but subsequently announced a different view; not, it is true, in a contested case, but in the form of a letter, wherein he states, that a claim located on Oelober 1, 1879, requires the expenditure of one hundred dollars' worth of labor or improvements thereon within the calendar year 18S0, and that whatever may have been expended during the year 1879 will not answer the requirements of expenditures in 1880.' The effect of this rule, if maintained, will, in states requiring preliminary development work as an act of location, deny the locator any credit for such preliminary work, unless his discovery fortuitously occurs in the latter part of a year and he is enabled to delay such work until after January 1st. If the date of discovery is not, by relation, to be considered as the date of the location, then, as a matter of course, the preliminary work cannot be estimated in any event.

If the views last expressed by Commissioner Williamson are recognized by the laud department, — and informal letters of the land officers frequently ripen into

' TiilboU V. King, a Mont. 7B. 'In re Hale, 7 Copp's h, O. 115, ' In re Haynu, T rope's L. O. ISO.

§633 Perpetuation Of The Estate. 796

formal rules — the locator's only safe course is to follow them without waiting for the courts to pass upon the question.

Of one thing we are quite sure: No matter how extensive a development or how large an expenditure may be made during any one calendar year, the excess over one hundred dollars cannot be carried forward and credited on the next year. The obligation to perform the statutory amount each year is not satisfied by doing two or more years' work in one.

The mere pendency of patent proceedings does not, prior to the issuance of a certificate of purchase, excuse the performance of annual labor.

If after filing ah application for patent and prior to entry the applicant neglects to perform the necessary work, the department may cancel the application; or if an entry has been made after protest filed, alleging failure to perform the work, the entry may be canceled.'

The pendency of an action instituted in the courts to determine an adverse claim under section twenty-three hundred and twenty-six of the Revised Statutes stays all further proceedings in the land office, but does not dispense with the necessity for performing the annual labor.

g 633. By whom labor must be performed. — Manifestly, the mine must be represented and the annual work performed by, or at the instance of, the owner or some one in privity with him. Work done by a mere trespasser or stranger to the title will not inure to the benefit of the locator, although ultimately paid for by the claimant ; but work done for the benefit of the claim by one holding

In re Merrell, 5 Copp's L. O. 5.

'South End M. Co. v, Tinney (Nov.), 35 Pac. 89; Ferguson v, Bel voir Mill Co., 14 L. D. 43; McNeil v. Pace, 3 L. D. 267.

'Sweeney v. Wilson, 10 L. D. 157.

Continental G. <fe S. M. Co., 10 L. D. 534; Clark v, American Flag G. M. Co., 7 Copp*s L. 0. 5; Higgins v, John G. M. Co., 14 Copp's L. O. 238.

Little Gunnell M. Co. v, Kimber, I Morr. JVlin. Rep. 536.

707 Kxclse For Son-Perpokmasckof Ansl'Ai. I-Abor. §634

the equitable title will operate to preserve the claim from forfeiture and inure to the benefit of the claim.'

Compliance with the law hy a mineral claimant, who is at such time holding under color of title, will accrue to his benefit on the acquirement of the legal tltle.

The purchaser of a claim from a prior locator is entitled to the benefit of all expenditures made by his grantor in the development thereof.'

9, 634. Circamstances under which performance of ftimnal labor Ib excUBed.— During certain periods of industrial (lepression, congress has passed special laws suspending the provisions of the section of the Revised Statutes requiring the performance of annual labor,' upon tlie condition, that the claimant file wilh the recorder of mining locations in the locality in which his claim was situated a declaration of intention to hold and work the claim in good faith; but these are more transitory acts, which have fully accomplished the object for which they were passed, and no longer require consideration. Tho existence of Indian hostilities in the border regions, — a not infrequent occurrence in the past — where an attempt to comply with the law as to annual labor would jeopardize the life of the locator, would certainly excuse the strict fulfillment of the requirements of the law, provided, of course, that the locator returns within a reasonable time after the cessation of such hostilities, and resumes his efforts to represent his claim. This is but the application In a larger sense of tho rule which excuses the performance of work when the claim Is in the hostile possession of another, rendering it impossible to comply with law without incurring risk of injury to life or limb, or committing or inviting a breach of the peace.

Booktr, JiiBt)<M.Ci>.,5S Fed, Rep. lOfi; Jiipltor M.Co. v. BodieCons. U. Co., 7 Saw. M,

'Dotlent. HdinliprgCons. M. Co., al.. D. 27.

Storr, -H L, D. UQ.

Afl 'it Nov. S, 18B3, 28 SI*U. Trge, Kj AkI of July 18, 1894, Id. IH.

S 634 Perpetuation Of The Estate. 798

A person id the peaceful and lawful occupancy of public land, for the purpose of initiating a title, having established hia right so far as he could or was permitted, acquires a title which entitles him to the possession of the laud as against all persons except the government, When he is forcibly prevented from fultilling the letter of the law, it will be presumed that he would have fulfilled it if permitted so to do.' So it has been held that where adverso possession of a mining claim is taken and held wrongfully, the rightful owner or locator is excused from doing the assessment work during the continuance of such adverse holding."

A locator cannot be deprived of his inchoate rights by the tortious acts of others,' but there must be a Ifona fide effort to perform the work. The acts and hostile declarations of one asserting an adverse right must be of so serious and menacing a character as to satisfy a man of ordinary prudence that it would be unsafe to begin work. Threats made at long range, when a relocator is not in the physical possession of the claim, or if made upon the claim, are of such a negative character as to preclude the idea that an attempted resumption uf work would be met with force, will not excuse a reasonable attempt to comply witii the law.'

It may be suggested that third parties disconnected with either the original locator or the hostile relocator might elfe<'t a relocation, which would defeat the title of both cmiteuding parties. Tlie answer to this is found in the fact, llial no one could initiate a right by force and violence;" and if the of the claim as to physical occa- pHUcy is such as to admit of its peaceable relocation by oulsiiiers. it is open to a peaceful re-entry by the original locator for ihe purpose of performing his Ubor.

I Rnlilii-nii (I, Impei'litl S. M. Co., 5 Ner. *V, Alfnid n. Dewin, I Nev. a>7, t'lBli M.ifcMrtc.Co. p. l)li!krtM.S.C(i.,H iTtnti.isS: MIlUv. Fletcber, lOOt'Nl. 14-J; TntvnHkiHv. rinl, 111 CuL 599; lrlmrdt v. Bo&iu, R Fed.Oei. i;rlinl( V. Itosro, 1 U. S. 627. SS4. 8Uv"i>lHii M.Cn. c. Vaoiivlati,7Skw.2IT.

790 VALUE OF LABOR AND IMl'RriVEMESTS. 5 635

g 635. Valae of labor and Improvemeiits— How estimated.— Id some of the mining dUtricLs, attempts have been made to fix the value of a day's labor, and in the territory of New Mexico we encounter a state statute prescribing the number of hours which shall constitute a day's work upon a mining claim, and providing that such day's work shall be of the value of four dollars.'

It seems to us that it is not within the power of any state or territorial legislature or local district assemblage to arbitrarily fix the value of any marketable commodity.

The following instruction upon the method of determining values, has been approved by the supreme court of Montana; —

" In determining the amount of work done upon a claim, " or improvements placed thereon for the purpose of representation, the test is as to the reasonable value of the said "work or improvements — not what was paid for it or " what the contract price was, but it depends entirely upon " whether or not tlie said work or improvements were rea- "sonably wortli the said sum of one hundred dollars.""

Nor is it material whether or no the labor performed is paid for or not, provided it is done at the instigation of the owner.' The fulfillment of the provision of the law lies in the performance of the labor or tlie making of the improvements required,' and not in the payment for it.

Experience teaches us that this question of value of annual labor forms the basis of innumerable controversies. Every reloealor is interested in depreciating the value of work performed by the original locator, and the latter in saving hia claim from forfeiture is interested in extolling its worth. It is largely a question of opinion, upon which both practical minors and experts will disagree. As was observed by the supreme court of Colorado, —

"It it" probable that testimony could he obtained to "show that nearly all the annual assessment work done

' Coiiili. ?rew Mex. IfM, J liHB, &IaIIiii|;)y v. Lewlwhn. 13 Mont. miS, HW. l.<>ekl.rdt V. Rollinn. 2 Idtiho. m. Colemaii v. Curtlit, 12 Moiil. 301.

§636 Perpetuation Of The Estate. 800

"upon mining claims was of less value than the law " required, excepting those instances where it greatly "exceeds the sum of one hundred dollars; and while the " amount paid is not conclusive that work of that value " has been done, but the actual value is the true test " whether or not the law has been complied with, yet, " where the testimony is conflicting as to the value, it is " proper to consider whether there has been a bona fide " attempt to comply with the law."

g 636. Proof of annual labor under state laws. — Most of the states and territories subject to the congressional mining laws have enacted statutes providing for proof, in the form of affidavits establishing the fact that the annual labor for a given year has been performed. Such aflSdavits are required to contain a statement as to the nature and value of the work performed and improvements made, and are to be filed before the end of a given period with the recording oflScer in whose oflSce record of mining locations is made pursuant to local or state legislation. This class of legislation is found in California, Colorado,'* Idaho,* Montana, New Mexico,'* Utah, Wyoming,* Arizona,® and Nevada.

The full text of state legislation on this subject will be found under appropriate heads in the appendix. It is unnecessary to consider here anything beyond the general object of this class of state laws.

The failure to file aflSdavits of annual labor is accompanied by no serious penalty. There is no provision in any of the statutes to the effect that a failure to comply with its terms will work a forfeiture." If anv such conditions

Quimby v. Boyd, 8 Colo. 194, 208.

Stats. 1891 p. 219.

Mills' Annot. Stats., § 3161, as Am. Ses. Laws 1889, p. 261.

Laws of 1895, p. 25.

5 Rov. Code of 1895, g 3614.

Act of March 18, 1897.

7 Act of 1897, §6- *Laws of 1888, pp. 90-91, § 23. 'Stats. 1895, p. 54, ix and x. "Stats. 1887, p. 136. "Book v. Justice M. Co., 58 Fed. 100, 118.

801 PBOOF OF ANSrAt. LABOR UKDER STATE LAWS, §636

were inserted, or if any of llie laws in question were susceptible of any such construction, they would undoubtedly be considered as unreasonable, and repugnant to the federal law. A forfeiture of a mining claim cannot be estiiblisliud, except upon clear and convincing proof of the failure of the locators or owners of the claim to have the work done or improvements made to the amount required by law.' these statutes provide that the affidavits when filed, or cerlitied copies of them, shall berimu faeie evidence of the facts therein stated, which, of course, means such facts as are required by the law to be stated therein.

lu Idaho it is provided that tlie failure to file such an afBdavit shall be considered prime facif evidence that the requisite labor has not been performed, and likewise in New Mexico such failure places the burden of proof upon the owner or owners of such claim to show that such work has been done according to law. Ordinarily the burden of proof rests witli the party charging a forfeiture, to show that the work has not been performed by the previous locator.'

In Idaho and New Mexico, where there is a failure to file Uie proof of annual labor, it would seem that this rule is modified and the burden is shifted. We cannot see any objection to this class of state legislation. The several slates have a right to define the nature, degree, and effect of evidence, within rational limits, and we do not think these provisions unreasonable.

The general purpose and object of state laws authorizing the making and filing of proofs of annual labor ie fully stated by Judge llawley in Book v. Justice Mining Co., in construing the Nevada statute: —

"The object of this act was evidently to fix some definite way in which the proof as to the performance of the "work or expenses incurred in the making of improve- "ments might be in many cases more accessible. In all " mining communities there is liable to be some difficulty

Boik K. JiisUce M. Co., .V Fed. 106. n: Hammer v. GkrHeld M.>t M. OOm ISO V. S. 291.

*Hniinr v. OarHeld M. A M. Co., 130 U. 8. 29); Johnson v. Toung,

IB Col.e25: QiiiBlej i: GlUolt, 101 CbL 402; Colemtn ir. Curtis, 12 Moot. SOI.

Zz

§636 Perpetuation Op The Estate. 802

in finding the men who actually performed the labor or " made the improvements, and procuring their testimony, " in order to establish the facts necessary to show a com- " pliance with the mining law in this respect. . . . Lo- " cators of mining claims would doubtless often save much " time and trouble, as well as hardship, inconvenience, and expense, by complying with the provisions of the act; but the act does not prevent, and was not intended to " prohibit, the owners of a mining claim from making the " necessary proof in any other manner, nor does it pro- " hibit the contesting party from contradicting the facts " stated in the affidavit."

As was said by the supreme court of Montana: —

" The statute provides a convenient method of preserving "prima facie evidence of the annual representation of min- " ing claims, by the performance of the labor or making " of the improvements of the value required thereon, " by putting such evidence in the form of an. affidavit, " stating the facts required. This statute relates not to the " eflPect of doing the work or making the improvements as " required by law, but to the method of preserving prima "facie evidence of the fact that such requirement has been "fulfilled."-

The affidavit may be filed at any time after the work has been performed, and prior to the lapse of the period fixed by the statute.'

There is no requirement in any of these laws that there should be a separate affidavit for each claim represented;* but in cases of groups represented by work done within the limits of one of the claims comprising it, or where it is asserted that work done outside of a claim or group of claims was so performed for the benefit of such claim or group, the affidavit to possess any value or force should clearlv demonstrate that the work so done related direetlv to the claims, and that such work obviously tended to their development. A mere conclusion of the affiant to that effect would not be accepted.

58 Fed. 106, 118.

Coleman v, Curtis, 12 Mont. 301, 305; Davidson v, Bordeaux, 15 Mont. 245, 250.

McGlDnis V. Egbert, 8 Colo. 41, 48. Id,

803 When Necessity For Annual Labor Ceases. §637

§ 637. Obligation to perform labor annually ceases witii the final entry at the land office. — The law requires that labor shall be performed or improvements made upon each claim until a patent has been issued therefor.

" The true rule of law governing entries of public land, " to which mineral lands form no exception, is, that when " the contract of purchase is completed by the payment of the purchase money and the issuance of the patent certificate by the authorized agents of the government, the " purchaser at once acquires a vested interest in the land, " of which he cannot be subsequently deprived if he has " complied with the requirements of the law prior to entry, " and the land thereupon ceases to be a part of the public " domain, and is no longer subject to the operation of the " laws governing the disposition of the public lands. In " such cases there is part performance of a contract of sale, " which entitles the purchaser to a specific performance of "the whole contract without further action on his part. " When the proofs are made and the purchase money paid, " the equitable title of the purchaser is complete, and the " patent when issued is evidence of the regularity of the " previous acts, and relates to the date of the entry to " the exclusion of all intervening claims. In short, an entry made is in all respects equivalent to a patent " issued, in so far as third parties are concerned."*

This view was accepted by the courts as a proper interpretation of the law," and the supreme court of the United States quoted approvingly the ruling of the land department, and held that \ji'hen the price is paid the right to a patent imme<lately arises. If not issued at once, it is because the magnitude of the business in the land department causes delay; but such delay in the mere administration of affairs does not diminish the rights flowing from the purchase, or cast any additional burdens upon the purchaser, or expose him to the assaults of third parties. The

'Secretary Schurz, re American HiU Quartz Mine, Sickle's Min. Dec. 877, S. C. Coin'rs* Dec, Id, 384. See, also, Gold Blossom Quartz Mine, 2 L. D. 767; American Hill Quartz Mine, 5 Copp's L. O. 114; /rf., tJ Copp'a L. 0. 1.

Aurora Hill Cons. M. Co. r. '85 M. Co., 34 Fed. 515; Deno v, Grirtin, 20 Nev. 249; Alta M. & S. Co. r. Benson M. A S. Co. (Ariz.), 10 T*ac. 5C5.

'Benson M. <fe S. Co. v. Alta M. A S. Co., 145 U. S. 428. See, also, Deffebackv. Hawke, 115 U. S. 392.

§638 Perpetuation Of The Estate. 804

obligation to perform the annual labor ceases, therefore, when final entry and payment is made and the certificate of purchase is issued. This obligation, however, may be revived by either a cancellation or suspension of the entry. The commissioner of the general land office has power to suspend the entry on which the Certificate is founded, by virtue of his supervisory control over the acts of his subordinates/ and when suspended the certificate of purchase cannot be used as evidence as long as the suspension continues. He has also the power to cancel the certificate upon due notice and under proper conditions;' but so long as the certificate remains uncanceled or unsuspended, the annual labor need not be performed.

g 638. Millsites. — Millsites are not subject to the annual labor law. Their use and occupancy for purposes connected with mining operations on the lodes to which they are extralimital adjuncts, is all that is required. This is the rule followed by the land department in relation to the expenditures required for patent purposes/

It is difficult to see how a millsite can be developed. It is not a mining claim. It must be located on non-mineral land, and its continued existence depends entirely upon its use in connection with a located vein. We, of course, have no reference to millsites upon which are erected custom mills or reduction works under the last clause of section twenty-three hundred and thirty-seven of the Revised Statutes.

It is unnecessary to add anything to that which we have heretofore said on the subject of millsites.

Hosmer v. Wallace, 47 Cal. 461. A full discussion of the powers aud duties of the land department will be found in the next title.

'Fipfg V, Hensley, 52 Cal. 299; Murray v. Polglase, 17 Mont. 455. Caldwell v, Busli (Wyo.), 45 Pac. 488; Parsons v. Venzks, U. S. Sup. Ct., Nov. 2, 1896.

Com'rs' Letter, 1 Copp*s L. O. 2; Alta Millsite, 8 L. D. 195. See, ante, 519-524.

Chapter Vi.

Forfeiture Of The Estate, And Its Restoration By

Resumption Of Work.

Article I. Abandonment and Forfeiture. II. Resumption of Work.

Article I. Abandonment and Forfeiture.

642. Cireumstanoes under which i § 544. Acts constituting abandonment— Evidence establishing or negativing it.

the locator's estate is terminated.

643. Distinction between aban- $645. Forfeiture.

donment and forfeiture, j g 645. Forfeiture to co-owners.

g 642. Circumstances under which the locator's estate is terminated. — In the case of Black v. Elkhorn Mining Co., a recent decision rendered by the supreme court of the United States upon the subject of dower in unpatented mining claims, we find the following statement as to the nature of a locator's title and the circumstances under which it may be extinguished : —

"To sum up: As to the character of the right which is granted by the United States to a locator, we find, —

(1) That no written instrument is necessary to create " it. Locating upon the land and continuing yearly to do " the work provided for by the statute gives to and contin- " ues in the locator the right of possession as stated in the " statute.

"(2) This right, conditional in its character, may be " forfeited by the failure of the locator to do the necessary " amount of work ; or if, being one among several locators.

" he neglects to pay his abare for Lhe work which lias been " done by his co-owners, his right and interest iu the cialm " may be forfeited to such co-owners under the provisions " of the statute.

" (3) His interest in the claim may also be forfeited by " his abandonment, with an intention to renounce liis right " of possession. It cannot be doubted that an actual aban- " donment of possession by a locator of a mining claini, such "as would work an abandonment of any other easement, " would terminate all the right of possession which the " locator then had."'

In support of the last proposition, the court says: — " An eH.sement in real estate may be abandoned without " any writing to that effect, and by any act evincing an " intention to give up and renounce th same. If the locn- " tor remained in possession and failed to do the work pro- " vided for by the statute, his interest would terminate " under such eircumstance.s. If he convey to another a " right which may be thus lost, that conveyance would "seem to be equivalent to an abandonment by him of all " rights under the statute. What could be better evidence " of an intention to abandon than an actual conveyance of " his right to another, ceasing to do any work thereon, and " giving Hp of his possession in accordance with his convey- "ance? The abandonment by simply leaving the land is " no more efficacious than conveying his rights and also "leaving possession without any intention of returning."

This characterinatiou of the nature of the estate in a perfected mining location does not, at the first glance, seem to blend harmoniously with other previous declarations of the same tribunal. For example, that court has said: — "A mining claim perfected under the law is property in the hlgliest sense of the term' — in the fullest aeuse of the word.' A valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United Stales, has the effect of a gram by the United States of the right of present " and exclusive possession of the lands located.'"

' Black t.. Elklioin M. Co., 163 U. 8. 446. 4S0. iPorbeH 1'. Oncey, V. ft. TU2: Uelk v. Mcaghe Manuel v. WulfT, Id'Z D. 8. MS. 610. awlUiin V. DonnelUn, 113 V. 8. 46, 4li.

Iw U. 8 2711, 28S

Termination Of The Locators Estate.

' the decision in Black v. Elkborn Mining Coiupany I been promulgated by any court of less dignity than th rerae court of the United States, we might deferentialljj ast that while the view announced upon the subject a donmenl. as distinguished from forfeiture, was uit Ibtedly applicable to the early mining tenures as they led prior to the enactment of the federal mining laws,fl JRlative construction and judicial interpretation thrfT !!&ctr of the estate in later years had been raised to suehl

Ignity that it required something more than a mer(|

parol abandonment to terminate it.

While it is true that no written instrument creating thel grant is signed by the grantor, yet in at least twelve out* of the fourteen states and territories subject to the federal mining laws, with the consent and under the sanction of the federal government, a record title is established. "A statutory writing afTecting realty, being in part the basis of a miner's title,'" is required.

While as between the government and the locator the title of the latter is equitable, the courts of the miningJ states have uniformly held that as against every one elsefl the estate was that of a freehold.

The supreme court of the United States has said that a written conveyance is not necessary to the transfer of a mining claim,' citing, as authority for this doctrine, an early California case;' hut ever since 1860 the supreme cuurt of that state has, by a uniform line of decisions, held that a written instrument was necessary to pass the title to i a located mine.'

The same rule obtains in Montana,' and we think wsJ are justified in making the statement, that at the present! time, in every state and territory subject to the federal! ' Pollard o. Sliively. B Cnlo. 309, 312.

Cons. 8. M. Co. o. Taylor. 100 U, S. SH, 42. Ht. T. Cn, V. Siranahan, 30 Cal. 1B8.

v. FU,S0Cal,48l: F'ltiterr. Coward, 35 Cat, 650; Uurdeuburgli m.aaCal.SSl; MUoii v. Laiubard, 31 Ca|.S6S; Oarthe v. Hart, 73 Mocro p. lUmcraUK. lUU Cal. V. Noyes. 4 Munt. 660.

§642 Abandonment And Forfeiture. 808

mining laws, a perfected mining location is treated as real estate, and that the same formalities are required to transmit the title as in case of other real property. The estate is treated as a legal one. It will support the action of ejectment. It may be mortgaged and generally dealt with as if the absolute fee were vested in the locator.*

A conveyance is not an abandonment. Abandonment terminates a right. A conveyance transmits it.'

Judge Field, while on the supreme bench of California, announced the doctrine, that, —

"The right of the occupant originating in mere posses- " sion may, as a matter of course, be lost by abandonment. " Where there is title, to preserve it there need be no con- " tinuance of possession, and the abandonment of the latter " cannot affect the rights held by virtue of the former."'

And the supreme court of the United States has said, that, —

" There is nothing in the act of congress which makes " actual possession any more necessary for the protection of the title acquired to such a claim by a valid location, " than it is for any other grant from the United States."

The abandonment of possession is one thing. The abandonment of a right of exclusive possession and enjoyment granted by a statute which is a muniment of title, is another. If the estate of the locator is a legal estate, it can only be divested by abandonment when the circumstances are suflScient to raise an estoppel; but when such abandonment is not accompanied by circumstances sufficient to raise an estoppel, no matter how formal the abandonment may be, if it fall short of a legal deed of conveyance, it has no effect whatsoever upon the title.

There is another consideration which may add some weight to the contention that such an estate cannot be lost

See, ante, g 539.

Richardson v. McNuIty, 24 Cal. 339. Ferris v. Coover, 10 Cal. 589, 632. Belk V. Meagber, 104 U. S. 279, 283.

Tiedeman on Real Property, 439; 3 Wa.shburn on Real Property, p. 65.

Abandonment Anfi Forfeiture — Distinction. § G43

or Lenninated by mere parol flbantloninent: The statute wliiuli creiites and authorizes the grant specifies the conditions under which the estate granted shall be forfeited. The question may be plausibly asked, Can the estate be lost or terminated lawfully in any other manner or for any otlier cause than that specified in the statute?

But as the supreme court of tlie United States seems to assume that the locator's estate may be lost either (1) by forfeiture for nou-performance of annual labor, or (2) by voluntary parol abandonment, it will be necessary for ua to consider the essential differences between the two,

§ 643. DisticctioQ between abandonmeot and forfeiture.— Abandonment is always a question of intention.' In forfeiture the element of intent is not involved. It rests entirely upon the statute, and involves cinly the question, whether the terms of the law have been complied with.'

Abandonment operates matankr. Where a miner gives up his claim and goes nway from it wiLlinut any intention of returning, and regardless of what may become of it, or who ma}' appropriate it, an abandonment takes place, and the property reverts to its original slatug as part of the unoccupied public domain. It is then ptihlici Jiiris, and open to location by the first comer." Forfeiture is not complete until some one else enters with intent to relocate the property.'

Oinar i>, Soper. II Cnlo. 380: MmIIhU v. Vtwle Sam M. Co., 1 Ner. 1H8. 904: Weill Lucerne M. Co., lINev.aoO: Ben v. Redroek T. .t M. Co.. 36 (!rI. 2Hj Slono V. Geyser Q. M. Co., fi2 Cat. 3I&! Derry v. Rosb, 5 Colo. S95; St. John v. Kttld. at Cal. aiS; Waring t>. Crow, II Cnl. 3T: Davis v. Biiller, s Cal. 510; Hlolianl-mn v. MoNuUy, '.4 Cal. 339; Morenliaiit v. Wil>li.5-2riil.2(t3i MaraliBll v. Ubruny Penk T. M. Co., 1 S. Dak. SfiO: Myers v. Spotmet, (M.Wil: lodge v. Neardeii, 7 Ore. 45": Trevuklit V. Prard, HI <M.60: Voov. Wnterluo M. Co.. TO lod. t5fi.

St. John V. Kidd, a) ChI, 203, 372; Bell v. Bedrock T. 4 M. Co., 38 Cal. UU, -nn.

Derry e. Rosa, s Colo, 2116i Davis v. BiiUur, il Cal. 510; RIclmrtlKiun v. McNiilty.J Cal. 330; Mailed r, UneleSain M. Co,. 1 Nev. 188: Morenliaut a. WJIanii, WZ ChI. 'MS: fH. Jolin v. Kldd, 28 Cnl. 2At: Karkrader t>. Carroll, TA Fad. 4T4.

LIttIn Uuniiell M. Co. r. Klinber, I Morr. Min. ltet>. 53<t, G39: TAkin V. Sierra Bulle* O. M. Co., liS Fed. S3T, 343.

Abandonment may occur at any time, even after full compliance with the law as to performance of annual labor. Forfeiture will only ensue upon the lapse of tlie statutory period, and upon failure to represent the claim.

Abandonment may be proved under the general issue,' Forfeiture must be specially pleaded. although this rule does not obtain, necosaarily, in proceedings to detfrraine adverse claims under section twenty-three hundred and twenty-six of the Revised Statutes, where the title of each party is put in issue* Where, however, either abandonment or forfeiture are relied upon, the burden of proof rests with the party asserting,'

I 644. Acta coostituting abandonment — Zvldence establishing or negativing it. — Abandonment is a questioTi of fact lo be determined by the jury.'' No arbitrary rule can be laid down wliich will satisfy all cases. The question being one purely of intent, the fact is to be determined by the acts and conduct of the party.

Upon a question of abandonment, as upon a question of fraud, a wide range is allowed, for it is generally only from facts and circumstances that the truth Is to be discovered, and both parties should be allowed to prove any fact or

1 WillBDii V. CleavelHiid. !U> Cat. 192; Ben v. Bedrtick T. & M. Oi., 30 CaI. 214: Belli'. Browii. 22 Cnl.UTl; MorBnlifluti>. Wilson, 52 (;i. 26:!: Trev**- kis V. Pearil, 111 Ctkl.

Tlia Bupreine I'uurt of Motitaiiu, while not anilarUkiiiK U) cIooIiId lbs (jiieallun. Inlimated tliat it would beHaferin plead U. MoShane f. Eenkle, M Pc. B70.

' Renslmw o. Switior, 6 Mont. Garfield M. M. Co. v. Haniiner, 6 Mont. M: Morenbaiit v. WIIori,Ii2 0*1.263; Mutlhigly v. LewlBohn.IS Mont. nnS: Bishop v. Baioley (Ore.), 41 Pac, II30; WaltTti. Maniil. 8 Moat, 2S6. S. C reversed on Kppenl but not on this [loiul, 152 U. H, W&t Altoonft Q. M. Co. c. Inltgral Q. M. Co.. Cal. lOO.

Steel p. GoW Irfiarf M. Co., 18 Nov. 80. Aa to what in necessary to aUeged and proved In tlila nlasa Of aotloDH and tbo rpUtlonalilp tietween the tale cwinrls and the land department, HOB aulijeut of " lulverHa claims " In a t*uc(ne<liiig cliapter.

Oreamiinoti.UnaieMiim M. Co., I Nev. 21o: milgley r.Gillett, lOI CaL 4(12; Coleinaii v. Clements, 2H Cal. 240; Bishop t>. Baiiley (Ore.), 41 Pao. 9110: Jnhnoon t>. Young. IS Colo, (t2n.

Taylor v. Midaivluii, ffT Cal. Mi Myem v. Spooiier, (M. 257, :!eO.

811 Agt8Cokstitutikg Abandonmsnt. {644

eireamstanoe from which any aid for the solutioii of the question can be derived. The animus revertendi is the simple test' There must be a leaving of the claim without any intention of returning or making any further use of it, to snstiain the charge of abandonment. The leaving having been shown, it is competent for the opposite party to show any acts explaining it.'

If tools or mining implements are left on the ground, this fact would be a circumstance negativing the idea of abandonment.

Mere failure by one colocator to contribute his proportion of the expense of performing assessment work would not be conclusive evidence of an intention to abandon, although it is a circumstance which may be considered in connection with others.*

Lapse of time, absence from the ground, or failure to work it for any definite period, unaccompanied by other circumstances, are not evidence of abandonment*

The declarations of a party against his own interest, accompanying his removal from the claim, would certainly be admissible to show intent, and this, independent of the fact that others acted upon such declarations, which would involve the element of estoppel. Estoppel in pais does not constitute an element in abandonment, nor is it one of the circumstances from which an abandonment may be found.'

It has been held that, when the question of abandonment is in issue, the declarations in his own favor, made by

WUlson V. CleaveUnd, 30 Cal. 192; Bell v. Bedrock T. & M. Co., 36 Cal. 214, 21S.

*Stone V. Geyser Q. M. Co., 52 Cal. 315, 318.

'BeU V. Bedrock T. A M. Co., 36 Cal. 214.

Harkness v. Burton, 39 Iowa, 101, S. C. on appeal, 9 Morr. Min. Rep. 818; Morenhaat v, Wilson, 52 Qal. 263.

Oreaiiiuno V. Uncle Sam M. Co., 1 Nev. 215; Waring v. Crow, 11 Cal. 367,372.

Mallett V. Uncle Sam M. Co., 1 Nct. 157; Wade's Am. Min. Law, 9. 83; Seamen v. Vawdrey, 16 Vesoy Jr. 390, S. C. 13 Morr. Min. Rep. 62: Partridge V. McKinney, 10 Cal. 181; Dodge v, Mardan. 7 Ore. 456, S. C. 1 Morr. Mtn. Rep. 63.

f Marqaart v. Bradford, 43 Cal. 526.

§645 Abandonment And Forfeiture. 812

the party against whom it is alleged, negativing any intention to abandon, may be admitted in evidence for the special purpose only of showing an absence of such intention.' Abandonment may also be proved by the acts and conduct of a party, eveli against his express declarations to the contrary.'

g 646. Forfeiture. — The penalty for failure to comply with the requirements of the law, in respect to the performance of annual labor, is found in section twentv-three hundred and twenty-four of the Revised Statutes: —

**Upon a failure to comply with these conditions, the " claim or mine upon which such failure occurs shall be " open to relocation in the same manner as if no location of the same had ever been made."

The term "forfeiture" does not appear in the statute, but the courts employ it as a comprehensive word indicating a legal result flowing from a breach of condition subsequent, subject to which the locator acquires his title.

In a previous section we have noted the distinction between forfeiture and abandonment, and have there enumerated the leading characteristics of both.' We have heretofore observed the reluctance with which the courts enforce this penalty. They have firmly established the doctrine, that the forfeiture cannot be established except upon clear and convincing proof of the failure of the former owner to have work performed or improvements made to the amount required by law.* The courts do not incline to the enforcement of this class of penalties, which have always been deemed in law odious.®

Noble f. Sylvester, 42 Vt. 146, 150.

'Trevaskis v, Peard, 111 Cal. 599, 605; Myers v. Spooner, 55 Cal. 257, 260.

See, ante, 624.

8 Hammer Garfield M. A M. Co., 130 U. S. 291, 301.

Mt. Diablo M. & M. Co. v, Callison, 5 Saw. 439, 457; Belcher Cons. G. M. Co. v. Deferrari, 62 Cal. 160, K; Quigley r. Gillett, 101 Cal. 462; Johnson V. Young, 18 Colo. 625; Book v. Justice M. Co., 58 Fed. 106; Colman v. Clements, 23 Cal. 245.

813 Forfeiture To Co-Owners. §646

Of course, while a claim is subject to relocation for failure to perform the requisite annual labor, no forfeiture is worked, and the estate of the locator is not divested until there has been a peaceable entry for the purpose of perfecting the relocation. The right of the original claimant is terminated only by the entry of a new one.*

We have heretofore dealt with the subject of forfeiture for failure to comply with the requirements of local rules other than those governing the subject of annual labor,' and have also considered the effect of a failure to comply with the provisions of state laws regulating the manner of initiating and perfecting locations.' The class of forfeitures which we are now considering are those only which may result from a failure to perform the annual labor required by the federal law.

Succinctly stated the rule is, that the work prescribed in the act must be done, or the claim is open to relocation, and a forfeiture may thus ensue.

The subject of relocation after the original claimant has failed to comply with the law, is fully discussed in a preceding article.

g 646. Forfeiture to co-owners.— Section twenty-three hundred and twentv-four of the Revised Statutes, after providing for the performance of annual labor or the making of improvements to the value of one hundred dollars during each calendar year, contains the following additional provision: —

" Upon the failure of any one of several co-owners to "contribute his proportion of the expenditures required " hereby, the co-owners who have performed the labor or "made the improvements may. at the ex|>iration of the year, give such delinquent er>-owner f)personal notice in writing, or notice by publication in the newspaper

Little Giinnell M. Co. r. Kiinber, 1 Morr. Min. Rep. 536, .')39.

*See, ante, 274.

RiMsell V, Brosseao, 65 Cal. 0(6; Du Pnt o. jAmes, Id, 5S5.

§ 646 , Abandonment And Forfeiture. 814

published nearest the claim, for at least once a week for " ninety days, and if at the expiration of ninety days after " such notice in writing, or by publication, such delinquent " should fail or refuse to contribute his proportion of the " expenditure required by this section, his interest in the " claim shall become the property of his co-owners who " have made required expenditures."

The manifest object of these provisions is, to afford a speedy and convenient method of taking away the property of one cotenant and giving it to another without the troublesome intervention of either courts or juries. There is no antecedent adjudication of either the fact of delinquency on the part of one CQ-owner or the making of the required expenditures by the other. The proceeding by which the forfeiture is worked is ex parley extrajudicial, and deserves to be classified under the head of extraordinary remedies.

In the case of Brundy v. May field, considered by the supreme court of Montana, it was urged that this portion of the federal statute was repugnant to the constitution of the United States, as it was an attempt to deprive persons of property without due process of law. The court did not pass upon the question. The exigencies of the case did not require it. Another method, quite as efficacious, was discovered, which enabled the court to declare null and void the proceedings under which one co-owner sought to acquire the title of the other by "advertising out." In this case there was a total absence of any delinquency.

The supreme court of the United States, in the case of Turner v. Sawver, held that the statute was one of forfeiture and should be strictly construed. The estate of the alleged delinquent co-owner in this case was saved from forfeiture for the reason, that the person attempting to advertise him out was not a co-owner. In deciding the case the court takes special pains to reannounce the familiar rule heretofore referred to, that cotenants stand in a certain

15 Mont. 201. S©e, ante, I 406.

150 U. S. 578.

815 Forfeiture To Co-Owners. §646

relation to each other of mutual trust and confidence; that neither will be permitted to act in hostility to the other in reference to the joint estate, and that a distinct title acquired by one will inure to the benefit of all.

In the case of Black v. Elkhorn/ the same tribunal, speaking through Justice Peckham, stated that this was one of the methods by which a locator's estate might be lost; but in that case no question concerning this portion of the statute was involved. The fact was recited to show that the locator's estate was not subject to a wife's dower, because it might be subject to forfeiture.

In Royston v. Miller,* one cotenant claimed to have performed the assessment work for 1893, and his co-owner, having failed to contribute, was "advertised out." Judge Hawley held that the performance of annual labor for that year was excused by the act of congress referred to in a preceding section,' and therefore there was no delinquency, and the attempt to create a forfeiture was a failure.

In Billings v. Aspen Mining and Smelting Co., an effort to forfeit the interest of a co-owner was defeated, because at the time notice was published the delinquent co-owner was dead.

In a recent case decided by the supreme court of South Dakota,* it appeared that the Golden Sand Lode was located in 1878 by Havens and Wilsey. Wilsey died the same year. An administrator of his estate was appointed, but died in 1888, leaving a vacancy in the administration until 1893. After Wilsey's death, Havens performed the annual work each year from 1880 until 1887. Thereafter and during the vacancy in the administration, Havens published two notices, one demanding contribution for labor

163 U. S. 445, 450. See, ante, § 642.

76Fed. 50.

'See, ante, 84.

*51 Fed. .338, 349.

Elder Adin'r ?;. Horseshoe M. Co. (not reported). I am indebted to Mr. Edwin Van Cise of Deadwood, S. D., for a newspaper print of the decision.

§ 646 Abandonment And Forfeiture. 816

performed during the eight years, and one covering the period of 1887. The notices were addressed, " To Rufus " Wilsey, his heirs, administrators, and to all whom it may " concern." Presumptively this notice was published for the statutory period. There was no personal service. The heirs-at-law were all non-residents of South Dakota. In 1892 Havens sold to one White, by deed purporting to convey the entire claim. White caused the claim to be relocated under the name of the North Lode, under which relocation the claim passed to patent, and in 1893 as patented was conveyed to the Horseshoe Mining Company. It was claimed that White, in making the purchase, perfecting the relocation and securing patent, acted as the agent of this company.

In 1893 Elder, who had been appointed administrator of the Wilsey estate, together with Wilsey's heirs, tendered to the Horseshoe Mining Company one half of the amount of the annual expenditures required to be made on the claim from 1878 to 1893, and demanded a deed for one half of the property. The tender and demand being refused, Wilsey's administrator and the heirs brought the suit to recover one half of the property.

At the trial the published notices were offered in evidence, and objection to their introduction was made on numerous grounds. The trial court sustained the objection, giving as a reason for its ruling that, —

" The evidence in this case shows that Rufus Wilsey was "dead, and that there was no legal administrator; his " administrator was also deceased at the time this notice of " forfeiture was published, and that therefore, his co-owner "gained nothing by it,"

practically following the ruling in Billings v. Aspen M. & S. Co., heretofore referred to.

The appellate court held this to be error, and reversed the judgment, ruling that the direction in the notice to the heirs was sufficient, as upon the death of Wilsey they became tenants in common with Havens, and that it was unnecessary to designate them by name. We note

817 Forfeiture To Co-Owners. §646

the following as the court's views upon the character of the proceeding by which a forfeiture is worked.

" We feel justified in the conclusion, that congress, in "adopting the provisions iri regard to the disposition to be ''made of a defaulting co-owner's interest in the claim, acted upon the same theory, and the published notice was intended to accomplish the same result as the pub- " lished notice of application for a patent; that is, to cut off " the claims of all persons, and vest in the co-owner a clear "title to his co-owner's interest, without regard to the " interest of miners, lien-holders, or incumbrances."

In other words, according to the supreme court of South Dakota, the proceeding is one in rem, not carried on under the supervision, or subject to the ultimate sanction or approval of any tribunal, but conducted solely by the individual who receives the benefit of the forfeiture.

As we shall hereafter have occasion to note, the proceedings by which a patent is obtained are essentially in rem. The notice of an application for patent, issued by the official charged in the first instance with passing upon a claimant's rights, is a summons, by the publication of which the land department acquires jurisdiction to grant the land. The mere publication of the notice passes no title. So in case of substituted service by publication of summons, it is upheld only upon the theory that the property involved, or which is taken under mesne process, has been, or is by virtue of the proceeding, subjected to the jurisdiction of some competent tribunal, which ultimately is called upon to determine the validity of the asserted right and the regularity in the service of process. Nor is the proceeding taken by one co-owner to divest the title of the other analagous to a sale under a deed of trust containing ample powers. In this class of cases the power of sale is expressly granted by the trustor. The right to sell exists by virtue of a contractual relation — a delegated power coupled with an interest, to wit, the quasi legal title. The method provided for in the statute under consideration is wholly in inviium.

§646 Abandonment And Forfeiture. 818

We would not be justified in dogmatically asserting that this process of advertising a co-owner out is clearly unconstitutional. But we think we mav safelv assert that wherever the law is invoked the courts will demand strict proof of the fact of delinquency, and of the full and fair compliance with each requirement of the law.

Of course, to prevent a mining claim from becoming subject to relocation, it must be fully represented. A partial performance by one co-owner will not save his interest. Representation is a unit,* and as one cotenant, in order to protect his interest in the location, may be compelled to expend more than his just share, those associated with him should be compelled to contribute their respective proportions. Failing so to do, the one performing the labor or making the required expenditures would have his right of action against the delinquent co-owner." The right of one cotenant to contribution from others for expenditures made in removing a common burthen is well settled.' This method of obtaining redress would seem to fully protect the diligent cotenant, and would not be subject to any constitutional objection.

The federal statute does not seem to provide any adequate method of establishing the jurisdictional facts upon which the right to forfeiture is based, nor of proving or making a record of a compliance by the diligent coowner with the requirements of the law in securing a forfeiture to himself. An ex parte affidavit, made by a coowner claiming a forfeiture, could not be admitted in evidence, nor would the record of such affidavit impart notice to anv one. Constructive notice bv recording is whoUv a creature of the statute. A record not provided for by statute, or recognized by law, gives no notice.* The lameness and imperfections of the federal statute, to use mild

'Saanders r. McKav, 5 Mont. 523. Holbrooke r. Harringtoo (Cat.), 36 Pac. 365. Freeman on Cotenancy and Partition 322. Golden Fleece M. Co. r. Cable Cons. M. Co., 12 Nev. 312; Sonderland, 6 Cai. 296, 315. See, amte 392.

819 Forfeiture To Co-Owners. §646

terms, have tempted several of the states to supply the deficiencies by supplemental enactments.

We have heretofore expressed the view that such statutes are not within the legitimate scope of supplemental state legislation.

The land department follows the rule, that where one of several co-owners applies for a patent, and in doing so excludes his cotenants, the latter can only protect themselves by proceedings to determine an adverse claim under section twenty-three hundred and twenty-six of the Revised Statutes. J[n other words, the department will not try the question of forfeiture nor adjust equities between co-owners. But it is not to be inferred from this that the excluded cotenant is, by a failure to adverse, barred from asserting his rights after patent. If he has been wrongfully excluded, he may have a trust declared at any time.' The regulations of the land department, whereby a party may be held to prove his better claim to enter, do not oust the jurisdiction of the courts.

A cotenant excluded from a patent application may adverse, and perhaps under certain circumstances, where the claim is held in open hostility and there is an emphatic and well recognized repudiation of his title brought to the notice of the delinquent, his asserted rights may be jeopardized by failure to adverse; yet, as a rule, his equities may be asserted after patent has issued.

It is not our purpose to consider here the relative rights, duties, and obligations existing between tenants in common of mining claims. We have heretofore discussed the subject of relocation by one cotenant in hostility to the others,' and in future chapters will have occasion to

>See, aiUe, J 251 (5), p. 320.

'Orainpian Lode, 1 L. D. 544; Hussey Lode, 5 L. D. 93; Monitor Lode, 18 L. D. 858.

Turner V. Sawyer, 150 U. S. 578; Sussenbach v. First National Bank, 41 N. W. 662: Brundy v, MayAeld, 15 Mont. 201.

Turner v. Sawyer, 150 U. 8. 678.

Judge Elliott's concurri Tabor v. Sullivan, 12 Colo.

186, 151. 16.

§651

Resumption Of Work.

consider the general subject of mining partnerships and cotenanc}'.

The object of this section is simply to invite attention to that portion of the federal law which purports to sanction a forfeiture for the benefit of a co-owner. All courts agree that the statute must be strictly construed. Certainly no presumptions of either fact or law will be indulged in when its application is invoked. Drastic punishments for minor offenses frequently secure immunity to the offender. The same principle applies with equal force where unusual and severe methods of redressing private wrongs or enforcing private rights are attempted. The xiourts are not disposed to deal with them in a spirit of liberality.

Article II. Resumption of Work.

2 651. Kesumptinn of work prevents forfeiture.

J 652. Wliat constituteH a valid resumption of work.

J 653. When right to resume work must be exercised.

I 654. Conclusions.

g 661. Resumption of work prevents forfeiture. — It

might be inferred from the caption of this chapter, " For- " feiture of the estate and its restoration by resumption of work," that the estate of a locator in a mining claim once forfeited for failure to perform his annual assessment work might be restored by resuming work. The expression is, legally speaking, inaccurate. A forfeiture does not ensue from the mere failure to comply with the law. It requires the intervention of a third party and a relocation of the ground before any forfeiture can arise.' When such forfeiture becomes effectual, the estate of the original locator is hopelessly lost, and there is no possibility of its being restored.

The statute provides that, —

"Upon a failure to comply with these conditions, the "claim or mine upon whicli such failure occurs shall be

" open to relocation in the same manner as if no location "of the same had ever been made; provided, tltat the m-igi- " nal locators, their Iteirs, assigns, or legal representatives, have " not resumed work upon the claim after failure and before such " loeation."'

Resumption of work at any time prior to the lawful inception of an intervening right prevents forfeiture.' It

does not restore a lost estate.

I 662. What constitutes a valid resnmption of work. — Willi the doctrine established, that nil forfeitures are odious, and that one seeking to avail himself of the failure of a preceding locator to comply witli the law, in order to secure a relocation of the ground, must establish such failure by clear and convincing proof,* it is natural that the courts should lean toward a liberal construction of the law of resumption. In order that we may be able to intelligently deduce a correct rule from the decisions, it is necessary for us to briefly consider the leading cases and the facts surroundiug them. For illustrative purposes, in epitomizing these cases, let us assume that in all of them the original locator and alleged delinquent is represented by " A." and the relocator by " B." This will avoid confusion and more readily exhibit the analogies or differences, OS the case may be.

Case 1. — A,, owning two claims, performed on the two daring the year 1880 only one hundred dollars' worth of work; that is, fifly dollars upon each. His claims were subject to relocation on .January 1, 1881. During January of that year he performed work that was actual and

aula. i2S24.

>Belk V. MeoKlier. 104 U. S. 2TS: PhnriH v. Muldooii, TS Cal 28i; Belcher f. Derxrmri, esCal. ItW: MoOirinix Kgberl, 6 Colo. -ll: Bulk v. Meaglier, 3 UmiI. 03: Gonu v. I{ii!ihbU. Id. 358; Hoiiaker t>. MarLiri, It Mont. 91; Ucey P. WonilwarJ {New Meu.l, 25 Piii'. 785; Norlli Soonday M. Co. v. Orient M. Co., a Saw. 299, 314: Jlipltor M. Co. t>. Bodlo Cons. M. Co., TSkw. M, 115; Lnklii v. Slerrit Buu>t M. Co.. tl Saw. 2.11, li); Little Ounnel M. Co. v. Kiniber, I Morr. Min. ltp. S36: OacBmp v. Cryatl Itlvar M. Co.. SS Feil. 29.1: AinJersaii r. Brniii, S L. D. USB.

'8m, aisle,lfAh.

§652 Resumption Of Work. 822

valuable, to the extent of twenty-four dollars on the two claims, or twelve dollars each. No other or further work was performed. B. entered and located in August, 1881. It was held, that the work done by A. in January constituted a suflBcient resumption; B's relocation was therefore void.

In aflBrming a judgment in As favor, the supreme court of California said: —

" It is not necessary to decide that an attempt to assert " a continuous right may be based upon a pretense of work " so plainly a sham as that it will be disregarded; but here " the work done was actual and valuable. The letter of " the statute upholds the view as to the resumption of work " taken by the court below, and forfeitures and denounce- " ments are not to be favored by basing them upon language " which does not plainly and unmistakably provide for "them."'

Mr. Morrison says of this case, "Such a decision is only " trifling with the law and the rights of parties based upon "the law."=

The supreme court of Montana quotes this approvingly, and adds the further comment: —

"The result of the holding in Mining Co. v. Deferrari, " supra, is to defeat the real objects of the statute, which " are the exploration and development of mining claims. " Every person who continues in possession of such prop- " erty upon the public domain of the United States with- " out performing annually the labor that has been specified, " violates the conditions of the grant from the government. " The resumption of work by the original locator, whose " rights are subject to forfeiture without the expenditure, " with reasonable diligence during the year, of the sum " of one hundred dollars for labor or improvements upon " the mine, is an evasion of the statute."'

The latest exposition of the law by the supreme court of California will be found stated under case 3, post.

1 Belcher v. Deferrari, 62 Cal. 160, 163. Morr. Min. Rigbta, 8th ed.. p. 70. *Honakert;. Martin, 11 Mont. 91-97.

823 What Constitutes A Valid Resumption Of Work. § 652

Case 2. — A. located the claim in controversy on July 10, 1884. Prior to January 1, 1886, he performed labor to the aggregate value of sixty dollars only, the last work having been done on December 24, 1885. On January 1, 1886, at one o'clock in the morning, B. entered and posted a notice of relocation. On January 1st and 2d A. performed labor of the value of ten dollars, and quit. On January 5th B. marked the boundaries of his relocation, and otherwise complied with the law. Thereafter both A. and B. performed the annual work.

The supreme court of California held/ that the relocation not having been completed until January 5th, it was void, as in the meanwhile A. had resumed work, citing case 1, supra. In addition to this, the court intimated that B. was a moral delinquent, because he entered by stealth at an unusual hour. That the relocation was made at an unusual hour from a professional standpoint, is quite true. It is also true that this hour is the fashionable one for resuming work and making relocations in mining camps. There is nothing in the record justifying the suggestion that B's entry was by stealth.

Case 3. — A. located two claims in 1885. He did practically no work until January, 1893, when he worked about three hours upon each claim on one day, and on the next sunk a shaft about six feet deep on one of them. This was all. The supreme court of California upheld as correct the following instructions to the jury: — -

"A party cannot hold a mining claim for several years " without doing in any year the work required, by simply "ffoing on it at the beginning of each year and doing a "w hours' work, with no bona fide intent to comply with " the statutory requirement as to the amount of work to be " done. ... It is against the policy of the law, and a " fraud against the government and the law, to hold quartz ''claims bv merely doins: a few dollars' worth of work " thereon at or near the beginning of the year next

PbariH V, Muldoon, 75 Cal. 284. 'McCormick v. Baldwin, 104 Cal. 227, 228,

§ 652 Resumption Of Work. 824

" following the year on which claimant failed to do the " necessary work, when such work is not commenced with " the bona fide intention of being continued till the full '' amount is done. Such labor so done is a mere pretense " and a sham, and will not prevent the relocation for want " of necessary work."

The court makes no reference to its previous decisions in either case 1 or 2, zwpra.

Case 4. — A., to avoid a forfeiture for failure to perform work he should have done in 1887, relocated the claim January 1, 1888. In December, 1889, he made a contract with a third party to represent the mine for 1889. The employee labored from December 22, 1889, to January 12, 1890, and received from A. one hundred dollars. The value of this labor, estimated by the laborer, was about fifty dollars. Logs, slabs, and lumber, of the value of sixty-three dollars, were conveyed to the premises, but never used. Mining implements were brought there, used slightly, and carried away. B. relocated the claim April 25, 1890. A. claimed that the ground was not subject to relocation, as he had resumed work.

The supreme court of Montana, in reversing a judgment in favor of A., held that when an original locator avails himself of the statutory privilege of resuming work to preserve his estate from forfeiture, he must prosecute the same with reasonable diligence until the requirement for the annual labor and improvements had been obeyed.* The same tribunal reannounced this doctrine in a later

Case 5. — A. located in 1864, and the location was valid and subsisting when the act of May 10, 1872, was passed. No work was performed, however, after that date until June, 1875, when A. resumed work upon the claims and did enough to re-establish his original rights. B. attempted to

Honaker v, Martin, 11 Mont. 91, 96, cited in Bishop v. Baisley (Ore.), 41 Pac. 966.

'Hirscblerv. McKendrioks, 16 Mont. 211.

825 Right To Resume Work— Conclusions. §§ 653-654

relocate on December 19, 1876. It was held that A's resumption protected the claim from relocation until January 1, 1877. There could be no forfeiture until that date. B's relocation was therefore void, and did not take effect on January 1, 1877, although A. failed to perform any work during the year 1876.'

g 663. When right to resume work must be exercised.— We have heretofore' discussed the rulings of the courts of last resort upon the subject of relocation of claims subject to forfeiture, and have adopted the view announced by Judge Hallett, that the right of the original locator to resume work and prevent forfeiture lapses, unless such right is exercised before another has taken possession of the property with intent to relocate it. The first initiatory step lawfully taken by a relocator after a claim becomes subject to forfeiture will protect him for the period of time fixed by law within which he is called upon to perfect his relocation. An intermediate resumption by the delinquent original locator cannot cut off this privilege. We have endeavored to present this phase of the law fully in the section referred to,' and repetition is unnecessary.

m

§ 664. Conclusions. — We are justified in deducing the following conclusions: —

(1) In order to prevent a forfeiture for failure to perform the assessment work required by law, the claimant must resume work in good faith, and prosecute the same continuously and without unreasonable interruption until the full amount of labor is performed. Nothing less than the outward manifestation of an intent to atone for the delinquency by a diligent and continuous prosecution of substantial and valuable development work will satisfy the law; that while the claim will be protected from relocation

>Belk V, Meagher, 3 Mont. 65, S. C. on appeal, 104 U. S. 279. See, atite

See, anu, i 408, pp. 520, 521.

§ 654 Resumption Op Work. 826

so long as the claimant is actually engaged in making up the deficiencies, a suspension of work for any appreciable period before the full amount required has been performed will subject the claim to relocation.

(2) The right to resume work is lost where a qualified reloctor enters and initiates a relocation. A resumption between the initiatory and final acts of relocation will not avail.

Title Vii.

OF THE PROCEEDINGS TO OBTAIN UNITED STATES PATENT, AND THE TITLE CON- VEYED BY THAT INSTRUMENT.

I. THE LAND DEPARTMENT AND ITS FUNCTIONS. n. THE SUPVEY FOR PATENT.

Iii. The Application For Patent And Proceedings

Thereon.

Iv. Tbus Adverse Claim.

V. ACTIONS TO DETERMINE ADVERSE CLAIMS, AND THE EFFECT OF JUDGMENT THEREON.

Vi. The Certificate Of Purchase, And Title Con- Veyed Thereby.

Vii. The Patent.

Chapter I.

The Land Department And Its Functions.

{658. Introductory.

2 659. The land department — How constituted.

2 660. Registers and receivers — Their appointment, powers, and duties.

2 661. The surveyors-general and their deputies.

2 662. Commissioner of the general land office — Appointment, powers, and duties.

2 663. Secretary of the interior.

2 664. Jurisdiction of the land department.

2 665. The effect of the decisions of the land department upon questions of fact.

2 666. Decisions of the laud department upon questions of law and mixed questions of law and fact.

g 668. Introductory. — As an appropriate introduction to a discussion of the proceedings necessary to obtain the ultimate title to a mining claim by the issuance of a United States patent, as well as for the purpose of determining the force and effect of such patent when issued, it is advisable to consider in brief outline the nature of the tribunal charged with the duty of administering the public land laws, the functions of such tribunal, and the scope of its jurisdiction. While in doing so we may reach beyond the exigencies of this treatise, yet considering the relationship existing between the department and the courts which at times are called upon to construe its rulings and judgments, and in certain phases of the mining laws,are supposed to perform certain auxiliary functions, we deem it important that the subject should be briefly presented.

g 669. The land department — How constituted. — What is now known as the general land oflSce was originally a

§660 The Land Department And Its Functions. 830

bureau of the treasury department, under the law of April 25, 1812; but upon the creation of the department of the interior,* the land oflSce was transferred to that department, which has ever since supervised the sale and disposal of public lands.

It consists of the secretary of the interior, the commissioner of the general land oflSce,, and their subordinates, and as thus constituted is a special tribunal, vested with certain judicial powers to hear and determine the claims of parties to the public lands, and with authority to execute its judgments by conveyances to the parties entitled to them.'

The subordinate oflScers of the department intimately associated with the administration of the public land system are, the registers and receivers, surveyors-general and their deputies.

§ 660. RegisterB and Receivers — Their appointment, powers, and duties.— rRegisters and receivers are appointed by the president, with the advice and consent of the senate, to hold oflBce for four years. They are required to reside at the place where the land oflSce to which they are appointed is located, and to execute a bond, before entering upon their oflBce.'

They are empowered in the first instance to pass upon all claims relating to lands within their districts, except where mineral applications are adversed, in which event the question of conflicting claims is referred to the courts.*

The measure of their authority is the acts of congress and such regulations of the general land oflice as may have been made in pursuance of law. They have no powers except such as are derived from these sources.

Their acts are subject to the supervision and control of

1 March 3, 1849, 9 Stats, at Large, 395.

United States v. Winona & St. Paul R. R., 67 Fed. 948.

Rev. Stat8., §§ 2234, 2237.

Potter V. United States, 107 U. S. 126; Wilcox v. Jackson, 13 Pet. 498.

Rev. StaU., g 2326.

Parker Duflf, 47 Cal. 554.

831 Registers And Receivers. §660

the commissioner of the general land office, whether the matter is brought to his attention by appeal or otherwise/

They are required to exercise a judicial judgment and discretion, and their action relating to the disposal of public lands will not be interfered with by mandamus or injunction.*

Although each land office to be legally constituted and authorized to do business must have a register and receiver, they need not act jointly in administering oaths or taking testimony.'

In passing upon the sufficiency of proofs, they are not required to act concurrently, all that the law requires being that they shall both be satisfied.

Strictly speaking, the local land office is not a place of record. Plats of approved surveys of the public lands are deposited there, and tract books are kept in which are noted the various transactions concerning lands within the district. Where application is made to enter any particular tract or part of a tract of surveyed lands, the status of the land as to antecedent applications or filings is ascertained from an inspection of these books, and the judgment of the local officers in accepting or refusing a filing or application is based upon the condition of the land as shown by these notations.

The local officers are clothed with limited powers. They cannot compel the attendance of witnesses, and of course have no power to punish for contempt.

Testimony taken before them is reduced to writing and transmitted with their rulings to the commissioner of the general land office. They receive all testimony offered, and while ruling nominally on objections made as to relevancy, competency, or materiality, no evidence is excluded as the result of an adverse ruling. The practice before

' Rev. stats., g 2273; Hosraer v, Wallace, 47 Cal. 461; Barnard v. Ashley, 18 How. 45; Haj'del v. Diifresne, 17 How. 23.

*Lftcbfleld v. Register and Receiver, 1 Woolw. 269, 15 Fed. Cases, No. 8388; Mississippi v, Jolinson, 4 Wall. 498; Koehler v. Barin, 25 Fed. 161.

Peters v. United SUtes, 33 Pac. 1031.

♦Potter r. United States, 107 U. S. 126.

§661 The Land Department And Its Functions. 832

these oflScers is governed by rules and regulations prescribed by the general land oflBce.

Their decisions, being subject to review by the commissioner of the general land oflBce, are not final and conclusive/ although they may become so by failure to appeal within the time prescribed by the rules.*

All papers filed in proceedings had before then are transmitted to the general land oflBce, where they remain permanently.

g 661. The surveyors-general and their deputies. —

The surveyors-general are appointed by the president for the respective surveying districts. They have charge of the public surveys in subordination to the commissioner of the general land oflSce, and exercise a direct supervision over the surveys, of mineral lands. They have the appointment of deputy mineral surveyors at their discretion,' although their action in suspending or revoking appointments of deputies is subject to review by the general land oflBce.

The field work of the deputies is returned to the surveyor-general, who must approve the surveys before they can be utilized as the basis of patent applications. Deputy mineral surveyors are required to give a bond in the sum of ten thousand dollars, to be approved by the commissioner of the general land oflSce. They may hold a commission in more than one state, but are not permitted to make mineral surveys within a district for which they hold no commission. They are not permitted to act in the double capacity of surveyors and attorneys for mineral applicants at the same time. They are not prohibited from making mineral entries within the district for which they

1 Barnard v. Ashley, 18 How. 43; Rush v. Valentine, 12 Neb. 51.3; Johnson v. Towsley, 13 Wall. 72.

'United States v, Marshall S. M. Co., 129 U. S. 579; Seymour v. Fislior, 27 Prtc. 240; Craig r. I>eitensdorfer, 12:i U. S. 189.

In re Jacobs, 21 L. D. 379.

*In rcGorlinski, 20 L. D. 28.

re Helinick, 20 L. D. 163.

833 Commissioner Of The General Land Office. §662

are appointed,* but in that event they cannot act in any other capacity than that of claimant'

The authority for making a mineral survey is a special order issued by the surveyor-general upon the application of the claimant, who is permitted to select the deputy. In making the survey the deputy is governed by the " Manual " of Instructions," emanating from the general land oflBce.'

g 662. Oommissioner of the general land office — Appointment, powers, and duties. — The head of the land ofiSce is the commissioner of the general land oflBce, who is appointed by the president, by and with the advice and consent of the senate. His duty is to perform, under the direction of the secretary of the interior, all executive acts appertaining to the surveying and sale of the public lands, and also such as relate to private claims for lands and the issuing of patents for all grants of land under authority of the government.

He is clothed with liberal powers of control, to be exercised for the purposes of justice and to prevent the consequences of inadvertence, irregularity, mistake, or fraud in the important and extensive operations of that oflSce for the disposal of the public domain.''

This general power of superintendence gives the commissioner of the general land office direct supervision over registers and receivers, whose decisions on all questions he is authorized to review.'*

Under the direction of the secretary of the interior, the commissioner is authorized to enforce and carrv into execution, by appropriate regulations, every part of the

1 Lock Lode, 6 L. D. 105.

'Deunison v, Willits, 11 Copp's L. O. 701; In re Giirnee, 13 L. D. 6(J8.

The manual now in force wa-s prepared by J. E. Wright, cliief of the mineral division of the general land office, under tlie HuperviMion of Commissioner Iiamoreux, and promulgated October 25, 1895.

*Rev. Stats., H 446, 453; Cahn r. Barnes, 5 Fed. Rep. 32G; Weaver r. Fairchild, 50 Cal. 360; Knight v, U. 8. Land Assn., 142 U. S. 161.

BeU v. Heame, 19 How. 252.

Barnard v. Ashley, 18 Uow. 43; Swigert r. Walker, 49 Kan. 100, 30 Pac. 102; Hosmerv. Wallace, 47 Cal. 461; Orchard v. Alexander, 157 U. S. 372.

§ 663 The Land Department And Its Functions. 834

provisions of the federal laws regulating the sale and disposal of the public lands not otherwise specially provided for.*

These regulations, when not repugnant to the acts of congress, have the force and effect of laws, and courts take judicial notice of them.'

The commissioner of the general land office has authority to cancel an entry illegally allowed. The exercise of this power is necessary to the due administration of the land department. If an investigation of the validity of such entries were required in the courts of law before they could be canceled, the necessary delays attending the examination would greatly impair, if not destroy, the eflSciency of the department.**

But such authority can only be exercised upon notice to the en try m an.

g 663. Secretary of the interior. — The secretary is the guardian of the people of the United States over the public lands. The obligations of his oath of office oblige him to see that the law is carried out, and that none of the public domain is wasted or is disposed of to a party not entitled to it. He represents the government, which is a party in interest in every case involving the surveying and disposal of the public lands.

He exercises a supervisory control over the decisions, rulings, and acts of the commissioner.

He may exercise this power not only on formal notice or appeal, according to the rules of the department, but on

Rev. stats., ? 2478; Knight v. U. S. Land Assn., 142 U. S. 161.

*Poppe V. Athearn, 42 Cal. 606; Chapman v. Quinn, 56 Cal. 266.

'Caha V. United States, 152 U. S. 211.

*Cornelhis v. Kessel, 128 U. S. 456; Barnard's Heirs v. Ashley*s Heirs, 18 How. 43; Bell v. Hearne, 19 How. 252; Harkness v. Underhill, 1 Black. 316; Marquez v, Frisbie, 101 U. S. 473; United States v. Schurz, 102 U. S. 378; Steel v. St. Louis Smelting Co., 106 U. S. 447.

fiRisdon v. Davenport, 57 N. W. 482.

Knight V. U. S. Land Assn., 142 U. S. 161.

T Hays V, Steiger, 76 Cal. 555; Magwire v. Tyler, 1 Black. 195; Snyder v. Sickles, 98 U. S. 203; Buena Vista County v. Iowa Falls A S. C. R. R., 112 U. 8. 165; Lee v. Johnson, 116 U. S. 48.

JUBISDICTiaK Ot THE LAND DBFARTMKHI.

liis own inolion, and his action in sucli a matter is unassaitable in ihe courty in a collateral proceetling.'

664. Jurisdiction of the land department. — We have MO iinniodiate concern with the powers and functions of the land department in its dealings with any class of the public lands other Uian tliose falling within the purview of the milling laws. Yet, in administering these laws, all departments of the public laud system are more or less blended. C'onfiicts are constantly arising between claimants assorting rights under different branches of the system, requiring a cousideration of different elements and of different laws in a cognate series. In administering these laws certain powers are confided to the department, in the exercise of which that tribunal is guided and governed by well-defined rules and established ' principles, applicable alike to their dealings with all classes of public lands.

In outlining in the previous sections the powers and duties of the several officers constituting in ihe aggregate the land department, we have necessarily presented to some extent the scope of the jurisdiction of that tribunal.

The limit of its authority is found in the acts of congress. It cannot grant land.' It cannot direct or permit entries to be made or purchase.* to be consummated except in cases authorized by some federal law.* It cannot take away the property of one and give it to another. Its jurisdiction is suspended where lands theretofore public have, by virtue of congressional legislation or lawful executive order,been wilhilrawn from the operation of the public land laws. Us jurisdiction terminates and its authority ceases when the land passes into private ownership and the title of the government is transmitted through the forma of law.

With the exercise of its discretionary powers, the courts cannot interfere, and within cerltiin recognized limits its

>KiiisliI tr. U. S, Lund Awn., IVi V. S. Kll; Hesitres v. Breuiiso, U Cl.21l.

Khanklln V. McNamara, BTCnl. 371. *Parker v. Dutt. 47 CkI. 554.

§665 The Land Department And Its Functions. 836

judgments are final. With these preliminary observations, we will proceed to consider the effect of departmental decisions upon questions of fact and law, and upon mixed questions of law and fact.

g 666. The effect of the decisions of the land department upon questions of fact. — There is one proposition of law involved in the administration of the public land system upon which all courts agree: The decisions of the land department upon questions of fact, in a proceeding within the scope of its jurisdiction, are, in the absence of fraud or imposition, conclusive.*

As was said by the supreme court of the United States: —

" It is the established doctrine, expressed in numerous " decisions of this court, that whenever congress has pro- " vided for the disposition of any portion of the public " lands of a particular character, and authorized the offi- " cers of the land department to issue a patent for such "land upon ascertainment of certain facts, that department " has jurisdiction to inquire into and to determine as to " the existence of such facts, and in the absence of fraud, " imposition, or mistake, its determination is conclusive " against collateral attack."

It is useless to multiply authorities in support of a doctrine so well established.

A possible modification of the rule seems to be recognized by the supreme court of the United States.

"Where each party has a patent from the government, " and the question is as to the superiority of the title under " those patents, if this depends upon extrinsic facts not " shown by the patents themselves, we think it is com- " petent, in any judicial proceeding: where this question of " superioritv of title arises, to establish it bv proof of those " facts.

'Wilcox r. .Tackson, 13 Pet. .511; Johnson r. Towsley, 13 Wall. 72; Sliepley v. Cowan, 91 U. S. 3S0; Moore r. Robbing, 96 V. S. 530; Quinby r. Conlan, 104 U. S. 420: St. Louis Smelting Co. r. Kemp, Id. 636: Lee v. Johnson. 116 U. S. 4f: Carr r. Fife, 156 U. S. 494; Oath. Bishop of Nesqually r. Gilfbon, 158 U. S. 155: Stewart v. McHarry, 159 U. S. 643.

Harden r. N. P. R. R., 154 U. S. 288, 327.

'Iron S. M. Co. r. Campbell, 135 U. S. 286, 292.

837 Decisions Of The Land Department. §666

We shall have occasion to recur to this jsubject when dealing with the force and effect of a patent.

g 666. Decisions of the land department upon questions of law and mixed questions of law and fact. — The

construction given to a statute by those charged with the duty of executing it, if uniform and continuous, is entitled to the most respectful consideration, and ought not to be overruled without cogent reasons,* and unless it be clear that it is erroneous.' Such construction is in the highest degree persuasive, if not absolutely controlling in its efifect.'

This principle " is so firmly imbedded in our jurispru- " dence that no authorities need be cited to support it. On " the faith of a construction thus adopted, rights of prop- " erty grow up which ought not to be ruthlessly swept " aside, unless some great public measure, benefit, or right " is involved, or unless the construction itself is manifestly "incorrect."*

The rule, however, is subject to the limitation, that the construction must have been continuously in force for a long time,* and applies only in cases of ambiguity and doubt.*

With language clear and precise, and with its meaning evident, there is no room for construction, and consequently no need of anything to give it aid." No practice inconsistent with that meaning can have any effect."

The existence of these rules suggests that the courts are not bound by the departmental decisions on questions of law. They have a right to investigate legal rulings made

1 United States v. Moore, 95 U. S. 760; Hastings A Dakota R. R. v. Whitney, 182 U. S. 357, 366; Brown v. United States, 113 U. S. 568, 571; Montana, Limited, v. Clark, 42 Fed. 629.

'United States v. Jolinston, 124 U. S. 236, 253.

United States v, Orabani, 110 U. S. 219.

*Pennoyer v. MoConnaughy, 140 U. S. 1, 23.

Merritt r. Cameron, 137 U. S. 542, 552.

Swift Co. V, United States, 105 U. S. 691; United States v. Tanner, 147 U. S. 061; Merritt v, Cameron, 137 U. S. 542.

'United States v. Graham, 110 U. S. 219.

United States v. Alger, 152 U. S. 384.

§666 The Land Department And Its Functions. 838

by the department— a right which, in the absence of fraud or imposition, does not exist where only questions of fact are involved.

Where the land officers have clearly mistaken the law of the case as applicable to the facts, courts of equity may give relief.* Therefore the construction of the law by the department as applied to the facts found by them to be true* does not conclude the courts.'

Where the land officers, upon the uncontradicted facts, commit an error of law by which the land has been awarded to a party to the prejudice of the right of another, the latter is entitled to relief at the hands of the courts.**

Where there is a mixed question of law and fact and the court cannot so separate it as to see clearly where the mistake of law is, the decision of the tribunal to which the law has confided the matter is conclusive.*

Baldwin v. Stark, 107 U. S. 463, 465.

'Hays V, Steiger, 76 Cal. 555.

Wisconsin Cent. R. R. v. Forsytlie, 159 U. S. 46, and cases cited.

Moore v. Robbins, 96 U. S. 5.30, 585.

Marquez v. Frisbie, 101 U. S. 473, 476.

Chapter Ii.

The Survey For Patent.

i 670. Application for Hurvey.

2 671. The survey of lode claims.

§ 672. The survey of placer claims — Descriptive report.

J 673. The surveyor-general's certificate as to expenditures.

g 670. Application for survey. — With the exception of placers upon surveyed lands, the initiatory step toward securing a United States patent for a mining claim is an application addressed to the United States surveyor-general of the state or territory in which the claim is situated, for an order for survey.

This application must be in writing, signed by the applicant, his agent, or attorney, and should contain the name of the claimant, the name of the location, the state, county, and mining district wherein it is situated, and if upon surveyed lands, the section, township, and range. 'As claimants are at liberty to select, for the purpose of making the survey, any United States deputy authorized to act in the land district, the application should designate the deputy.

The application must be accompanied by copies of the location notice or certificate upon which the survey is to be based, duly certified by the officer charged by the state or district laws with recording such notices or certificates. If any amended locations have been made, the notices or certificates of such must also be supplied, as they form the basis of the field work of the deputy surveyor.

1 Rev. state., i 2334.

§670 The Survey For Patent. 840

Upon filing the application, the claimant is furnished an estimate of the amount of fees required to defray the expenses of platting and other work in the surveyorgeneraFs oflBce. The amount of such estimate must be deposited with some assistant United States treasurer or designated United States depository, to the credit of a special fund created by " individual depositors for surveys " of the public lands." Receipts for such deposit are issued in triplicate. One is delivered to the surveyor-general, one forwarded to the secretary of the treasury at Washington, and the other is retained by the claimant.

The government has no concern with the fees of deputy surveyors. The claimant adjusts the compensation with the deputy, the commissioner of the general land office having the power to fix the maximum rate.

Upon the filing of the application, accompanied by the certified copies of location notices or certificates, and receiving the receipt showing that the requisite deposit has been made,. the surveyor-general issues his order, directed to the deputy mineral surveyor, authorizing the survey. This order is accompanied by copies of the location notices filed by the claimant with the surveyor-general. . As a rule the order for survey issues as a matter of course. Should it be refused, the claimant's only remedy is by appeal to the commissioner of the general land office.

Where two or more locations are held by one and the same person or association of persons, which locations are contiguous, a survey may be ordered of the entire group." In such case the applications for an order of surve.y should enumerate all the locations within the group and plainly state the facts of common ownership and contiguity. An entry will be refused at the land office where any of the claims are shown to be noncontiguous.' Where a survey

In re Foote, 2 L. D. 773.

Champion M. Co., 4 L. D. 362, citing St. Louis Smelting Co. v. Kemp, 104 U. S. 636; In re Mackie, 5 L. D. 199.

'Apple Blossom Placer Vi Cora lee Lode, 21 L. D. 438.

-S41 THE SUHVETi- OP LOOK CLAIMS. §671

of no tLggregation of claims is sought, it is of course necessary lo file with the surveyor-general certified copies of all htcation notices upon which a claim to any of the locations within the group is based.

Naturally the deposit required in tliP case of group applications will be proportionately larger than in those embracing single locations. No definite rule is fixed, however. It is regulated entirely by the circumstances of each particular case.'

§ 671. The snrvey of lode claims. — It is not our purpose to deal niinutety with tlie manner in which mineral surveys are to bo made. Tiie land department supplies the deputy surveyors with complete manuals of instruction for their guidance,' to which they will resort in case of doubt, rather than to a treatise upon mining law. There are a few elements, however, of greater or less importance upon which the validity of subsequent proceedings may depend, which may be flppropriately noted.

The surveyor cannot make a location. His functions are limited to a survey of one already made. He determines the and boundaries of the location from the notices, original and amended, copies of which accompany the order of survey, and from an examination of the ground and surface markings referred to in the notices. He cannot disregard these. He is strictly charged under instructions from the land department that surveys of mining claims must be made in strict conformity to the lines established by the original (or amended, as the case may be,) location as recorded and marked on the ground.'

Many difficulties encountered in the progress of patent proceedings are due to imperfect notices and insufficient or irregular marking of the location in the first instance.

' Jn re Mfkii*. 5 L. 199.

Aciipynr tlilH iTlnriiial will be fnuiid III tlie [I1ler>l Lnw DlgeM if CUrk. IlellRian, and CatiMiil, at page HO.

LtDcwln PInoor. 7 I., D, 81: Circ. Initructiotiii, Nov. JO, 187:1; Copp'ii MHl. Ldllilx, Sd d., fiN; Coln'ra' I.lWr, t Cupp'a L. O. Vi.

§671 The Survey For Patent. 842

These may all be avoided by rectifying lines by an informal or unofficial survey, and the making of an amended notice of location prior to applying for an order for survey} A survey cannot be based upon an amended notice of location made after the survey is ordered, without applying for an amended order, which is permissible under the regulations.

Of course, slight variations from the lines as originally marked would not vitiate a survey. The surveyor may draw in the end lines to make them parallel,' and is permitted to cast off the area in excess of the statutory limit, by moving the monuments and stakes.*

The survey must describe the locus, with reference to the lines of public surveys, by a line connecting a corner of the claim with the nearest public corner of the United States surveys, unless such claim be on unsurveyed lands at a distance of more than two miles from such public corner, in which latter case it should be connected with a mineral monument.*

Where a survey ii ordered of a composite or group of several contiguous locations, the boundaries of each location must be shown;* but the former practice was to the contrary. Undoubtedly the land department may require each integral part of the composite to be delineated. This is necessary to enable it to pass upon the question of contiguity, as well as to determine whether the expenditures made in the development of a common system should be applied to one or more claims in the group,

See, ant€y I 396.

'Rose Lode Claims, 22 L. D. 83.

Doe V. Sanjer, 83 Cal. 203; Doe v. Waterloo M. Co., 54 Fed. 935; Philadelphia V. Pride of the West, 3 Copp's L. O. 82.

*/n re Empy, 10 Copp's L. O. 102; Howeth v. Sulleuger, 113 Cal. 547, 552. See, ante, 362.

*Par. 45, Gen. Min. Keg. See appendix. In re Dodge, 6 Copp's L. O.

The manner of constructing these mineral monuments is provided for in tlie '' Manual of Instruction.*' Par. 15, 16, 17, Manual of 1895. In re Cavanah, 8 Copp*s L. O. 5.

Jn re Mackie, 5 L. D. 199; Golden Sun M. Co., 6 L. D. 808.

843 THE SrRVEY OF LODE CLAIMS. §071

for which purpose the relative position of each claim is important.

The survey must show the area of the conflict with every prior official survey; otherwise the pint will not be approved.' Unofficial surveys, however, may be ignored.*

Upon completion of the survey, the deputy forwards to the surveyor-general the field notes, accompanied by a preliminary plat, together with a report of the manner in which the order was executed, a detailed statement of the nature and character of improvements found upon the premises, and an estimate of their value.

In case the survey is of a composite or group of claims, and it is claimed that work done upon one was for the benefit of all, in furtherance of a common system of development, or where work has been done beyond the limits of a claim or group of claims for the purpose of development, the report of the deputy should show all the facts from which the surveyor-general and the officers of the land department may clearly conclude that the claim or claimM are entitled to credit for the work so donr*/'

Where insufficient work has been done within tho limits of one or more claims to entitle them to br; patmted, r/tnsidered separately, but sufficient has been done on others within the group to entitle the entire group to be entererl, the surveyor shonld make an a[)fK>rtionment, so that ?ach claim mav credited witFi the statutorv amount: that i.i, five handre*i dollars to each.

Upon the rr'rri of the fiel'l notr- and rejrt of the survevor-srenrai. 'h-v h>: -'rxamirirl ;ini official iv rUtfed, and if to'in'i r.h p!af:.s anl Meld note<* are approved.

§672 Tjee Survey For Patent. 844

In approving mineral surveys the survey or-generars oflBce is not concerned with the fact that surface conflicts are shown with prior surveys. While these conflicts should be noted, the respective rights of the parties to the conflict area involve questions of title which cannot be passed upon by the surveyor-general. They are the subject of adverse claims.*

The claimant is furnished with a set of the approved field notes and copies of the plat, for filing in the local land oflBce and posting upon the claim. A copy of the plat is also transmitted by the surveyor-general to the register of the land oflBce.

Should the surveyor-general refuse to approve a survey, an appeal lies to the commissioner of the general land oflRce, and from him to the secretary of the interior.

§672. The survey of placer claims — Descriptive report. — Where placer claims are upon surveyed lands and conform to legal subdivisions, no further survey or plat is required. In such cases the surveyor-general has no duty to perform. Where such claims are upon unsurveyed lands, or being upon surveyed lands it is not practicable to make them conform to the public surveys,* a mineral survey is required, as in the case of lode claims. In obtaining the order for such survey, and in executing it, the same formalities are observed as in those of lodes, with such slight modifications as are obviously necessary by reason of the diflferences between the two classes of deposits.

In the case of placers, the deputy is required to aild to his field notes a descriptive report upon the quality and composition of the soil, the kind and amount of timber and other vegetation growing thereon, the Iocvl and size of streams, and such other matters as may appear upon

J Courrs' Letter, 8 Copp's L. O. 104.

Rev. Stats., 2331.

'Gen. Mill. Keg., par. 57. See appendix. In re (rerbauser, 7 L. D. 390.

See, ante, 448, p. 560.

845 THE surveyor-general's certificate. §673

the surface of the claim.* He is also required to report as to the use or adaptability of the claim for placer mining; whether water has been brought upon it in sufScientr quantity to mine the same, or whether it can be procured for that purpose. Also the proximity of the claim to the centers of trade or residence and neighboring well-known lode systems or individual lodes. This report must be under oath, and is required to be corroborated,' and in the absence of anything attacking the bona fidc of the claimant, is sufficient to establish the character of the land.*

If a lode exists within the placer, and is claimed by the placer claimant, it must be surveyed the same as if it were elsewhere situated,* although the plats of the placer and lode surveys may be combined and constitute but one plat.

§ 673. The surveyor-general's certificate as to expenditures.— The claimant is required at the time of filing his application for patent in the local land office, or at any time thereafter within the period of publication of the notice of such application, to file with the register a certificate of the United States surveyor-general, that five hundred dollars' worth of labor has been expended or improvements made upon the claim by the claimant or his grantors.* According to departmental rulings this is a mandatory requirement. A certificate filed after the period named will be of no avail, and cannot be considered. A failure to file it will necessitate republication.** Ordinarily this certificate is appended by the surveyor-general to the approved field notes, which are delivered to the claimant. This certificate is based upon the report of the deputy surveyor.

Gen. Min. Rej?., par. 63 (3).

/d., par. 63 (4).

Jd., par. 63 (5).

Lincoln Placer, 7 L. D. 81.

&Se, ante, gHl3-415.

Rev. Stats., g 2325.

'Milton V. Ijainb, 22 L. D. 339; WliiLe Cloud C. M. Co., Id, 252.

§673 The Survey For Patent. 846

In reference to the volume of expenditures necessary, to be shown where application is made for a consolidation of claims, the land department has assumed what seems to us to be an illogical position, and one not altogether consistent.

Under a circular issued December 9, 1882, the department promulgated a regulation as follows: —

" If an individual become the purchaser and possessor ' of several separate claims (placers) of twenty acres each

or less, he may be permitted to include in his application

for patent any number of such claims contiguous to each

other . . . ; but upon, or for the benefit of, each origi-

nal claim or location so embraced, he or his grantors

must have expended the sum of five hundred dollars in

improvements."

This regulation was subsequently held to be erroneous and illegal.

And the rule adopted, that, —

" Where an application for patent embraces several locations or claims held in common, constituting one entire " claim, whether lode or placer, an expenditure of five hun- " dred dollars, under section twenty-three hundred and " twenty-five, Revised Statutes, upon such entire claim " embraced in the application will be sufficient, and need " not be shown upon each of the locations included "therein."''

This doctrine seems to be somewhat qualified in more recent rulings. In the case of Sweeney v. Northern Pacific Railroad,' a consolidation of seven lode claims was applied for. The aggregate amount of expenditures shown was thirty-three hundred and five dollars. On four of the claims but little work was done, and that performed on the others was not shown to have been done with a view of developing the four. Secretary Smith ruled in effect, that less than five hundred dollars for each claim (a total

Good Return M. Co., 4 L. D. 221.

Circ. Instructions. Dec. 14, 1885, 4 L. D. 374; Id. Mar. 24, 1887, 8 L. D. 505; Andromeda Lode, 13 L. D. 146. 20 L. D. 394.

847 THE surveyor-general's certificate. §673

of thirty-five hundred dollars) would suffice in the event that the work done on one was in furtherance of a common system of developrtient; otherwise- the full amount was necessary. A similar rule was followed in a later case.

We have heretofore noted, when dealing with the subject of annual labor, that work may be done on one claim for the benefit of a group of contiguous claims, but that in such case the aggregate amount of expenditure on the one must equal in value that which would be required on all the claims if they were separately or independently considered, and that this doctrine is accepted by both the courts and the land department.

Why the department should differentiate the principle when dealing with expenditures for patent purposes, we are unable to understand.

It seems to us that the reasoning of the supreme court of the United States on the subject of annual labor, in the case of Chambers v. Harrington,* applies with equal force to expenditures for patent purposes. Said that court: —

" When several claims are held in common, it is in the " line of this policy to allow the necessary work to keep " them all alive to be done on one of them; but obviouslv " on this one the expenditure of money or labor must " equal in value that which would be required on all the " claims if they were separate or independent.'

The word "claim," as used in section twenty-three hundred and twenty-four of the Revised Statutes, fixing the amount of annual labor, is thus judiciously determined to mean "location." Is there anything in the context of section twenty-three hundred and twenty-five on the subject of expenditures for patent purposes which indicates a legislative intention to use the word "claim" in a different sense from that in which it is used in the preceding section? We think not.

If the construction of the department is correct, any number of contiguous claims — seven, ten, twenty, or more,

Ferguson v. Hanson, 21 L. D. 336. Mil U. S. 350.

*See, ante, 1 630 (3).

§ 673 The Survey For Patent. 848

embracing an entire mineral belt, the claims occupying

such a relative position that they might be developed by a main working tunnel or shaft could be passed to patent by simply doing five hundred dollars' worth of work in the tunnel or shaft — an amount much less than the law requires to be performed on the composite for one year's assessment work. We think the spirit of the law is opposed to such an interpretation.

We think the practice outlined in a previous section/ defining what we understand to be the duty of the deputy mineral surveyor in this respect, ismore in harmony with the true intent of the law than the doctrine at present followed by the land department.

This certificate of the surveyor-general is not binding upon the land department; but unless corrected by the department prior to patent, it must be taken as conclusive.*

'See, ante, § 671.

2 United States v. Iron S. M. Co., 128 U. S. 673, 685.

Chapter Iii.

The Application For Patent, And Proceedings

Thereon.

Article I. Lode Claims.

II. Placer Claims— Lodes within Placers.

III. MiLLSITES.

Article I. Lode Claims.

2 677. Posting of the notice and copy of the plat on the claim.

1 678. The initiatory proceedings

in the land office.

1 679. Land embraced within the

claim must be clear on the tract books.

i 680. The application for patent — Its contents.

i 681. Application by one of several co-owners — Corporations.

2682. Verification of application and proofs.

i 683. Proof of posting of notice and plat on the claim.

i 684. Proof of citizenship.

2 685. Designatioi of newspaper — Agreement of publisher.

2686. Proof of annual labor.

2.687. The abstract of title— Certified copies of location notices.

2 688. Proof of title by possession, without location under section twenty-three hundred and thirty-two of the Revised Statutes.

2 689. Proof of mineral character of the land.

2 <)90. Publication of the notice, and proof thereof.

2 091. The posting of the notice in the register's oflQce, and proof thereof.

2 692. Proof that the plat and notice of application for patent remained posted on the claim during the period of publication.

2 693. Statement of fees and charges.

2 694. Application to purchase.

I 695. Ri'sunu'?.

g 677. Posting of the notice and copy of the plat on the claim. — As a condition precedent to the filing of an application for patent for a lode claim, the claimant is required

§677 Application For Patent For Lode Claims. 850

to post a copy of the plat of the survey in a conspicuous place upon the claim,* together with a notice of his intention to apply for a patent therefor, which notice must state the date of posting, the name of the claimant, the name of the claim, the mining district and county, whether or not the location is of record, and if so where the record may be found, giving the book and page thereof, the number of feet claimed along the vein and the direction thereof, the number of feet claimed on the lode in each direction from the point of discovery or other well-defined place on the claim, the names of all adjoining and conflicting claims, or if none exist the notice should so state.

We may also add, that where amended notices of location occur in the chain of title, the date and place of record of such notices should also be given.

The notice should contain a description of the claim in the form of a condensed transcript of the field notes. It should be practically a counterpart of the notice which is to be published, as well as posted in the office of the register of the land office. There is no necessity for embodying in it the entire field notes, calls for all bearing objects, topography, and other data found in the surveyor's report, but it should clearly follow, by course and distance, the exterior lines, specify the monuments and their markings, with the principal calls for bearing trees or other permanent objects, and particularly describe the course and

' Rev. stats., g 2325; Be Ix)ng v. Hill, 9 Copp's L. O. 114.

2 Regulation of March 11, 1897, 24 L. D. 206. In eflect June 1, 1897. It is not a ditficult matter to comply with the regulations, and claimants ought not to be encouraged in the practice of deviating from them, although it seems to us wholly unnecessary to state the number of feet claimed along the vein. Tlie survey is of a tract of surface ground containing a lode. A claimant cannot lawfully claim anything beyond these surface boundaries as delineated on the plat, and the plat and tield notes necessarily show the limit of his claim. So as to the direction of the lode. The side lines are required to bo equidistant from tlie center of the lode, and the plat and survey furnish a much better guide to the extent of the claim in this behalf than any assertion of the claimant. If this assertion was not in conformity' with the survey, it would have a tendency to impeach it, and if conforming to it. it would be an unnecessary repetition. In other respects the regulation is wise and salutary.

I'Lat. § 677

length of the counecting line by which the mineral survey is "tied" to the public surveys, or to a United States mineral monument if the lands in the vicinity are unsurveyed. A failure to observe this important requirement will vitiate the subsequent proceedings and necessitate a commencement de novo.'

The posting of this notice and its subsequent publication are jurisdictional matters, any serious irregularity in which may jeopardize, if not wholly vitiate, the subsequent proceedings.

The purpose of the law relating to publication and posting of plat and notice of intention to apply for a patent, is to afford an opportunity to adverse claimants or others to object and to present grounds of their objections.* It is one of the three methods to be pursued simultaneously, by which all persons are to have notice of the intention to procure title to the land.* To this end the law requires the notice to be posted in a conspicuous place on the claim.

It is difficult to lay down any general rule as to what should be construed to be a conspicuous place on a mining claim. Where there are improvements in the shape of buildings used in connection with mining operations, posting on such buildings would certainty fulfill the requirements of the law.* In the absence of structures of this character, posting at tlie discovery shaft or at the mouth of open workings, being the places most likely to attract attention, are suggested by the department as being the proper places for the posting.*

A posting within a tunnel, under cover, where the notice could not be seen without the aid of arliticial light, was held to be a manifest evasion of the law."

nil nes|>eraiidiiiii PIncer, 10 I,. D, IDS; TeiiiieMee Lode, T L. D. Zi; Brnperor Wllhelm Lade, h U D. (Ri6, Roweun I.ocie, 7 1„ V. iTT, 47B.

Byrne v, SIbiw.ii. a) L. I>. <3, 46: FerguBon v, lUnwin, SI I,. D. iaii, 3.1S, Oowijy V. KUinet M. I>., L. I), fl24: t.iiisvme Ile, 1 L. V. 548.

f Piuaon V. Ilnnson. ::i L. D. S3U.

§ 678 Application For Patent For Lode Claims. 852

It ought not to be difficult to discriminate between a reasonable attempt to comply with the law in good faith and a studied effort to place the notice where it cannot be seen.

Where a millsite is applied for in connection with a lode, a copy of the plat and notice of intention to apply for a patent should also be posted upon it/ although the department has at times condoned the failure to comply with this rule,' or protected the claimant from the necessity of commencing de novo, by a reference of the case to the board of equitable adjudication,' as falling within the sanction of section twenty-four hundred and fifty-seven of the Revised Statutes.*

In the case of an application for a group of contiguous claims, there does not seem to be any specific regulation on the subject of posting. The law provides that the posting shall be on the land embraced in the plat. As the consolidation of claims is shown on the plat, it might reasonably be inferred that a posting at any conspicuous place within the group would suffice, without the necessity of posting on each location within the composite. We think the better practice is to post on each location.

The notice should be posted in the presence of two witnesses, who should sign the same for purposes of identification.

g 678. The initiatory proceedings in th'e land office. —

Upon posting the notice of intention to apply for a patent,

' Gen. Min. Reg., par. 66. See appendix.

*ln re Bailey and Grand View M. <fe S. Co., 3 L. D. 386.

'The board of equitable adjudication consists of the secretary of the interior and attorney-general (Rev. Stats., § 2451), and is charged with passing up adjudications made by the commissioner upon the principies of e<iuity and justice, as recognized by courts of equity" (Rev. Stats., § 2450). This board gives relief in cases "where the law has " been substantially complied with, and tlie error or informality arose **from ignorance, accident, or mistake which is satisfactorily explained,'' and where there is no adverse claim (Rev. Stat8., §2457). It supplies broken threads " in the chain of title (Pecard v, Camens, 4 L. D. 152, 156).

New York Lode & Millsite, 5 L. D. 513.

853 The Initiatory Proceedings In The Land Office. § 678

with a copy of the plat, as indicated in the preceding section, the claimant is authorized to make his formal application for patent The instruments usually presented to the register of the land office for filing, and forming a part of the application for the patent, are substantially as follows:—

I. The application for patent attached to the approved field notes, to which is usually appended the certificate of the surveyor-general as to quantum of expenditures;

II. Copy of the plat;

III. Certified copies of all location notices, original and amended, upon which the order of survey was based and under which claimant asserts title;

IV. Proof of posting on the claim the notice of intention to apply for patent, and copy of the plat;

V. Proof of citizenship of the claimant;

VI. Agreement of the publisher of the newspaper published nearest to the claim, designated by the register as the one in which publication is to be made;

VII. Proof that annual labor has been performed, showing the location to be valid and subsisting at the time the application for patent is made;

VIII. Abstract of title or proof of possessory rights where there is no record title;

IX. Where the land is borne on the tract books as agricultural, proof of its mineral character.

The application for patent and accompanying instruments are filed by the register upon the payment of his fees (ten dollars), if the land is clear on the tract books. If the land applied for appears from these books to be wholly or in part covered by a previous entry, a homestead filing, or a prior pending application for mineral patent, or is included within some antecedent reservation or executive withdrawal, the register will decline to receive and file the papers until the obstacle is removed.

Before proceeding with a detailed statement

§679 Application For Patent For Lode Claims. 854

contentis of the various instruments above referred to, it is advisable to consider the nature of the obstacles which may prevent their filing, and the steps necessary to be taken to remove such impediments.

g 679. Land embraced within the claim must be clear on the tract books. — In previous chapters of this treatise we have discussed generally the subject of public lands and the manner in which rights thereto are acquired under laws other than those applicable to mining claims. It is quite evident that if the laud occupies such a statiis as to title as inhibits the initiation of mining rights by location, so long as that status is maintained it will be impossible for the land department to consider an application for a mineral patent. That tribunal would not have jurisdiction to issue a patent for lands which are in a state of reservation, or are covered by such a filing or application as operates as a temporary withdrawal of the land from sale or other disposal. A few illustrations will serve to explain this.

If an inspection of the tract books discloses that a preliminary homestead filing covers the land applied for by the mineral claimant, the application for patent will not be received; but a citation will be issued, requiring the homestead claimant to appear and show cause why his filing should not be canceled as to the land embraced within the mineral survey. A hearing is then had before the land officers for the purpose of determining the character of the land.*

The manner of initiating and conducting these proceedings is prescribed by the rules of practice promulgated by the commissioner of the general land office and supplemented by the " General Mining Regulations."

If the land is adjudged to be mineral, a cancellation

See,xintef oli. iii., tit. iii., pp. 124-!K)4.

"See, ante I 205; Hooper v. Ferguson, 2 L. D. 712.

Rev. Stats., 2335.

Oen. Min. Reg., pars. 106-118. See appendix.

855 CLiilMS MUST BE CLEAR ON TRACT BOOKS. § 679

of the homestead entry, pro tantOy is ordered, whereupon the mineral claimant may proceed with his patent application.

The same rule applies where an agricultural claim has passed to final entry but the patent has not yet been issued. The mineral claimant will be compelled to file a verified protest, alleging the mineral character of the land as of a date prior to the final entry and asking for a hearing to determine the truth of the allegation. If the protest and corroborative proof accompanying it present facts sufficient to warrant it, a hearing is ordered, and in the meanwhile the agricultural entry will stand suspended. If the protest is sustained, a segregation survey is ordered. The mineral land thus segregated is restored to the public domain and is subject to disposal under the mining laws.

The existence of a pre-emption filing is no bar to the filing of a mineral application;' nor is a pending application to purchase under the stone and timber act;' but an agricultural claimant has a right to contest the mineral character of the land embraced in the mineral application, and upon proper protest filed, a hearing will be ordered.*

Where an application for a mining patent has been once filed with the register, and the applicant proceeds with reasonable diligence to give the required notice, no subsequent application for the same land, nor one which conflicts with a prior application will be received so long as the first application remains pending. In other words, the department treats a filed application for a mining patent, properly followed up, as a withdrawal of the land embraced therein.*

So where pending such application the claimant fails to perform the annual labor, thus rendering the ground subject to relocation, the relocator wishing to secure a

See, aft<tf, 2206. 'See, ofiltf, 2205.

'Derereaz v. Hunter, 11 L. D. 2U.

*Inre Oonnieon CrysUl M. Co., 2 L. D. 722; Great Eastern K. Co. v. BHDefaldft H. Co., 2 Lu D. 701: In re RebeUion M. Co., 1 Lu

§679 Application For Patent For Lode Claims. 856

patent for himself will be compelled to institute proceedings in the land office against the prior applicant, for the purpose of securing a dismissal of the prior pending application. Until this is accomplished the land department will not consider the claim of the relocator to a patent/

This rule, however, is based upon the theory, that the first applicant proceeds to give the notice required by law. The mere application, not properly followed up, confers no exclusive rights to the premises, which others are bound to wait upon indefinitely.'*

Where two applications for a mining patent conflict, the senior applicant may eliminate from his application and survey the conflict area, in which event the junior applicant may proceed to patent and include the abandohed piece.' If the junior applicant is permitted to file an application which conflicts with a senior pending application, and the senior does not abandon, the conflict area must be excluded from the junior entry.*

Where an application is offered for a claim within a sixteenth or thirty-sixth section, which is shown by the surveyor-generars return to have been at the date of survey agricultural in character, the land officers will not accept or file it, as, prima JaciCy the title has passed to the state. Upon an allegation, however, that at the date of such survey the land was in fact known to be mineral, an opportunity will be given to impeach the return. A hearing will be ordered to determine the facts as they existed at the time of the survey. Of this hearing the state must have notice. If the allegation as to the previous known mineral character of the- land is established at this hearing, the

In re Gibson, 21 L. D. 219; Iliggins v. John G. M. Co., 14 Copps L. O. 238; Jji re Wildinan Q. M. Co., Sickles Min. Doc. 270; Steel v. Gold Lead M. Co., 18 Nev. 80, 88; Wight v, Dubois, 21 Fed. 69.$, 690; In re Rice, 11 L, D. 213; Hall v. Street, 3 L. D. 40. See, also. In re Rocky Lode, 15 L. D. 571; Daney G. <fc S. M. Co. v. Sapphire S. M. Co., 2 Copp's L. O. 66; In re Fox, 2 L. D. 700; Continental G. <fe S. M. Co. v. Gage, 10 L. D. 534.

In re Snowflake Lode, 4 L. D. 30.

*/m re Marcus Daly, 10 Copp's L. O. 167.

J>i re Rocky Lode, 15 L. D. 571.

857 Cx)Ntents Of Application. § G80

force of the survejror's return is destroyed, and the government will deal with the land the same as any other public mineral land.

If a section sixteen or thirty -six is returned as mineral, application for mineral patent will be received, subject to protest by the state at any time prior to patent, unless it is shown that the state has accepted the surveyor's return as true and selected other lands in lieu thereof.

§ 680. The application for patent— Its contents. —

As the land department is a special tribunal, charged with the administration of the public land laws, exercising not only executive but judicial powers, an application to obtain a patent addressed to that tribunal should recite all facts necessary to show jurisdiction in the department to convey the particular tract applied for to the particular individual applying for it. While the department may bo satisfied with a less formal document, tiiere is no rea.s<m why an application for a patent should not contain a recital in ordinary and concise language of the ultimate facts chronologically arranged, which, if tested by the ordinary rules of pleading, would affirmatively .show the right of the claimant to the tract. We should outline the contents as follows, the instrument Veing addressed to the register and receiver of the land office: —

(1) The name of the applicant, his place of residence, and post office address This age in immat.Tial;;

(2) The name of the claim:

(3) The claimant'?; 'ju?i]i<ir;ation to receive patent. /, r, his citizenship, by birth or naturalization:

(4) The of tlje iA'Xuu. di??iri':t. :ounty. and -tatf-. and if upon sur\*eyei land the -ectior;. townriiiji range; the nature and extent of the iairi;, niaking Tpe'.ia] reference to the apj'rovr'i \WA li'jVz at!aei.e'J ;

mile, l£:-li.

§ 680 Application For Patent For Lode Claims. 858

(5) The ownership and possession by the applicant of the claim applied for; (a) the date of discovery; (6) the date of location ; (c) the date and place of record of all notices or certificates of location, original or amended, referring to the certified copies accompanying the application; (d) general allegation of ownership by mesne conveyances from the original locators, referring to the abstract of title filed with the application or to be thereafter filed; (e) compliance with the law as to annual labor, showing the location to be valid and subsisting at the time of filing the application ; (J) the fact of possession ;

(6) Facts from which the mineral character of the land may be necessarily inferred;

(7) The nature, extent, and value of improvements; and if it is sought to credit work done upon one claim for benefit of others in a group, a concise statement of facts from which it may reasonably be inferred that such work is in furtherance of a common system of development;

(8) If any rights are asserted by virtue of local rules, the existence of such rules and compliance therewith should be alleged, and duly certified copies should accompany the application; if there are no regulations in force, the fact may be stated;

(9) The fact and date of posting a notice of the application and copy of plat on the premises, referring to the affidavit of such posting accompanying the application.

The application is appropriately closed with a request for the issuance of a patent, and should be attached to the approved field notes.

A petition or application thus framed presents a foundation for such corroborative evidence as is required by the rules. Properly speaking, as it is required by law to be under oath, it should and probably would be accepted by the land department as supplying everything which the claimant personally is called upon in the first instance to verify. An application so framed should dispense with

1 See, ante, 1 98.

859 Application By One Of Several Co-Owners. §681

the necessity for filing separate affidavits of citizenship, performance of annual labor, and other separate instruments, which under the practice in certain localities increase and multiply, in our judgment, uselessly.

Simplicity of procedure is of course commendable. We are convinced that the general adoption of the practice herein suggested, which is undoubtedly contemplated by the departmental regulations,' and is followed in some localities, will avoid the frequent demands of the land department for additional affidavits or proof of facts which might have been embodied in the preliminary papers.

The land department is never disposed to be extremely technical, and is quite liberal in overlooking minor defects where the good faith of the applicant is apparent. Yet it is a tribunal of great dignity, and the proceedings by which its jurisdiction is invoked should be conducted fairly on the line of proceedings in rem in courts of common law or equity jurisdiction. A claimant has no right to initiate his proceedings to obtain the ultimate title to his mining claim by the presentation of a mere request for a patent, placing the burden upon the department of examining a number of auxiliary papers for the purpose of ascertaining the origin and basis of his equities and the facts upon which he asserts his right to a conveyance from the government.

g 681. Application by one of several co-owners — Corporations. — Where a claim is owned by more than one individual, it is customary to select one to act in behalf of all, for which purpose a special power of attorney is executed and filed with the application; but this is not necessary. The practice of the department has been to recognize such an application, signed by one joint owner in behalf of himself and the remaining owners.' Unquestionably an act manifestly done by one co-owner for the benefit of all, would be presumed to be authorized or at least ratified.

'Gen. Min. Reg., par. 31. See appendix. Ayen# v, Daly, 3 Copp*8 L. O. IW.

§682 Application For Patent For Lode Claims. 860

Where a claimant alleges ownership of a forfeited interest under the last clause of section twenty-three hundred and twenty-four of the Revised Statutes, the department requires the sworn statement of the publisher of the newspaper as to the fact of publication, giving dates and a printed copy of the notice published, and the claimant must swear that the delinquent co-owner failed to contribute his proper proportion. We have heretofore discussed the remedy of the excluded cotenants in such cases/

Where the application is made by a corporation, an oflBcer of the company should be designated by the board of directors or other governing body, by resolution, a certified copy of which resolution should accompany the application.

Where a corporation organized under the laws of one state or territory applies for a patent for a mining claim situated in another, it is required to supply, in addition to a copy of its articles of incorporation filed in the state of its domicile, evidence of its compliance with the law of the state or territory where the claim is situated.'-

The right of a corporation to carry on business in a state other than the one from which it receives its charter, depends frequently upon its establishing a status in such state, by filing evidence of its corporate existence and designating an agent upon whom process may be served. A compliance with these state laws is required by the department to be shown in the patent proceeding.

§ 682. Verification of application and other proofs. —

The law requires the application for patent to be verified bv the claimant' before some officer authorized to adminisler oaths within the land district/ except where the applicant is not a resident of or within the district at the

In re Alta Millsite, S L. D. 195, 197; Hidden Treasure H. S. M. Co., 16 Copp's L. O. 110: Hill <fc Lee Mt. M. Co., Id, ' Rev. Stats., § 2325; Rico Iode, 8 L. D. 223. Rev. Stats., 2335.

861 Pboof Of Posting — Proof Of Citizenship. §§ 683-684

time of the filing of the application. In such case the application and other required affidavits may be made by a duly authorized agent, when such agent is conversant with the facts. This is construed by the department to apply to a case where the applicant is in fact a resident of the land district, but at the time application for patent is made is temporarily absent therefrom."

With the exception of affidavits of citizenship and verification of adverse claims in eases of nonresidents, which may be made before the clerk of any court of record of the United States, or of a state or territory, or before any notary public,' all affidavits required to be made under the mining laws must be made within the land district, before some officer authorized to administer oaths therein/

Where a verification is made before a justice of the peace, the department requires a certificate from the county clerk, showing the official character of the justice and the genuineness of his signature. This certificate need not be attached to every instrument in the set of patent papers verified before that officer. It is sufficient if it is appended to one of them.

g 683. Proof ef posting of notice and plat on the claim. — At the time of presenting the apj>lication for patent to the register and receiver, the claimant is required to file therewith the affidavit of two creditable witnesses, that the plat and notice of application for patent are posted conspicuously upon the claim, giving the date and place of such posting. A copy of the notice so posted must be attached to and form a part of the affidavit/*

g 684. Proof of citizenship. — In case of an individual, proof of citizenship may consist of his own affidavit

Act of Jan. 2i!, 1880: i:i Stats, at I>argo, til, amending i i'Ji'i, He v. Stats.

*Inre Topsey Mine, 7 Copp's L. 0,'2fK

Act of Apr. 26, 1882; 22 Stats, at Large, 49.

Rev. Stats., 1*23.35.

*ReT. Stats.f I 2325; Gen. Min. Reg., par. 30. .See appendix.

, § 684 Application For Patent For Lode Claims. 862

thereof/ This affidavit must show when and where he was born, and his residence. Where the applicant has declared his intention to become a citizen, or has been naturalized, the affidavit must show the date, place, and the court before which he declared his intention or from which his certificate of citizenship issued.' Formerly a certified copy of the act of naturalization was necessary, but this is no longer required.

Where the application is made by one co-owner for the benefit of himself and his cotenants, proof of citizenship of each of them must be furnished.

Where the claimant applies in the capacity of trustee, he must disclose fully the nature of the trust and the name of the cestui qui trusty and such trustee, as well as the beneficiaries, must furnish satisfactory proof of citizenship.*

Where the claimant is not the original locator, the department does not require proof of citizenship of such locator or the intermediate grantees. Proof of citizenship of the claimant is sufficient.*

In the case of an incorporated company, a certified copy of its charter or certificate of incorporation must be filed.*

Under the alien act of March 3, 1887, the land department, where a domestic corporation sought to patent mining claims in the territories, required, in addition to the certificate of incorporation, an affirmative showing that no more than twenty per cent, of the stock was held by aliens;" but by act of March 2, 1897, the inhibition against alien ownership of stock in such corporations has been repealed, and the status of aliens in the territories, with reference to the acquisition of public mineral lands, is now the

Rev. stats., §2321.

'Gen. Mill. Reg., par. 77.

*Cien. Min. Reg., par. 78.

*Circ. Instructions, June 8, 1883, par. 3; 2 L. D. 725; In re Capricorn Placer, 10 L. D. 641.

In re Wandering Boy, 2 Copp's L. O. 2; In re Sanford, 1 Copp's L. O. 98; City Rock and Utah r. Pitts., Id, 146. See, ante, ? 227.

*Rev. Stats., I 2321; Gen. Min. Reg., par. 76. See appendix.

7 In re Gold.llill ct Lee Mt. M. Co., 16 Copp's L. 0. 110. See, ante, 244, p. 303.

863 Proof Op Citizenship. §684

same in the territories as in the states. Aliens may not acquire unpatented mining claims, but may hold them after patent

In the case of an association of persons unincorporated, the aflSdavit may be made by their duly authorized agent upon his own knowledge or upon information or belief, setting forth the residence of each person forming such association.' The affidavit must be accompanied by a power of attorney from the parties forming such association, authorizing the person who makes the affidavit of citizenship to act for them in the matter of their application.'

Affidavitsof citizenship, as heretofore observed,* may be taken before any officer authorized by law to administer oaths within the land district. When the applicant is a nonresident of the district, proof may be made before the

>See, OM/tf, 237; Rev. SUts.. 2326. In a preceding article (See, ante, 242-244; we have diHcnMseil the general property righu of aliens in the territories; have referred to the alien ad of March 3. 1887, (24 StatH. at Large, 476; fiee, an/, 243) and noted that this ai*t Inhibited alien ownership of real estate in the territories. As the law then stood, an alien could not lawfully hold a patented mining claim in the territories, as he might in the states in the absence of state ooDfltitutional, or legislative inhibition. The act of .March 2, 1897, however, pasMd after the early part of this treatise was printed, seems to have changed this rule. It remodels the original act, and contains the two followiog provisos:—

This act shall not be construed to prevent any persons not citizens the United Suten from aciuiring or holdin>; lots or parcels of land '*in any incorporated or platted city, town, or village, or in any mine or mining etaim in anv of the territories of the United States.'* /Act of March 2, lr7, 1 3.)

This act shall not in any manner be construed . . . to authorize **aliens to acquire title from the Unitel States to any public lands in the United States, or to in any manner atr<H.*i or chanse the law;* regulating disposal of the public lands of the United States. . . .

This, in on r judgment, makes the last clause of -ction twenty-three bondred and twenty-Hix of the Uevised Statute: Nothing herein o<jn- **taiDed shall be cr>nstrue*i to prevent the aliiiHtion of ti:Ie rNinvf-vfd a latent to any f)eron whatever" operative in ierri:orie<' a- wf-U as in the states.

A fall copy of the act will be found in the apfiendix.

>Rev. Scats.. 2321; Reilly Tampbell. U. S. 4I-. 4.0. >Gefi. Kin. Reg., par. 7'>.

§685 Application For Patent For Lode Claims. 864

clerk of any court of record of the United States, or of a state or territory, or before any notary public*

§685. Designation of newspaper — Agreement of publisher. — The law requires that upon the .filing of the patent application the register shall publish a notice that such application has been made, in a newspaper to be by him designated as published nearest to the claim.''

The regulations of the department supplementing this statute declare that the register has no discretion under the law to designate any other newspaper than the one published nearest the claim, when such paper is a newspaper of general circulation. " Nearest to the claim means distance geographically measured. When two or more such newspapers are published in the same town nearest the land, he may select the one which in his honest and impartial judgment as a public officer will best subserve the purpose of the law and the general interests of the public' As to whether a newspaper is one of general circulation or not, and is the one published nearest the claim, is determined by the register, and his judgment in this respect, unless arbitrarily exercised, will be upheld by the department.*

Secretary Smith thus sums up his views of the departmental rulings: —

" The consensus of the rules and decisions seems to be " that the notices must be published in an established " newspaper, with a bona fide circulation in the neighbor- " hood of the claim; one that is printed at the place of its " publication and is, in the best judgment of the register, " permanently established and recognized by the commu- " nity, its advertisers, and readers as being a fixture. I " take it that newspapers of this character are to be selected in preference to those predatory journals that

Gen. Mill. Reg., par. 79.

Rev. Stats., g 2325.

'Gen. Mill. Reg., par. 37.

*Tomay v. Stewart, 1 L. D. 570; In re Arnold, 2 L. D. 758; Erie Lode r. Cameron Lode, 10 L. D. 655: Condon v. Mammoth M. Co., 15 L. D. 330; Bretell r. Swift, 16 L. D. 178.

" are frequently found in new localities. ... In the " exercise of this function the register is clothed with dis- " crelion . . . in tJie lawful exercise of which he may select " ft newspaper that ho conceives best for the purpose of "giving the greatest publicity to the notice, even although " it may not be the one nearest the land, and especially " would lhi.s he true if the one nearest tiie land, in his opin- "iou. did not meet the requirements as to permanency " and general circulation as defined above." '

In some respects this decision nullifies the declaration of the regulation, that the register has wo discretion. It is, however, the last expression of opinion on the subject by the department within whose control it rests exclusively.

The maximum fees for puhlicatiou arci fixed by departmental regulations.' A newspaper exacting extortionate fees is not considered reputable, and orders for publication of notices therein will not be issued.' The commissioner is given the power under the law in such cases to designate any paper published in the land district.'

While the notice is issued by and published under the direction of the register, neither he nor the government have any concern with the payment of the charges therefor. Therefore the regulations of the department require that before issuing the order for publication the claimant must furnish an agreement signed by the publisherj to hold the applicant for patent alone responsible for the charges of publication.* As heretofore indicated, this agreement usually accompanies the application for patent, the register having theretofore informally designated to the claimant the newspaper in which the publication in required to be made.

686. Proof of annual labor. — lu construing the provisions of section twenty-three hundred and twenty-five of the Revised Statutes, requiring the claimant on applying

' BreWll V. Swifl, oo review. 17 L. D. 558. Rev. auiB., i 3304; Qen. Mln. Reg., pr, 97. /nreSieele.a L. D. Ufl. Rev. SUilH,, {2334. *0eii.M1ii. Reg., pur. 31.

§686 Application For Patent For Lode Claims. 866

for a patent to show his compliance with the mining laws, the department holds, that as a condition for the making of such application the applicant must make a preliminary showing of work or expenditure upon each location, suflBcient for the maintenance of possession under section twenty-three hundred and twenty-four, either by showing the full amount for the pending year, or if there has been failure, it should be shown that work has been resumed so as to prevent relocation by adverse parties.*

This construction has itself been construed to mean that the claimaht must furnish proof that a sufficient amount of work has been performed to make the claim a valid and subsisting one at the date of the filing of the application for patent."

To illustrate: An application is filed in July, 1897. The applicant must furnish proof that during the year 1896 he performed assessment work on the claim to the amount required by law, or having failed in that duty must show that he resumed work prior to the application for patent in the year 1897, and atoned for his previous delinquency in the manner required by law. We have heretofore explained our views as to what constitutes such a valid resumption of work as will prevent a relocation. In our judgment the claimant in the case instanced should be compelled to show that he had performed within the year 1897 the full amount he should have performed in the year 1896, before being permitted to proceed with his patent application.

If he has performed the work for the year 1896, he is not called upon to perform it for 1897 until December of that year, and consequently, when the application is made, as we have supposed, in June, 1897, he is not called upon, at that time at least, to make proof of any work for the year 1897.

In re Good lieturn M. Co., 4 L. D. 221, 224; Circ. Instructions, Dec. 14, 1885, Id. 374; Circ. Instructions, Mch. 24, 1887, 8 L. D. 505.

/n re Kinkaid, 5 L. D. 25; Circ. Instructions, Mch. 24, 1887, 8 L. D. 505. *See, arUet 652.

867 Abstract Of Title — Location Notices. §687

This proof of annual. work should be specific, and state its character and value. We have fully explained in a previous section our understanding of what constitutes work upon a mining claim within the meaning of the law. As heretofore explained, the proof of such labor may be embodied in the application for patent, although it is customary to furnish a separate affidavit, verified by the claimant.

g 687. The abstract of title— Certified copies of location notices. — Where the applicant is an original locator, the regulations simply require him to file a full, true, and correct copy of his location notices or certificates, original and amended, if any, as they appear upon the mining records, such copies to be attested by the seal of the recorder, if he has a seal, otherwise by the oath of the custodian of the records; but where the applicant claims by mesne conveyances from the original locator, he is required to present, in addition to the authenticated copies of the notices or certificates, an abstract of title from the proper recorder, under seal, or oath if the officer has no seal, brought down as near as practicable to the date of filing the application, tracing the right of possession by a continuous chain of conveyances from the original locators to the applicant, also certifying that no conveyances aflfecting the title to the claim in question appear of record in his office, other than those set forth in the accompanying abstract. The purpose of this abstract is to assure the government that the applicant is lawfully entitled to the possession of the claim.

It is customary to present an abstract of title in all cases, whether the applicant is the original locator or not. In the case of an original locator, it furnishes evidence that lie has not transferred the claim, a negative fact, of which the department is entitled to information from the records.

>See, ante, J§ (J2&-631. /n re Cameron, 4 L. D. 515.

, *Qen, Min. Reg., par. 32.

Applil'Ation For Patbst For Lode Ci.Aimb.

Where the records are )oat or destroyed, secondary evi- Idence of their contents may be shown, the proper foundaitioii being laid therefor, and the claimant may make proof Kof possessory title. This proof may consist of the atlidavit lof the claimant, supported by those of any other parties I cogniiiant of tho facts relative to his location, occupancy, " possession, and improvements.'

g 668, Proof of title by possession, without location ander section twenty-three hundred and thirty-two of the Revised Statutes.— Heclion twenty-tliree hundred and thirty-two of the Revised Statutes provides, that where a person or association of persons and their grantors have

held and worked their claims for a period equal to the : prescribed by the statute of limitations for mining

' claims of the stale or territory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent in the absence of any Hd verso olaiin.

LTbis is but a re-emictment of section thirteen of the placer

[law of July 9, 1870.

It recognizes the doctrine, that as against every one,

Isave the United States, the title to a mining claim may be

I acquired by possession, user, and enjoyment for a period

I equal to the time prescribed by the statute of limitations. As was said by the late Judge Sawyer; — "It was the intention of congress to give the right of " purchase of a mining claim . , . to the person or "association of persons who, in pursuance of the laws "of the state or territory and the local mining customs, " rules, and regulations of the place where located, recog- " nized by the laws and enforced by the courts, is the

I" owner, and entitled to the possession as agRin.?t everybody except the government of the United States. . . . The

'"party wIki at tlie time can maintain his right to the " claim in the courts of the country as against any person " but the United States, under Uie local laws, cuatotns, and jiations, is the party upon whom congress inte;

'Gpd. Mill. Hdg., pBi. '.a.

Proof Of Titlk By Possession Without Location. §688 I

Bnfer the right to purchase, do matter how that right A Htginated, if under such laws, customs, and decisions ot'm courts he has the present right.'" J

HpLOne may therefore enter upon public land without loca- -1 ron,D(l if the extent of his possession is defined, his hold- ' ing adverse against all the world save the government, and his working of the claim such for the required period aa indicate a continuous possession and user, he may for a patent, basing his right upon such possession

one may enter under a deed describing the bound-

of the claim, his grantor being without title. Such

will be under color of title, and his possession will,

in time, ripen into such a right as will authorize the gOT-

ernment to issue its patent, although no location was ever '

made.'

Or one may enter under a location which is insufficient under the mining statutes, and the possession so taken may, if openly aud notoriously held atid the claims worked for a sufUcieut period, clothe tiie possessor with a right which : will be recognized by the government;* but such possession, ' in order to vest a title under the statute of limitations, J must be open, notorious, exclusive, and continuous, and 1 not loose, uncertain, scrambling, and mixed.* The acts of mining should not be merely occasional, fugitive, and desultory, but as continuous as the nature of the business ftjid customs of the country permit aud require.*

t has been contended that section twenty-three hundred

D H. Co. t'. Bulliuii M. Co., 3 Snw. ffM. Mi. See. also, Stewart ii. I. D. 44(1; Armnrong v. iionrer, U Coin. 581: Kinney t>. Conn. [. Co., 4 Saw. 382. is V, Equator M. A S. Co.. 8 Fed, St3; Lebanon M. Co. c Conx. I., 6 Colo. 37i, 381.

). Proapect T. Co., 21 Nov. ."(Se. Bui see, MeCowan v. McLay, H.

V. Soiitlierii Nevada O. dt M. Co., in Sav. I U. I Hi. naonti. WIIbod, 3T Wis. 482, ISMnrr. Miti. Kep. tVH. See.aliNi. n Henry, 33 W)h. 341, I Mnrr. MIri. Rep. Ihi; Moore Tiiompson, . lao, 1 Morr. Min. Rep. 221; Colriii v. McCiiiia, SU tow, aoa. I (, tUn. Hep. z.

§688 Application For Patent For Lode Claims. 870

and thirty-two of the Revised Statutes only applies where the applicant is not adversed in the land office, and that in the presence of an adverse claimant who has made a location over the occupancy of the applicant, the possession without location, howsoever long continued, must yield to the one properly locating, and the doctrine seems to be favored by the supreme court of Montana; but the supreme court of the United States has said, that if a claimant actually holds possession and works the claim for the requisite period of time under the local statute of limitations, his right to patent is complete. Such possession and working is the equivalent of a valid location.* And the supreme court of California in a recent case* has reannounced the doctrine.

In a previous article we have announced the rule, that naked occupancy of the public mineral lands confers no title,* and that such occupancy must yield to one who in good faith and without force or violence enters upon the ground and perfects a valid location.® This doctrine is, however, subject to the qualification, that the possession and user has not by operation of the statute of limitations ripened into a title, which is tlie equivalent of a locition.

The land department has said, that the statutory, expenditure of five hundred dollars as a prerequisite to the issuance of a patent is not required where the claimant bases his right upon section twenty-three hundred and thirty-two of the Revised Statutes; but we are not prepared to concede that this doctrine is the correct one.

To enable an applicant to avail himself of the privileges conferred by the section of the Revised Statutes under consideration, the land department has established rules for

>McCowan v. McClay, 16 Mont. 234.

Belk V. Meagher, 104 U. S. 279, 287.

s/ti.

Altoona Q. M. Co. v. Integral Q. M. Co., 114 Cal. 100, 105.

See, ante, 216.

*See, antty 3 218.

' In re Sears, 8 Copp's L. O. 152. See, also; Stewart v, Rees, 21 L. D. 446.

871 PROOF OP TITLE BY lOSSESSION WlTIlorr l.OrATlON. § OSS

his guidance, which dispense with tho noivssity of pnuhioing evidence of location, copies of convovaiuvs, ov ahslnu'ts of title. He is required, in lieu thereof, to furnish a (Mr(i iied copy of the statute of limitation.* alTortin inininj claims (real estate) for the state or territory,* U>pthcr with his sworn statement giving a clear and siUHiincl narrfilion of the facts as to the origin of his title and tho rontinuii tion of his possession of the mining ground (;ov<m'(uI hy his possession, stating the area thereof and tho natiiro and extent of the mining that has be<;n dono thorerMi ; whtthfr there has been any opposition to his po.ss(sHion, or litiga tion with regard to his claim, and if so when thi* Harno ceased; whether sucli cessation was eanned hy eompromi'e or by judicial decree, and any a'edition;il fiiet-; having a direct bearing uiK>n fio'i.-irH-ion ;jn'l ifnml f;iith whieh he may desire to ruhrnit in iip|iort. /*f hi- 'Ijiini

The facts narrate<J by tii<- -lairnant. p-i;iM v- to hi- posion. occupancy, and irnprovrrrierr- i/i';-* f,*- -'iu\f'tT*'"i Uy corroborative afTidav:r ffi :':-'/n'. 'fij

y

IT- iv. . — i .. r . . i. , . . .

§689 Appucation Fob Patent Fob Lode Claims.

territory other than that which has been finally decided in favor of the claimant.'

As a matter of course a survey must be made of the claim the same as in other cases. Tlie application for an order of survey, instead of being based upon a recorded location, would necessarily present Hubstantialty the same facts as are required to be proved before the register. A narrative of facts which would be suflScient to give the register jurisdiction to pass the application to final entry would certainly suffice as the basis for an official survey.

One basing his right to a patent on the ground that he has held the claim for a period which satisfies the statute of limitations of his state or territory must proceed to obtain his patent the same as if his right rested on location, with the exception of the manner by which he proves his title.

g 689. Proof of mineral character of the land. — It is a

rule of tlie laud department, that llie only tracts of public land which will be withheld from entry under the agricultural land laws are those which have been returned by the surveyor-general as mineral,"

We have heretofore observed that the return of the surveyor-genera! determines the prima facie character of the land. If the lands are not returned as mineral, the presumption obtains that they are agricultural in character and cannot be entered under the mining laws until the return is contradicted.' Therefore, where a claimant applies for a tract of land under the mining laws which is borne upon the official records as agricultural, proof should be furnished of its mineral character sufficient to overcome the force of the surveyor-general's return.

It has been said, that when a valid mineral location

has been made, the slight presumption in favor of the

I eurveyor-gjeueral'a return is negatived, and that the burden

'Geii. Mill. Reg., [wir. 72.

' /" re Sinllh [Iralbera, 7 Ci>pp' I,. 0, 4.

>aeii. MIn. Itog., par. lOB. 'loe, ante,

873 FUBUCAnOS OF l£ SOnCZ. ASD IVDOF ISERBOF. §690

of proof thereapon sbifis to the putr attaeking the mineral claim; bnt as no valid locatioii can be made, except upon a disooTerr. the iact of socb didcovery shonld be established, and saeh statements Terified by the oath of the claimant oold be prented, from which the legal inference necessarily flows that the lands are of the character claimed. A mere location certificate will not be safficient

We have heretofore fnllT defined the character of lands which fall within the designation of miDeral. If the tract applied for is claimed in good faith to be mineral in character, and subject to entry under the mining laws, there should be no difficulty in succinctly stating the facts suggested in the rule laid down in section ninety-eight of this treatise. This proof, in the absence of a protest interposed by an agricultural claimant, will be sufficient to enable the officers of the land department to pass the entry.

In the presence of a protest, however, its function is limited to shifting the burden of proof to the protestant. Such protest necessitates a hearing, which is conducted under the departmental regulations.*

Where the lands are returned and borne upon the tract books as mineral, the burden is fixed by law upon the agricultural claimant, and the preliminary proof on behalf of the mineral claimant herein suggested is not so essential. Nevertheless, as heretofore indicated,* the application should show affirmatively the right of the claimant to enter the tract applied for. It is customary and advisable to fortify the proof of claimant with corroborative affidavits of disinterested parties.

I 690. Publication of the notice, and proof thereof. —

Upon the filing of the application with the accompanying preliminary proofs, the register is required to publish a notice, for the period of sixty days,' in the newspaper designated by him. This notice should be a counterpart

' See, ante, I *Spe, ante, $ tWO.

2 See, ante, § 98. Rev. Stats., 2325.

Gen. Min. Keg., par. 108-118.

t APPUOATIOW iron PATENT FOR LODE Cr.AIMB.

I territory other than that which has been finally decided in favor of the claimant.*

As a matter of course a survey must be made of the I claim the same as in other cases. The application for an I order of survey, instead of being based upon a recorded I location, would necessarily present substantially the same I facts as are required to be proved before the register. A [ narrative of facts which would be sufficient to give the I register jurisdiction to pass the application to final entry ' would certainly suffice as the basis for an official survey. One basing his right to a patent on the ground that be has held the claim for a period which satisfies the statute of limitations of his state or territory mast proceed to obtain his patent the same as if his right rested on location, with the exception of the manner by which he proves i bis title.

§ 689. Proof of mineral character of the land. — It is a ule of the laud department, that the only tracts of public land which will be withheld from entry under the agricultural land laws are those which have been returned by I the surveyor-general as mineral.'

We liave heretofore observed that the return of the Burveyor-general deterininea the prima facie character of the [ land. If the lands are not returned as mineral, the presumption obtains that they are agricultural in character [ and cannot be entered under the mining laws until the f return is contradicted.' Therefore, where a claimant applies [ for a tract of land under the mining laws which is borne I upon the official records as agricultural, proof should be I furnished of its mineral character sufficient to overcome f the force of the surveyor-general's return.

It has been said, that when a valid mineral location IJias been made, the slight presumption in favor of the [aarveyor-eneral's return is negatived, oud that the burden

In m Sinllh Brolbora, T Copp's I.. O. 4.

Onn. MIn. Rog.. par. lOe. -Seu. anfc.g IWI.

of proof thereupon shifts to the party attacking the mineral claim; but as no valid location can be made, except upon a discovery, the fact of ancli discovery should be established, and such statements verified by the oath of the claimant sliould be presented, from which the legal inference necessarily flows that the lands are of the character claimed. A mere location certificate will not be sufficient.'

We have heretofore fully defined the character of lands which fall within the designation of mineral.' If the tract applied for is claimed in good faith to be mineral in character, and subject to entry under the mining laws, there should be no difficulty in succinctly stating the facts suggested in the rule laid down in section ninety-eight of this treatise. This proof, in the absence of a protest interposed by an tigricultural claimant, will be sufficient to enable the oflicers of the land department to pass the entry.

In the presence of a protest, however, its function is limited to shifting the burden of proof to the protestant. Such protest necessitates a hearing, which ts conducted under the departmental regulations.'

Where the lauds are returned and borne upon the tract books as mineral, the burden is fixed by law upon the agricultural claimant, and the preliminary proof on behalf of the mineral claimant herein suggested is not so essential. Nevertheless, as heretofore indicated,' the application should show affirmatively the right of the claimant to enter the tract ajiplied for. It is customary and advisable to fortify the proof of claimant with corroborative AfBdavits of disinterested parties.

g 690. Pablication of the notice, and proof thereof. — Upon the filing of the application with the accompanying preliminary proofs, the register is required to publish a notice, for the period of sixty days,' in the newspaper 4designated by him. This notice should be a counterpart

' See. unit, i IM. 'Srs. are. g USD.

' See. 'inle. j 98, Rev. Sluts., aiJfi.

lien. Mill. Heg., iwr. lOH-118.

§690 APPLICATION FOR PATENT FOR LOpE CLAIMS. 874

of the one posted on the claim. Its requisites and contents have been fully outlined in a previous section* and it is unnecessary to repeat what was there said. In the language of the regulation, it must embrace all the dato given in the notice posted upon the claim." This regulation also contains the admonition, that " too much care cannot be " exercised in the preparation of these notices, inasmuch " as upon their accuracy and completeness will depend in " great measure the regularity and validity of the whole " proceeding."

This notice must be signed by the register, and the department holds him responsible for its proper publication. Where errors are discovered and a new publication is for that reason ordered, he is required to pay the cost thereof.

The register, however, has no control over the notice posted by the claimant on the claim. This is usually prepared by the attorney for the applicant, who also prepares and submits to the register its counterpart for publication. In such cases the claimant takes the risk and assumes the responsibility.

When the notice is published in a wcekhj newspaper, ten consecutive insertions are necessary, covering a period of sixty-three days, the first insertion being exchided from the computation.®

When in a daily the notice must appear in each issue foV sixty-one consecutive issues, the first day of issue being excluded in estimating the period of sixty days. It must

See, ante, ? 677.

'Gen. Mill. Reg., par. 35.

'/d., par. 36. See, also, Sulphur Springs Q. M. Co., 22 L. D. 715.

Becker v. Sears, 1 L. D. 575; In re Miinbres M. Co., 8 L. D. 457.

In re Payne, 15 Copp's L. O. 97.

Gen. Aiin. Reg., par. 34; Miner v. Mariott, 2 L. D. 709; Jn re Great Western Lode, 5 L. D. 510; Waterliouse v. Scott, 13 L. D. 718; Bonesell v. McNider, Id, 286; In re Oro Placer, 11 L. D. 457.

' Gen. Min. Reg., par. Eureka M. Co. r. Jenny liind M. Co., Copp*8 Min. Dec. 169, 170; Jefferson M. Co. v. Pennsylvania M. Co., 1 Copp' L. O. 66.

875 Posting Of The Notice In Register'S Office. §691

appear in every copy of the paper of each issue published during the period.

As to what is meant by the " period of publication " within which adverse claims must be filed under section twenty-three hundred and twenty-six of the Revised Statutes, will be considered when we reach the subject of adverse claims.

A substantial defect in the notice as published will not only necessitate a republication, but also a new posting on the claim and in the register's office."

When the period of publication has expired, proof of such publication in the form of a sworn statement by the printer or publisher of the newspaper must be filed with the roister. This statement should show that the notice was published for the statutory period, giving the first and last day of such publication.'

g 691. The posting of the notice in the register's office, and proof thereof. — In addition to the notice of application for patent required to be posted on the claim and published, a third notice must be posted in the register's office.'* This notice must be in all respects similar to the one posted on the claim and published, thus making three concurrent or complementary methods of publication. One is just as necessary as the other, and all must cover the full period of publication, to wit, the sixty days.*

Where, during any part of this period, the register's office is closed, the time it remains closed must be deducted, and the time of publication and posting on the ground must be prolonged to compensate for it, or publication and posting must be commenced de novo.

Where there is a change in the boundaries of the land district during the period, so that the office wherein the

" In re American Flag Lode, 6 L. D. 320.

Gen. Min. Reg., par. 41.

*ReT. Stats.. § 2325; Gen. Min. Reg., par. 34.

Tilden r. Intervenor M. Co., 1 L. D. 572.

§692 APPLICATION FOR PATENT FOR LODE CLAlMS. 876

notice was originally posted ceases to have jurisdiction over the land, such jurisdiction being transferred to another oflSce, the posting must be continued and completed in the latter, otherwise republication and reposting will be required.*

Where the land sought to be entered lies in two land districts, we understand that the department requires posting in the register's office in both districts,* the application for patent being filed in the district where the principal workings are.'

The register is required, in transmitting the papers to the commissioner of the general land office, to certify that the notice was posted in his office for the full period of publication, such certificate to state distinctly when such posting was done and how long continued.* Should he fail to do so, the applicant may procure other satisfactory evidence of the register's compliance with the law.

g 692. Proof that the plat and notice of application for patent remained posted on the claim daring the period of publication. — At the expiration of the sixty days of publication the claimant is required to file his affidavit, showing that the plat and notice have remained posted in a conspicuous place on the claim during such period of publication, giving the dates.'' This affidavit should refer to the one on file in the register's office, showing when and where the notice was posted originally, so that the two taken together will show continuous posting between the dates mentioned, covering the period of publication, and that the notice remained during that period where it was originally placed.

The affidavit of continuous posting may be properly

In re WiUiams, on review, 17 L. D. 282.

Clark, Heltinan, and Consaura Min. Land Digest, p. 173, par. 23.

*Gen. Min. Reg., par. 43.

In re Mimbres M. Co., 8 L. D. 457, 460.

Rev. Stats., J 2325; Gen. Min. Reg., par. 41.

T See, ante, § 683. See, also, In re Prince of Wales Lode, 2 Copp's L. 0. 2.

877 Resume. §§ 693-695

made by a claimant whose knowledge of the fact is derived from personal observation, at various times, of the plat and notice as posted, and from such information with respect thereto as would be accepted by a reasonably cautious man.*

g 693. Statement of fees and charges. — In order that the department may exercise a wholesome supervision over the subject of fees charged by the various persons whose services are necessarily required in the conduct of patent proceedings, the claimant is called upon, before making final entry, to file with the register a sworn statement of all charges and fees paid by the applicant for publication and surveys, together with all fees and money paid the roister and receiver of the land oflfice, which statement is transmitted with the other papers in the case to the commissioner of the general land office.*'

g 694. Application to purchase. — All the antecedent proceedings having been regular, the proofs of compliance with the law satisfactory, and neither adverse claim nor protest having been filed, the applicant is permitted to make final entry. To accomplish this he is required to present to the register and receiver a formal application to purchase, describing the premises by name, survey number, or the number of the lot within the township by which the survey is designated by the surveyor-general, accompanied by the purchase price of the land at the rate of five dollar's per acre. Upon receipt of the purchase price, the receiver issues a duplicate receipt therefor, and the entire record in the case is forwarded to the commissioner of the land office for his inspection and approval.

g 696. Resume. — In ordinary cases the steps required to be taken by an applicant for mineral patent, and the instruments required to be filed with the register of the

Bright V. Elkhorn M. Cu., 9 L. D. 503, 507; Tangerman r. Aurora Hill M. Co., 9 L. D. 538.

*Rev. Stats., g 2334; Gen. Min. Reg., par. 102.

§695 Application For Patent For Lode Claims. 878

land office in the course of patent proceedings subsequent to the completion and approval of the survey, may be divided into two classes, preliminary and final, and may be thus scheduled : —

Preliminary : —

(1) The applicant is required to post upon the claim a copy of the plat and a notice of application for patent.

There must then be presented to the register of the land office the following instruments: —

(2) Application for patent with approved field notes attached ;

(3) Certified copies of notices or certificates of location, original and amended (if any);

(4) Copy of the official plat;

(5) Proof of posting notice and plat on claim ;

(6) Proof of citizenship;*

(7) Proof of annual labor

(8) Form of notice of application for patent to be signed by the register and posted in his office;

(9) Form of notice of application for patent to be signed by the register and published;

(10) Agreement of publisher;

(11) Proof of mineral character of land;

(12) Abstract of title.

Final: —

(13) Proof that notice and plat remained posted on the claim during the period of publication;

(14) Proof of publication;

(15) Statement of fees and charges;

(16) Application to purchase.'

This may be embodied in the application for patent. See, ante, I 680, p. 859.

'Suggented forms of the foregoing instruments wiU be found in the appendix.

879 Application For Patent For Placer Claims. §§699-700

Article II. Placer Claims — Lodes within Placers.

}689. Proceedingfi to obtain patent to lode claims generally applicable to placers.

700. DeacriptioD of placer claims upon surveyed lands.

{701. Proof of the five hundred dollars' expenditure.

i 702. Proof of mineral character of the laud.

i 703. Proof that no known lodes exist within limits of placer claim.

I 704. Lodes within placers — How applied for.

§ 699. Proceedings to obtain patent to lode claims generally applicable to placers. — The proceedings to obtain title to that class of mineral lands falling within the designation of placers, that is, forms of deposit not in place, as defined in a previous chapter,* are similar to proceedings prescribed for obtaining patents for vein or lode claims.

In the language of the departmental regulations: —

"The proceedings for obtaining patents for veins, or "lodes, having already been fully given, it will not be " necessary to repeat them here, it being thought that "careful attention thereto by applicants and the local oflS- "cers wmII enable them to act understand iugly in the mat- " ter and make such slight modifications in the notice or "otherwise as mav be necessarv, in view of the different " nature of the two classes of claims."'

There are a few matters, however, to which attention should be invited, taking the patent proceedings as heretofore outlined in cases of lode claims as a basis, and supplementing or modifying them in the particulars hereinafter suggested.

i 700. Description of placer claims upon surveyed lands. — We have heretofore observed, that where placer claims are upon surveyed lands and conform to legal subdivisions, no survey or plat is required.'

It will be noted, that the smallest legal subdivision of

iSee,aiU6,H 19-428. *C}eo. Min. Reg., par. 52.

'Gen. Min. Re., par. 53. *.See, anle J 672.

§§ 701-702 Application For Patent For Placer Claims. 880

the government surveys recognized by the department is a tract of ten acres/ Where the location or aggregation <of contiguous locations forms a compact body susceptible of description by fractions of a quarter section or by lots, where the area of such lots has been accurately determined, it will be sufficient to so describe the claim in the patent application and in all proceedings before the land department.

Frequently, by segregation of mineral surveys, irregularly-shaped fragments result. These are designated by the surveyor-general by a lot number, are dealt with as distinct entities, and may be applied for without survey, simply designating the lot number within the given section.

g 701. Proof of the five hundred dollars' expenditure.— In cases where the claim conforms to the legal subdivisions of tlie public surveys, as the surveyor-general has no office to perform,*'* it is necessary for the applicant to furnish proofs, consisting of his own and corroborative affidavits, showing clearly the character, extent, and value of the improvements upon the premises.' Such proofs should be specific, and establish all the facts which are required to be shown by the deputy mineral surveyor, and certified to by the surveyor-general, where proceedings for patent are based upon mineral survey, as pointed out in previous sections.

g 702. Proof of mineral character of the land. — What we have heretofore said with reference to proof of the mineral character of the land sought to be entered under the laws applicable to lode claims, applies with equal force to placers; and where the tract is applied for by government subdivisions, the facts in this behalf required to be fully set forth in the descriptive report of the surveyor, when

' Gen. Mill. Reg., pars. 55-57. *See, ante § 673.

See, ajite, § G72. See, ante, § 689.

'Gen. Min. Reg., par. 57. 'See, ante, g 672.

881 I'itOOF THAT N(l K.VOWX LODES ARE WITHIN PLACEE. § 703

the application is based upon a survey, should be fully presented in the form of the affidavit of the claimant, corroborated by disinterested and credible witnesaea. Such proofs take the place and perform the functions of descriptive reports required of surveyora.

The practice ia sanctioned by the department, where applications are made to enter placer ground by legal subdivisions, permitting the applicant to apply to the surveyorgeneral for a descriptive report without survey. Such descriptive report, although not in terms provided for, would certainly rank as a deposition, and in doubtful cases would probably have controlling weight.

g 703. Proof that no known lodes exist within limita of placer claim. — The land department requires, in all cases of applications for placer patents, that proof, consisting of tho alHdavits of two or more witnesses, should be filed, showing that there are no known lodes, or veins, within the tract applied for.'

Considering that a placer patent ia not of itself conclusive evidence of the fact that no known lode existed within the limits of the placer claim at the date of the application, and that the department now maintains the right to patent such a lode within the limits of a prior patented placer, it would seem that the investigation as to "known lodes" in the proceedings to obtain placer patent is superfluous. It ia not a fact necessarily to be determined in such proceeding. If such a lode existed, although not located at the lime of the filing of the application for placer patent, it is reserved by operation of law, notwithstanding any adjudication made by the land department in the placer proceeding.

The regulation may be upheld, however, upon the theory, that the land department has a right to be specifically informed of the precise nature of the deposit sought to be entered.

'Gen. Mln. Reg., par. 5S. Jtk, J 113.

§ 704 Application For Patent For Placer Claims. 882

As to whether the owner of a located lode within the limits of a placer claim is compelled to adverse the placer application, is a subject reserved for discussion when we deal with adverse claims in the succeeding chapter. What constitutes a known lode, which as such is reserved out of a placer patent, will be considered when we discuss the nature and effect of placer patents.

It is sufficient to note that the land department requires proof that no known lodes exist within the limits of the placer claim. The regulation is not unreasonable, and must be followed. The course to be pursued where the proofs show the existence of a known lode is pointed out in the next section.

g 704. Lodes within placers — How applied for. — If a

lode is located within the limits of a placer prior to the filing of the placer application, and is held by persons other than the placer claimant, it may be applied for by the owners the same as if the placer claim did not exist. Where the existence of the lode was known at the time of the placer application, but was not located until after the placer patent was issued, the land department will, upon a satisfactory showing as to the prior known existence of the lode and its subsequent location, permit the lode claimant to proceed to patent. In such cases the lode claimant proceeds in the same manner as in other cases, ignoring the existence of the placer patent.

When an applicant for a placer patent is also in possession of a known vein, or lode, included therein, he must, if he desires to secure title thereto, state in his application that the placer includes such vein, or lode. The published and posted notices must also include such statement. If veins, or lodes, lying within a placer location are owned by other parties, the fact should be so stated in the application for patent. In all cases, whether the lode is claimed or excluded, it must be surveyed and marked upon the plat,

Ante, f 413.

883 Manner Op Acquiring Patents To Millsites. § 708

the field notes and plat giving the area of the lode claim or claims and the area of the placer separately/

Where such lode exists, an application for placer patent which does not include an application for the vein, or lode, claim shall be construed as a conclusive declaration that the claimant has no right to the possession of the vein, or lode, claim.

A placer applicant will not be allowed to amend his application for patent, so as to embrace therein veins, or lodes, discovered by others after the location of the placer claim, but prior to the application therefor and not included in the application as originally submitted.'

Article III. Millsites.

I 708. Manner of acquiring patents to millsites.

g 708. Manner of acquiring patents to millsites. — We have heretofore noted, that the mining laws provide for the appropriation of two classes of millsites: —

(1) Such as are used and occupied by the proprietor of a vein, or lode, for mining or milling purposes;

(2) Such as have thereon quartz mills or reduction works, the ownership of which is disconnected with the ownership of a lode, or vein.

In cases of the first class, the claimant desiring to obtain a patent for his millsite must embody in his application for an order of survey a description of the site claimed and a certified copy of the location notice under which he asserts his claim.

The deputy surveyor surveys the millsite, giving it the same number as the claim, but designating it by a different

GeD. Min. Reg., par. 56.

*R6V. Stmts., 2333. See, ante, 413, p. 525 and note 3.

' Aororm Lode v. Bnlger Hill A Nugget Gulcb Placer, 23 T

Appucatioi? For Patent For Uillbitb3.

letter. For example: The survey of the claim is designated as "Sur. No. 37-A," and the millsite as "Sur, No. "37-B," or whatever may be its appropriate number. In the published and posted notices of the application for patent, the millsite must be as carefully deseribed as the lode claim, and the course and distance from a comer of the millsite to a corner of the lode claim must invariably be given, and a copy of the plat must be posted on the millsite,'

A claimant owning an uupatonted millsite actually used for mining or milling purposes in connection with a patented lode, may apply for a patent for the millsite separately, in which case he is required to proceed precisely the same as in cases of applications for mining claims.' The same method must be pursued when a patent ia sought for a millsite claimed independent of any lode ownership.'

Proof of the non-mineral character of the land sought to be entered as a millsite must in all cases be furnished. This proof consists of the sworn statement of two or more persons capable, from acquaintance with the land, of testifying understandingly.'

The character of the land embraced within a claimed millsite is just as much the subject of contest aa the character of laud in other classes of mineral or agricultural entries, and hearings are ordered and the controversy

1 heard and determined in the same manner as other.cases where the character of the land is in issue.' It ia not necessary to show any particular amount of expenditures upon a millsite as a prerequisite to a patent. If claimed in connection with a lode, it will be sufficient to show that it is used for mining or milling purposes.* Where the right to patent is asserted under the second clause of section twenty-three hundred and thirty-seven of the Revised Statutes, the right to make the entry depends

'Oen. Min. Hog., par. afl. 'Eallpxe Millile, 22 U D. 4ee. *(.isn, Jlin. Rog., piur, >I7.

' Id. See. ante, 521.

In re IlMkpr. 6 Cupp'a L. 0. 81.

Alia M>llut, S L. D, m.

885 Manner Op Acquiring Patents To Millsites. § 708

upon the existence thereon of a quartz mill or reduction works.*

We have fully discussed in previous sections the nature of the use required to perfect a valid appropriation of a millsite. The rules there enunciated will not be repeated.

1 In re Lennig, 5 L. D. 190; Cyprus Millsite, 6 L. D. 706; Two Sisters Lode and Millsite, 7 L. D. 557; La Neve Millsite, 9 L. D. 460; Hecla Cons. M. Co., 12 L. D. 75.

In the " Mineral Law Digest of Messrs. Clark, Heltman, and Consaul (p. 859, par. 55) are noted some unpublished deoisions which require the applicant to furnish the surveyor-general's certificate showing that five hundred dollars has been expended on the millsite. It would be difficult to conceive of a quartz mill or reduction works which would not exceed in value the sum named, but we are not aware of any law which authorizes the department to place millsites on the footing with mining claims, with reference to the value of the expenditures.

s Ante, li 523, 524.

Chapter Iv

The Adverse Claim.

Article I. Introductory.

11. What is and What is Not the Subject of an Adverse Claim.

III. How, When, and Where Adverse Claim Must be Asserted.

Article I. Introductory.

$ 712. Distinction between adverse claim and protest.

$713. Patent proceeding are essentially in rem.

g 712. Distinction between adverse claim and protest.— The patent proceeding in the land office may be interrupted and its consummation delayed by the filing of an adverse claim or by the presentation of a protest. There is a marked difference between the two. An adverse claim is based upon the assertion of an adverse right to the tract applied for; or some part of it. A protest is not necessarily based upon any asserted right. Oftn a protestant is a mere volunteer, an amicus curiw, who calls the attention of the department to an alleged non-compliance with the law on the part of the applicant, which otherwise might be overlooked, or raises the issue as to the character of the land, in the ultimate determination of which issue the protestant may or may not have an interest proximate or remote.

As explained in succeeding sections, where an adverse claim is filed, its determination upon the merits is relegated to the courts, and the functions of the land department are, for the time being, suspended. In cases of protest, the

887 PATENT PROCEKrHNGS — ADVERSE CLAIMS. §713

department retains jurisdiction, and investigates and determines the issnes raised without resort to the courts. We are now specially concerned with the adverse claim.

g 713. Patent proceedings are essentiaUy in rem— Adverse claims must be presented. — Tho proceedings by which the patent for a milling ehiini is obtained are essentially in rem, and are binding upon all tlie world so far as any unpreseiited adverse claim is concerned.'

They are judicial. The publication and posting of notice of the application for patent is a procesK which brings all adverse claimants into court — a summons to all persons wbose interests may be affected by the issuance of a patent to the tract applied for, to appear and file tbeir adverse claims.'

True, no adverse claimant or supposed claimant may " be named in the notice; no process may be served per- " sonally upon him, but that does not avoid the notice " or weaken its sufficiency to bring such party into court. " This is not tho only case known to the law in which " parties not named in a notice are bv it brought into court "and llieir rights adjudicated. Unknown heirs are often " thus brought in by a published notice. Tax proceedings, " condemnation of rights of way, admiralty cases, and " many others, present similar illustrations.""

If parties holding such claims, in hostility to the applicant, ae are the proper subject of adverse proceedings, stand by and allow the statutory time for filing their adverse claims to elapse, their rights, so far as the same might have been determined in such proceedings, in the absence of fraud or mistake, are forever lost.'

The law provides, that if no adverse claim is filed within the time specifie<l, it shall be assumed that the applicant is

'HBmiUoii If. Southero Sev.G.AS. M. C.. 13 Saw. 113.

'Wigbtr. DnboiB, 21 Fed, 093. 695; WolHer v. Lebknon M. Co.. 1 Colo. 112, 117; Hunt i. Eureka Gulch M. Co,,H Colo, 4.51,456; People ei. rrJ. Darby DlBti-icc Court, 19 Colo. &43, 347 ; Com'rs' Letter, Cnpp'a Min. Dec 73 : KaDn&ugli (luArletto M. Co.. 18 Colo. 341.

WiKht Dubois. 21 Fed. 6I), Iflh.

KiiiisiiKb Quiirtotl M. Co.. Id Colo. 34!.

§717

The Adverse Claim.

entitled to a patent, and thereafter no objection from third parties to the issuance of the patent shall be heard, except it be shown that the applicant has failed to comply with the law/ which failure may be brought to the attention of the department by protest only, as indicated in the preceding section.

It is therefore necessary for us to determine, —

(1) What is and what is not the proper subject of an adverse claim;

(2) How, when, and where must it be asserted; and,

(3) The effect of failure to assert it.

Article II. What is and What is Not the Subject

OF AN Adverse Claim.

i 717. Character of land — Agricultural claimants.

$718. Prior patentees and prior patent applicants.

i 719. Mortgages — Lien holders Owners of equitable interests.

$720. Lode claimant v. placer applicant.

i 721. Placer claimant v, lode applicant.

$ 722. Mineral claimant v. townsite applicant.

$ 723. Townsite claimant v. mineral applicant.

$724. Millsite claimant v. mineral applicant.

$ 725. Tunnel proprietor v. lode applicant.

$ 726. Owners of lodes located prior to May 10. 1872.

$ 727. Cross lodes.

$728. Co-owners.

$729. Easements.

$730. Underground conflicts.

g 717. Character of land — Asfricultural claimants. —

Section twenty-three hundred and twenty-five of the Revised Statutes only contemplates adverse proceedings as between rival mineral claimants to the land, and does not have in view a settlement of the character of the land as between mineral and agricultural claimants.

As was said by the supreme court of the United States, —

" The purpose of the statute seems to be, that where

Rev. stats., $ 2325.

Prior Patentees And Prior Patest Applicants. § 718

" therfl are two claiiuants to the same mine, neither of " whom has yet acquired title from the government, they " fihall bring their respective claims to the same property, " in the njanner prescribed by the statute, before some " judicial tribunal locsted in the neighborhood where the " property is, and that the result of this judicial investiga- " lion shall govern the action of the land department in " determining which of these ckiimmita shall have the " patent — the final evidence of title from the govern- " ment."

The department having jurisdiction over all public land until patent issues, may at any time, either on its own motion, or on an application made by others, order a bearing for the purpose of determining its character. There is no other tribunal provided by law for that purpose whose judgment would necessarily be binding upon the department."

An agricultural claimant can only raise the issue by way of protest, demanding a hearing for the purpose of establiahing the non-mineral character of the tract, and this he may do at any time prior to patent. The distinction between the adverse claim and protest has been outlined in a previous section.'

Controversies over the character of the land are not subjects of adverse claims under the sections of the Revised Statutes under consideration.

There are some rulings of the department which seem to negative this conclusion;' but they are opposed to what we understand to be the true rule.

The department is a tribunal specially charged under the law with the determination of this fact, and in this determination the courts perform no auxiliary functions.

I 718. Prior patentees and prior patent applicants. — The term "adverse claim." as used in section twenty-three

' Iron S. M. Co. P. Campbell. IM 0, 8. 2WI. 2BS. Poweh rerguaon, 33 L. D, 173 ; Snyder r. Wnller, ! mftoer. 4 1.. D. .114. 'AHl'.iSll. ' Anilvrson r. Amador .k Sncmmento I'biibI. 10 I.. I). 5T

L. D. T : Alice

§ 719 The Adverse Claim. 890

hundred and twenty-six of the Revised Statutes, implies a right asserted in hostility to the patent applicant. The proceeding based upon the adverse claim is essentially one to determine the right of possession to the whole or a part of the surface area described in the publislied and posted notice of application for patent. It is necessarily based upon the assumption, that the paramount title to the tract applied for resides in the general government, whose patent when regularly issued would operate as a judgment conclusive upon those who failed to assert their adverse rights. Where a patent has once been issued, purporting to convey a given tract in its entirety, the functions of the land department are exhausted, and the patentee need no longer concern himsel? with any subsequent application -embracing any portion of the same area/

We have heretofore noted, that where an application for patent is once made, if prosecuted with reasonable diligence, no second application covering the same tract will be received by the land oflScers, so long as the first application remains pending.

It logically follows, that a prior applicant for patent whose application is pending and undetermined is not called upon to adverse any subsequent conflicting application.'

g 719. Mortgages — Lienholders — Owners of equitable interests. — One holding a mortgage executed by the applicant upon the tract applied for, does not antagonize such applicant's title. The mortgagor of a mining claim would not be permitted to abandon a claim and secure a title adverse to the mortgagee by a relocation;* nor will the

' Iron 8. M. Co. v. Campbell, 135 U. S. 286, 299; Bennett v. Harkrader, 158 U. S. 441, 447 ; Equator M. A S. Co.. 2 Copp's L. 0. 114 ; In re Ramage, Copp's L. 0. 115.

2 Ante, $ 679.

3 Steel V. Gold Lead G. <fc S. M. Co., 18 Nev. 80. 87.

The land department has held, that under certain circumstances the second application may be treated as an adverse claim (Hall r. Street, 3 L. D. 40) ; but the case wherein the rule is announced is of doubtful value as a precedent.

Alexander v, Sherman ( Ariz.)t 16 Pac. 45. See, ante, $ 407.

891 Mortgaoeb — Liesholders-Owsers Of Interests, §719

law permit hira to Jo any act which would impair the mortgage security. Tlie equities of the mortgagee rest upoa the applicant's title, and the patent whea issued would inure to the benefit of the mortgage. The same may be said of all classes of iucumhrances and lieus voluularily imposed bj' the applicant. Tliis seems to be fully provided for by the lust clause of section twenty-three hundred and thirty-two of the Revised Statutes, which provides that, —

"Nothing in this chapter shall be deemed to impair "any lien which may have attached in any way whatever " to any mining claim or property thereto attached prior " to the issuauce of tlie patent."'

So with a contract of purchase, a lease, or any other instrument which by act of ihe parties creates an equitable right based upon the applicant's title.

Holders of this class of interests are not called upon to. adverse the patent application.'

This doctrine, however, will not apply to rights asserted arising out of judicial proceedings which are in their nature in invitum, such as tax and execution sales which operate only upon the title as it stands at the time the sale takes place. A tax or sheriff's deed can, at best, only have the Operation of a quitclaim deed in its strictest sense. This class of deeds cannot pass an interest which the owner did not have before the sale, but which he subsequently acquires.'

We think there can be no doubt but that a patent or certificate of purchase issued as the result of the patent proceeding, is a subsequently acquired title. Whenever such title will, when acquired, inure to the benefit of an encumbrancer, lienholder, or other person claiming an equitable interest under the applicant, no adverse claim need be filed. Equity will control the patent title in favor of the party holding the equitable title. When, however,'

' Copp'H Min. Dec. 43.

Shoo Fly and MsKiiolia Lnda u. niaborn, 1 Copp'a L. O. 133, 138; Harriet M. t'n.v. Pbicnlx M. Co., fl Copp'a L. O. tOS.

Bamlltoui. SoQlheruNev. G. AS. M. Co.. la Saw. 113, UT.

The Adverse Claim.

such subsequently acquired title will not inure to the benefit of a party asserting an interest, he must protect his rights I by filing au adverse claim.

g 720. Lode claimant v. placer applicant. — Where the existence of a lode within the limits of a placer is known prior to the application for placer patent, and such lode is included in the placer application, all others claiming an interest in the lode in hostility to the applicant must necessarily adverse the applicant, as the placer patent when issued would embrace the lode. Where the existence of the lode is known, and the placer applicant fails to assert his right to it by including it within his application, such failure is a conclusive declaration that he has no right to I the possession of the vein, or lode.'

There would be nothing in such an application which would call for any contest on the part of a lode claimant. The owner of the known lode, if it were a located one, could not be considered as asserting anything adverse to the placer claimant. We think it well settled, that such lode claimant need not under such circumstances institute adverse proceedings against the placer application.'

In the case of Dahl v. Kaunheim," an action between a placer and lode claimant, the supreme court of the United States comments upon the failure of a lode claimant to adverse a placer application, and announces the rule, that having so failed the lode claimant is precluded from calling in question the location of the claim "or its character " as placer ground." From the facts recited in this opinion, it appeared that the lode location was initiated avh&quent to the filing of the placer application.'

'Rv.SUU., j.2333i R7iin1<la v. Iron 8, M.-Co.. 116 U, S. 887; Iroo S. M. Co. r. ReyooldB. \2A V. H. 374 ; Noyee v. Mantle. 127 U. S. 348. Manila Soyea, 6 Mout. 274 ; Noyes v. Maulle, 127 U. 8. 346.

mu. s. aeo.

'The facta recited in the nplnion of the suprenie (<ourt of MonUtns show thU the loile loostlon wm Junior hi point of time to the placer, but that It was mode prior to the filing of the plaoer applluatlnn for paloiL (Ratinhaiin v. Uttbl. 6 Mont. lOT.) We are advised that the record b, case auBlaioa the rMliaU found in the opinion of thn anpreme ooil Montana.

893 Lodb Claimant V. Placer Applicant. §720

That the court did not intend to decide that a lode claimant must adverse a placer application or be precluded from showing subsequently that the lode was known to exist at the time the placer application was filed, is manifest from its language in another portion of the opinion. "The only position upon which the defendant (the lode " claimant) can resist the pretensions of the plaintiff is, " that the placer gi'ound, for a patent of which he applied, " does not embrace the lode claim." That is, that the lode was known to exist within the limits of the placer ground prior to the filing of the placer application, and therefore did not pass by the placer patent. This view harmonizes with the later decisions of the same court.

Where a lode is known to exist at the time of the placer application, which is not claimed by either the placer applicant or anyone else, it will nevertheless be excepted out of the placer patent, and may be located and acquired even after the issuance of the placer patent.

A claimant to a known lode within a placer may, as a matter of expediency, protest against the issuance of the placer patent, and secure a segregation of his lode claim; but a failure to do so will not prevent him from showing at any time that the lode was known to exist at the time the placer application was filed, and that under the law such lode never passed by the placer patent.

We have heretofore discussed the location and patenting of lodes within placers, and noted the attitude of the land department upon this subject.'

The department has held, that where a lode claimant has failed to adverse a placer application, he will not be permitted to acquire more than twenty-five feet of surface on each side of the lode,' or will he limited to so much surface as is reasonablv necessarv for his use in connection with the located lode, where he ad verses and is defeated in the suit upon the adverse claim.*

' Iron S. M. Co. r. Mike A Starr G. A S. M. Co., 143 U. S. 394, ¥/7.

H 703, 701.

'Shonbmr Lode, 1 L. D. 551, 3 I.. D. 3%8.

Aaron Lode r. Bulger Hill and Nuiget Placer, 23 L. D.

§721 The Adverse Claim. 894

We have, however, endeavored in a preceding section to show the fallacy of this rule. As the law does not require the lode claimant to adverse where the lode is not included in the placer application, he loses no rights by failing to do so.

Controversies between these two classes of claimants involve the character of the land, and the department retains jurisdiction to investigate this question, even after the placer patent has been issued.

The force and effect of a placer patent will be further considered when dealing generally with the subject of patents.*

§ 721. Placer claimant v. lode applicant. — Where an application for a patent for a lode within the limits of a placer is made by a lode claimant, if the placer claimant asserts any right to the lode, he is necessarily called upon to adverse. Where his claim, however, is placer, pure and simple, under which claim he cannot lawfully assert a right to the lode, he has nothing upon which to base an adverse claim. If he disputes the existence of a lode within the limits of his placer, the assertion involves the character of the land — a question to be passed upon preliminarily by the land department, and ultimately by the courts, where the issue may be raised in any appropriate action other than those brought to determine adverse claims, under section twenty-three hundred and twenty-six of the Revised Statutes. These deductions logically follow from the principles announced in the preceding section.

There are several cases noted in the books where adverse proceedings have been instituted by the lode or placer claimant, and have been carried to judgment, where it seems to have been assumed that this procedure was proper. Among them we note the case of Bennett v. Harkrader.* We do not understand that there is anything in

'Ante, $ 413; South Star Lode (on review), 20 L. D. 204; Butte <fc Boston M. Co., 21 L. D. 125. 3 Post, $ 781. 158 U. S. 441.

895 Mineral Claimant V. Townsite Applicant. § 72*2

the opinion of the court militating against the views hereinbefore expressed. The effect of the judgment was not under consideration, and the land department treated it as not being conclusive against the right of the lode applicant to his lode, with some part of the surface/

Where the placer claimant ad verses the lode applicant, and institutes a suit thereon, the department has ruled that it will not proceed with the patent application until the action is dismissed or determined." This doctrine may be upheld upon the theory that there may be matters involved in the suit other than the sole question as to the character of the land.

To say that a claimant of a placer location, who does not assert a right to the lode applied for, is not a proper adverse claimant, which we think is the correct rule,' yet, at the same time, to concede that a suit brought in support of such a claim ousts the jurisdiction of the department, is to involve us in apparent inconsistencies. The courts and the land department are not altogether harmonious in their views upon the necessity for a placer claimant to adverse the lode applicant, or r ice rera; but as the courts have no power to compel the department to proceed to patent, the ruling of the latter as to the suspension of jurisdiction in the case cited gives to such a proceeding the full force accorded to a proper adverse claim. In this aspect of the case the department seems to be in full control of the situation. The courts must bide their time until the patent has been issued, when they alone have the power to determine its effect.

g 722. mineral claimant v. townsite applicant. — With the exception of townsites applied for by incorporated cities or towns under the act of March 3, 1891,* mineral lands cannot be entered under the townsite laws. A townsite

' AuFom Lode v, Bulger Hill A Nugget Placer, 23 L. D. 95, 348. Clipper M. Co., 22 L. D. 527; Iron S. M. Co. v. Mike Starr G. A S. M. Co., 6 L. D. 533. Ante, $ 721. Ante, ii 171, 174.

§723 The Adverse Claim. 896

patent when issued would exclude from its operation all valid known mines and mining claims. Therefore, the owner of such mines or claims is not called upon to adverse the townsite application.

This class of cases bears a striking analogy to cases of claimants of known lodes within placers discussed in another section,' and the principles there announced apply with equal force to mining claims within townsites.

With reference to townsite applications by incorporated cities or towns under the act of March 3, 1891, for the reasons set forth in the next section, we think it the duty of a lode claimant to adverse the townsite application in order that the question of prior occupancy, if any, and its limits may be defined and determined, to the end that proper reservations may be inserted in the townsite patent.*

g 723. Townsite claimant v. mineral applicant. — Following an opinion of the assistant attorney-general, the secretary of the interior held, that persons in possession of the surface of a mining claim, occupying it for residence or business purposes, were adverse claimants within the meaning of the act of July 26, 1866; and a like rule was announced by the department in construing the provisions of the Revised Statutes.®

The supreme court of Montana seems to have entertained the same opinion.

This rule was undoubtedly based upon the theory, that there were correlative rights to be protected by reservation clauses in the mineral patent — a rule which the courts decline to follow.*

Ante, $ 177.

2 Silver Bow M. M. Co. v. Clark, 5 Mont. 378, 415 ; Butte City Smokehouse Lode Cases, 6 Mont. 397, 404.

3 Ante, $ 720.

See, also, ante, $ 175.

Becker r. Citizens of Central City, 2 Copp's L. O. 98.

Papina v. Alderson, 10 Copp's L. O. 52 ; Rico Townsite, 1 L. D. 556 ; Ester v. Townsite of Cooke, 4 L. D. 212; Smokehouse Lode Cases, 4 L. D. 655 : In re Starr, 2 L. D. 759.

. ' Talbot V. King, 6 Mont. 76, 109. Ante, U71.

897 TOWNSITE CLAIMANT V, MINERAL APPLICANT. g 723

It seems to us that if the premises applied for by the mineral claimant are unquestionably mineral in character, they could not (except in the absence of a location within incorporated towns under the act of March 3, 1891) be acquired under the townsite laws. The prior occupation for residence and business purposes could not prevent the appropriation of such lands under the mining laws.* There could be no " horizontal partition " between the mineral and townsite claimant. A townsite occupant could have no legal right of possession to lands whose mineral character was known or discovered prior to the townsite entry; consequently he could have no adverse claim, in contemplation of the law, to the title of the mineral applicant. The relative position of the parties is parallel to the case of a known lode embraced within a placer, which is unclaimed by the placer owner — a subject discussed in a previous section.'

We have heretofore intimated that, in cases of incorporated cities and towns under the act of March 3, 1891, granting certain surface privileges to prior occupants of the surface of lode claims, such prior occupants are given the statiLs of adverse claimants, and that to protect their rights to the surface they must file their adverse claims and pursue their remedy in the courts. This upon the theory, that under this law a prior surface possession of mineral land for trade or business purposes within incorporated cities is lawful, and establishes a right in hostility to the mineral claimant. This rule, however, applies only to lode claims within incorporated cities or towns. As to placers, the entire surface is necessary to the successful working of the mine. There can be no correlative rights between townsite occupants and placer claimants.

Where a townsite entry has been perfected, and patent issued, or the purchase price has been paid, we cannot see upon what principle the holder of the townsite title should

Ante, $ 170. Afite, 721.

Ante, I 171. Ante, I 175.

§ 724 The Adverse Claim. 898

be required to adverse a subsequent mineral applicaflon, assuming, for the moment, that a townsite occupant is, in contemplation of law, an adverse claimant under any circumstances. A prior placer patentee is not called upon to adverse a subsequent lode application.

If a townsite patent embraces a mine whose existence was known at the date of the entry, it does not pass by the patent; consequently nothing could be gained by adverse proceedings instituted by the holder of the townsite title. If, on the other hand, the existence was not known, the townsite patentee has a right to " repose quietly upon " the suflSciency and validity of his patent."' His patent would cover it. The question as to whether such mine was or was not known to exist, may be litigated in any.form of action in which title to real estate may be tried.

§ 724. Millsite claimant y. mineral applicant. — The

mining laws recognize the appropriation of nonmineral public lands for millsite purposes.*

Such an appropriation, when completed by the user for mining or mill- purposes as contemplated by law, would prevent a subsequent lode locator extending his surface boundaries within the limits of the millsite, unless the lode on its course penetrated it.

To the extent that a conflict thus arising involves only nonmineral lands, the claim to the millsite would be adverse to the surface claim of the locator, and the millsite claimant would be called upon to adverse the lode applicant.

As between a prior millsite claimant and a placer applicant, the only question involved would be the character of the land. As we have heretofore observed, this is not the subject of an adverse claim, but of protest.

AnU, $718.

*Ante, $177.

5 Iron S. M. Co. r. Campbell. 135 U. S. 286, 299.

Ante, $$519-524.

Warren Millsite v. Copper Prince, 1 L. D. 555.

Ante, $717.

899 TUNNEL proprip:tor v. lode applicant. § 725

The supreme court of Montana has announced a contrary rule/ basing its ruling, to some extent at least, upon the opinion of the assistant attorney-general in the case of a townsite occupant against a mineral claimant" — a subject fully discussed in another section.'

For the reasons there set forth, we do not think the opinion referred to is based upon the correct view of the law. The character of the land is a question to be determined by the land department, and not the courts.*

g 726. Tunnel proprietor y. lode applicant.— The rights of tunnel locators and the unique position this class of locations occupy in the mining law have given rise to numerous conflicting decisions in the courts of the mining regions.

Commissioner McFarland held, that a tunnel location was a mining claim, and to protect his rights against a lode applicant the tunnel proprietor was required to flle his adverse claim and prosecute his suit thereon in the courts.*

This view was upheld by Secretary Kirkwood," and practically accepted by the supreme court of Idaho.'

The supreme court of Montana announced its view, that the applicant for patent ought to be restrained from prosecuting his proceedings while the tunnel proprietor is prosecuting his tunnel as required by law, and until it should be demonstrated that the vein would not be discovered in the tunnel, or until the tunnel rights were abandoned, thus practically giving the tunnel claimant the statuH of an adverse claimant."

The supreme court of Colorado denied the right of a tunnel proprietor to intervene in the patent proceeding

Shafer v, Coiistatis, 3 Mont. 3i)9,

' Becker r. Central City Townsite, 2 Copp's L. (). US.

*TioKa Cons. M. Co., 8 Copp's L. O. 88. Bodie Tunnekv. Bechtel Cons. M. Co., 1 L. D. 584. Back r. Sierra Nev. Cons. M. Co., 2 Idaho, :m, " Hope M. Co. V, Brown, 11 Mont. 370.

§725 The Adverse Claim. 900

where the lode applied for had not been discovered in the tunnel, and the lode location was not on the line (width of the bore) of the tunnel; but where a prior discovery had been made in the tunnel, the right of the tunnel locator to adverse a junior location of the same vein, based upon a subsequent discovery from the surface, was recognized by that court.

The circuit court of appeals for the eighth circuit announced its view, that as to blind and undiscovered veins which may be ultimately discovered in the tunnel, and also found within the limits of a mining claim located subsequent to the inception of the tunnel right, such mining location being based, however, on the discovery of another vein, the tunnel proprietor will not be deprived of his right to such blind vein when discovered in his tunnel, by reason of his failure to adverse the junior locator.

This doctrine has received the sanction of the supreme court of the United States. Said that court: —

"The obvious contemplation of the law in respect to " these adverse proceedings is, that there shall be a present " tangible and certain right, and not a mere possibility."*

In the light of this decision and the one which it affirms, the rule may be thus formulated: Where a lode claimant applies for a patent to a location embracing a lode which has previously been discovered in the tunnel, the tunnel claimant will be compelled to adverse to protect his rights. A right in the particular lode inures to the tunnel

' Corning T. Co. v. PeU, 4 Colo. 507.

" EUet V, Campbell, 18 Colo. 510.

Enterprise M. Co. r. Rico Aspen Cons. M. Co., (56 Fed. 200.

"Enterprise M. Co. r. Rico Aspen Cons. M. Co., U. S. 8up. Ct., May 10, imi.

This decision was announced some time after the chapter on tunnel claims (see, antt% iv, tit. v, $$ 46791) had been printed.

In many respects the decision does not support the theories of the author argumentatively presented in $ -191; but it is impossible to reprint the work or modify the text, if we had the inclination so to do. In the appendix in connection with the annotations to section twenty three hundred and twenty-three of the Revised Statutes will be found a reference to the opinion and the extent to which it modilies the conclusions reached in the chapter referred to.

901 Owners Of Lodes Located Prior To May 10, 1872. § 726

proprietor immediately upon its discovery in the tunnel, which right is essentially adverse to the lode applicant; but where there has been no discovery in the tunnel, and it cannot be demonstrated that the lode will be cut by the tunnel bore, there is no necessity for an adverse claim. Should a discovery of the vein be subsequently made in the tunnel, the surface locators rights will be subordinated to the rights of the tunnel proprietor, assuming, of course, that the inception of the tunnel right antedated the discovery by the surface discoverer.*

I 726. Owners of lodes located prior to May 10, 1872.

— Section sixteen of the act of May 10, 1872, substantially preserved in section twenty-three hundred and forty-four of the Revised Statutes, contained a proviso, " that nothing " contained in this act shall be construed to impair, in any " way, rights or interests in mining property acquired under " existing laws."

The supreme court of California has held, construing this provision, that where an application for patent was made subsequent to the passage of the act of 1872, based upon a location made prior to its passage, the claimant of another vein found within the surface limits of the ground sought to be patented, whose rights accrued under the act of 1866, was not called upon to adverse the patent application. His rights were preserved by the act under which patent proceedings were instituted.'

A similar rule had been previously announced by the supreme court of Utah.'

The supreme court of Arizona has expressed the opinion, that the prior locator was required to adverse in order to protect his rights; and the supreme court of Colorado gives its sanction to this doctrine so far as determining the owner-

'See, also, Hope M. Co. v. Hrown, 7 Mont. 550. Eclipse G. ifc S. M. Co. r. Spring, 59 Cal. 304.

'Black V, Butte S. M. Co., 2 Utah, 55— Chief Justice Schaeffer dissenting.

Watervale v. Leach (Ariz.), 33 Pac. 418, 420.

§727-728 The Adverse Claim, -902

ship of ore at spaces of intersection, should the veins be cross veins.*

Locations made prior to 1872 have, for the most part, either been patented, or, if not abandoned, been readjusted to conform to existing laws. The question is relatively unimportant.

g 727. Oro88 lodes. — We have fully discussed the subject of cross lodes in a preceding chapter, and have there noted, that in Colorado and Montana a junior locator of a cross vein is held to possess the right to follow his vein on its strike through the premises of a senior locator, the latter taking the ore at the space of intersection. Assuming that this is the correct doctrine, which we are not prepared to admit, the rule in Colorado requires the holder of the senior location to adverse the junior applicant in order to preserve his rights to the surface in conflict and to the ore at the space of intersection but in other respects, in cases of two cross lodes, neither junior nor senior locator is deprived of the right to pass through the other's ground by reason of failure to adverse the patent application, upon the theory, that the cross vein is excepted out of the grant and that the owner of such vein has a right of way of necessity.*

The rule in Arizona and California is opposed to this doctrine.**

g 728. Co-owners. — The land department has, by a uniform line of decisions, held, that where one of several colocators or co-owners applies for a patent in his own name to the manifest exclusion of 'his associates, the excluded owners are called upon to adverse the claim of the applicant,*' and that this rule applies to a co-owner whose interest is claimed in the patent proceedings to have

Lee V. Stahl, 9 Colo. 20, 13 Col. 174. A7ile, $$557-560.

3 Lee V, Stahl, 9 Colo. 208. 13 Colo. 174.

Branagran v. Dulaney, 8 Colo. 408, 413. , AnU, $560.

Mono M. Co. V, Magnolia E. A W. Co., 2 Copp's L. O. 68.

903 Co-Owners. §728

been forfeited for failure to contribute his proportion of the assessment work after demand and notice, although, as a matter of fact, the co-owner was not delinquent, and his interest was not subject to forfeiture.

Such pretermitted co-owner, according to departmental ruling, waives his rights by failure to adverse; and it has been held by the supreme court of Montana, that the patent proceeding will not be interrupted by a suit brought by such a co-owner, which is not based upon an adverse claim regularly filed but the regulations of the land department do not oust the jurisdiction of the courts of justice, or prevent them from controlling the legal title for the benefit of those who are entitled to it in equity and good conscience.'

As we have heretofore observed, the courts generally concede the rule to be, that where one of several co-owners in a mining claim applies for a patent in his own name, the excluded cotenants are not adverse claimants within the meaning of the law requiring the filing and prosecution of adverse claims.*

They may assert their equities in the patent title and have the patentee declared a trustee for the benefit of such co-owners as were wrongfully ignored in the patent proceeding.

In a preceding section we have commented upon the subject of forfeiture to co-owners under section twentythree hundred and twenty-four of the Revised Statutes, and have there intimated, following the suggestions made by Judge Elliott in his concurring opinion in Tabor v, Sullivan, that under certain circumstances, where the

' /n re Peck, 10 Copp'aL. 0. 119; J/i re Cunningham, 206; Grampian Lode, 1 L. D. 544; Hussey Ixxie, 5 L. I). a3 ; Monitor Lode, 18 L. D. 358.

Mattingby v. Lewisohn, 8 Mont. 259, 2ei3.

Turner v. Sawyer, 150 U. S. 578.

Ante, $ 406.

Antet $406; Brundy r. Mayfiold, 15 Mont. 201; Sussenbach v. First Nat. Bank, 5 Dak. 477, 501; Doherty r. Morris, 11 Colo. 12; Hunt v. Patchiu, 13 Saw. 304, 309.

Ante, $646.

12 CJolo. 136, 151.

§§729-730 The Adverse Claim. 904

claim is held by one co-owner in open hostility to the others, and there is a well recognized repudiation of title brought to the notice of the excluded cotenants, their rights may be lost by failure to adverse.

If, prior to the institution of the patent proceedings, there had been such an ouster of a cotenant as would set the statute of limitations in motion, such a notorious and unequivocal denial of a cotenant's rights brought to his notice as to impose upon such cotenant the necessity of protecting his interest — such conduct by the co-owner in possession which in law creates an adverse holding — under these conditions we think the courts would compel the ousted cotenant to assert his rights in the patent proceedings.

What acts are necessary to constitute such an ouster and change the possession of one co-owner into an adverse holding against another, must be determined by the general law of cotenancy. It is not within the legitimate

scope of this treatise to determine such collateral questions.

g 729. Easements. — Patents when issued are issued subject to accrued water rights, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under, or recognized by, the laws of congress. Such rights furnish no ground for an adverse claim. They are fully protected by the provisions of the federal law.

The parties are not rival mining claimants, to whom the law on the subject of adverse claims only applies.'

The same may be said of public highways. The right of all parties to use the high way will be as secure under the law as if title had remained in the government.

g 730. Underground conflicts. — An application for patent invites only such contests as affect the surface area.

Freeman on Cotenancy, $ 229.

Rev. Stats., 2339, 2340; Rockwell v. Graham, 9 Colo. .36.

Copp's Min. Dec. 76; Rev. Stats., $ 2477; on subjects of easements generally, see <int€, $ 530.

Adverse Claim — Amendments.

§734

A possible onion of veins underneath the surface cannot be foreshadowed at the time the application is made. When such a condition arises, it is adjusted by reference to surface apex ownership and priority of location not involving any surface conflict

The rule is well settled, that conflicting adverse rights set up to defeat an application for patent cannot be recognized in the absence of an alleged surface conflict.*' Prospective underground conflicts are not the subject of adverse claims.

Article III. How, When, and Where Adverse

Claim Mist be Asserted.

734. Adverse claim — How asserted — Contents of the dairn — Amendments.

$735. Survey of the adverse claim.

$796. Verification of the claim.

$ 737. Sufficiency of adverse claims to be determined by land department.

$738. When adverse claim must be filed — Time how computed.

$739. Where adverse claim must be filed.

vW40. But one adverse claim need be filed.

741. Filing of adverse claim suspends the powers of the land department.

vS742. Efi'ect of failure to file an adverse claim.

g 734. Adverse claim — How asserted — Contents of the claim — Amendments. — Tlie law requires that the instrument by wliich the adverse chiini is asserted shall show the nature, boundaries, and extent of such claim. This is supplemented by the following regulation of the department. The adverse notice must fully set forth, —

nature and extent of the interference or conflict; " whether the adverse party claims as a purchaser for

Champion M. Co. r. Cons. Wyoming M. Co. 7o C'al. 78, 82.

New York Hill Co. v. Rocky Bar Co., L. D. 318; Smujgler M. Co. Trueworthy I-K>de Claim, 19 L. 1). 3.">*3 ; ChoUar Potosi and Bullion M. Co. c. Julia G. & H. M. Co., Copp's Min. Lands, 03, Copp's Min. De<'. 101 ; Julia G. <fc S. M. Co., Copp*8 Min. Dec. OtJ ; Saratofa Lode /'. Bulldozer Lode, Sickles Min. Dec. 252; 7?i n' Mt. Joy Ixie, Copp's Min. Dec. 27 ; Eureka M. Co. Pioneer Cons. Co., H Copp's L. Vnl

Rev. Stats., $2326.

§ 734 The Adverse Claim. 906

valuable consideration or as a locator; if the former, a certified copy of the original location, the original conveyance, a duly certified copy thereof, or an abstract " of title from the oflSce of the proper recorder should be furnished; or if the transaction was merely a verbal one, he will narrate the circumstances attending the purchase, the date thereof, and the amount paid, which facts should be supported by the afl5davit of one or more witnesses, " if any were present at the time, and if he claims as a " locator he must file a duly certified copy of the location from ttie oflSce of the proper recorder."

The object to be accomplished, as was said by Assistant Attorney-general Smith,is to fairly advise the applicant of the nature, boundaries, and extent of the adverse claim, so that he may prepare himself to establish, on the trial before the courts, his own rights, and defeat the adverse claim.

The instrument should show the qualification of the claimant and such facts from which, assuming them to be true, the inference may be clearly deduced that the party asserting the adverse claim has the right of possession to a valid subsisting mining claim, a portion at least of which conflicts with the tract embraced within the pending application. The sufficiency of the adverse claim as filed should be tested by the ordinary rules of pleading, where a general demurrer is interposed to a complaint.

If such adverse claimant asserts a right to a patent, he must set forth in his claim all the facts necessary to establish such right. For example, the expenditure of five hundred dollars in betterments or improvements, \vhile it is not a prerequisite to the filing of an adverse claim, is a condition precedent to the issuance of a patent. Therefore, when such adverse claimant seeks a patent as the result of a successful prosecution of his claim, he should aver compliance with the law in this behalf.

While the land department may be satisfied with a less complete statement of the adverse claim than that

' Gen. Min. Reg., par. 85. "Sickles Mi n. Dec. 232.

Robinson v. Mayger, 9 Copp's L. O. 5; City Rock A' Utah r. Pitts, 1 Copp's L. O. 146.

907 Survey Of The Adverse Claim. § 735

herein suggested, the general principle herein announced is unquestionably the correct one, and should be followed. When an adverse claim has once been filed, it cannot be amended after the period of publication has elapsed, so as to embrace a larger portion of the premises applied for than that described in the original adverse claim but during the period of publication, there is no reason why the adverse claimant should not be permitted to correct inaccuracies and errors in the original by filing an amended claim.

§ 736. Survey of the adverse claim. — In order that the " boundaries " and " extent " of th6 claim may be shown, the regulationsof the department" require the adverse claimant to file a plat showing his entire claim, its relative situation or position with the one against which he claims, and the extent of the conflict. This [)lat must be made from an actual survey by a United States deputy mineral surveyor, who must officially certify to its correctness.**

When the adverse claimant asserts an adverse right to the whole of the tract applied for by the identical metes and bounds of the patent survey, such, for instance, as an excluded co-owner, whom the department recognizes as an adverse claimant,* or a purchaser at a tax or execution sale, claiming to have succeeded to the entire title of the applicant by an instrument which would not carry the subsequently acquired patent title, no survey would be required. There would be no surface conflict requiring delineation.

So, also, where an application for patent describes the claim by legal subdivisions, as in ordinary cases of placers upon surveyed lands,'' the adverse claimant, if also claiming

' Copp's Min. Dec. liHi.

'Oen. Min. Keg., par. 86.

' Judfie Beatty, sittinfr as circuit judge for the district of fdalio, lias held this regulation to be unreasonable, and void so far as it prevents the survey from being made by any surveyor other than a I'nited States deputy (Anchor r. Howe, 50 Fed. 300).

Ante, $ 728.

*ii/e, M(r72, 700.

§735 The Adverse Claim. 908

by legal subdivisions, may describe his adverse claim in the same manner without further survey or plat/

In some instances, where a survey of the adverse claim is impossible by reason of climatic conditions or the depth of snow during the time within which the adverse right must be asserted, or where the patent applicant obstructs the adverse claimant and prevents the making of a proper survey,' the rule requiring an actual survey is relaxed, and the adverse claimant may make such showing as the circumstances of the case will permit, setting forth fully in his claim as filed the reasons why the rule is not complied with. In other words, he must plead the facts showing that noncompliance with the rule is excused.

Ordinarily, however, an actual survey is required. Merely coloring on a copy of the applicant's plat the portion alleged to be in conflict will not suffice.*

The survey of the adverse claim is not made under the supervision of the surveyor-general, nor is the work of the deputy mineral surveyor platted in the surveyor-general's office. Nevertheless, the survey should be made and platted with the same care, and the field notes should be as full, as in cases of patent surveys. Otherwise, in case the adverse claimants prevail in their suit, and succeed in establishing their right to the conflict area, the land officers will not be able from the data furnished to so describe the conflict area as to except it from the patent to the applicant. The applicant would be compelled to go into the field and resurvey the conflict. Ordinarily he is required by the department to do this; but the necessity for this, it seems to us, might be obviated if the adverse claim is properly surveyed, platted, and described in the first instance.

Gen. Min. Reir., par. 86; Diecknian r. Good Return M. Co., 14 Copp*8 L. O. 237.

'Hoffman r. Beecher. 12 Mont 489; Philadelphia M. Co. r. Finley, 10 Copp's L. O. 340 ; /n re Wallace, 1 L. D. 582.

' In re Jenny Liiid M. Co., Sickles Min. Dec. 223, 227. See, also, unreported cases cited in Clark, Heltman,and ConsauL's Min. Land Digest, p. 2a3, par. 134.

Bates Chambers, Sickles Min. Dec. 2b5, 207.

909 Verification Of The Claim. §736

The regulations of the department also require, that there be attached to the plat of adverse survey a certificate or sworn statement of the surveyor as to the approximate value of the labor performed or improvements made upon the claim by the adverse party or his predecessors in interest, and the plat must indicate the position of any shafts, tunnels, or other improvements, if any such exist, upon the claim of the party opposing the application, and by which party the improvements were made.

This, however, will not dispense with the necessity of obtaining a plat ,and field notes of survey properly made and approved by the surveyor-general, together with the latter's certificate of five hundred dollars' worth of improvements, in the event the adverse claimant is successful and wishes to proceed to patent/

Whether or no the successful adverse claimant may proceed to patent, after the termination of judicial proceedings, without the publication and posting required in the case of original applications, will be considered'in a subsequent section."

g 736. Verification of the claim.TT-The adverse claim may be verified by the person or persons making the same,* or by the oath of any duly authorized agent or attorney in fact of the adverse claimant cognizant of the facts stated.* The oath must be taken in the land district, excepting where the adverse claimant is a nonresident, or is absent from the limits of the district wherein the claim is situated, in which case he may make oath to the adverse claim before the clerk of any court of record of the United States, or of the state or territory where the claimant may then be, or before anv uotarv public of such state or territory.*

' 7/1 vf Tlarsli, 2 L. D. 7CM>.

- POfify 7CA.

3 Rev. Stats., 2:J.ir,.

' Act of April 2), 1882, 22 Stats, at Large, 49. 5 Gen. Mill. Keg., par. 84 ; Rev. Stats., $ 2;.5.

"Act of April 2(), 1882, 22 Stats, at Large. 49; Circ. Instructions, 1 L. D. 685.

§737 The Adverse Claim. 910

Where the verification is made by an agent or attorney in fact, he must distinctly wear that he is such agent or attorney, and accompany his aflSdavit by proof thereof/

This necessarily implies the production of a written instrument or certified copy thereof, showing the designation and appointment of the agent.

In cases of corporations, the verification may be made by any of its oflScers selected, or an agent specially designated for that purpose. The authority taact for the corporation must be shown," and is usually evidenced by a copy of the resolution of the board of directors, or other governing body, duly certified by the secretary under the corporate seal.

An adverse claim filed by, or on behalf of, a number of persons claiming an interest as cotenants, may be verified by one in behalf of all.'

In this respect the rules announced with regard to patent applications* by co-owners apply with equal force to adverse claims asserted by them.

g 737. Sufficiency of adverse claim to be determined by land department. — The objection to the sufficiency of the adverse claim is one that is to be raised before and determined by the land department.

Matters of form are decided by the department. The merits are to be tried by the courts.®

Ordinarily, however, after suit has been commenced in support of the adverse claim, the land department is disinclined to entertain an attack upon the sufficiency of

Gen. Min. Reg., par. 83.

Hawley Cons. M. Co. v, Meinnon M. Co., Sickles Min. Dec. 235.

'Jenny Lind M. Co. r. Eureka M. Co., Sickles Min. Dec. 223; Copp's Min. Dec. 19, 175.

*Ante, $681.

Roser. Richmond M. Co., 17 Nev. 25, 55; affirmed, 114 U. S. 576; Hoffman v, Beecher, 12 Mont. 489, 497; Quigley v. Gillett, 101 Cal. 462; Tilden v. Intervenor M. Co., 1 L. D. 572; War Eagle Mine. Copp's Min. Dec. 195.

Chambers r. Pitts, 3 Copp's L. O. 162; City Rock <fe Utah r. Pltte, 1 Copp's L. 0. 146.

911 Land Department Determines Sufficiency. § 737

the claim as filed, relegating all the questions to the courts.

If, upon objection taken to the sufficiency of the adverse claim, it is rejected by the local officers, the adverse claimant has a right of appeal.

If the objection is not sustained, the applicant for patent may prosecute an appeal to the commissioner."

Whether or no, pending such appeals, the time to commence the action runs, has been decided both ways by the department. In one case, upon an appeal from a decision rejecting the adverse claim, where the decision was reversed and the claim ordered filed, the adverse claimant was allowed thirty days after notice of the decision on appeal within which to commence suit, thus practically suspending the operation of the statute pending the appeal.'

In a later case, however. Secretary Smith ruled, that delay bv the adverse claimant bevond the date which marked the close of the thirty days allowed him by statute was at his peril. The dismissal of his adverse claim for anv cause bv the local officers could not excuse the delay.'

The practice on the subject is involved in some obscurity. The department insists that it has the abstract right to determine the sufficiency of the adverse claim, and the courts not only concede this, but hold that the department has the exclusive privilege. After a suit has been commenced, the department relegates this question to the courts, who hold that they have no power to determine it.

It is not difficult to outline the safest course. Where an adverse claim is filed, it is incumbent upon the claimant to commence his action within the statutory period, whether the sufficiency of the claim is assailed before the department or not. Where the suit has been commenced the department should, as it generally does, suspend further proceedings; otherwise the patent when issued may be

McMator'8 Appeal, 2 T.. D. 706, 707; Reed v. Hoyt, 1 Ij. D. 003; Brown r. Bond, 11 L. I). 150, 1.54.

' Overman r. Dardanelles M. Co., Copp's Min. Dec. 181. ' Hawkeye Placer r. Gray Eagle Placer, 15 L. D. 45, 47. Scott V. Malonev. '22 L. D. 274.

§ 738 The Adverse Claim. 912

treated as void for want of jurisdiction/ unless, as has been suggested, the adverse claimant in the meanwhile dismisses his suit.*

§ 738. When adverse claim must be filed— Time how computed. — All adverse claims to be effectual for the purposes contemplated by law must be filed prior to the expiration of the sixty-day period of publication of the application notice.

As we have heretofore noted when a publication is ordered in a weekly newspaper, ten consecutive insertions are necessary, covering a period of sixty-three days, the first insertion being excluded from the computation. The adverse claim, however, must be filed within the sixty days. Such a claim filed on the sixty-second day has been held to be too late.*

The department at one time held, that a filing on or before the sixty-third day was within the time.*

This requirement as to time is mandatory and jurisdictional.

It is a short statute of limitations, and there is no authority, either judicial or executive, to extend or abridge the period; nor is it subject to extension by act of the parties. It is wholly beyond their control.

In computing the sixty-day period, the date of the first publication is excluded.®

' Richmond v. Rose, 114 U. S. 576. Deno V. Griffin, 20 Nev. 249. 3 Ante, $690.

Hunt V. Eureka Gulch M. Co., 14 Colo. 451 ; Miner v. Mariott, 2 L. D. 709; Ground Hog Lode r. Parole <fc Morning Star Lodes, 8 L. D. 430; Nettie Lode v. Texas Lode, 14 L. D. 180; Ledger Lode, 16 L. D. 101; Bonesell v. McNider, 13 L. D. 286; Great Western Lode, 5 L. D. 510.

Acting Coni'rs* Letter, 2 Copp's L. O. 164 ; Miner v. Mariott, supra,

Tiernan v. Salt Lake M. Co., 1 Copp's L. O. 25 ; Equator M. <fe S. Co., 2 Copp's L. O. 114.

' Tilden v, Intervenor M. Co., 1 L. I). 572.

Hunt V. Eureka Gulch M. Co., 14 Colo. 451 ; In re Hngland, 1 L. D. 691; Morrison r. Lincoln M. Co., 6 Copp's L. O. 105, Sickles' Min. Dec. 208 ; Jn re Independence Lode, 9 L. D. 671.

Gen. Min. Reg., par. 34; Waterhouse v, Scott, 13 L. D. 718; Miner v. Mariott, 2 L. D. 709; Bonesell v. McNider, 13 L. D. 286.

813 WUEN f

If the sixtieth day falls upon Sanday, or upon a day set apart by the laws of the State as a legal holiday, tlie adverse claimant would have all the next business day within which to file his claim."

As noted in a preceding section,' there are three complementary and concurrent methods of giving notice to adverse claimants, viz. posting on the ground, posting in the register's office, and publication in the newspaper. As we have heretofore outlined in the patent proceeding,* the posting on the ground precedes the filing of the patent application. Posting in the register's oflSce usually either precedes or is contemporaneous with the first publication, but this is not always the case. Where there is a failure to post the notice, either on the ground or in the local land office, the period of publication does not commence to run until such posting is effected.

The rule is thus stated by Acting Secretary Muldrow: —

" When notice is required to be given by different forms " and raotlea, to cover the same continuous period of time, " aotice by either of the different modes will not run " against an adverse claimant until notice has been given " by each and every mode and form required. An adverse " claimant does not take notice by publication until notice " is posted in the local office, as required by law, although " publication may have commenced prior to the filing of " notice in the local office. The sixty days within which " adverse claims may be filed will be computed from the " time when notice has been given by all the modes " required."'

if, after posting in the land office, and during the period of publication, the land office should be closed, the period during which it remains closed is permitted by the department to be deducted in computing the period of publication. The time would again commence to run upon reopening the office, or, in case the office is removed to another

*OrMt WeBlru Lode Claim, L. U. 510.

§739 The Adverse Claim. 914

locality, upon posting in the new office when opened for the transaction of business.

When, during the vacancy in the office of register, a notice is published under the direction of the receiver acting as register under instructions from the land department, it has been held, that as the receiver is a de facto officer, the publication will be held valid, although the instructions of the department were not authorized by law."

When, by reason of substantial defects in either posting or publishing the notice, a new notice is required to be given, adverse claimants will have sixty days from the first publication of the new notice in which to file their adverse claims.'

The time when an adverse right originates, is a matter of no moment/

'An adverse claim filed after the period of publication may be treated by the department as a protest, the merits of which are to be determined exclusively by the land department, without reference to the courts.*

g 739. Where adverse claim must be filed. — Ad

adverse mining claim must be filed with the register and receiver of the land office where the application for patent was filed, or with the register and receiver of the land office in which the land is situated at the time of filing the adverse claim.*

A delivery to either of the-land officers outside of business hours and on a Sunday, and at a place other than the land office itself, has been held to be sufficient when the officers received it and it was acted upon.

Tilden v. Intervener M. Co., 1 L. D. 572. 'Jeffords v, Hine (Ariz.), 11 Pac. 352.

' Jm r<? American Flaj? Lode, 6 L. D. 320; Wheeler r. Smith, 23 L. D.

Ovens r. Stephens, 2 L. D. 699.

Nettie Lode v. Texas Lode, 14 L. D. 180; Bodie Tunnel r. Beehtel Cons. M. Co., 1 L. D. 584; McGarrahan r. New Idria M. Co., 3 L. D. 422.

Gen. Min. Reg., par. 82.

Sayer r. Hoosac Cons. G. A S. M. Co., 6 Copp*8 L. O. 73 ; In re Jenny Lind M. Co., Sickles' Min. Dec. 224.

915 Filing Suspends Powers Of Department. §§ 740-741

Such officers are hot expected to transact business out of office hours, nor on Sundays, and a tender to them of an adverse claim and their refusal to accept under such circumstances would not be considered equivalent to a filing.

The adverse claimant must pay the fees of the land officers for filing the claim, if such fees are demanded. Until such fees are paid or tendered, the instrument will not be considered as filed.

g 740. But one adverse claim need be filed. — A party, after applying for a patent, cannot, after a contest is raised and while it is pending, make a second application, and thus compel the adverse claimant to protest in the latter proceeding. Having done all that the law required of him to do, the adverse claimant is entitled to have the questions at issue determined in the first proceeding. If, in disregard of this right, the department entertains a second application, and, in the absence of the assertion of an adverse claim, issues a patent, such instrument will be void for want of jurisdiction.-

g 741. Filing of adverse claim suspends the powers of the land department. — When an adverse claim is filed within the time required by law, all proceedings upon the application in the land office, except in reference to the publication and proof of notice, are stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived.'

Proceedings taken by the department prior to such determination or waiver are void for want of jurisdiction. What constitutes such a waiver as will remove the suspension and permit the applicant to proceed to patent will be discussed in a succeeding section.*

Omaha G. M. Co., 3 Copp's L. O. 36.

'Rose V. Richmond M. Co., 17 Nev. 25, 67; Richmond M. Co. v. Rose, 114 U. S. 576.

'Rev. Stats., $2326; GwiUim v. Donnellan, 115 U. S. 45,49; Richmond M. Co. V. Rose, 114 U. S. 576.

Id. Post, $ 766.

§742 The Adverse Claim. 916

g 742. Effect of failure to file an adverse claim. —

It is so well established as to be axiomatic, that a faihire to file an adverse claim within the time fixed by law operates as a waiver of all rights which were the proper subject of such a claim.*

The issue of a patent to the applicant is equivalent to determination by the United States in an adversary proceeding, to which the owner of the adverse right is in contemplation of law a party, that the applicant's and patentee's rights were superior, and those which might have been asserted by the holder of the adverse title were valueless.* In other words, all matters which might have been tried under the adverse proceedings are treated as adjudicated in favor of the applicants, and all controversies touching the same are to be held as fully settled and disposed of, as though judgment had been regularly rendered in their favor.'

A failure to assert adverse rights, however, will not estop an adverse claimant from protesting and bringing to the notice of the department such facts as tend to show noncompliance by the applicant with the requirements of the law.*

Richmond M. Co. r. Rose, 114 U. S. 576, 585; Dahl v. Raunheim, 132 U. S. 260; Eureka Caae, 4 Saw. 302; Marshall v. Kirtley, 12 Colo, 410; Raunheim v. Dahl, 6 Mont. 167; Lee v. Stehl, 9 Colo. 208, 13 Colo. 174; Hamilton v. Southern Nev. G. <fe S. M. Co., 13 Saw. 113; Champion M. Co. V. Cons. Wyoming M. Co., 75 Cal.' 78, 82; Hunt v. Eureka Gulch M. Co., 14 Colo. 451; Wight r. Dubois, 21 Fed. 693: Seymour r. Fisher, 16 Colo. 188; Kannaugh v. Quartette M. Co., Id. 341; Girard v. Carson, 22 Colo. 345; Warren Millsite v. Copper Prince M. Co., 1 L. D. 555; Bodie Tunnel v, Bechtel Cons. M. Co., 1 L. D. 584 ; In re Gold Blossom, 2 L. D. 767 ; Branagan v. Dulaney, Id. 744 ; Manhattan M. Co. v. San Juan M. Co., Id. 698; Wight v. Tabor, Id. 738; Southwestern M. Co. v. Gettysburg Lode, 4 L. D. 271 ; Whitman v. Haltenhoff, 19 L. I). 245 ; Gowdy v. Kismet G. M. Co., 22 L. D. 624.

-Gwillim V. Donnellan, 115 U. S. 45, 51.

Snowflake Lode, 4 L. D. 30; Petit v. Buffalo G. A S. M. Co., 9 L. D.

♦ Nevada Lode, 16 L. D. 532; Waterloo M. Co. v. Doe, 17 L. D. 111.

Chapter V.

Actions ' To Determine Adverse Claims, And The

Effect Of Judgment Thereon.

Article I. Introductory — Tribunals Having Jurisdiction.

II. Character of the Action — Pleadinqs and Practice — Functions op the Land Department Pending the Action.

III. The Judgment and its Effect.

Article I. Introductory — Tribunals Having

Jurisdiction.

J 746. Introductory — What courts are courts of competent

are essentially federal in their nature.

jurisdiction. J749, The federal courts are the

$747. The federal courts. j only ones upon which

J 748. The questions involved in j congress can confer juris-

the adverse suit neces- ' diction, or over whose

sarily arise under the laws j procedure it may exercise

of the United States, and j legislative control.

I $ 750. The state courts.

§ 746. Introductory — What courts are courts of competent jurisdiction. — Section twenty-three hundred and twenty-six of the Revised Statutes provides as follows: —

" It shall be the duty of the adverse claimant, within " thirty days after filing his claim, to commence proceed- " ings in a court of competent jurisdiction, to determine " the question of the right of possession, and prosecute the "same with reasonable diligence to final judgment; and " a failure to do so shall be a waiver of his adverse " claim. . . ."

This was suppleirrfented by the act of congress of March 3, 1881/ which provided that, —

§ 746 Actions To Determine Adverse Claims. 918

" If, in any action brought pursuant to section twenty-three " hundred and twenty-six of the Revised Statutes, title to the " ground in controversy shall not be established by either " party, the jury shall so find, and judgment shall be entered " according to the verdict. In such case, costs shall not " be allowed to either party, and the claimant shall not " proceed in the land office or be entitled to a patent for " the ground in controversv until he shall have perfected " his title."

We have already observed, that upon the filing of the adverse claim the powers of the land department, except for certain limited purposes, are suspended until such time as the merits of the claim are litigated and determined in the courts, or the adverse claim is waived.*

The law does not specifically designate the particular court whose jurisdiction is to be invoked. It simply requires that the adverse claimant commence proceedings within a specified period in a court of competent jurisdiction.

The question as to what courts are competent may be considered in two aspects: —

(1) Upon what courts hs congress the power to confer jurisdiction, and to which it may lawfully relegate the trial of questions involving the right to purchase its public lands;

(2) What is the character of the action required to be prosecuted, and the nature of the relief sought, as upon these elements the question of jurisdiction frequently depends.

It is not difficult to arrive at the manifest intention of congress in enacting these laws. In the early period of mining in the west, the possessory title to mineral lands of the public domain was goverened by the local rules and customs of the vicinage, which, while possessing the same general characteristics, varied in some respects in different localities. In later periods permissive state legislation superseded, to a great degree, the primitive system, the

r'araisDicTiox.

g 746. J

[ regulation, liowever, still perforriiinf:; some function.] 9 two elements, althougli somewhat incongruous, wheal not in conHict with the federal law become a part of it, tofl sucli an extent that Ihe congressional law could not be fuUya administered without giving them due consideration. Thea local courts of general jurisdiction first recognized the local I customs, determined their force and validity, and iheirl decisions ripened into rules of property' which the government, as the paramount proprietor, acquiesced in, first, by passive noninterference, and then by judicial and legislative recognition.'

When congress passed the lode law of 1806, which was I but a crystallization of the local rules, it embodied in : provision of the same general import, with reference to adverse claims, as that now embodied in section twentytlirea hundred and twenty-six of the Revised Statutes. I'nder the actor 1S66 adverse claims were to be adjudicated by courts of comprieni jurisdiction.*

In giving legislative recognition and sanction to thia system of local regulation, congress undoubtedly intended that the tribunals which had, since tlie discovery of gold iaJ California, determined the conflicting rights of miners upon J the public mineral lands by reference to these local rules, f should continue to perform that office. In other words, it I was practically a part of the system which the government I recognized.

The government, in effect, said to tite miners: "Wa " recognize your right to explore the public mineral landa, " and in acquiring poasesaory rights we permit you to be govemed by such rules as you may voluntaril)' adopt, provided ] e not in conflict with the congressional law, and are nized and enforced by the decisions of your local If controversies arise, settle them in thesecourts, ' "and when an adjudication is had before them, we will I " recognize it as establishing the right of Ihe successful

rarty to purchase the land."

' Act Qt Ja]j 'JC. laiMi, i a. Sea appendix

Actions To Dgtebhike Advehse Claims.

No critical inspection of the law from a constitutional standpoint was thought of.

In recent years, liowever, some questions have arisen to I perplex the courts. Questions of pleadinr and practice, W/tbe exact relationship between the courts and the land I department in administering the mining laws, as well as I questions of jurisdiction, which, while lost sight of or practically ignored in the early periods, are now forcing themselves upon the attention of the profession. In order to reach a solution of such of these questions as are solvable on consistent linos, we will divide the courts into the two divisions naturally suggested when the construction of an act of congress is called in question, viz. federal and state. Lttiid consider each class separately.

g 747. The federal courts.— There can be no questi) but that, under certain circumstances, at least the circuit court of the I'nited States for the district in wliicli llie mining claim is situated would be a court of competent Ljurisdiction to determine the issues arising out of an I adverse claim. The action contemplated iuvotves the right I of possession to real property. As the federal judicial system is at present constituted, the circuit court is the only court, except in the territories, upon which congress could be presumed to confer jurisdiction in the absence of an act

creating or specially designating some other tribunal.

Where there is a diversity of citizenship, and the value lof the property in controversy is sufficient, there can mbe no question but what this court would be competent to

try and determine the issue. This would be the case in ftuny ordinary controversy arising between citizens of different lBtates,such as an action of trespasser ejectment concerning I mining claim wholly disconnected with any patent proceedings. But iu the absenceof this diversity of citijieuship, is tlie circuit court a court of competent jurisdiction in ail cases to try and determine all suits brought under the requirements of section Iwenty-three hundred and twentysix of the Revised Statutes? Tn other words, when the

ite, I

Questions Invoi,Tbd Ik Trb Advkr8K Suit.

applicant and adverse olaimant are both residents of llie same state, may the adverse claimant institute his suit in ihe United States circuit court, the jurisdictional value being present? We think thai he may, for two reasons: —

(!) The questions involved necessarily arise under the lawa of the United States, and are essentially federal in ' their nature;

(2) The tribunal is one of the only class of courts upon whom congress has the power to confer jurisdiction.

A third reason is also suggested, viz. The United States is, necessarily, a tpiasi party to the action.

We will consider these questions in the order named.

'i, 748. The questions involved in the adverse suit necessarily arise tinder the laws of the United States, and are essentially federal in theirnatare.— There is no necessity for either asserting or attempting to prove that the mere construction of an act of congress involves a federal question, in order to maintain that suits upon adverse claims necessarily arise under the laws of the United States, and, in a legal sense, involve their construction. In most actions concerning mining claims, the parties agree as to the proper role of construction to bo applied to the mining laws, and the controversies are usually limited to questions of fact relating to the compliance with these laws. In such cases th federal courts have noorigiual jurisdiction, unless there is a diversity of citizenship;' but in eases arising under section twenty -three hundred and twenty-six of the Revised Statutes, the atdhorily for the action is found in the legislation of congress. Without this authority the action for the purposes avowed by the statute could not be maintained

As was said by Justice .Miller, sitting as circuit justice :—

"It is impossible that such an action nsthis can be deter-

" mined witiiout reference to, and involving a construction '

'Tf(UMi r. Soiigiins, i JiiBW. ITS; Wlae i: Nixon, Fed, :i,

§ 748 Actions To Determine Adverse Claims. 922

" of, the miniug laws of congress. The question involved " necessarily arises under the laws of the United States, " and hence this court has original jurisdiction of the " subject-matter of the action."*

The late Judge Sawyer, in the case of Burke v. Bunker Hill & Sullivan M. Co.,' reached a similar conclusion. Said that judge: —

" It is claimed on one side, and denied on the other, " that the suit having been brought to determine the title " to a mining claim, in pursuance to the requirements of " section twenty-three hundred and twenty-six of the " Revised Statutes as amended in March, 1881, is for that " reason a suit arising under the laws of the United States " within the meaning of the statute giving jurisdiction on " that ground, irrespective of the character of the ques- " tions involved in the litigation. It seems to us that all " the authorities as they now stand have determined the " question in favor of the aflSrmative of this proposition. "... We therefore hold, upon these authorities, that " the record shows a case for national jurisdiction, as aris- " ing under'the laws of the United States, for the reason, " that it was brought in pursuance of the requirements " of section twenty-tliree hundred and twenty-six as " amended, and, therefore, it is not within the decisions of " Trafton v. Nouges, 4 Saw. 178, and Water Co. v, Keyes, " 96 U. S. 199, and cases following those decisions."

This ruling was followed by Judge J. H. Beatty, sitting as circuit judge, district of Idaho.*

Judge Knowles, in the Montana circuit, had previously reached the same conclusions and practically on the same line of reasoning as that employed by Judge Sawyer.

That Judge Hawley entertains similar views is manifest from a perusal of his opinion in the case of Wise v. Nixon.

When we consult the decisions of the supreme court of theXlnited States, we find nothing which militates against this doctrine.

Frank G. fe S. M. Co. v. Larimer, 8 Fed. 724.

2 46 Fed. 644.

3 Kutter t'. ShoAhone M. Co., 75 Fed. 37. Strasburger r. Beecher, 44 Fed. 213.

76 Fed. 3.

(tKDERAI. COrRTS THK OSI.Y .lURISDICIlONAL OSKS. g 749'l

I the case of Rotter i-. Shoshone M. Co., supra, it waal jided by counsel that the case of Biishnell v. Crookel Its. Co.,' negatived it, but, as clearly pointed out hyt I Beatty, no sucti question was involved. It did not I Mir upon Ihe face of the record, and was raised for tlio I first time by a petition for rehearing, after the state court I qS last resort had passed upon the merits of the appeal J B the record as presented and errors assigned, ckson V. Roby- was a case which came before the I

feme court of the United States on writ of error to the I

circuit court for the district of Colorado. The action was I in support of an adverse claim. As the appellate court I determined the case upon its merits, it is fair to presume I ,it entertained no doubt of its jurisdiction. Chambers v. Harrington,* a case on appeal from the I B court of Utah, Justice Miller said: — " It is apparent that the statute requires a judicial pro- " cecding in a competent court. What is a competent ] " court is not specifically stated, but it undoubtftdly means "a court of general Jurisdiction, whether it be a state " court or a federal court, and as . . . the rights are dependent upon the laws of the United States, we see no reason why, if the amount in controversy is sufBcient in a case tried in a court of the United Slates, . . . the " judgment may not be brought to this court for review."

With this array of authorities, it would seem unnecessary to cite additional reasons for the rule; but there are j others which we think equally potent.

it 749. The federal courts are the only ones upon which congress can confer jurisdiction, or over whose procedure it may exercise legislative control. — Congress cannot confer jurisdiction upon courts, but such as exist under tlie coustitution and laws of the United States.' As was said bv Justice Storv in Martin r. Hunter's Lessee — I

lOBU. S. i40.

§749 Actions To Determine Adverse Claims. 924

" Congress cannot vest any portion, of the judicial power " of the United States, except in courts ordained and estab- " lished by itself. ... It would therefore seem to follow " that congress is bound to create some inferior courts, in " which to vest all that jurisdiction which, under the consti- " tution, is exclusively vested in the United States, and of " which the supreme court cannot take original cognizance. " They might establish one or more inferior courts; they might parcel out the jurisdiction among 3uch courts, from " time to time, at their own pleasure; but the whole judicial " power of the United States should be at all times vested, " either in an original or appellate form, in some courts " created under its authority."

As an abstract proposition of law, this cannot be controverted. How does it aid us in the solution of the question under consideration ?

When we consider that the act of congress is part of the system devised for the disposal of public lands, the administration of which system is for the most part confided to a special branch of the executive department; that the action required by section twenty-three hundred and twenty-six of the Revised Statutes is merely in aid of that department;* that the form of judgment required by the act of March 3, 1881, is so required for the purpose of advising the government as to whether or no it has been divested of its possessory right to the tract involved,' it is difficult to understand upon what principle the doors of the federal courts should be closed to the determination of these issues, and the parties be compelled to seek a tribunal which is in no sense under the control of congress, upon which congress cannot confer jurisdiction, and whose procedure congress is powerless to regulate.

Stating it broadly, what constitutional right has congress to say to ordinary state tribunals: "You alone must try " and determine the question as to which of these contest- " ing claimants has the exclusive right of possession to " this mining claim. When you have tried the issues,

Perejfo v. Dodge, 163 U. S. 160.

Strasburger v. Beecher, 44 Fed. 209, 214.

925 Federal Courts The Only Jurisdictional Ones. § 749

" you must enter a judgment, which will advise the " government which, if either, of the two parties has " complied with the federal mining laws. If neither has " so complied, your judgment must so state. Until your " judgment is rendered, the functions of the land depart- " ment shall stand suspended."

We do not contend that the state courts should decline jurisdiction or refuse to assist the government in the administration of the mining laws. The attitude of the states on this subject will be fully dealt with in a succeeding section; but what we object to is, the suggestion which has sometimes been urged that the federal courts may, under the circumstances, deny jurisdiction when a suit required by an act of congress to be brought in aid of the administration of federal laws is presented to them for their determination, assuming, of course, that the property involved is of the value requisite to confer jurisdiction.

One of the reasons assigned by the circuit courts for upholding federal jurisdiction in this class of actions is, that under the amendment of March 3, 1881, congress intended to refer not only the question of the rights of the parties as between themselves, but also without making the United States formally a party, to transfer the whole matter, as between the United States and the successful party, to the courts, thereby making the United States substantially, though not formally, party to the suit; and on that ground the United States is entitled to have its rights determined in the national courts;* but the United States is not a party to the proceedings in any sense,

It is not in any sense bound by the judgment to issue the patent to the successful litigant. As was said by the circuit court of appeals, ninth circuit, speaking through Judge Knowles : —

' Judge Sawyer, in Burke r. Bunker HiU <fe Sullivan M. Co., 46 Fed. 644 ; Judge Knowles, in Strasburger v, Beecher, 44 Fed. 209, 214.

Terego v. Dodge, 163 U. S. 160, 168; Last Chance M. Co. v, Tyler M. Co., 157 U. S. 683.

§ 750 Actions To Determine Adverse Claims. 926

" The United States is not named as a party. No " authority is given by the statute to sue the United States " in such a matter. The application for a patent for mineral " lands is made to the land department of the United States. " Ultimately that department must determine the right " to the patent. The trial of the right to possession of a " given tract of land is a proceeding in aid of that depart- " ment. It was not intended that, when this issue was " presented to a court, it should operate as a transfer of the " whole case made by the application, and thereafter the land department would have nothing to do but carry " into effect the judgment of the court."*

Whatever may be the correct doctrine in this regard, it is not necessary, in order to uphold the jurisdiction of the federal courts, to maintain that the United States is a quasi party to the action. If such were the true reason, it would necessarily follow that the federal courts would have exclusive jurisdiction.

It has been sufficiently demonstrated, that these courts acquire jurisdiction because the action arises under the laws of the United States, involves the interpretation of such laws, and such courts are the only ones over which congress may lawfully exercise legislative control.

g 760. The state courts. — It logically follows from what has been said in the preceding article, that congress cannot compel state courts to entertain jurisdiction in any case; they are not "inferior courts" in the sense of the federal constitution; they are not ordained by congress. State courts are left to consult their dutv from their own state authority and organization.'

"There are numerous acts of congress in which duties " have been imposed on state magistrates and courts, and " bv which thev have been invested with jurisdiction in " civil suits, . . . and it seems to be pretty generally " admitted that the state courts are not bound to exercise " jurisdiction, although given ; but it was optional with

' Doe r. Waterloo M. Co., 70 Fed. -155, 462.

- Jadfre Thompson, in Stearns r. United SUtes, 2 Paine, 300; 22 Fed. Cases. 1188.

927 The State Courts. § 750

" them to do it or not; and in some instances the state " courts have acted in those cases, and in some have " declined jurisdiction/**

In an early case decided by the supreme court of California, involving the naturalization of citizens by the state courts, it was urged that, although congress could not confer jurisdiction on a state so as to compel its exercise, yet it would'be legitimate if the court was willing to accept it. Concerning this contention, the court, speaking through Judge Heydenfeldt, said: —

This is to me a solecism. A court is a creation of tho " constitution and laws under which it exists. To exercise " any power not derived from such constitution and laws " would necessarily be a usurpation. It is curious to say " congress has no authority to give this power to the court, " yet the court exercises this power by virtue of the author- " ity of congress."'"

But ever since the first mining law of congress was passed, the state courts have been hearing and determining these cases, and assisting the land department in the administration of the mining laws. There never has been any question but what the ordinary state tribunals had jurisdiction to try actions involving the right of possession to mining claims, but whence this jurisdiction arises in cases connected with the patent proceedings has been the subject of discussion in controversies involving the nature of the pleading required and the character of the action.

It may be accepted as the established doctrine, that the act of congress under consideration does not confer any additional jurisdiction upon the state courts. The action to determine an adverse claim to unpatented mining claims is an action concerning real property. Such a mining claim is real estate,' and the jurisdiction to try controversies arising out of conflicting claims to real estate is

' Judflre Thompson, iu Stearns v. United States, 2 Paine, 300; 22 Fed. Cases, 1188.

'Ex parte Knowles, 5 Cal. 301, 302. 'jlnftf, $539.

§750

Actions To Determine Adverse Claims.

vested in the state courts by virtue of the state constitution.'

While, in discussing the nature and character of the action, the forms of pleadings, and questions of practice, many cases decided by the state courts may be encountered which would seem to refer to the act of congress as indicating the measure of the duty of the state tribunals, yet the principles above announced are, in the abstract, unquestionable.

There is no doubt but that the adverse claimant may select either forum, state or federal, provided that where the jurisdiction of the latter is invoked, the property in controversy exceeds in value the sum of two thousand dollars. Where the proceeding is instituted in the state court, the element of value existing, the defendant may cause its removal to the federal courts, under, the removal acts of congress, provided it appears upon the face of the complaint that the action is one contemplated and required by the provisions of section twenty-three hundred and twenty-six of the Revised Statutes.

Article II. Character of the Action — Pleadings AND Practice — Functions of the Land Department Pending the Action.

$ 754. Character of the action — At law or in equity — Pleadings.

$ 755. General rules of pleading.

$ 756. Time within which action must be commenced.

$ 757. Action when deemed commenced.

$ 758. Parties to the action.

$ 759. Functions of the land department, pending the action.

' 420 M. M. Co. r. BuUion M. Co.. 9 Nev. 240-248; Golden Fleece M. Co. V. Cable Cons. M. Co., 12 Nev. 312, 321 ; Iba v. Central Association, 42 Pac. (Wyo.) 20; Altoona Q. M. Co. v. Integral M. Co., 114 Cal. 100; Quigley r. Gillett, 101 Cal. 462.

Tennessee v. Union <fe P. Bank, 152 U.S. 454; Chappell v. Waterworth, 155 U. S. 102; Postal Telegraph C. Co. v. Alabama, 155 U. S. 482; East Lake Land Co. r. Brown, 155 U. S. 488 ; Wabash R. Co. r. Barbour, 73 Fed. 513; State of Florida v. Charlotte Harbor Phosphate Co., 74 Fed. 678 ; Wise v. Nixon, 76 Fed. 3.

929 Character Of Action — At Law Or In Equity. § 754

g 764. Character of the action — At law or in equity — Pleadings. — The supreme court of the United States characterizes the action as one brought under a special statute of the United States in support of an adverse claim.*

The proceedings in the case are commenced in the land office by the assertion of the defendant's claim to have a patent issue to him for the land in controversy. The next step is the filing of the adverse claim by the plaintiff in that office, and the suit is but a continuation of those proceedings."

In the language of Judge Ross: —

"The proceedings here in question are purely statutory, " and they had their inception not in the court in which " the suits were commenced, but in the land office/'

The object of the action is not to determine the title to real estate, because the fee resides in the government. The true question for decision is, which of the contending parties has complied with the requirements of the law and is prior in time/

The object of the" proceeding is not only to settle the controversy as between the claimants, but is also for the information of the officers of the land department of the general government.

" It is not enough that one party should show the " better or superior title as against the other claimants, " but one party must show clearly, as against the govern- " ment, the right to a patent for the disputed ground, or " some part thereof, before either claimant can prevail in " the action."

Whatever may be said of the nature of the action when presented to the state courts, in the federal courts it

' Bennett v. Harkrader, loS V. S. -141. 447.

Wolverton r. Nichols, 119 U. S. 485, 48S.

3 Doe V, Waterloo M. Co.. 43 Fed. 219. See, also. Gird r. California Oil Co., 60 Fed. 531, 53.3; Rutter r, Shoshone M. Co., 75 IJed. 37.

Funk r. Sterrett. 59 Cal. 613, 615.

Rosenthal v. Ives, 2 Idaho, 244; Jackson v. Roby, 109 U. S. 440; Lee Doon 1'. Tesh, 68 Cal. 43; McGinuis i'. Egbert, 8 Colo. 41; Schultz r. AUyn (Ariz.), 48 Pac. 960.

§754 Actions To Determine Adverse Claims. 930

unquestionably is of an equitable nature. It may be classified as an action to quiet title, and as such is cognizable in equity.

"The suit is brought for Special relief, and the judgment entered is such as a court exercising jurisdiction in equity alone could render."

Where the action is brought in the federal court, and the jurisdiction is asserted on the ground that it arises under the laws of the United States, the pleading of the plaintiff must necessarily state all the facts from which the court may conclude that it is a proper case for federal cognizance. Therefore, upon the face of the pleading, the character of the action is necessarily disclosed to be one of an equitable nature.

In the state courts, however, while the usual practice is to frame a complaint with the same allegations required in the federal court, the action may assume the form of one in ejectment, or one to quiet title, as the plaintiff may be in or out of possession, and the statutes of the state may deny a right of action to quiet title to one out of possession.

As was said by the supreme court of the United States: —

" The determination of the right of possession as between " the parties, is referred to a court of competent jurisdic- " tion in aid of the land office; but the form of the action " is not provided for by the statute, and apparently an " action at law or a suit in equity will lie, as either might " appropriately be under the particular circumstances, an " action to recover possession when plaintiff is out of " possession, and a suit to quiet title when he is in pos- " session."'

When the action is in the form of ejectment, a jury may be demanded. When it is brought to determine the adverse claim, with no prayer for a restoration of a lost possession, the action is purely equitable, and for the

' Hammer v. Garfield M. <fc M. Co., 130 U. S. 201, 296 ; Doe v. Waterloo M. Co., 43 Fed. 219, 221 ; Rutter v. Shoshone M. Co., 75 Fed. 37. - Perego v. Dodge, 163 U. S. 160, 165.

931 Pleadings. § 754

purpose of determining special issues a jury may be called in or not, in the discretion of the court.

The term " proceedings," which are required by section twenty-thre hundred and twenty-six of the Revised Statutes to be commenced within thirty days, was no doubt used to enable a party to institute such proceedings under the difiTerent forms of action allowed by the state and federal courts/

The attitude of the several states upon the character of the action may be gleaned from a review of their decisions upon questions of pleadings and practice, illustrating the difference between rules applied to ordinary actions and those which are confessedly brought under the provisions of section twenty-three hundred and twenty-six. To ascertain the views of each state, or such of them as have dealt with the questions of the relationship of the state courts as tribunals auxiliary to the land department in the patent proceeding, we may epitomize the decisions, dealing with each state separately.

California, —

In ordinary actions concerning real estate, a general allegation of ownership is all that is required.'

Mining claims are real estate, and the rule applies to actions concerning them.'

For example : In an action for trespass upon a mining claim, the plaintiff need not allege citizenship;* nor is it required in an action to erect a trust as to such a claim.*

But in actions which appear upon the face of the pleadings to be prosecuted for the purpose of determining the

>420M. A M. Co. r. Bullion M. Co.,3Saw.fm; Chambers r. ITarrinjfton, HI U. S. 350; Mattingly v. IwiHohn, 8 Mont. 259; Cronin r. Bear Creek M. Co., 32 Pac. (Idaho;, 2fM ; <ioldcn Fleece G. <fe S. M. Co. r. Cable Cons. M. Co., 12 Nev. 312; Mars r. Oro Fino M. Co. (S. Dak. u 6. X. W. Rep. 19.

Scoter V, Masrnire, 78 Cal. 543; Roufh v. Simmons, 05 Cal. 227; Castro r. Barry, 79 Cal. 443.

'Harris r. Kellojrjf iCal.i. 49 Pac. 708.

Lee Doon r. Tesh, 68 Cal. 44; Thompson r. Spray, 72 Cal. 528; Harris V. KeUogR (Cal.), 49 Pac. 708.

Moritz V, Lavelle, 77 Cal. 10.

§754 Actions To Determine Adverse Claims. 932

adverse claim under section twenty-three hundred and twenty-six of the Revised Statutes, it has been held that the qualification of the applicant to receive the patent, i. e. his citizenship, must be averred.

In the case of Anthony v, Jillson, the supreme court, in what it styled an action to determine the right to patent to certain placer mining ground, held that in this class of actions each of the parties litigant must state in his pleadings all the facts upon which he relies as showing his right to become a purchaser, and the steps he has taken to avail himself of and secure his right to the patent.

In the later case of Altoona Q. M. Co. v. Integral Q. M. Co.,'* an action was brought to determine an adverse claim, the pleading setting forth the filing of a patent application by defendant in the local land office and the proceedings had thereon and the filing of an adverse claim therein by the plaintiff*. The suit was manifestly instituted in support of the adverse claim, asserted in the land oflSce, but the appellate court styles the action as one to quiet title, specifically announcing that it was not an action brought under section twenty-three hundred and twenty-six of the Revised Statutes. We apprehend that the court intended to convey the idea, that as the state courts had no concern with the proceedings in the land office, the allegations concerning them were mere surplusage, irrelevant, and redundant matter, and that it was compelled to consider the action as an ordinary one to quiet title, to be tried and decided by the ordinary rules governing this class of cases. The court ruled that citizenship need not be averred. As to the form of the judgment, it was further held that the state courts were not concerned with the question as to whether the judgment could be made available in the land office or not.

If we correctly interpret this decision, it is manifest that all that is required in this state in actions instituted by an adverse claimant in support of his adverse claim filed in the land office is, to file his complaint alleging his

' Le Doon v. Teah, 68 Cal. 43. M14 Cal. 100.

- 83 Cal. 296.

933 Pleadings. § 754

ownership and right of possession, making no reference whatever to the antecedent proceedings in the land office. The defendant and patent applicant may answer simply by a general denial of the plaintiff's title. As to the form of judgment, the court in the Altoona case intimates that the trial judge is at liberty to order a special verdict, if that was desired by the parties, because it would be more serviceable in the contest; but this is a matter of discretion, and cannot be demanded as a right. The uniform practice for years in this state, however, has been, to set forth in the pleadings the pendency of the patent proceedings.

Colorado. —

In ordinary actions the general averment of ownership is sufficient,* and the defendant may prove title by valid prior location under a general denial of plaintiff's ownership.

Actions of the character required by section twentythree hundred and twenty-six of the Revised Statutes are purely statutory,' and the proceedings must be conducted in accordance with the statute which authorizes them.*

As the proceedings in the land office form the basis of the action, they should be alleged.

The decisions of the courts in this state fully recognize that the action, while being essentially an action to quiet title, is based upon the laws of congress. The proceedings in the land office are set forth in the pleadings showing the filing of the patent application, the commencement of the period of publication, and the filing of the adverse claim within that period. The qualification of contending parties to receive a patent must also be shown.*

*McFeter8 r. Pierson, 15 Colo. 201; .Jackson r. Dines, 13 Colo. 90; Keeler v. Truenian, 15 Colo. 143.

*See Adams v, Crawford, 110 Cal. 495. Keeler r. Truenian, 15 Colo. 143.

IfcGinnis v, Efjbert, 8 Colo. 41 ; Manning v. Strehlow, 11 Colo. 451.

Marshall v, Kirtley, 12 Colo. 410. 416.

Miohael v. Mills, 22 Colo. 439; Jackson v. Dines, 13 Colo. 90; Keeler V. Trueman, 15 Colo. 145.

§754 Actions To Determine Adverse Claims. 934

It seems to be generally assumed, that the courts may take coguizance of the action, as one required to be brought in the state tribunals, and the practice is molded so as to fulfill the manifest objects contemplated by the federal law.

Idaho, —

In ordinary actions the courts of this state seem to require the qualification, i. e. the qitizenship of the litigants, to be pleaded,* as well as in the proceeding instituted upon the adverse claim filed in the land office.

As to pleadings in actions brought pursuant to section twenty-three hundred and twenty-six of the Revised Statutes, the supreme court, in Burke v. McDonald,' approved the rule laid down by the supreme court of California in Anthony r. Jillson,* and the Montana case of Mattingly v, Lewisohn.*

Montana. —

It was at one time held in this state, that in all actions concerning mining claims it was necessary to allege discovery, location, marking of boundaries, citizenship, and such other facts from which the court might deduce the right of plaintiff to maintain the action / but recently the doctrine as to ordinary actions has been materially modified, and the rule announced that, unless the action be one in support of the adverse claim filed in the patent proceeding, general allegations of ownership are sufficient."

The action upon the adverse claim is characterized as a statutory one, intended to be brought under section twentythree hundred and twenty-six of the Revised Statutes. This appears, necessarily, from the allegation concerning the filing of the patent application and its pendency in the land office; otherwise these allegations are without force or meaning.

' Bohanon v. Howe, 2 Idaho, 417.

Rosenthal v, Ives, 2 Idaho, 244. 3 2 Idaho, 646.

<88Cal. 296. 5 8 Mont. 259.

Ducie r. Ford, 8 Mont. 233, 241.

7 McKay v. McDou (Monl.), 48 Pac. d88.

935 Pleadings. § 754

A complaint based upon such an adverse claim would be insufficient without such allegations.

"We are confirmed in this view," said the supreme

court, " for the additional reason, that a contrary practice

" to the one here laid down would or might lead to a con-

" flict of action between the officers of the land department

" and the courts in suits of this character. The law makes

it the duty of the agents of the land department to stay

proceedings on an application for a mineral patent only

" when an adverse claim is filed within sixty days of the

" publication of notice of application for patent ; and when

" this is not done, the agents of the department would

" doubtless consider it their duty to issue the patent to the

" applicant."'

Nevada. —

According to the decisions in Nevada, the acts of congress do not attempt to confer any jurisdiction not already possessed by the state courts, nor to prescribe a different form of action. If the parties protesting are in possession of the ground in dispute, they can bring their action to quiet title; or if they have been ousted from the possession, they could bring their action of ejectment; and in either action " the right of possession " to such claim could be finally settled and determined. When an action is brought, whatever may be its character, it must be tried by the same rules, governed by the same principles, and controlled by the same statutes that apply to such actions in our state courts, irrespective of the acts of congress.

As to this state, it may be noted that in February, 1873, the legislature passed the following act: —

" In all actions brought to determine the right of pos- " session to a mining claim or metalliferous vein, or lode, " where an application has been made to the proper officers " of the government of the United States by either of the " parties to such action for a patent for said mining claim,

Mattinfifly r. Lewisobn, 8 Mont. 259; doctrine approved: McKay v. McDouRal (Mont.), 48 Pac. 988.

*420 M. Co. V, Bullion M. Co., 9 Nev. 240, 248; Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 812, 321

§755 Actions To Determine Adverse Claims. 936

" vein, or lode, it shall only be necessary to confer juris- " diction on the court to try said action and render a proper " judgment therein, that it appear that an application for " a patent for such mining claim, vein, or lode, has been " made, and that the parties to said action are claiiniHg " such mining claim, vein, or lode, or some part thereof, or " the right of possession thereof."

Sovih Dakota, —

In this state the inclination of the judiciary is manifestly to mold its practice to conform to the requirements of the federal law as to the commencement and prosecution of the action.

Wyoming. —

" Enforcing the provisions of the act of congress, they " are adopted for the time being by our courts with the " same force, and no more, as if they were part and parcel " of our own statute."'

g 755. OeneraJ rules of pleading. — While it may not be possible for us to formulate a rule of pleading in actions of the character under consideration which will be acceptable to all the courts of all the states, we may, we think, approximate it. In making the attempt, " we must keep " the main purpose of the action in view."*

While the doctrine of the supreme court of California announced in the case of Altoona Q. M. Co. v. Integral Q. M. Co.,* heretofore referred to, may be technically correct, the state courts have unquestioned jurisdiction to determine the principal issues which are necessarily framed in such an action. While congress may not dictate to the state courts upon questions of pleadings and practice, or insist that their judgment shall be in one form or another, these courts having jurisdiction ought, by such judgments, to afford to the parties litigant the utmost measure of relief consistent wdth the issues, enabling them to

' Comp. Laws of Nevada, 'i 1674.

Mars M. Co. v. Ore Fino M. Co. (S. Dak.), 65 N. W. Rep. 19.

Iba t;. Central Assn. of Wyoming, 42 Pac. 20.

Wolverton v. Nichols, 119 U. S. 485, 488. 114 Cal. 100.

937 General Rules Of Pleading. §755

obtain an adjudication in such form as will secure to them all possible benefits.

While the action in the main may in the stale courts be ejectment or to quiet title, it should in some way be earmarked, and its connection with the land department proceeding shown.

That department will not be controlled by judicial proceedings instituted outside of the sanction of section twentythree hundred and twenty-six of the Revised Statutes, nor will a judgment rendered in an ordinary action, by which we mean one wholly disconnected with the patent proceeding, be considered as aiding the department.

Strictly speaking, so far as the state courts are concerned, the action may not be deemed a continuation of the land office proceedings.' Yet the recital of the facts of their commencement and pendency, in connection with the allegation of the plaintiff's qualification and performance of the requirements of the federal laws, as to discovery, location, and other facts showing a valid subsisting mining claim, would necessarily characterize the action as one involving adverse claims to real estate. One may either, in an ordinary action of ejectment or to quiet title, plead the source and historv of his title, and in the latter class of actions may plead the facts constituting a cloud upon such title, without the pleadings being open to any serious objection.

It may be safely accepted as a rule, that the pleading of the adverse claimant should allege: —

(1) His qualification to receive a patent, /. e. citizenship;

(2) Facts showing the discovery, perfection of the location in accordance with the laws, federal and state, and performance of annual labor, from which facts the legal inference must necessarily be drawn that the claim is a valid and subsisting one;

(3) The assertion of the defendant of a hostile right and

'42D M. Co. r. BaUion M. Co., 2 Copp's L. O. 5; .Seymour r. Wood, 4 Copp's L. O. 2; Nichols r. Becker, 11 D. 8; Cain t. Addenda M. Co., 21 U D. 18, 20.

§ 755 Actions To Determine Adverse Claims. 938

the comraencement by him of the proceedings in the land office to obtain a patent;

(4) The publication of the patent application and the date when the publication period commenced;

(5) The filing of the adverse claim in the land office by the plaintiflF, showing the boundaries and extent of the conflict and the date of such filing.

On the part of the patent applicant, he would be called upon to traverse so much of his adversary's pleading as tended to establish a prima fade right of possession in the plaintiff. In addition to this, as the title of each party is brought in question and each party must make proof,* the defendant should be called upon to state the origin of his rights, the facts from which the court might infer the ownership in him of a valid and subsisting location, and his qualification to receive the patent.

From these pleadings so framed, the real questions at issue are easily determined.

This form of pleadings is unquestionably required in the federal courts. So it is in all the states, except perhaps in California, where, since the decision in the Altoona-Integral case, lieretofore referred to, the question is being debated. Prior to that decision, the uniform practice in that state has been in accordance with the rule followed in other states, and in the latest case decided in California an intimation is given that the general rule applicable to this class of actions should be recognized.

The reason and force of this rule as to pleadings will be readily recognized when we come to consider the form of the judgment required in the action.'

Bay state S. M. Co. r. Brown, 10 Saw. 243; Manning r. Strehlow, 11 Colo. 451 ; McGinni8 r. Egbert, 8 Colo. 41; Becker v. Piigh, 9 Colo, 589, 18 Colo, 243; Kendall v. San Juan, 9 Colo. 349; Gwillim v. Donnellan, 115 U. S. 45; Rosenthal v, Ives, 2 Idaho, 244; Golden Fleece M. Co. i'. Cable Cons. M. Co., 12 Nev. 312; Jackson v, Roby, 109 U. S. 440; Anthony i'. Jillson, 83 Cal. 296; Burke r. MoDonald, 2 Idaho, 646; Gird r. California Oil Co., 60 Fed. 531 ; Girard r. Carson, 22 Colo. 345; Seymour v. Fisher, 16 Colo. 188 ; Armstrong r. Lower, 6 Colo. 393; Funk r. Sterrett, 59 Cal. 613.

Harris v. Kellogg (Cal.), 49 Pac. 708. Post, $ 763.

939 Commencement Of Action. §§756-757

g 766. Time within which action must be commenced.

— The statute requires the proceeding to be commenced within thirty days after filing the adverse claim. The rule for computing the period is the same as applied to filing the adverse claim; that is, the first day is excluded, and if the last day falls on a Sunday or holiday the proceeding must be commenced on the next business day.

This time may not be extended by the act of the parties, nor can the state enlarge it by its statutes.

" There is no exception as to the claimant who may be " beyond the seas, or under disability of any kind, or who " may fail to act from inadvertence or other cause. The " suit must be brought within the time specified." '

The provisions of the federal statute in this regard are mandatory. The claimant must see to it that the proceedings are actually commenced within the period. If he intrusts that duty to some one else who fails, the land department cannot redress the wrong or revive the remedy. It has no authority to waive the requirement.' The adverse claimant is limited to the one action.* Proceedings instituted after the lapse of the thirty-day period will not be considered by the department.*

g 767. Action when deemed commenced. — As to when the action or proceeding is deemed to be commenced, will depend entirely upon the laws governing practice in the tribunal whose jurisdiction is invoked.

Where, as in New Mexico, an action is commenced bv filing a declaration, it is not necessary that process should either issue or be served within the thirty-day period.

In some states the statute on the subject provides that actions shall be commenced by filing a complaint and

' Steves V. Carson. 42 Fed. 821.

Pride of the West Mine, 4 Copp's L. O. 34.

' Downey v. Rogers, 2 L. D. 707.

Copp's Mln. Dec. 126.

Nettie Lode Texas Lode 14 L. D. 180; Seymour v. Wood, 4 Copp's L. 0.2; Pelican Lode, Copp's Min. Dee. 126; Wood v, Hyde, 1 Copp's L.O. 66.

*De Garcia v, Eaton, 22 L. D. 16.

§ 758 Actions To Determine Adverse Claims. 940

issuance of summons. In such cases, unless process is issued within the thirty-day period, the action is not commenced.* In South Dakota the statute provides that actions can only be commenced by the service of summons. An attempt to commence an action is deemed equivalent to the commencement thereof when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants or one of them usually or last resided; but such attempt must be followed by the first publication or actual service within sixty days. In a case where no valid service was attempted for more than a year, it was held that the proceeding was not commenced within the time required by law.'*

g 768. Parties to the action. — The only proper parties to the suit are the adverse claimant and the applicant. Only those who have filed their adverse claims with the land office have any-standing in court as parties plaintiff,* if we accept the doctrine that the cause of action arises out of the patent proceeding, and unquestionably this is the rule prevailing in the federal courts and in practically all of the state courts.

If the primary object of the suit is to test the right of an individual to a patent, there is but one method of initiating the attack and that is, by filing the adverse claim. The only one attacked is the one who makes he application for the patent; consequently it would be improper to join in the action parties who do not assert in the land office a right to enter the land.

Third parties may appear as volunteers or protestants before the land officers, and invite attention to the failure of one or the other or both of the contending parties without having the status of adverse claimants.

A case may be instanced. The pendency of patent

' Harriet M. Co. r. Phoenix M. Co., 9 Copp'8 L. O. 165.

Mars M. Co. v. Oro Fino M. Co. (S. Dak.), 65 N. W. Rep. 19.

Mont Blanc Cons. G. M. Co. v, Debour. 61 Cal. 364.

941 PAR'ftES TO THE ACTION. § 758

proceedings or a suit iu support of an adverse claim does not dispense with the necessity of performing the annual labor/ and the ground in controversy may become subject to relocation before the proceedings in court are ultimately determined. If, under such circumstances, the claim is relocated, the relocator would not be entitled to intervene in the adverse proceeding.

His remedy is limited to a protest before the department, asserting the failure of the two contending parties to comply with the law as to annual labor since the filing of the adverse claim and the commencement of the action therein. A hearing would then be ordered, both applicant and adverse claimant would be cited to appear, the merits of the protest would be tried by the land department, and if the protestant's allegations are substantiated, both the patent application and the adverse claim would be dismissed.

This must, be the correct rule; otherwise the patent applicant and the adverse claimant would be practically excused from perpetuating their asserted rights by annual representation, and the ground would not be subject to relocation so long as the controversy iu the courts remained undetermined. When they were determined, patent might issue to the successful claimant. True, the relocator may then protest, but if a protest is available to him at that time, why may he not proceed as soon as his relocation is perfected? The decision in the adverse claimant's suit could not affect the relocator\s rights favorably or unfavorably; not being a party to the action, he could not be concluded by the judgment.

Where more than one adverse claim is filed, while technically speaking each adverse claimant must institute a separate suit, the actions, if all pending in one tribunal, should be consolidated, unless the law of the forum inhibits

Mnte, $ 632.

'HigRiDH I'. John G. M. Co., 14 Copp's L. O. 238; Steel r. (iold Lead M. Co., 18 Nev. 80, 88; In re Wildinan Quartz Mine, Sickles' Min. Dec. 273; Wight v. Dubois, 21 Fed. 005, (m.

§759 Actions To Determine Adverse Claims.. 942

this practice. Where one action is pending in a state and another in a federal court, all parties should be brought into one or the other of the cases. This would be necessary to enable the court to determine which, if any, of the contending parties were entitled to apply for patent. All parties are actors, and their presence is necessary to a complete determination of the issues.*

g 769. Functions of the land department pending the action. — As heretofore noted,'* the filing of the adverse claim suspends the powers of the land department, except for certain limited purposes. Should no action in support of the claim be commenced within the thirty -day period, it is deemed waived, and the register and receiver may proceed as if no adverse claim had ever been filed.

Formerly the adverse claimant was required to give the land officers proper notice of the commencement of the action, otherwise it was presumed that the claim was waived;' but the existing regulations require that, before resuming control over the proceeding, after the filing of the adverse claim, where no suit has been commenced against the applicant for patent, such applicant must present a certificate to that effect from the clerk of the state court having jurisdiction in this class of cases, and also one from the clerk of the United States circuit court for the district in which the claim is situated.*

This is upon the theory that the adverse claimant may select either tribunal.*

Antelope Lode, 2 Copp's L. O. 2, 5.

' Beatty and Clements, 2 Copp*8 L. O. 82; Circ. Instructions, i) Copp's L. O. 148 ; Halsey Hewitt, 5 Copp's L. O. lf>2. *Gen. Min. Ref?., par. 92.

It is the practice in some of the land districts, if not in all, to require in all cases a certificate from the clerk of the state court that no action is pending? involving the tract applied for. In the absence of the filing of an adverse claim, we cannot see the necessity for this certificate, unless the application is prosecuted under section twenty-three hundred and thirty-two of the Revised Statutes, when such certificate must be presented under paragraph 72 of the General Mining Regulations." (Ajite $688.)

943 Functions Of The Land Department. §759

The department claims the right to determine for itself the question of fact in each case as to whether or not the action has been commenced within the statutory period ; but when an action has been commenced, and the controversy arises in the court where the action is pending as to whether it was commenced in time or not, the determination of this fact will be left to the court, and the department will decline to proceed until the matter is there disposed of.

The adverse claimant is required to prosecute his action with due diligence. As to what constitutes such diligence must be determined by the court before whom the action is pending. The question of diligence in the prosecution of a pending suit is as much a question for the determination of the court as any other question of law or fact which may arise in the progress of the case.' The department will not undertake to adjudicate it. The patent applicant must apply to the court to dismiss the action for failure to prosecute it with proper diligence, and come into the land office with a judgment of dismissal.

Such a judgment is accepted as establishing an abandonment or waiver of the adverse claim.

The action once commenced, the stay of proceedings in the land office, which became effectual upon the filing of the adverse claim, is prolonged and continued in force until the controversy shall have been settled or decided by the court. Until the decision of that tribunal is obtained, the function of the land department remains suspended.

Where more than one action has been commenced, based

Catron Lewisohn, 23 L. D. 20.

' Iowa M. Co. V, Bonanza M. Co., 6 Copp's Jj. O. 75.

*La8t Chance M. Co. v, Tyler M. Co., 157 U. S. 683, 603 ; Richmond M. Co. V. Rose, 114 U. S. 576, 58.5 ; Deno r. (IrifHn, 20 Nev. 249; In re Clipper M. Co.,22 L. D. 527; In re Little Giant Lode, Id. 620 ; Jamie Lee Lode ?'. Little Forepaugh, 11 L. D. 391 ; Swaim Craven, 12 L. D. 294 ; Iowa M. €o. V, Bonanza, 6 Copp's L. O. 75; Robinson r. Mayger, 1 L. 1). 538; lola Lode Case, /(/. 539; Ovens v. Stephens, 2 L. D. 6i*9; Meyerr. Hyman, 7 L.D.83.

§759 Actions To Determine Adverse Claims. 944

upon separate adverse claims, the department awaits a judgment which will determine the rights of all the parties.*

All acts of the department performed, or attempted to be performed, while a suit is pending, are null and void.

This rule is subject to one qualification: Where, pending litigation, both applicant and adverse claimant fail to comply with the law as to annual representation, a relocator may set in motion the machinery of the department and secure the dismissal of both the application and the adverse claim. We have discussed this subject in a previous section.

, After an adverse claim is filed and the adverse claimant institutes his proceeding in the courts, no act of the applicant can deprive his adversary of the right of prosecuting, the action to a final determination. A dismissal of the patent application, or an abandonment of the proceedings by the applicant as to the area in conflict, will not authorize the land ofiicers to resume control of the proceedings.

" The adverse claim is the claim made by the party " opposing the application, and the party to waive a claim " is the one who makes it. The obvious meaning is, that " when an adverse claim is filed, that is, a claim filed by some one opposing the application in whole or in part, the proceedings in the land office shall be stayed until " the determination of the dispute by the court in which " the action is brought, or the party who has presented " such adverse claim shall, in some way, liave waived his " opposition to the application."

Article III. The Judgmext and its Effect.

0 763. Form of judgment. . 765. Ett'ect of the judgment.

$764. When judgment becomes $ 7<36. Adverse claim — How available in the hind oftice. , waived.

' Black Queen Lode r. Excelsior No. 1 Lode, 22 L. D. .'U3.

-Richmond M. Co. r. Rose, 114 U. 8. o76, 585; McEvoy v. Ilyman, 25 Fed. 539.

liast Chance M. Co. r. Tyler, 157 U. S. 683, 693; Richmond M. Co. r. Rose, 114 U. S. 576; Jamie Lee Lode v. Little Foropaugh Lode, 11 L. D. 391,393.

945 Form Of Judgment. §763

§ 763. Form of judgment. — The supreme court of Idaho is of the opinion, that since the act of March 3, 1881, it is necessary that the decision, whether by the court or jury, must show not only that the successful party is entitled to the possession as against his opponent, but also against all others, including the government, and by compliance with all the laws applicable.

" The government is interested in knowing, before issu- " ing its patent to a party, that he is a citizen, that he has " discovered a vein, that he has performed the develop- " ment work, that he has complied with the law."*

The court takes the view that where the action is tried by a jury there must be a special verdict. This necessarily implies that when the case is tried by the court there must be a special finding on all facts necessary to show the qualification of the successful party and his compliance with the law.

This accords with a previous ruling by the same court* and with the doctrine prevailing in Colorado,' which is sanctioned, inferentially at least, by the supreme court of the United States.* As was said by that court: —

" The manifest object of the act was to provide for an " adjudication that neither party was entitled to the prop- " erty, so that the applicant could not go forward with the " proceedings in the land office simply because the adverse " claimant had failed to make out his case, if he had also "failed."*

In the ordinary action of ejectment a defendant may rely upon the weakness of plaintiff's title; but in the proceeding contemplated by the Revised Statutes, in the light of the amendment of March 3, 1881, both parties are regarded as actors,* and some of the rules pertaining to

' Barke v. McDonald, 2 Idaho, 640.

' Rosenthal v. Ives, 2 Idaho, 244.

'McOlnnis v. Egbert, 8 Colo. 41; Manning i*. Strehlow, 11 Colo. 451, 465; Thomas v, Chisholm, 13 Colo. 105.

*Gwilllm V. Donnellan, 115 U. S. 45. 50.

*Perego v. Dodge, 163 U. S. 160, 167.

*Qwillim V. Donnellan, 115 U. S. 45, 50; Thomas v. Chisholm, 13 Colo. 106 ; Jantsen v. Arizona Copp- 20 Pac. 93.

§764 Actions To Determine Adverse Claims. 94&

ordinary actions are necessarily modified in the trial of such causes.

g 764. When judgment becomes available in the land office. — The judgment referred to in the statutes must necessarily be a final judgment. Secretary Teller was of the opinion, that the successful litigant need not wait for the time to appeal to elapse, but that unless the defeated party perfected an appeal so as to secure a stay of proceedings in the trial court, the one in whose favor judgment was rendered might file his judgment roll in the land oflRce, and that tribunal would thereupon resume jurisdiction for the purpose of disposing of the land involved, notwithstanding the fact that the right of appeal still existed.''

Strictly speaking, an action is deemed pending until tho time for appeal has passed. In some states this rule is declared by statute. Where such rule prevails, the judgment during this period is not admissible in another case as evidence, even between the same parties,' upon tho theory that the estoppel is not complete until the period for appeal elapses.

If this rule is to be strictly enforced in this class of actions, so as to prevent the judgment from being utilized in the land ofiice during this period, it enables one against whom the judgment is entered to avoid its force for a considerable time by simply doing nothing.

In none of the states will the prevailing party be prevented from availing himself of an ordinary judgment by the issuance of final process, unless the defeated party perfects his appeal and stays proceedings by giving the necessary bond. Unless such proceedings are thus stayed, it is possible, reasoning from analogy, that the successful

Becker r. Pujfh, 9 Colo. 589, 593 ; Manning r. Strehlow, 11 Colo. 451.

Noonan v. Caledonian G. M. Co., 10 Copp'a L. O. 167. (Application for patent filed by successful adverse claimant prior to the la])se of the period allow<l for appeal.)

3 Harris v. Barnhart, 97 Cal. 546. 550 ; Naflger v. Gregg, 99 Cal. 83, 88 ; Estate of Blythe, Id. 472; Brown r. Campbell, 100 Cal. 635, 647.

947 Effect Of The Judgment. § 765

litigant may be permitted to present his judgment roll to the land department and thereafter proceed to avail himself of the fruits of his litigation. When such a stay is effected according to the rules of practice governing the tribunal where the action is tried, the land department would be compelled to abide the event of the appeal. Otherwise the appellant would, for all practical purposes, be denied the right of appeal. But where no such stay is effected, the question is not free from embarrassment. So long as the right of appeal exists, the courts cannot be said to have lost jurisdiction. So long as the courts retain jurisdiction, the powers of the land department are suspended. Where a patent is issued after a judgment by the trial court and before the time for appeal has passed, its operative force may be destroyed should the judgment be ultimately reversed, even if the department did not absolutely exceed its jurisdiction. The applicant would proceed to patent at his peril. The mere statement of this proposition involves the suggestion of lack of jurisdiction. The only safe doctrine is to consider a judgment as jHnal only after the time to appeal has passed.

g 765. Effect of the judgment. — Section twenty-three hundred and twenty-six further provides: —

"After such judgment shall have been rendered, the " party entitled to the possession of the claim, or any por- " tion thereof, may, without giving further notice, file a "certified copy of the judgment roll with the register of " the land office, together with the certificate of the sur- - " veyor-general that the requisite amount of labor has been " expended or improvements made thereon, and the " description required in other cases, and shall pay to " the receiver five dollars per acre for his claim, together " with the proper fees; whereupon the whole proceedings " and the judgment roll shall be certified by the register " to the commissioner of the general land office, and a " patent shall issue thereon for the claim, or such portion " thereof as the applicant shall appear, from the decision " of the court, to rightly {)0assess. If it appears from the " decision of the court that several parties are entitled to

§ 765 Actions To Determine Adverse Claims. 948

" separate and diflferent portions of the claim, each party " may pay for his portion of the claim with the proper " fees, and file the certificate and description by the sur- " veyor-general ; whereupon the register shall certify the " proceedings and judgment roll to the commissioner of " the general land office, as in the preceding case, and " patents shall issue to the several parties according to " their respective rights."

The trial of the action may result in one of three judgments: (a) in favor of plaintiff, the adverse claimant; (b) in favor of the defendant, the patent applicant, and (c) adjudging that neither party has complied with the law.

Where the judgment is, that neither party has established a right of possession, the presentation of the judgment roll to the land department effectually terminates the proceeding. It has performed its office. The laud officers will not undertake to retry the issues submitted to the court; nor is the land department in any sense an appellate tribunal. It accepts the judgment as concluding the present right of both contending parties.* The withdrawal of the land affected by the filing of the application'* is removed, and the tract in controversy becomes subject to new applications.

Where the judgment is in favor of the applicant for the entire area in conflict, the usual result following it is the issue of the patent in due time; but in such case the final passing of the title is not on the judgment of the court independent of that of the commissioner of the general land office, but is on the judgment of the latter pursuant to that of the former, and on certain evidence supplemental to that furnished by the judgment roll.'

The department does not undertake to try the merits of the adverse claim. By the judgment the adverse claimant is eliminated out of the proceeding, and the land officers confine themselves to investigating the proofs presented by

' Newman v. Barnes, 23 L. D. 257.

Ante, $679.

' In re Alice Placer Mine, 4 L. D. 314.

Evans v. Kendall, 3 Ck>pp'8 L. O. 2; In re Taylor, 9 Copp's L. O. 92.

949 Effect Of The Judgmest. §765

the applicaut. Thenceforward the proceeding is one exclusirely between the applicant and the government.

Notwithstanding the judgment of the court on the question'of the right of possession, it still remains for the land department to pass upon the sufficiency of the proofs, to ascertain the character of the land,' and determine whether or no the conditions of the law havebeen complied with in good faith.*

The government is in no sense a party to the action. Therefore it is not concluded by a judgment determining that the applicant has a right of possession.'

One may have a riglit of possession and yet not be properly equipped to receive the patent. The judgment roll proves the right of possession only,'

The land department must, under the law, be the judge as to wlien, under what circumstances, and how the government shall part with its title.'

Where the judgment awards to the applicant only a part of the land in controversy, he may proceed to patent for that part, together with the area which was not involved in the conflict; provided the tract awarded to the adverse claimaut does not cover the discovery and workings of the applicant. Such loss of discovery and workings destroys the right of the claimant to the remainder of his claim outside of the conflict area.* In case of lode claims, such a judgment may result in giving to the applicant an irregularly shaped surface, and if he proceeds to patent without rectifying his boundaries, so as to secure parallel end lines, his extralateral right may at some future time be challenged. Where such surface irregularities result, an amended survey, eliminating tlie conflict area and rectifying lines witliin the lintiia of ihe 'n'i'jinnl survey, would be

' .Aurora Ide r. BiilKer Hill PUi-er, Zt L. U. M.

PereKO v. Dodge. ItB C. .S. l&\ approviiig Aiit-e Placer, supra.

'Braiiagaii i: Dulaney, 2 L. D. 7-H, 7-JI.

Apple Blossom Placer i: Cora Lee l(le, H L. D. 611,612, cItinK Moore D. Bobbing, 06 V. S. ilO.

GwlUlin I-. DonnelUD, 115 L'. S. 4S.

§765 Actions To Determine Adverse Claims. 950

more than advisable. No new territory could be included, for the simple reason that it would require reopening the whole proceeding and necessitate a reposting and republication.

The judgment being the conclusion of proceedings essentially in rem its operation could not be extended over land not within the boundaries described in the published and posted notices. No jurisdiction could be acquired by the land department as to such additional ground without the institution of proceedings de novo.

As to the certificate of five hundred dollars improvements required to be furnished, we have heretofore noted that, under section twenty-three hundred and twenty-five of the Revised Statutes, such certificate is required to be filed by the applicant, either at the time of presenting his application or within the period of publication, and that ordinarily it is appended to the field notes which are used as the basis of the patent proceedings.

The certificate named in section twenty-three hundred and twenty-six undoubtedly refers to a successful adverse claimant who desires to proceed to patent for such portion of the tract as mav be awarded him.

Where, by the judgment, the adverse claimant is awarded any portion of the tract in controversy, he may be permitted to enter the tract allotted to him, upon complying with the requirements of the law and the regulations of the department.

But in proceeding to entry, the successful adverse claimant is necessarily limited to that portion of the ground which is within the boundaries of the tract as described in the applicant's plat and published notices. As to such portion, all the world, except the government, is concluded by the patent proceeding and the lapse of time for presentation of adverse claims; but as to any other land, no patent can issue without presenting an application and proceeding regularly with posting and publication. Without this

Ante, $ 713 Ante, $673.

951 Adverse Claim — How Waived. §766

there is no jurisdiction in the department to grant any land outside of that embraced within the original patent application.'

It is seldom that the successful adverse claimant is content to limit his application for patent to so much of the claim as was awarded him within the limits of his adversary's application. He may, however, avail himself of such privilege. To do so he must cause the tract to which he was awarded the right of possession by the judgment to be surveyed and platted under the supervision of the surveyor-general, and must present the certificate of that officer establishing the fact that five hundred dollars in improvements have been expended upon or for the benefit of the tract applied for.

The department will thereupon proceed to investigate the character of the land, the proofs submitted, and the compliance by the adverse claimant with the requirements of the law. So far as the premises thus applied for are involved, the former patent applicant is eliminated from the proceeding, and thereafter the matter rests between the government and the adverse claimant.

g 766. Adverse claim — How waived. — An adverse claim may be waived, —

(1) By failure to file it within the statutory period;*

(2) By a voluntary dismissal of it in the land office prior to the commencement of the action.' Secretary Lamar ruled that this might also be done after the commencement of the action, and without entertaining a discontinuance in the court/

(3) By a transfer to the applicant of the interests of the adverse claimant;

Antelope Lode, 2 Copp's L. O. 2.

Ante, $742.

Richmond M. Co. v. Rose, 114 U. S. 676, 585.

*St. Lawrence M. Co. v. Albion Cons. M. Co., 4 L. D. 117.

Richmond M. Co. v. Rose, 114 U. S. 576, 585.

§766 Actions To Determine Adverse Claims. 952

(4) By a dismissal of the action instituted in support

Richmond M. Co. v. Rose, 114 U. S. 576, 585; Whitman v. Haltenhoff, 19 L. D. 245 ; Monroe Lode, 4 L. D. 273 ; Mono M. Co. v. Magnolia E. A W. Co., 2 Copp's L. O. 68. As to evidence of dismissal required by department, see Circ. Instructions, June 1883, 2 L. D. 725.

Chapter Vi.

The Certificate Of Purchase And Title Conveyed

Thereby.

i 770. Issuance of the certiiicate.

f771. The title conveyed by the certificate of purchase.

f 772. Power of the land depart-

ment to suspend or cancel the certificate.

$ 773. The certificate of purchase as evidence — Collateral attack.

2 770. Issuance of the certificate. — If, upon the presentation of the judgment roll (where adverse suits have been brought) to the register and receiver, and the submission of such supplemental proofs as are required by departmental regulations, these officers are satisfied that the applicant for patent has fully and fairly fulfilled the requirements of the la\y, and that the land is mineral in character, an endorsement is made upon the application to purchase, allowing the entry. Thereupon the entryman pays the purchase price of the land (five dollars per acre for lode claims and two dollars and fifty cents per acre for placers, for each acre or fraction thereof) to the receiver, who issues his receipt in duplicate, the original being forwarded, with the record in the case, to the commissioner of the general land office. The duplicate is delivered to the purchaser. In addition to this the register sometimes issues a certificate of entrv, but usuallv in this class of cases all that the purchaser receives is the duplicate receipt, which is treated as, and performs the functions of, a certificate of purchase. It describes the tract by its name and locality and the lot number given by the surveyor-general, states the area iuid amount paid therefor.

Ante, $694.

§§771-772 The Certificate Of Purchase. 954

When we speak of the certificate of purchase, we refer generally to this duplicate receipt, which must be surrendered when the patent is issued.

g 771. The title conveyed by the certificate of purchase.— Strictly speaking, the certificate of purchase does not convey or purport to convey the legal title. As between the purchaser and the government, it carries the complete equitable title. It is evidence that the recipient has complied with all the terms and conditions which entitle him to a patent to the tract therein described, and that he has acquired a vested interest therein. The public faith has been pledged to him, and any subsequent grant of the same land to another party is void, unless the entry is vacated or set aside.

When the price is paid, the right to a patent immediately arises. If not issued at once, it is because the magnitude of the business in the land department causes delay; but such delay, in the mere administration of affairs, does not diminish the rights flowing from the purchase, or cast any additional burdens on the purchaser, or expose him to the assaults of third parties.

A right to a patent once vested is treated by the government as equivalent to a patent, so far as it may be necessary to cut oflF intervening claimants.

After the issuance of the certificate, the government holds the legal title in trust for the holder of the certificate.*

§ 772. Power of the land department to suspend or cancel the certificate. — As we have heretofore noted, the

Wirth V. Branson, 98 U. S. 118.

Benson M. Co. v. Alta M. Co., 145 U. S. 428, 431 (approving American Hill Q. M., Sickles' Min. Dec. 377, 385); Aurora M. Co. v. a5 M. Co., 34 Fed. 515; Deno v. Griflln, 20 Nev. 249.

Stark V, Starrs, 6 Wall. 402, 418.

Deflfebach v. Hawke, 115 U. S. 392; Witherspoon r. Duncan, 4 Wall. 210, 218; Benson M. ife S. Co. v. Alta M. & S. Co., 145 U. S. 428, 434; Cornelius V. Kessel, 128 U. S. 456, 460; Hamilton v. Sierra Nev. G. & S. M. Co., 13 Saw. 113; Amador-Medean G. M. Co. v. South Spring Hill, l3 Saw. 523.

commissioner of the general land office has authority in 1 proper cases to cancel or suspend the entry evidenced by I the certificate,' and that in turn the secretary of the interior exercises a supervisory control over the decisions, ( rulings, and acts of the commissioner." '

The judgment of the register and receiver in allowing the entry and issuing the certificate of purchase or duplicate receipt, is not necessarily final as between the entryman and the government. The e.tercise of this supervisory power is necessary to the due administration of the law by the land department;' yet the power may not he arbitrarily exercised nor exercised without notice to the enlrymao.*

The line of demarcation between what is the lawful exercise of this power and what is an arbitrary and unlawful use of it, is not clearly defined.

Where upon the face of the record it appears that the entry was illegally allowed, and that in issuing the certificate the local officers exceeded their authority, there can be no question but that it is not only the right but the duty of the commissioner to either suspend it, if the irregularities or defects are of such a nature that they may be remedied by supplemental proceedings, or to cancel it when the objection is jurisdictional and incurable.

So, where fraud is apparent or is brought to the notice of the commissioner, he is not bound to sit quietly and allow a proceeding to be consummated which it would be immediately his duty to take steps to annul.

Some of the federal trial courts have been disposed to hold, that where fraud is perpetrated and the issuance of the certificate is procured by resort to fraudulent methods,

' AnU, 4>MU.

' Anil, i (m.

' CorneliUH v. Kissel, lai t'. S. 4.W, *filt HiiHmer i'. WnlloPe, 47 CkI. 4fil (oKwl in (trdiftnt p. Alexaniler. 137 U. S, 372. 380); .Swigiirt v. Wnlkr (Ea.J, 30 pBL'. I(S2: Vtiae i>. Roblbenr. M Cal. 3t: Jonea v. Meyers, 2 Idktin. TM: VniiIonEereti r. Herrernan, G Usk. ISU, 2Sa.

'Orchard". Alexitudr, 15T U, S, 372, 383; PanionH i.Teiixka, 164 U.S. Ki Rlsdon Davenport, 4 S, Dak. 5; YniinK r'. Ttauaiiii llowai, M N. W, Rep. aS4.

'Caldwell i'. Buah (Wyn.). ta Par. 4t.

§772 The Certificate Of Purchase. ' 956

the remedy of the government is by suit in equity to secure its cancellation but in Orchard v. Alexander,* the supreme court of the United States, after reviewing all of its previous rulings on the subject, clearly indicated that until the patent issues the commissioner of the general land office and the secretary of the interior are clothed with plenary power over the acts of the subordinate officers of the land department, and nothing less than a gross abuse of this power will justify the courts in reviewing and annuling their acts.

The mere suspension of an entry for the purpose of requiring compliance with departmental regulations, supplying supplemental proofs, or curing apparent defects, will not destroy the force of the certificate or enable third parties to attack its validity; but if canceled, and such cancellation result from the rightful exercise of authority, the force and power of the certificate is destroyed.*

As to whether such cancellation is in the rightful exercise of such power, is a matter concerning which the courts may inquire.

Such cancellation would not of itself render the ground subject to relocation. The applicant would simply be relegated to such possessory rights as he had prior to the initiation of patent proceedings and such as he may have subsequently acquired.

An order directing that an entry be " held for cancella- " tion," is as effectual as an order canceling Such an order takes effect as of the date made, without regard to

'Smith r, Ewingr, H Saw. 56; Wilson r. Fine, 14 Saw. 224; Stimson V. Clarke, 45 Fed. 760; American Mortg. Co. r. Hopper, 48 Fed. 47.

157 U. S. 372.

See, also, Parsons r. Venzke, 164 U. S. 89; Caldwell v. Bush (Wye), 45 Pac. 488 ; United States v. Steenerson, 50 Fed. 504.

Last Chance M. Co. v, Tyler M. Co., 61 Fed. 557, 561.

Murray v. Polglase, 17 Mont. 455.

Orchard v. Alexander, supra (citing Johnson v, Towsley, 13 Wall. 72 ; Parsons v. Venzke, 164 U. S. 89).

' McGowan v, Alps Cons. M. Co., 23 L. D. 113 ; In re Magruder, 1 L. D.

Murray v, Polglase, 17 Mont. 455.

957 The Certificate As Evidence. § 773

the time when it is noted of record in the local oflBce,' or, it seems from the rulings of the land oflBce, without waiting for the expiration of the time allowed for appeal."

The order of the secretary}'' reversing such a judgment by the commissioner, would, of course, reinstate the entry.

One who purchases from the holder of such certificate, takes his title subject to the right of the department to cancel the entry for sufficient reasons.' He is entitled to no equitable consideration by reason of such purchase.* He has no greater or difiereut right than the one from whom he purchased, and is charged with notice of all defects in the title.®

g 773. The certificate of purchase as evidence — Collateral attack. — Before the duplicate receipt or certificate may be introduced in evidence for any purpose, it is necessary to prove the genuineness of the signature of the land officer issuing it.

The doctrine that courts take judicial notice of the genuineness of the signatures of executive officers, only applies to the heads of departments and principal officers. We are aware of no case where the doctrine has been extended to any subordinate official connected with the administration of the land laws below that of an acting commissioner.*

For what purpose may the certificate be admitted in evidence? If it is equivalent to a patent, it should be accepted as evidence of title, in actions brought by or prosecuted against third parties.

It has frequently been held by the supreme court of the

Anderson v. N. P. R. R., 7 L. D. 163; Perrott v. Connick, J3 L. D.598; Oettel V, Dufur, 22 L. D. 77.

In re Reed, 6 L. D. 563; Barclay v. State of Cal., 6 L. D. 699. 'Swigart v. Walker (Kati.), 30 Pac. 162.

United States v. Miller, 14 L. D. 617.

Murphy v. Sanford, 11 L. D. 123. In re Kibling, 7 L, D. 327.

Jackson v, McMarray, 4 Colo. 76 (citing Fail v. Goodtitle, Breese (111.) 201).

York Railway Co. v, Winans, 17 How. 31.

g 773 THE CERTIFICATE OF PURCHASE. 958

United States, that in the federal courts certificates of final entry issued by the ofiicers of the land department are not suflBcient to authorize a recovery in an action of ejectment, as the legal efi'ect of such certificates is to convey only the equitable title/ and that this rule applies, notwithstanding the fact that the state wherein the action is brought has provided by its laws that recovery may be had in ejectment when the party claims by virtue of such a certificate;* but the controversies in which these principles were announced arose out of entries for agricultural land, and not under the mining laws. The essential difference in the nature of the estate held by the owner of a perfected mining location and those held by agricultural claimants, has been fully explained in a preceding section.'

Under the mining laws, the tenure by which the estate of the miner is held possesses the attributes of a fee, as against every one save the government. Ejectment may be maintained upon an unpatented mining title. When perfected under the law, a mining location is held under a legal title as against every one save the paramount proprietor.

The certificate of purchase is evidence of the perfection of the right. It is evidence that all adverse claims which might have been asserted against the right of the purchaser have been waived or adjudicated in his favor. Adverse claimants have had their day in court.

In addition to this, section nine hundred and ten of the Revised Statutes provides, that, —

" No possessory action between persons in any court of the United States for the recovery of any mining title or for damages to any such title shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States."

It

n It

Certificates of purchase issued to mining claimants are

' Langdon v, Sherwood, 124 U. S. 74; Fenn v. Holme, 21 How. 481, 483. 2 Hooper r. Scheimer, 23 How. 235; Langdon r. Sherwood, 124 U. S. 74. Ajite, $642. Ante, W 535, 539.

959 Collateral Attack. §775

accepted by the federal courts as evidence of the legal title/ So far as the state courts are concerned, this rule is accepted on principle, although in most, if not all, of the states there is aflBrmative legislation, making the certificate primary evidence that the holder or his assignee is the owner of the land.

The force of the certificate may be overcome by showing that in issuing it the land oflScers exceeded their jurisdiction. It is not subject to collateral attack.' It may be assailed only upon the same grounds and in the same manner as a patent may be assailed — a subject to be fully presented in a succeeding section.

' Aurora HiU Cons. M. Co. v. 85 M. Co., 12 Saw. 356 (referred to in Benson M. & S. Co. t'. Alta M. <fe S. Co., 145 U. 8. 428, 432); Hamilton v. Southern Nev. G. S. M. Co.. 13 Saw. 113; Cons. Wyoming G. M. Co V. Champion M. Co., 63 Fed. 540, 541.

Rader v, Allen (Oregon), 41 Pac. 154; Deno r. Griffin. 20 Nev. 249.

5 Hamilton v. Southern Nev. G. <fc S. M. Co., 13 Saw. 113.

Post, $ 777.

Chapter Vii.

The Patent.

777. General rales as to conclusiveness of patents.

i 778. Conclusiveness of patent as to form and extent of surface boundaries.

779. Character of the land established by the patent.

$ 780. What is conveyed by a lode patent.

$ 781. What is conveyed by a placer patent — Reservation of lodes **knovrn to " exist."

$ 782. Exceptions in junior patents of conflicting area held under senior title.

J 783. Title conveyed by patent relates to inception of right — When evidence admissible to prove date of location.

J 784. Patent how vacated— Within what time suit must be brought.

g 777. Oeneral rules as to conclusiveness of patents.— In presenting in the preceding chapters some of the questions arising out of the various phases of the federal mining laws, the force and effect of a land patent when issued has been necessarily, although incidentally, involved. We have there had occasion to enunciate some of the elementary principles which have guided the courts in determining the legal value of this instrument.

With the issuance of the patent the functions of the land department terminate/ It is the culmination of the proceeding in rem' — the final judgment of the tribunal specially charged with passing the government title.

To the extent that we have already covered the field, it is unnecessary to do more than recapitulate the results heretofore reached as to the force and effect of this judgment.

steel V. St. Louis Smelting Co., 106 U. S. 447, 454. Ante, $ 718.

961 Rules As To Conclusiveness Of Patents. §777

(1) A patent for land is the highest evidence of title, and is conclusive against the government and all claiming under junior patents or titles until set aside or annulled.

(2) The land department is a tribunal appointed by congress to decide certain questions relating to the public lands, and its decision upon matters of fact cognizable by it, in the absence of fraud or imposition, is conclusive everywhere else.

(3) The government having issued a patent cannot, by the authority of its own oflBcers, invalidate it by the issuing of a second one for the same property.

(4) A patent may be collaterally impeached in any action, and its operation as a conveyance defeated by showing that the department had no jurisdiction to dispose of the lands; that is, that the law did not provide for selling them, or that they had been reserved from sale, or dedicated to special purposes, or had been previously transferred to others ;

(5) A patent is conclusive evidence that all antecedent steps necessary to its issuance have been properly and legally taken;"

(6) It is conclusive evidence of the citizenship and qualification of the patentee;' and,

(7) In cases of mining patents, that all matters which might have been the subject of an adverse claim have been conclusively adjudicated in favor of the patentee.*

Embraced within these general propositions we encounter certain subordinate or complementary rules, referable to one or the other of the general ones, where attention is directed to a particular fact, or series of facts, necessary to

Ante, $ 175.

Davia v, Weibbold, 139 U. S. 607 ; United States v. Iron S. M. Co., 128

TJ. S. 673 ; Iron S. M. Co. v. Campbell, 29 Pac. 513 ; Kahn v. Old Tel. Co., 2

Utah, 174; Chambers v. Jones, 42 Pac. 758; Poirb v. Wells, 6 Colo. 406;

Justice M. Co. v, Lee, 40 Pac. 444 ; Montana Cent. Ry. v, Migeon, 68 Fed.

Sn ; Harkrader v. CarroU, 76 Fed. 474.

3 Ante, $ 227.

AnU, i 742 ; Ciiampion M. Co. v. Cons. Wyoming M. Co., 75 Cal. 78, 82.

§778 The Patent. 962

be passed upon in the patent proceeding, or which may be presumed to have been passed upon. We are not particularly interested in the investigation of any class of patents, save those issued in pursuance of the mining laws, and are not called upon to examine the special force and elGfect of such instruments as conveying the government title to lands agricultural in character, except in so far as clauses of reservation are lawfully inserted therein, excluding from their operation mines and mining claims.

These complementary rules may be considered in succeeding sections as w,e examine individual classes of patents falling within the purview of this treatise.

g 778. Gonclasiveness of patent as to form and extent of surface boundaries. — We have heretofore discussed the superficial extent which may be lawfully embraced in mining locations, both lode* and placer, and have noted that, while the law limits the area which an individual may embrace in a single location, there is no limitation to the number of locations he may purchase. A patent may, therefore, embrace a greater area than that included in a single location, as the owner may include in his patent application as many contiguous locations as he may own.* It may thus appear upon the face of the patent that the area is greater than is allowed for an individual location. This does not render the patent void nor cast upon the patentee the aflBrmative duty of showing that the patented surface is a composite of several locations. This fact will necessarily be presumed in support of the patent. As was said by the supreme court of the United States, in speaking of the functions of the land department: —

" Indeed, the doctrine as to the regularity and validity " of its acts goes so far that, if under any circumstances under the existing law a patent will be held valid, it will " be presumed that such circumstances existed."

Avte, Sai. Ante, $$ 670, 672.

Ante, $ 447. St. Louis Smelting Co. t'. Kemp, 104 U. S. 636.

Ante, $827.

963 Conclusiveness Op Patents. §778

This doctrine was applied to a placer patent embracing an area in excess of that allowed to an association of individuals/ and was followed by the circuit court of the ninth circuit and applied to a lode patent."

In the case of Lakin v, Dolly' and Lakin v, Roberts/ the circuit court and the circuit court of appeals had under consideration a lode patent for an irregularly shaped surface, delineated on the accompanying diagram (figure 56),

Figure 56.

containing an aggregate area of two hundred and fifty-three acres, including forty-one hundred linear feet of a vein. The patent was based upon locations made under the act of

The cases having been originally tried and a judgment entered, they were resubmitted upon an agreed statement of facts.

From this agreed statement it appeared, that when the claims were originally located, the miners in that locality actually occupied such portion of public land as they chose, for the purpose of working their mines, the extent of such

See, also, Tucker v, Masser. 113 U. 8. 203.

Canon City G. A S. M. Co. v. North Star M. Co., 73 Fed. 507.

*53 Fed. 333.

54Fed. 401.

§ 778 The Patent. 964

occupation not being a matter of defined custom, but of actual possession ; that there was never any actual possession of that portion of the surface in controversy in the action which embraced the town of Johnsville. Patent was applied for in 1867 and issued in 1877.

It thus appears that the parties stipulated and agreed to facts which showed a want of jurisdiction in the department to issue the patent to the extent described. If the question were to be considered solely upon the face of the patent,- without the presence of the stipulated facts, would not the court have been compelled to accept that instrument as conclusively establishing the fact that the claimants had been in the actual possession of the tract; that the extent of the possession was a matter which the land department was called upon to determine; that such possession was under the sanction of local rules in force at the time the location was made; that the land department was the exclusive judge of what local rules were in force that the act of 1872 did not purport to deprive anyone of rights which they lawfully held under the pre-existing laws, which left the matter of surface exclusively to local regulations, but, on the contrary, expressly preserved such rights, and that, if necessary to support the validity of the patent, it would have been conclusively presumed that there was a suflBcient number of locations contiguous and owned by the patentee which, when united in one composite or group, authorized the issuance of the patent to the extent and in the form therein expressed ?

It seems to us that this is the logical result of the decisions of the supreme court of the United States.

The circuit court, in the face of an admission of facts which established a want of power in the land department to issyie a patent to the extent shown on the diagram, reached what may be considered a proper conclusion, by leaving the patentee the lode and that portion shown on

Parley's Park M. Co. v. Kerr, 130 U. S. 256. 261.

AnU, $ 604. Carson City G. A 8. M. Co., 73 Fed. 607, 609.

965 Character Of Land Established By Patent. § 779

the diagram marked with black lines, and declaring the patent void as to the unshaded area.

But to say that where a patent is presented, exhibiting an area in excess of the statutory limit of a single location, evidence may be admitted to impeach its operative effect by showing that there was not a suflBcient number of locations to support it, is to practically deny the force of the doctrine announced by the supreme court of the United States in St. Louis Smelting Co. v. Kemp, heretofore quoted.

It may be announced as a general rule, that a patent is conclusive evidence as to the limits of a location, and that it cannot be assailed by showing that its actual boundaries were different from those described in the patent.*

This rule is, of course, subject to the qualification that, where there is a variance between the calls of the patent for courses and distance and the monuments specified therein, the monuments control."

g 779. Character of the land established by the patent.— It has been frequently determined that the patent is conclusive evidence of the character of the land. If the instrument was issued pursuant to the laws governing agricultural lands, the land embraced therein will be conclusively presumed to be agricultural, and if under the mining laws, that the land was mineral.'

This rule, when invoked in certain classes of cases, seems to have lost some of its force, if it is not altogether ignored. Take, for example, the case of a patent for a placer claim within the limits of which it is asserted that a lode exists, whose existence was known at the time the placer patent was applied for, and which was not embraced within the placer application.

The courts hold in such instances, that the patent is not so conclusive that the land is placer in character as to

Waterloo M. Co. r. Doe, 56 Fed. 685, 687.

'Lob Angeles Farming and Milling Co. v, Thompson (Cal.), 49Pac. 714. 'See authorities cited under $ 161. Klauber v. Higgins (Cal;), 49 Pac.466.

§ 779 The Patent. 966

prevent the owner of the known lode from defeating the operative force of such patent in an action at law, by showing the facts as to the existence of such lode and the knowledge thereof by the placer claimant.*

So with a townsite patent. Where, at the time of perfecting a townsite entry, a mine or valid mining claim exists within the limits of the townsite which presumptively, except in the case of incorporated cities or towns, embrace only nonmineral lands, the owner of the mine or mining claim may, in an action at law, defend against the patent by showing the existence of such mine or mining claim at the date of the entry

This is permitted on the ground that the known lode, mine, or mining claim is reserved out of the patent; but when a railroad patent has been issued, which cannot lawfully include lands known to be mineral at the date of its issuance, it would seem that the only method of attacking it is by bill in equity to vacate and set it aside.

One owning a mining claim in a section of land which, if nonmineral in character, would inure to a railroad conipany under a congressional grant, cannot at law attack a patent issued to such company by showing that the land embraced within the mining claim was mineral in character at the date of the railroad patent. The aid of the government must be invoked to vacate such a patent, and until it is vacated it is a conclusive adjudication that the lands are nonmineral.'*

A similar rule applies to agricultural patents. The owner of a " known mine " within premises patented as agricultural cannot defend in an action at law againstsuch a patent.* The method of obtaining relief is the same as in the case of railroad patents — a suit brought by the United States to set the patent aside.*

Ante, $$720,721. Ante, $$ 177, 723. ' Ante, $ 161.

Ante, 161, and notes. As to what constitutes ''known mines, " see g 209. For instances where this remedy was sought, see cases cited in note 1, p. 188.

967 What Is Conveyed By A Lode Patent. §780

We do not clearly understand the reason for invoking a different rule in cases of railroad and agricultural patents from that applied to townsite and placer patents; but that there must be some valid reason for the distinction between the different classes of patents and their operative force, is manifest from the fact that both rules are clearly recognized by the courts of last resort.

As we understand the authorities, in the case of a townsite or placer patent, an assertion by a mining claimant of his rights is not a collateral attack upon the patent. In cases of agricultural or railroad grants it is such an attack.

g 780. What is conveyed by a lode patent. — A lode patent conveys : —

(1) The exclusive right of possession and enjoyment of all the surface included within the limits of the location,* as described in the patent, subject only to pre-existing easements;

,(2) All veins, lodes, and ledges throughout their entire depth, the tops, or apices, of which lie within the boundaries,' the right to pursue the vein in depth outside of such boundaries being limited, however, to cases where the lines of the location and the physical conditions with respect to the lode are such as are outlined in the chapter on extralateral rights.*

(3) Prima facie, such a patent confers the right to everything found within vertical planes drawn through the surface boundaries; but these boundaries may be invaded by an outside lode locator holding the apex of a vein under a regular valid location, in the pursuit of his vein on its downward course underneath the patented surface. How ih% prhiia facie presumption may be overcome and on whom

Rev. stats., $ 2322.

'This is upon the hypothesis that the Arizona-California doctrine on the subject of cross lodes is the correct one. Ante, 581-594.

§780 The Patent. 968

rests the burden of proof, will be discussed when dealing with the action of trespass and the rules of evidence applicable to such action.

In the patent proceeding the applicant is compelled to state in his published and posted notices the length of the located lode which he claims. The surveyor surveys a lode line, describes it in his field notes, and frequently delineates it on his plat, and the patent grants the surface ground as surveyed, and so many linear feet of the vein.

As under the existing law, the appropriation of the vein is accomplished by locating a surface including it, the locator can obtain no more in length than is included within the limits of the surface boundaries, and the mere call in the survey and patent for so many feet of the lode is of no moment. If a patentee is granted fifteen hundred linear feet on a vein, he will obtain that much, if so much fs found within his surface boundaries. If there is less, if the vein does not traverse the full length of his claim but departs out of a side line, the patentee may not follow it outside of these boundaries on the strike. There is no reason for perpetuating the early theories followed by the land department as to lode patents under the act of 1866.* There is no necessity for inserting in the patent the number of linear feet granted. The patent is certainly not conclusive evidence of the physical existence of a lode to any continuous extent. The issuance of a lode patent conclusively presumes the existence within its boundaries of an apex, as this is a fact necessary to support its validity, but it will not be presumed that this apex takes any particular direction or extends for any definite length. The course of the lode as indicated by the hypothetical lode line exhibited by the surveyor, concludes no one.

The patent will only convey so much of the lode as has its apex within the boundaries, and the call for length in the patent is useless.

Ante, $ 59.

2 Iron S. M. Co v. Campbell, 17 Colo. 267, 272.

3 Cons. Wyoming M. Co. v. Champion M. Co., 63 Fed. 540.

969 What Is Conveyed By A Placer Patent. §781

g 781. What is conveyed by a placer patent — Reservation of lodes ''known to exist." — In discussing the proceedings by which a placer patent may be obtained, we had occasion to refer to the law which excepted from the operation of such patent all lodes whose existence was know at the time the placer application was filed and which were not claimed by the placer applicant/

The form of placer patent now issued by the department contains the following clauses: —

" First — That the grant hereby made is restricted in its exterior limits to the boundaries of the said mining premises, and to any veins, or lodes, of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, which may have been discovered within said limits subsequent to and which

were not known to exist on the (date of filing of

the placer patent).""

'Second — That should any vein, or lode, of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, be claimed or known to exist within the above-described premises at said last-named date, the same is expressly excepted and excluded from these presents.

" That the premises hereby conveyed may be entered by the proprietor of any vein, or lode, of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, for the purpose of extracting and removing the ore from such vein, or lode, should the same, or any part thereof, be found to

' Ante, $ 413.

Formerly the following clauses were inserted : —

First — That the front is restricted in its exterior limits to the boundaries of the tract described and to any veins, or lodes, of quartz or other rock in place bearing? Rold silver, cinnabar, tin, copper, or other valuable deposits, which may hereafter be discovered within said Uhiits and wnich are not claimed or known to exist at the date thereof (i. e. the date of the patent)."

The supreme court of the United States expressed the view that this clause g&ye expression to the intent of the statute (Reynolds v. Iron S. M. Co., 116 I S. ()87, 697) ; but subsequently held that tHe terms were broader than the lanfjruafe of the statute. The insertion of the word claimed was unauthorized. (Iron S. M. Co. Reynolds, 124 IT. S. 374, 382; United States v. Iron S. M. Co., 128 U. S. 673, 680.)

The restriction was unauthorized in another particular : It fixed the period as the date of the patent, instead of the date of filini; the application. (Iron S. M. Co. v. Mike <fc Starr G. <fc S. M. Co., 143 U. S. 394, 402.)

§781 The Patent. 970

" penetrate, intersect, pass through, or dip into the mining " ground or premises hereby granted."

By eliminating from the second clause the words " claimed or," which are unauthorized,* the restrictions fairly express the intent of the law.

When is a lode " known to exist " within the meaning of the statute, so as to be excepted from the operation of the placer patent?

To whom must its existence be known ? The supreme court of the United States has enabled us to answer these questions without serious diflSculty.

Where a location of a vein, or lode, has been made under the law, and its boundaries have been specifically marked on the surface so as to be readily traced, and notice of the location is recorded in the usual books of record within the district, it may be safely said that the vein, or lode, is known to exist, although personal knowledge of the fact may not be possessed by the applicant for a patent to a placer claim. The information which the law requires the locator to give to the public must be deemed sufficient to acquaint the applicant with the existence of the vein, or lode; but a valid lode location can only be predicated on a discovery of a vein of quartz or other rock in place carrying valuable deposits sufficient to justify the expenditure of time and money for its development,'' and such discovery must be shown before the location notice or its record will possess any force as against a placer patent.**

While the land department has jurisdiction to issue a patent for a lode previously known to exist within the limits of a tract patented as a placer, the knowledge of the existence of such lode is not presumed from the mere production of a recorded location notice antedating the location of the placer.

' See note 2 on pajje 969.

2 Noyes v. Mantle, 127 U. S. 348, 354.

Ante, $336.

Migeon v, Montana Cent. Ry., 77 Fed. 249.

Wilson Creek Cons. M. <fe M. Co. v, Montgomery, 23 L. D. 476; Valley Lode, 22 L. D. 317; 8. C. on review. Id. 713.

V71 Reservation Of Lodes "Known To Exist." §781

Even where a patent has been issued for a lode claim within the limits of a prior patented placer, it will not be presumed from the mere production of the lode patent that the lode was known to exist at the time of filing the application for placer patent.

As the prior placer patentee is not called upon to adverse the lode application, he is not concluded by the lode patent, and the question of priority must be determined by reference to the antecedent facts. The question will be decided according to the doctrine of relation discussed in a subsequent section.*

Where the lode was located subsequent to the filing of the placer application, based upon an assertion that its existence was known at the time of such filing, the party seeking to establish that it is within the exception of the placer patent must bring himself cl earl within the rule enunciated by the supreme court of the United States; that in order to meet the designation of " known vein," such vein, or lode, must have been, at the date of the placer application, clearly ascertained and known to be of such extent as to render the land more valuable on that account, and justify its exploitation;' and its existence and quality must have been known to the applicant for the placer patent or known to the community generally, from which knowledge by the applicant might be inferred, or else disclosed by workings, and obvious to anyone making a reasonable and fair inspection of the premises for the purpose of obtaining title from the government.*

Evidence for the purpose of establishing these facts may be admitted, not as an impeachment of the placer patent,

Iron 8. M. Co. r. Campbell, 135 U. S. 286.

Post, J 783.

' Iron S. M. Co. v. Reynolds, 124 U. S. 374 ; Iron S. M. Co. Mike fc Starr G. A S. M. Co., 143 U. S. 394; Sullivan r. Iron S. M. Co., 143 U. S. 481 ; Montana Cent. Ry. v. Mifjreon, 68 Fed. 811 ; S. C. on appeal, 77 Fed. 249; Brownfield v. Bier, 15 Mont. 403; Casey v. Thieviege (Mont), 48 Pac.394.

Iron 8. M. Co. v. Mike A Starr G. <fc S. M. Co., 143 U. 8. 394, 402.

§782 The Patent. 972

but to establish that the lode was reserved and did not pass by such patent/

No particular stress is laid upon the mere form in which these exceptions are stated in the patent. Unless they are within the sanction of the law, they are void. The reservations would be implied in the absence of these excepting clauses.

As to the rights of the owners of lodes having their apices outside of the limits of the placer patent to pursue their veins underneath the surface of the placer claims, a reservation intended to be expressed in the third clause, we have fully discussed this subject in a preceding section, and need not repeat what is there stated.'

We may conclude, that a placer patent conveys to the patentee everything within vertical planes drawn downward through the surface boundaries, except (1) such lodes, or veins, whose tops, or apices, are within the placer limits, whose existence was known prior to the filing of the application for placer patent, and were not included in the placer application; (2) such segments of veins having their tops, or apices, elsewhere, as may underlie the placer surface, and whicfi may lawfully be taken by the apex lode locator under a regular valid lode location, pursuing bis vein on its downward course. In the last class of cases the question of priority of location is wholly unimportant*

g 782. Exceptions in junior patents of conflicting area held under senior title. — It is the practice of the land department, in cases of a conflict arising between two mineral surveys, or locations, to describe the land to be patented to the junior applicant by inserting in the patent the complete field notes of the survey of the location on which the proceedings are based, and embodying in the

Iron S. M. Co. v. Mike & Starr G. <fe S. M. Co., 143 U. S. 31M, 402. For {general discussion of the location of lodes within placers, consult 413,

2 Ante, § 171.

Ante, 'i 611,

Exceptions Of Conflicting Area.

§782

instrument of conveyance a clause excepting and reserving

therefrom the surface area in conflict with the prior title —

a method frequently followed in private conveyances.

The employment of this method in issuing mineral

patents is, at times, productive of peculiar results. It not

infrequently divides the tract held under the junior patent

into two distinct noncontiguous tracts. The method is

adopted by the department in cases of alleged cross lodes,

where, according to the rule in Colorado* followed b}' the

land department,' the junior locator has a right to so much

of his vein as lies within the senior claim, except at the

space of lode intersection. We may illustrate this by use

of a diagram (figure 57).

A represents the patented

surface of a senior location ;

£,ajunior patent based upon

a junior location. B's patent

describes the tract by the

] boundaries w x y z, except-

Figure 57.

ing and reserving therefrom the surface 1 9 S 4., which conflicts with A.

This gives to B. two noncontiguous tracts, connected

theoretically by a " string," in the shape of a lode, ofttimes purely hypothetical, crossing A*s side lines. Whether there is a cross lode or not, is a matter that cannot be determined as against A. in the proceedings by which B. obtains patent. Whether anv such cross lode exists or not, is a fact which may not be satisfactorily determined, except after the lapse of considerable time and the expenditure of considerable money. A. is supposed to have a prior grant of his surface, together with all veins, lodes, and ledges, the tops, or apices, of which lie inside such surface lines; l>ut the invasion of his territory is apparently .sanctioned by the patent to B., on the suggestion that B's lode is a cross lode.

In re Belford, 2 Copp's L. 0. 178; Patten Extnwiori Ide, 15 L. D. 133.

§782 The Patent. 974

If B. were to apply in one proceeding for his segregated tracts B B, without extending his surface lines across the prior patent, his application would be rejected, as such practice is not permitted;* but by extending the dotted lines 1 54 across A's surface, the department permits him to proceed to patent, and then deducts the surface bounded by the lines 1 2,3 4,, In other words, he is permitted to da indirectly what the law says shall not be done directly.

The department does not undertake to determine the precise position of B's vein within A's surface. It does not undertake to investigate underground conditions. It deals only with surface conditions. B's patent, with the implied right to follow a cross vein into A's ground, is based upon the assumption of a fact which may or may not exist and which the land department does not attempt to determine so as to conclude anybody. It is not the subject of an adverse claim, and if it were, the prior patentee could not be compelled to adverse.'*

The construction of the law adopted by the department in issuing these junior conflicting patents does not give to A. all the veins which have their tops, or apices, within his boundaries, but only such as are parallel to his original located lode, and inferentially permits that department tocurtail the rights granted upon the face of the prior patent by means of clauses of surface reservation in a junior patent.

As has been said by Mr. Morrison in his " Mining "Rights"':—

" A glance at the plat of any late patent in a well-devel- " oped district will introduce the subject to the reader " Three or four surveys partly crossing, partly parallel, and " intersecting at all angles, are frequently seen, so that, " unless the plat be colored, the eye can scarcely distinguish " one from another; only the rigid application of the rule " of preference to prior patents can ever relieve this matter " from difficulty, for while the words of a patent always-

Ante, $ 669, p. 840. Ante, § 718.

Ante, J 727. 9th ed., p. 109.

975 Titls Oonveyicd Relates To Inception Of Right. § 783

" except the wrface and claim oi previous surveys, they still " proceed upon the fallible supposition that each survey " indicates a separate vein."

If the rule adopted by the Colorado courts, which has been fully discussed in a preceding article, is the correct one, the right of a junior locator to pursue a cross vein into the ground of a prior locator exists independent of a patent, and the question as to the existence or nonexistence of such cross vein is one upon which the courts can alone finally pass, as it is not the subject of adverse proceedings.

Therefore there is no reason for the land department pursuing a practice which has a tendency to prejudge questions of which it is not the final arbiter, or to appear to weaken the force of its prior conveyances by clauses of reservation inserted in junior patents.

§ 783. Title conveyed by patent relates to inception of right — When evidence admissible to prove date of location. — It is accepted as a well-established rule of law, that the title conveyed by a mining patent relates back to the inauguration of the right; that is, to the location upon which the patent proceed in gs a re based but this doctrine cannot be applied so as to cut off the rights of a senior patentee holding a junior location, when the conflicting prior locator failed to adverse/

Therefore the patent itself is conclusive evidence of priority in cases where the question either actually was, or might have been, adjudicated in the patent proceedings.

So it would seem that where an adverse claim is filed, showing surface conflict, the judgment rendered in the

See figure 26, p. 664. Ante, 557, 660.

' Heydenfeldt v, Daney G. & S. M. Co., 93 U. S. 634 ; St. Louis Smelting Co. V, Kemp, 104 U. S. 636 ; Deffebach r. Hawke, 115 U. S. 312, 405 ; Silver Bow M. fe M. Co. V. Clarke, 5 Mont. 378 ; Talbot v. King, 6 Mont. 76; Smokehouse Lode Cases, 6 Mont. 397 ; Deno v, Griilln, 20 Xev. 249: Eureka Case, 4 Saw. 302 ; Kahn v. Old Tel. Co., 2 UUh, 174.

Eureka Case, 4 Saw. 302.

§783 The Patent. 976

action, upon the basis of which the patent ultimately issues, is conclusive in its eflfect, not only as to the surface area directly involved, but determines priority in favor of the successful litigant as to all rights flowing from the respective locations. The question of priority having been actually or presumptively adjudicated as to one part of the conflicting claims, the judgment necessarily extends to and affects the portions not included within the conflict area, and a subsequent conflict of underground rights arising in such a case must be determined by the priorities actually or presumptively established in the patent proceeding.

But there are cases where the question of priority necessarily arises, where the patent itself furnishes no evidence, actual or presumptive, as to the actual time to which the title conveyed relates. The rights of parties where veins unite in depth must be settled by the rule of priority. Where there is no surface conflict, the prior locator would liave no standing as an adverse claimant in patent pro- , ceedings instituted by a junior locator. An asserted intersection of veins not involving such conflict is not the subject of the adverse proceeding.

In cases of this character, for the purpose of showing the date to which the patent relates, evidence is admissible to prove proceedings under which the title originated.'

This is not inconsistent with the doctrine as to the conclusiveness of a patent. There is no attempt to impeach that instrument. It simply permits extrinsic evidence of a fact not required to be recited in the patent, for the sole purpose of showing the time to which the instrument relates.

For this purpose, and this purpose alone, a patentee may show the date of the location upon which the patent proceeding is based.

The patentee, in establishing this fact, will necessarily be

' Last Chance M. Co. v. Tyler M. Co., 157 tJ. S. 683. Ante, $ 730.

'St. Louis Smelting Co. v. Kemp, 104 U. S. 636; Kahn v. Old Tel. Co., -2 Utah, 174. St. Louis Smelting Co. v. Kemp, suprti.

977 Patent — How Vacated. §784

limited to the location appearing in the patent record. He cannot be permitted to show the existence of any other or prior location.

Therefore, the patent record duly authenticated by the commissioner of the general land office is admissible for this special purpose.

While these records are ordinarily received in the courts as evidence of the facts stated therein,' we are of the opinion that the original location must also be proved by evidence other than that furnished by the patent record. This seems to be the rule sanctioned by the courts.'

g 784. Patent — how vacated — Within what time suit must be brought. — The circumstances under which thegovemment may bring an action in equity to vacate and set aside a patent, arcoutlined by the supreme court of the United States in the case of United States v. Missouri K. & T. Railway, substantially as follows: —

Where a patent has been fraudulently obtained, and such fraudulent patent, if allowed to stand, would work prejudice to the interests or rights of the United States, or would prevent the government from fulfilling an obligation incurred by it, either to the public or to an individual, which personal litigation could not remedy, there would be an occasion which would make it the duty of the government to institute judicial proceedings to vacate such patent. These principles equally apply where patents have been issued by mistake, and they are especially applicable where a multiplicity of suits, each one depending upon the same facts and the same questions of law, can be avoided, and where a comprehensive decree covering all contested rights would accomplish the substantial ends of justice.

' Jacob V. Loreiiz, 98 Cal. aYJ, 340.

2Gttlt r. GaUoway, 4 Pet. :W2.

'Champion M. Co. r. Cons. Wyomingr M. Co., 75 Cal. 78, 82; Kahn r. Old Tel. M. Co., 2 Utah, 174. 188; Last Chance M. Co. v, Tyler M. Co., 61 Fed. 557. 566.

141 U. S. 358.

§ 784 The Patent. 978

This principle has, in one form or another, been enunciated by the supreme court of the United States in a long line of decisions/

It is unnecessary to analyze the authorities or to note their special application to mining patents. The principles apply with equal force to all classes of patents. What constitutes such fraud in a legal sense as will warrant proceedings to vacate a patent issued under the mining laws, must be determined by report to general rules invoked in other cases.

Attacks are rarely made upon mining patents. The proceedings by which ,they are obtained, unlike those governing lands agricultural in character, afford an opportunity to adverse claimants to litigate in the courts asserted hostile rights, prior to the issuance of the patent. The action of the government is more frequently sought to secure the cancellation of patents issued under the agricultural land laws, upon the ground that the lands embraced therein were known to be mineral at the date of the entry upon which the patent was based. Sometimes a patent of this character is issued where there is an absence of fraud and a court of equity has intervened to vacate it on the ground that it was issued by mistake — inadvertence— under an erroneous construction of the law or without authority of law.'

United States v. Minor, 114 U. S. 233; United States v. San Jacinto Tin Ck>., 125 U. S. 273; United States v. Beebe, 127 U. S. 338; Moore v, Bobbins, 96 U. S. 5*30; United States Iron S. M. Co.. 128 U. S. 673; United States v, Trinidad Coal & Cokeing Co., 137 U. S.16(); Mullan r. United States. 118 U. S. 271.

On this subject see generally: Moffat v. United States, 112 U. S. 24; United States v. Minor, 114 U. S. 2:3; United States r. Throckmorton, 98 U. S. 61 ; Steel v. St. Louis Smelting Co., 106 U. S. 447 ; Colo. Coal it Iron Co. V. United States, 123 U. S. 307; United States v. White, 17 Fed. 561; State V. McGraw, 12 Fed. 449 ; United States v. Iron S. M. Co., 128 U. S. 673, 16 Fed. 810; United States r. Hancock, 133 U. S. 103; United States r. MarshallS. M. Co., 129 U. S. 579.

3 United States v. Mullan, 7 Saw. 466; S. C. on appeal, 118 U. S. 271; McLaughlin r. United States, 107 U. S. 526; Western Pac. Ry. Co. v. United States, 108 U. S. 510; United States v. Culver, 52 Fed. 81, and cases cited.

979 Patent — How Vacated. §784

Where the patentee has been guilty of fraudulent misrepresentations as to the character of the land, the United States may vacate the patent; but a bill in chancery brought by the United States to set aside a patent, is not treated as a writ of error or as a petition for rehearing in chancery, or as if it were a mere retrial of the case before the land office."

The rule governing this class of cases is thus stated by the supreme court of the United States: —

" We take the general doctrine to be, that when in a " court of equity it is proposed to set aside, to annul, or to " correct a written instrument for fraud or mistake in the " execution of the instrument itself, the testimony on which " this is done must be clear, unequivocal, and convincing, " and that it cannot be done upon a bare preponderance of " evidence. ... In this class of cases, the respect due " to a patent, the presumption that all the preceding steps " required by the law had been observed before its issue, " the immense importance and necessity of the stability of " titles dependent upon these official instruments, demand " that the effort to set them aside, to amend them, or cor- " rect mistakes in them should only be successful when the " allegations on which this is attempted are clearly stated " and fully sanctioned by the proofs."

To set the machinery of the government in motion and secure the institution of such a suit, application must be made to the land department, of which application the patentee is entitled to notice.

If, upon examination of the proofs submitted, the commissioner of the general land office is of the opinion that order for a hearing, he refers the matter to the secretary of the interior, recommending that such a hearing be had. If the secretary concurs in the recommendation, a hearing is ordered.*

United States v. Iron S. M. Co., 128 U. S. 673. '

8 United States v. Marshall S. M. Co., 129 U. S. 579.

'Maxwell Land Grant Case, 121 U. S. 325, 381, and cases cited.

*In re Little Nell Lode, 16 L. D. 104.

In re Butte and Boston M. Co., 21 L. D. 125.

§784 The Patent. 980

If, upon the hearing, the proofs are " clear, unequivocal, " and convincing," the secretary of the interior presents the matter to the attorney-general, with the request that the suit be instituted in the name of the United States,* which request is usually complied with, although such course is not necessarily taken. The matter ultimately rests with the department of justice, of which the attorneygeneral is the head.

By act of congress, approved March 3, 1891,* it was enacted that suits by the United States to vacate and annul any patent theretofore issued should only be brought within five years from the passage of this act, and thatsuits to vacate and annul patents thereafter issued shall only be brought within six years after the date of the issuance of the patent.

In re Negus, 11 L. D. 32 ; In re Starr, 2 L. D. 759 ; Mountain Maid Lode, 5 L. D. 28; Lead City Townsite v. Little NeU Lode, 17 L. 1>. 291 ; In re Abercrombie, 6 L. D. 393 ; United States v, Rumsey, 22 L. D. 101.

26 Stats, at Large, 1093, $ 8.

Title Viii.

Rights And Obligations Arising Out Of

Ownership In Common Of Mines

And Joint Participation In

Mining Ventures.

I. Tenants In Common.

Ii. Mining Partnerships.

Chapter I.

Tenants In Common.

788. Cotenancy — how created — General ralee governing tenants in common applicable to ownership in common of mines.

$789. Right of each cotenant to occupy and use the common property.

$ 790. Remedy of excluded cotenant— Accounting between tenants in common.

$791. Leases, licenses, and conveyances executed by one of several cotenants.

$792. Partition of mining property.

g 788. Cotenancy — how created — General rules governing tenants in common applicable to ownership in common of mines. — A tenancy in common of a mining claim upon the public domain arises when two or more persons participate in its location.*

We have heretofore had occasion to treat of the relationship thus created and the rights and duties flowing therefrom with respect to relocations,* forfeiture to co-owners under the federal law,' and the attempt of one tenant in common to secure a government patent to the exclusion of his cotenants.

With the exception of the title acquired originally a location, a tenancy in common in mines and mining property is created in the same manner as in other classes of real property. From such cotenancy, however created, flows certain rights and obligations.

These rights and obligations may be enlarged or restricted in a number of ways through contractual relations, and the co-owners may thus occupy toward each other, or toward third persons, a relationship essentially

Ante, $ 331. *Ante, J 406.

Ante, $ 646. *Ant€, i 728.

§789 Tenants In Common. 984

different from that of mere cotenants. For the present we deal exclusively with cotenancy pure and simple, treating the parties in the light strictly of co-owners in mining property, eliminating from consideration all elements other than those arising out of the legal relation, and dealing pnly with those engagements formed " by the bare " effect of their interest in the thing that is common to " them."

It is not to be inferred that these " engagements " are different, in respect to property whose principal value and utility lie in its mineral character, from those which arise where the property is valuable and useful for other purposes. It may be accepted as well settled, in the absence of some statutory rule to the contrary, that the rights, duties and obligations of cotenants in a mine or mining claim are relatively the same as if a farm were the subject of the common ownership, so long as such relationship is unaffected by contract between the parties, express or implied. It is not our purpose to enter into an exhaustive discussion of the general laws of cotenancy. We shall limit ourselves to a brief application of some of these laws to the character of property under consideration. This will enable us to contrast to a better advantage cotenancies with mining partnerships, and to apply the decisions of the courts with a greater degree of precision.

We exclude from present consideration all those elements which arise distinctively out of the federal laws, confining ourselves to what may be called the common law phase of the relationship.

g 789. Right of each cotenant to occupy and use the common property. — A tenant in common of a mine may occupy it for the purpose contemplated by all, even though a portion of the soil or ore be removed. Each tenant has the right to iise the mine."

' Freeman on Cotenancy, $ 3.

McCord V. Oakland Q. M. Co., 64 Cal. 134, 141 ; Anaconda C. M. Co. v. Batte A B. M. Co., 17 Mont. 519.

985 Remedy Of Excluded Cotenant. §790

" It is no valid objection that the use is consumption, " and it is no fault of the tenant that it is not more endiir- "able."

As was said by Vice-Chancellor Bacon, in Job r. Potton:* —

" How is a tenant in common to enjoy his share (if that " is the right expression) of the common property of a " coal mine, if he is not at liberty to dig and carry away " the coal ? "

The taking of ore from the mine is rather the use than the destruction of the estate within the meaning of the general rule. The results of the tenant's labor and capital are in the nature of proceeds or profits, the partial exhaustion being but incidental consequence of the use.

Conceding that a tenant in common mav be liable to his cotenants in case he commits waste, the usual method of enjoying the land does not constitute such waste.*

Under the English rule, any joint tenant, tenant in common or coparcener of a mine is entitled to enter upon and work it."

§ 790. Remedy of excluded cotenant — Accounting between tenants in common. — The right of a cotenant to use the common property is based upon the assumption, that the one so using does not deny the right of the others or exclude them from possession. When one of several co-owners takes exclusive possession of the premises under such circumstances as amount in law to an ouster, the excluded cotenant is entitled to relief in some form. The nature of the remedy may depend upon state statutes.

Irwin V. Covode, 24 Pa. St. If32.

2 L. R. 20 E(i. 84, m.

McCord V. Oakljuul Q. Co., 64 Cal. 134; Anaconda C. M. Co. v. Butto B. M. Co., 17 Mont. 519.

Vervalen v. Older, H N. J. Kq. 0; Capner r. Fleniington M. Co., 3 N- J. Eq. 467; Huntley r. Russell, 13 Q. B. 572; Job r. Potton, supra ; Angler Agnew, 98 Pa. St. 5S7; Russell r. Merchants' Bank, 47 Minn. 28(); Findlay v. Smith, 6 Munf. 134; Sayers r. Floskinson, 110 Pa. St. 473; Reed V, Reed, 16 N. .1. K(|. 248; llihn t-. Peck, 18 Cal. 640.

MacSwinney on Mines, p. 110: ' *'*ore on Mines, 4th ed., pp.25, 26; Rogers, 2(1 ed., p. 267.

TEEtANTa IK COMMON.

Phile the right of redreas may exist independent of state Begislation,' the method to be pursued in securing such idress may not always be the same in all jurisdictions. As a general rule, one tenant in common cannot have an injunction against his cotenant; but this species of preventive relief has been upheld under special circumstances, as where waste destructive to the estate and not within the usual legitimate enjoyment is alleged.'

Under a statute which provided that " if any person shall assume and exercise exclusive ownership over, or ' take away, destroy, lessen in value, or otherwise injure or abuse any property held iu joint tenancy, or tenaucy mmon, the party aggrieved shall have his action for ' the injury in the same manner as he would have if such "joint tenancy, or tenancy in common, did not exist," it Vas held that an excluded tenant in common, whose right Evas practically denied, was entitled to an injunction against he operating cotenant.*

It may be generally conceded, particularly in the prewious-metai-hearing states where the reformed procedure ibas been adopted, that a cotenaut in possession, who either Pworka in so unskillful a manner as to amount to destructive waste, or being in possession under an unequivocal hostile Bsaertion of exclusive title, seeks to appropriate the entire [product to his own use, an injunction will He at the I instigation of the injured cotenant. The remedy at law Vby an action of trespass 'or trover for rents and profits, pi one sounding in damages only, might be wholly inadequate.

There exists tn reason no distinction between this clasa of cases and those where a disseizor holds lands of another and no (juestion as to tenancy in common arises.*

<Chll(lB V. KariMuUity B. R. Co, IMo.), ITS. W. Rep. ffiVI; Johnsoa v. Johnann, 2 Hill Eq. (S, C,),27Ti DoUgec. Davis, 85 Iowa. 77.

'Johnson v. Jntinaoa, itupnf; Hole v. Tliomaa. T Veaey Jr.UHlii Twan V. Twort, 14 Veaey Jr. 128; Hawley v. CIowini, 2 Johns. Ch. 122.

"AnainiiilB C, M. Co. i'. Butt A B. M. 0>., 17 Munt. S19: Rol Mann- Ulri Coue. M. Co. i'. B8lr, IS Monl. 174.

'Sears v. Sellew. 28 lows. 501.

RBMEDT or BXCLCDKD COTENANT. §790

F equity have gradually enlarged their jurisdic- 3W they interfere lo prevent injury to land, even I where the title is in dispute and the right is doubtful, if the wast© or trespass will be attended with irreparable mischief, or from the irresponsibility of the defendant, or otherwise the plaintiff cannot obtain relief at law.'

The excluded cotenaiit might bring partition proceedings, and obtain the appointment of u receiver by interlocutory order.-

One tenant in common cannot compel his cotenants to unite with him in the working and exploitation of the common property," or bind the interest of the other by I contract,'

It is entirely immaterial whether the and desiring to mine has the larger or the smaller interest in the property, or owns or controls more than an undivided half. The rule that those holding the majority ' interests have a right to dictate the policy and control the management and working of the property as against nonconsenting owners of the minority interest, has no application to cotenants. This doctrine applies only in cases of mining partnerships, or where the original rights and obligations of cotenants are enlarged or restricted by virtue of some contract, express or implied, existing between them."

In Idaho there is a statute which provides, that a " min- " ing partnership exists when two or more persons who own " or acquire a mining claim for the purpose of working it

>8pMrt'. Cutter. 6 Barh. 480; Hart i>. Mayor, 3 Palite. 214 1 WiDsblp r. Pllto, /rf. 269; New York P. A I). BsUbllstimenl Pitch. 1 Paljte. 97. 00; Bmuodi'. iiacilner, T Veser Jr. 3l>a, 308; Thomas t>. Oakley. 16 VeseyJr. Ut; Field Dumotit, 1 Swanst. 2iU. 20S; LivlngsloD i: UvlanBton, 6 Johna. Ch. m-, Kanii i'. VunderbarKh, 1 Jobna. Ch. 11, note; Ohert t>. Otwrt, 5 N, .T. Eq. JUT,

'MoGSwInDey on Mines, p. Ill; Roberts v. Rberhardl, Ray, 148, 158, ISO.

Graham v. Plorye. Ifl Grattan, 28; Mofbm v. Morfran. 33 Ln. .4n. 602.

'Chase i>. <avnite. 2 Nev. 6; Rioo RAduetion Works MiisKrave. 14 Colo. 71); Clinrlea v. EHhlemati. 5 Colo. 107. Douglierty v. Croary, SO Cal, 381.

§ 790 Tenants In Common. 988

" and extracting the mineral therefrom actually engage in " working the same."*

The supreme court of that state has held, that it was not necessary that all the co-owners in a mining claim should engage in working a mine together or separately in order to create the partnership; that when one of several cotenants holding an undivided eighth entered into possession and commenced operations apparently on his own responsibility, but not denying the right of the owner of the seven eighths to share in the profits, that a mining partnership was created, and that the owner of the majority interest has a right to dictate the manner in which the property should be worked.

In other words, any cotenant may, by his own act and under protest of his co-owners, convert a cotenancy into a mining partnership. The relief afforded by the supreme court of Idaho in the case referred to, may readily be justified upon the ground that, although the minority owner in possession protested his willingness to permit the majority to participate in the profits, as a matter of fact the only water available for the purpose of working the property was controlled by the minority owner, who was manifestly exploiting the common property for the profit derived from the use of the water, or, as the court said in the opinion on the second appeal: — '

" He proposes to work out the claim for what the water " will bring; the seven-eighths' interest of plaintiff being " simply appropriated to i)ay water rates in which he, " plaintiff, had no interest whatever."

If this did not amount in law to such an exclusion as would justify the court in granting relief, it would appear that the tenant in possession was operating the property in an improper manner equivalent to destructive waste.

A case bearing some analogy to this was considered by

' Hev. stats. Idaho, $ 3300.

'Hawkins v. Spokane HydrauUc M. Co., 2 Idaho, 070; S. C, second appeal (Idaho), 33 Pac. 40. 3 33Pac. 41.

989 Remedy Op Excluded Cotenant. §790

the supreme court of Montana, and it was then held that the circumstances surrounding the taking of the possession by one of the cotenants, and the manner in which the property was being worked, amounted to an exclusion of the other co-owner and a denial of his rights. Under such circumstances the excluded cotenant was allowed to enjoin the one working.*

But the Montana court declined to adopt the theory of partnership for the purpose of supporting its decision, expressing its view, that to constitute such a relation, all the owners must actually engage in working the mine.

A cotenant in possession, whether his interest be large or small, cannot bind those who do not voluntarily participate in the venture.

He cannot force direct contribution for improvements made,' nor for the costs and expense of development or working.

The right of one cotenant to compel contribution from the others is limited to cases whore the property is subjected to a common burden, and where one in removing it pays more than his just proportion, or possibly to the case of repairs absolutely necessary to protect the property fro"ln going to ruin.*

While each cotenant has the privilege of entering upon the property and making such use of it as its nature will permit, without committing destructive waste, ho will not be entitled to retain for his exclusive use any more than his proportionate share of the product.**

Anaconda ('. M. Co. r. Bntto A Boston M. Co., 17 Mont. .010.

' Rico Uoduction A M. Co. t. MuH|;rHVO, 14 Colo. 79; ChaMO v. Havajfo, 2 Nev. il

' Newman r. DrlofnrHt, Colo. 228; Wolland r. WiUlamH, 21 Nov. 23(); Calvert r. AUlrich. m MaM. 74; Allonian o. Hawloy, 117 Ind. 532; Bas&emoro r. DaviH, liC} iUx. 504; AuHtin v. Barrett, 44 Iowa, 488; StovenH r. Thompaon, 17 N. H. KX'J; Ford v. Knapp, III Hun. 522; Taylor v. Baldwin, 10 Barb. 582; CVost r. Jack. Wattn, 2.W; Thnrnton i'. DickinMon, 2 Rich. 817; Farrand r. (iloaaon, 5(1 Vt. 0;W; KIddor v. Rlxford, KJ Vt. 1U.

Brunawick r. Waltera' Iloira, 3 Now Mox. 241.

Doch*H Appeal, 57 Pa. St. 44J7; Loljrh v. DIckenMon, 12 Q. B. I). KM. Denya r. HhiickhurKh, 4 Y. A C. K<i. Kx. 42; Jacoba v. Howard, 5 L. R. n. L. 404, 475, 478; Job v. Potton, 20 Eq. 84.

§ 791 Tenants In Common. 990

He is liable in an action for an accounting by a nonparticipating cotenant who raay recover his proportionate share of the net profits, if any/

The working cotenant may deduct from the gross product all legitimate expense of working; but in case of loss he cannot compel his co-owners to contribute.'

The general rule as to the rights and obligations of a working cotenant may be thus stated : —

Tenants in common are not bound to use the commoni property jointly by means of a contract of partnershipbet ween them, but may possess, use, and enjoy it, accounting to their cotenants for so much of the rents and profits as they may receive beyond their just share and proportion. As a general rule, where a tenant in common uses the common property to the exclusion of his cotenants, or occupies and uses more than his just share and proportion, the best measure of his accountability to his cotenants is their shares of a fair rent of the property use. In the case of tenancy in common in a mine, an account of issues and. profits is the proper mode of adjustment. Each is to be charged with all his receipts, and credited with all his expenses on account of his operation of the mine. In such case the operating tenant should have a credit for necessary improvements made in the operation of the mine. He will be responsible if by gross negligence he wastes or destroys the common property.*

g 791. Leases, licenses, and conyeyances executed by one of seyeral cotenants. — A lease or license given by one cotenant to a third person to extract ore from the common, property extends only to the interest of the granting cotenant. He cannot bind a dissenting tenant.*

Job r. Potton, upra; McCord v. Oakland, Q. M. Co., 64 Cal. 134; Abbey v. Wheeler, 85 Hun. 226; Stenger v. Edwards, 70 111. 631.

' Id,; Graham v. Pierce, 19 Gratt. 28. See, also, Mallett v. Uncle Sam. G. <fe S. M. Co., 1 Nev. 188.

3 Henderson v, Eason, 17 Q. B. 701, 721.

Graham v. Pierce, 19 Gratt. 28. See, also, Huff v. McDonald, 22 Ga. 131 ; Early v. Friend, 16 Gratt. 21.

Omaha & Grant S. A R. Co. v. Tabor, 13 Colo. 41 ; Hartford v. Miller 41 Conn. 112; Tipping i'. Robblns, 71 Wis. 507.

991 Partition Of Mining Property. §792

The terms of a contract of sale by which one cotenaut of mining lands disposes of his interest, will not bind the others to accept the rovaltv therein reserved to the vendor as a fair measure of the value of their rights/ and an accounting by the lessee to the lessor for all the ore extracted will not discharge them from their liability to account to the other tenants in common.

One tenant in common cannot convey his right to any specified portion of the premises, or any right in the same, or the right to dig ores, to the prejudice of his cotenants. Such conveyance is void as to the cotenants, though good as against the grantors.'

In a conveyance by one tenant in common of his estate in the land held in common, a reservation of his interest in the mines in and upon the land granted is void but one mav convey his entire interest without the consent of the others, and the others have no right to participate in the sale unless by special agreement ; and one may purchase the interest of another without consulting the remaining cotenants not parties to the transaction, and the purchase will in no sense inure to the benefit of the latter.*

i 792. Partition of mining property. — Mining claims may be partitioned between cotenants the same as other real property, although the fee of the land may reside in the general government.

When we say that mining property held in common

Mercur v. State Line & S. R. Co., 171 Pa. 12.

Barnum r. Land on, 25 Conn. 137.

3 Boston Co. V. Condit, 19 X. J. Eq. 394 ; Marsh r. HoUey, 42 Conn. 4o3 ; Hartford i'. Miller, 41 Conn. 112.

Adams v. Brings Iron Co., 7 Ciish. 301.

Bissell V. Foss, 114 U. S. 252, 262 ; Charles r. Eshleman, 5 Colo. 107 ; First Nat. Bank r. Bissell, 4 Fed. 6i>4 ; Harris r. Iloyd, 11 Mont. 300.

Hughes r. Devlin, 2; Cal. 501 ; Gillett r. (iairney. 3 Colo. 351 ; Sears v. Taylor, 4 Colo. 3vS ; Filinore r. Reithman, 6 Colo. 120; Mi'Ke<Mi r. Bisbee, 9 Cal. 137 ; Watts r. White, 13 Cal. 321 ; Merritt r. .Judd, 14 Cal. 59 ; Lower. Alexander. 15 Cal. 297, ."2 ; Spencer r. Winselman, 42 Cal. 479; Dall V. Confidence S. M. Co., 3 Nev. 531 ; Aspen M. *fe S. Co. r. Kucker, 28 Fed. 220. Contra: Strettell i'. Ballon, 9 Fetl. 256.

§792 Tenants In Common. 992

may be partitioned, it is, of course, implied that the tenancy in common may be severed by an actual partition among the parties entitled, and division of the tract into segregated parcels, " quantity and quality relatively con- " sidered," where the nature of the deposits are such as to make such actual partition feasible or possible, or by a sale when such partition cannot be effected without serious detriment to the interest of the cotenant.

It has been said that the only partition that can be made of this class of property is to order a sale, and divide the proceeds.

It is undoubtedly true that an actual division of a mine can rarely be made without doing a possible injustice to 5ome one of the cotenants. Generally partition proceedings must result iu a sale."

While in case of placers, superficial deposits, or coal beds, where the ownership is disconnected with extralimital easements, such as water rights, rights of way, and the like, the court may be able to determine the probable value of an entire tract and the uniformity in the grade of the deposits, so to effect an equitable actual partition, yet we apprehend that the instances are rare.

In the case of lodes and veins, it would seem impossible to effect a fair, actual division. It is a matter of common knowledge that the metallic substances occurring in veins are not distributed uniformly, either as to quantity or quality. They are found in "shoots," vugs, kidneys, and other irregular bodies, making it impracticable to segregate the interests without great injury to the owners.

The frequent occurrence of faults and dislocations, the alternate disappearance and recurrence of the ore bodies, so as to render their continuance in a particular direction extremely uncertain, are all elements which are proper subjects for the consideration of a court when actions of .this character are brought, logically forcing the conclusion

Lenfers Henke, 73 HI. 405.

2 Aspen M. & S. Co. v. Rucker, 28 Fed. 220.

993 Partition Of Mining Property. § 792

that allotments in severalty would result injuriously to the owners or some of them.*

Theoretically a mine may be partitioned. Practically it cannot be, but a sale must ordinarily result.

As an abstract proposition of law, a sale of a mine cannot be ordered in a partition suit, except in those cases where a partition would be manifestly injurious to the interests of cotenants."

Whether or not a partition can be made without great prejudice to the owners, is a question of fact, the decision of which is not aided by judicial notice of any fact or circumstance not proved; and where a sale is sought, the burden is upon the party urging it, to show the facts upon which an order of sale may be made, the presumption being that an actual partition may be had; but the burden of overthrowing this presumption in the light of authorities, is by no means onerous.

The right of partition may be maintained only by those occupying the legal relationship of joint tenants, tenants in common, or coparceners. The owner of an incorporeal hereditament or servitude in gross, such as a mining right to enter upon and occupy the ground for the purpose of extracting the minerals, cannot maintain partition as against the owners of the soil. The minerals and ores, so long as they remain in place, unworked and unsevered, are incapable of allotment according to quality and quantity relatively considered.

It has been held that parties may, by contract, waive the right of partition and create a permanent tenancy in common which would prevent a severance of interests, such a covenant being one running with the land.**

Coleman r. Coleman, 19 Pa. St. 100; Conant v. Smith, 1 Aikens <Vt.), 67.

Dall V. Confidence S. M. Co., 3 Nev. 531. Mitchell V. Cline, 84 Cal. 409, 418.

Freeman on Cotenancy and Partition, $ 5:J7, and cases cited. *Smith V, Cooley, 65 Cal. 46. 48; Boston Franklinite Co. v. Condit, 19

N. J. Eq. 3W.

Coleman's Appeal, 62 Pa. 252.

§792 Tenants In Common. 994

A parol partition, executed by the parties taking actual exclusive possession of the portions respectively assigned to them in pursuance of the agreement to partition, which partition and possession are acquiesced in by the parties, is valid, and upon such partition the parties cease to be tenants in common.

'420 M. Go. V. Bullion M. Co., 3 Saw. 634 ; Freeman on Cotenancy and Partition, $ 3d8.

Chapter 11.

Mining Partnerships.

i 790. Nature of relationship.

i 797. Mining partnership — how created.

$798. Special instances wherein mining partnership held to be created.

i 799. Special instances where mining partnership held not to be created.

$800. Rights and obligations of mining partners inter aese,

$ 801. Authority of the members Liability of copartnership to third parties.

$ 802. Partnership property.

$803. Dissolution.

. g 796. Nature of relationship. — Where several owners unite and co-operate in working a mine, they form what is termed a mining partnership/ which is governed by many of the rules relating to an ordinary partnership, and also by some rules peculiar to itself.'

The distinctive features of mining partnerships are, —

(1) The absence of the delectits per sonar um, which f characterizes ordinary partnerships ;

(2) Neither death nor bankruptcy of one of the members dissolves it;

(3) A sale of an interest in a mining partnership by a partner does not dissolve the partnership ; such stranger by his purchase becomes a partner. Hence its membership is changeable and uncertain. This naturally flows from the absence of the delectics person.

Lindley on Partnership, 2d Am. ed. 332.

'Kahn v. Central Smelting: Co., 102 U. S. 641; Skillman v. Lachman, 23 Cal. 199. Mr. Bates, in his work on partnership 14), characterizes a mining partnership as a cross between a tenancy in common and refi:u- lar partnership."

'Lamar v. Hale, 79 Va. 147; Jones v. Clark, 42 Cal. 180; Kahn v. Central Smelting Co., 102 U. S. 641 ; Bissel v, Foss, 114 U. 8 252 ; Meagher v.

§797 Mining Partnerships. 996

The origin of this species of limited partnerships may be traceable to the early periods of mining in the west, and while it has been the subject of legislation in some of the states in recent years/ such legislation is but little more than declaratory of the rules announced by the courts as governing the relation under what may be termed the American common law of mining partnerships.

In some of its aspects the relationship resembles that arising under the cost-book system prevalent in Cornwall and Devonshire, but in America the law has grown up out of the necessities of the miners; and mining partnerships, as a distinctive class, possessing peculiar attributes, have, by common consent, been recognized. They have become "second nature " to mining enterprises.

As was said by Justice Field : —

" Mining partnershipsasdistinct associations, with diflfer- " ent rights and liabilities attaching to members of ordi- " nary trading partnerships, exist in all mining commu- " nities ; indeed, without them, successful mining would be " attended with difficulties and embarrassments greater " than at present."

m

This class of limited partnerships has always been recognized in England, where the rules governing them are similar to those established in this country, making some slight allowance for difference in environment.

§ 797. Mining partnership — how created. — A mining partnership exists when two or more persons who own or acquire a mining claim for the purpose of working

Reid, 14 Colo. 335; Charles v. Eshleman, 5 Colo. 107; Harris v, Lloyd, 11 Mont. 390 ; Boucher r. Mulverhill, 1 Mont. 306; Taylor r. Castle, 42 Cal. 367; Patrick v. Weston, 22 Colo. 45; Nisbet v. Nash. 52 Cal.540; Congdon v. Olds, 18 Mont. 487.

'Montana. Civil Code, 3350-3359; California, Civil Code, M 2511- 2520; Idaho. Rev. Stats., 300-3309 (these statutes are counterparts of each other) ; Nevada, Comp. Laws, $$ 468-480.

Congdon i'. Olds, 18 Mont. 487,

Kahn v. Old Tel. M. Co., 2 Utah, 174. 218.

Kahn v. Central Smelting Co., 102 U. S. 641, 645.

997 Special Instances Where Held To Be Created. § 708

it and extracting the mineral therefrom actually engage in working the same.

It does not arise from mere cotenancy."

An express agreement to become partners or to share the profits and losses of mining is not necessary to the formation of a mining partnership.'

Persons jointly conducting a mining venture are partners, though there is no express agreement for a partnership.*

A partnership may be formed by verbal agreement to acquire title by location to public mineral landH. Such contracts are not within the statute of frauds;' but to create a partnership in working the mines not even tliis is necessary.

The relationship arises from the ownership of the shares and the joint working of the same for the purpose of extracting the minerals therefrom.'

What a partnership is, is a question of law. Its existence in a given case, however, a question of fact, tUsvciiding for its solution ufKn inferences to be drawn from the evidence adduced."

Of course, general partnerships may Ur ioruifA for the purpose of mining: but we are concern;d only with the special class distinctively known as mining partnerships.

I 798. Special inBtances wherein mining jMurtnenhip lield to be created. — An ;iref:ni-nf. ifzVAfzhu one or xnore persons who ciiirr* an iirA\':\oif*A mine and anothrr person, iha: if tr.r \-xV.t 'irvV: f*:r .arjr and ;;i

§ 798 Mining Partnerships. 998

exploring and developing the mine, the former will furnish him with tools and provisions and give him a share in the mipe if it proves valuable, and a joint working of the mine and sharing in the profits by the parties after development, constitutes a mining partnership/

The verbal conveyance of one-third interest in a mining claim by a party who retains the other two thirds, the purchaser agreeing to pay the price therefor out of the product of the property, the working of all parties together in developing the mine, a time book being kept in which were entered the wages accruing each party and the payment of sums of money by the purchaser agreeable to the contract, are facts suflBcient to make out a mining partnership.'*

Where conveyances were made by the plaintiff, who was the owner of mining property, of ah undivided twothirds interest therein to defendant who, in consideration thereof, agreed to cause such development work to be done as to put the property into a marketable condition, and to use his best endeavors to sell the property at the highest price obtainable, bearing all expenses of development and of negotiating a sale and to pay the plaintiff one third of the gross proceeds upon a sale, a partnership relation is created between the plaintiff and defendant in respect to the property which was the subject of the enterprise.

A contract between three persons to operate a mining property as a company, creates a partnership of such persons from the date thereof, and makes each of them liable for the debts contracted in the prosecution of the enterprise; and this notwithstanding the fact that such contract provides that there shall be no division of the profits between the parties until two of them are reimbursed therefrom, the money expended in the purchase of two thirds of the property from the other one, and the cost of improving the same.

Such a partnership may exist as well where the parties

Settembre v. Putnam, 30 Cal. 490. Southmayd v. Southniayd, 4 Mont. 100. ' Mcintosh r. Perkins, 13 Mont. 143. Bybee v. Hawkett, 12 Fed. Rep. 049.

&I'Ecial Instances Where Held To Be Created.

have an interest iii the working of the mine in carrying on lulling operations as wliere they own the mine iteelf.' VA contract providing that one parly should have a cer-

1 undivided interest in all ores extracted from certain ' Imnes, and should bear a proportionate share of the expenses of extracting the same, the other parties to have a remaining interest in the ore and to bear the balance of ] expense, and also that first party should furnish a mill for concentrating the ore, the expenses of contracting and rental of the mill to be divided among the parties, renders them partners in the extraction of the ore.

A subsequent verbal agreement that the first party I should receive a certain price for each ton of ore concentrated, to be paid from the proceeds of the ore, he to pay the rental of the mill, repairs, and improvements, does not prevent the parties being partners; neither does an agreement that one of the parties shall ship the ore after, concentration, receive the proceeds, and pay out the money under the direction of another partner who was to manage the mine.'

A party, by an instrument in writing, contracted to purchase from the owners certain undivided interests in mining property. Subsequently, by oral agreement, he I obligated himself to furnish money to carry on exploitation. It was litld that the deed and contract were adu'iissible in evidence for the purpose of showing that a mining 1 partnership existed between him and the co-owners of ] the mine ; and defendants, who were the owners of ( unequal interests, agreed that the mine should be worked ' for the purpose of obtaining ore, each to furnish money for that purpose in proportion to his interest, and that j the profits and losses should be shared in the same I proportion. It was held that there was sufficient evidence j of a partnership.'

ManviHe i'. Parks, 7 CdIo. Iffi. Aahenreller v. Wllllama. T Colo. App. 332. tUndall I'. Meriaelh, 16 Ttx. 660; Perkin Aiqt.842.

. 1'elersoii, 3 Colo,

§799 Mining Partnerships. . 1000

g 799. Special instances where mining partnership held not to be created. — No mining partnership or co-ownership exists between the owners of a mine and the holders of a deed from them intended as security for indebtedness, where the holders of the deed are not in possession, and are interested in the work only as creditors, although it is agreed between them and the owner of the mine that all gold produced as the result of mining operations is to be received and retained by the creditors, and that the profits are to be applied toward payment of the indebtedness secured by the deed.

There is no element of a mining partnership where the contract alleged is one of hiring, to procure and work a mine for the defendant, upon the payment of wages and giving of an interest in the miufe, in addition to wages conditioned upon its being found to be a paying mine.*'

An agreement for an interest in the profits of a mining venture as a means of compensation only, does not constitute a partnership.' It is simply a contract for working the mine on shares/

In the case of Vietti v. Nesbitt, the defendants with others were the owners of a mine, which was being worked by the plaintiff under an agreement that the ore extracted should be worked in a mill belonging to the defendants and the proceeds divided as follows : the defendants were to be paid twenty-five dollars per ton for the milling, the plaintiff was then to be paid the expense of extracting the ore, and the balance was to be divided equally between him and the owners of the mine. It was held that these partners were simply tenants in common of the ore and its proceeds, and no partnership existed between them.

A recorded agreement between a mining corporation and private parties, in which it was agreed that the corporation

Chung Kee v, Davidson, 102 Cal. 188. - Berry v. Woodburn, 107 Cal. 504.

' Butler V. Hinckley, 17 Colo. 523, 527; Stevens v. McKibbin, 68 Fed.

Stuart V. Adams, 89 Cal. 367. 41 Pac. Rep. 157.

1001 Rights And Obligations Op Mining Partners. § 800

should convey an undivided one half of the mining property to the private parties, when they had expended ten thousand dollars in developing and improving the property, but that the corporation should not be liable for any debts incurred in developing and improving the property, taken in connection with the fact that the corporation never held itself out as a partner of the private parties, does not constitute a partnership, even though the corporation was to share in contingent profits with the private parties.*

Where two persons entered into an agreement to engage together in a mining venture under a firm name, and to share the profits and losses equally, and as a firm they purchased a mine and paid a note given in the firm name for a portion of the price, held, that the contract was one of partnership in the ordinary sense, as distinguished from a " mining partnership," and that either partner had the same authority to bind the firm as if it were an ordinary trading partnership.*-

g 800. Rights and obligations of mining partners inter sese. — In the conduct of the business for which a mining partnership is formed, the copartners owe to each other the same degree of fidelity, good faith, and fair dealing as is exacted from ordinary partners.'

The rule of uberrima fides is just as applicable to this class of partnerships as it is to those more general in their scope.

One member may not conduct operations to the detriment and disadvantage of his associates, or acquire for his own exclusive benefit property which rightfully belongs to the partnership;** but so far as the disposal of his own or the purchase of another's interest is concerned, where the partnership relation does not extend to selling the property,

Horton v. New Pass G. <fc S. M. Co., 21 Nev. 184. 2 Decker v. Howell. 42 Cal. 636. 'Jennings v, Rickard, 10 Colo. 395.

Kiniberly v. Arms. 129 U. S. 512; Continental Divide M. Co. v. Bliley (Colo.), 46 Pac. 633; Settembre v, Putnam, 30 Cal. 490.

§800 Mining Partnerships. 1002

but only to developing and mining it, neither of the parties are under any legal obligation to consult with the others.

One may sell his interest to a stranger, and the latter becomes thereby a partner, whether the other copartners are willing or unwilling.*

In the absence of a special contract there is no relation of trust between tenants in common of mining property, who are partners only for the purpose of exploitation, which prevents one from receiving a higher sum for his interest than is paid to his co-owners; nor is the selling cotenant under any obligation to disclose to the others the fact that upon the sale of the entire property he is to receive a higher sum for his interest than the others.

A purchase by one cotenant of the interest of another does not inure to the benefit of all the remaining tenants in common.*

In a mining partnership, the firm has no right of preemption as to the interests of retiring partners in the mine. Therefore a tenant in common of mining property and a partner in the working of the mine cannot claim any benefit in the purchase of the interests of certain cotenants and retiring partners by other cotenants and partners.*

The decision of the members owning a majority of the shares or interests in a mining partnership binds it in the conduct of its business. This rule is statutorv in Montana,* California, and Idaho.

This has always been the rule in the absence of legislation ; but, as was said by the supreme court of California, —

" The conduct of the partners holding the major portion " of the property in a mining concern is to be most

'Nisbet V, Nash, 52 Cal. 540; Kahn v. Central Saielting Co., 102 U. S. 641; BisseU r. Foss, 114 U. S. 252; Kimberly v. Arms, 129 U. S. 512. Harris v, Lloyd, 11 Mont. 390. BisseU t'. Foss, 114 U. S. 252, First Nat. Bank v, BisseU, 4 Fed. 694. Rev. Code of 1895, $ 3359. Civil Code, $ 2520. 7 Rev. Stats., $ 3309; Hawkins v. Spokane H. M. Co., 2 Idaho, 970.

1003 RIGHTS AND OBLIGATIONS OF MINlN(i rARTNKHS. § SOU

jealously scrutinized when complaint is nnuh*. Iiy llin minority in interest, of oppression. It inijlit, luid of'ttn would, work great inconvenience and dainiii* to tlm minority in interest of a nuninjj; partn<*rsliip, if tlin majority were allowed to do as tlny niilit dcitin to tliirir own advantage, regardless of the rights and intn'sts lif the minority; but, notwithstanding the dangf;r of tho abuse of power in such cases, what may ht; ntrcssary and proper for carrying on tlie business of mining lift- th<? oint benefit of all concerned must he df;t(:rmimrd hy those owning and holding in the aggregate the miijor part of the property; and if the powers which are lima attempted to be exercised are not neeessary and pro{;er for the success of the eriterpri?-*?, tho:-,e whov; Jntere>t>: are imperiled or dir-artrouTJy all'eeted there/y have the right to resort to the court i'</r redre arjd j;rot.eetio/j ' '

As in the cav of general partrier-hip, the stuti'ttiyy must be consul V:d. Any other eoijr-A- of f//oeeedjr*; o/j ..',e part of li- znAjrlxy ';-. ;.oi '::i \i/yA i.?:j

4 '

rr.

Ci

§801 Mining Partnerships. 1004

An incoming partner takes subject to the payment of the antecedent partnership debts out of the partnership property/ although he may not be held liable personally for such debts.

So far as the creditor is concerned, the personal liability of the retiring partner continues, but such partner, in disposing of his interest, parts with his equity to have the partnership debts paid out of the partnership property.

A location made by one partner after dissolution, upon a discovery of mineral indications made prior, will not inure to the benefit of a former partner, unless failure to make location during the existence of the partnership was fraudulent.

Where an agreement providing for the prospecting and location of mining claims for the benefit of all the parties thereto is dissolved by mutual consent, neither of the parties is under any obligation to the others to perfect locations commenced in pursuance of the agreement; and subsequent locations covering the same ground made by some of them are not held in trust for the others.

g 801. Authority of the members — Liability of copartnership to third parties. — In a limited sense each member of a mining partnership is the agent of the other.*

The powers of members and managers of such partnerships are limited to the performance of such acts in the name of the partnership as may be necessary to the transaction of the business, or which is usual in like concerns," or, as we find the rule stated in Bainbridge/ —

Jones V. Clark, 42 Cal. 180.

- Id,

Jennings i'. Ricard, 10 Colo. 395.

Page V. Summers. 70 Cal. 121.

Abbott r. Smith, 3 Colo. App. 264.

Charles v. Eshleman, 5 Colo. 107, holding that employment of counsel to litigate the title to the mine does not come within the limited powers vested in a mining partner.

7 4th ed., p. 589.

1005 Authority Op The Members. §801

" The limit of liability must, with respect both to the " partners themselves and the public, be determined by " the general usage of trade applicable to the particular " branch of industry in which the society is engaged. An " authority for one partner to bind another, will, there- " fore, in all such cases be presumed to exist, so far as, by " the general usage of persons engaged in similar pursuits, " such an authority has been determined to be necessary " for effectually conducting the business of the concern. " In cases where iisage may not have established any " particular practice, or in which the custom may be " doubtful, it will still be necessary to recur to the original " principle upon which all customs are founded, viz. " whether the act in question can be considered to be " necessary for the efficient management of the concern."

One member of a partnership does not possess implied authority to bind the copartnership by a promissory note.

This rule is based upon the reason that in such partnership there is no delectus persanw, and that, consequently, the membership is continually subject to changes beyond the control of the partners;" nor may one borrow money to carry on the business. Yet, as an incident of such partnership, each has authority to bind others by dealing on credit for the purpose of working the mines, if it appears to be necessary or usual in the management and course of such working.'

As mining operations cannot be conducted without the employment of labor, the firm would be responsible to employees hired by one of the partners.

So with the purchase of supplies and articles necessary to carry on the business, the debt being contracted in the usual course of business and within the scope of the partnership venture.'

There is no implied authority to purchase land, and no obligation given by a member for the purpose of effecting

Manvme v. Parks, 7 Colo. 128; Skillman r. Lachman, 23 Cal. 199; Congdon v. Olds, 18 Mont. 487.

Decker v. Howell. 42 Cal. 63(5; Duryea v. Burt, 28 Cal, 569, 679. ManvUle v. Parks, 7 Colo. 128.

Barman v. Lyell, 2 Mich. 102; Nolan r. Lovelock. 1 Mont. 224. Higgins V. Armstrong, 9 Colo. 38.

§ 801 Mining Partnerships. 1006

such purchase can be enforced against the others;* but, of course, the rule is diflFerent where the partnership is an ordinary one, whose object is to purchase as well as exploit mines, and where the element of delectus pei'sonx is present.'*

A mining partnership may, by its general practice and course of business, be held liable for acts which were not, strictly speaking, within the scope of such partnership; but this is based upon the principle that such conduct estops the partnership from repudiating obligations in favor of those who deal with it in the light of its customary practices.

In other words, in thus dealing with third parties the ' partners may, by their acts in the ordinary conduct of their business, hold themselves out to be something more than mining partners.'*

Where a third party seeks to charge the firm upon obligations incurred by one of its. members, which obligations are beyond the scope of a mining partnership, it devolves upon the one seeking to enforce such obligations to show either that it was entered into under express authority, or that the acts were usual and customary with the particular partnership in the ordinary conduct of its business.*

The recognized and established usage on the part of the firm should be taken as a part of the contract of partnership.

Whatever authority may be exercised by a member of the firm, may be exercised by its ostensible agents, such as managers, and superintendents in charge of operations; but the exercise of this authority is subject to the same limitations as control the acts of individual members.

This, of course, does not preclude the delegation to such agent of enlarged powers by the joint authority of all the

' Judge V. Braawell. 13 Bush (Ky.), 69.

Decker v, Howell, 42 Cal. 636.

3 Randall v. Merideth, 76 Texas, 669.

Id.; Judge v. Braswell, 13 Bush (Ky.), 69.

Taylor v. Castle, 42 Cal. 367.

Jones V. Clark, 42 Cal. 180; Stuart v. Adams, 89 Cal. 367.

1007 Partnership Property. §802

partners, nor prevent the subsequent ratification by the partnership of an unauthorized act; and, by accepting the benefit of a contract unauthorized in its inception, and acquiescing in it id the extent of performing some of the obligations flowing from it, the partnership may be estopped from disputing its validity.'

These are familiar rules, applicable to all classes of partnership.

As in the case of general partnerships, the liability of a mining partner for the acts of his associates continues, after he sells his interest and retires from the firm, in favor of persons who have had dealings with, and given credit to, the partnership, until they have had actual personal notice of the dissolution.'

Constructive notice imparted by the recording of an instrument, by which the retiring partner disposes of his interest in the partnership, will not suffice.'

While the members of a mining partnership contribute to the expense of conducting its business, and participate in the profits of the venture in proportion to tlie amount of interests respectively lield, it has been decided by the supreme court of California that, in ros{)ect to the obligations of the copartnership, each is liable jointly with the others for the full amount of the indebtedness justly chargeable to the partnership, and not merely for a pro rata share.*

g 802. Partnership property. — The mining ground belonging to and worked by a mining partnership, and acquired for mining purposes, whether [purchased with partnership funds or brought into the concern by individual members as a portion of the cai)ital stock, is, in equity, for the purpose of a settlement of the partnershij) affairs, to be treated as partnership property/'

Where land is brought inUj a partnership as stock, it

Jones Clark, 42 Cal. 180. Htuart v. AdariiH, 80 Cal. 3ff7,

DelUpiazza r. Foley, 112 Cal. 380. Duryca r. Hurt. 28 Cal. 509.

§802 Mining Partnerships. 1008

is, as between the partners, their creditors, and one who has knowingly dealt with them for it, personalty belonging to the firm/

Real estate belonging to a partnership will, in equity, be treated like its personal funds and distributed accordingly. If the title stands in the name of one of the partners, he will be held as a trustee of the partnership and be made to account to the other partners according to their several rights and interests;' but it by no means follows, however, that real estate used for partnership purposes is partnership property. A contrary presumption prevails when the title is not in the firm, and to rebut that presumption it must appear either that it was paid for with the firm money or was, by agreement, actually brought into the common stock.'

There may indeed be partnerships in the business of milling or mining or farming; but unless the intent of the joint owners to throw the real estate into the funds as partnership stock is distinctly manifested, or unless the real property is bought out of the social funds for partnership purposes, it must still retain the character of realty.*

The use to which the property is applied does not necessarily determine the question as to whether it is to be treated as personal or real estate, but the intention of the parties is the controlling element. Such intention maybe shown by parol. It, may be manifested by the acts and declarations of the parties.

It seems to be settled that the mere fact that property held by the firm as tenants in common is used in and for the partnership business, or a mere agreement to use it for partnership purposes, is not of itself sufficient to convert it into partnership stock. There must be some

' West Hickory M. Assn. v. Reed, 80 Pa. St. 38.

Faulds V, Yates, 57 lU. 416; 1 Lindley on Partnership, 2d Am. ed., p. 332, note.

3 Shafer's Appeal, 106 Pa. St. 49, 55.

Wheatley's Heirs v, Calhoun, 12 Leijfh, 264, 272.

Holmes v. Self, 79 Ky. 297, 299; Alexander v. Kimbro, 49 Miss. 529.

Shafer's Appeal, 106 Pa. St. 49. 55.

1009 DissoLi TioN. S 8(>a

evidence of further agreement to iniiko it partnorHhip property.*

These principles are applicable to all claHsoH of trading and commercial partnerships. That the saint niloHfrovnrii mining partnerships, is quite apparent. A further olahonition of this subject would lead us too far beyond tiio Intimate scope of this treatise, into the domain of ordinary partnership.

§ 803. DiBSolution. As one cotenant may not compel the others to join him in the working of the common property, when a copartnership does arise by a joint working, ilr may be terminated at will bv either coU;nant, ho far hh the retiring cotenant is concerned. While the remaining cotenants may continue to o[>erate the common prop(;rty, subject to the rules announced in a preceding K<;ction, the withdrawing copartner in relegated t; his position an t4;nfint in common, with all the rights and privilegen and subject only to such obligations a; are incid<rnt to a tenantry in common, pure and hir/jjile.

Neither of the f;'>tenant -an force the other*; Xo operate; the property at a lot, or continue a relationship whi';h might be either unfali'sfarl/rv or, in the judgment of a withdrawing rytenantj iij*rxpedi<rnt. Necehbarily the dissatisfied jiartner uj'ji ;riv<; to iii". a>?vA-iat/?>; fair and unequivocal u<A\fj: 'A hi- withdrawal, arjd proW.-l hinjself from future: Ji<ioJ..ty to r:f-'j;tor> with wliOJu ihr partnerbhjji i*ad ''fhiu Uj'rr'tvfoj'r ''j-t-ouj'.-'j i/ 'J<.-<;: a-.K*

vr

.'jiftWKjij'j* ' K'MiititotM 4 ' lii' .yr

§ 803 Mining Partnerships. 1010

liability for work done or debts contracted after such withdrawal.

Under ordinary circumstances, dissolution may be eflFected without resort to the courts.

When, however, the real property used for partnership purposes has, by the agreement or acts of the parties, been impressed with the character of partnership property, has been brought into the common stock or treated as a partnership fund, there is no method of adjusting the equities of the partners if they are unable to reach an amicable agreement, except by an action for dissolution and accounting.

When the relationship of the parties is that of a mining partnership only, the death of one of the partners will not dissolve it.*

The surviving partner has no right as survivor to take control of the property, this right onlj applying where the deUctuB personse exists.

Kahn v. Central Smelting Co., 102 U. S. 641; Taylor v. Castle, 42 Cal.

3 Jones V, Clark. 42 Cal. 180.

Title Ix.

RIGHTS AND OBLIGATIONS OF PARTIES EX- GAGED IN WORKING MINES, AS BE- TWEEN THEIR NEIGHBORS AND THE GENERAL PUBLIC.

L DRAINAGE OF MINES — RELATIVE RIGHTS AND DU- TIES OF MIXERS OPERATING AT DIFFERENT LEVELS, WITH RESPECT TO AVATER.

XL MUTUAL RIGHTS AND DUTIES WHERE TITLE TO MINERALS IS SEVERED FROM THAT OF THE SUR- FACE.

in. LATERAL OR ADJACENT SUPPORT.

IV. DEPOSIT OF MINING DEBRIS IN RUNNING STREAMS AND ON LANDS OF OTHERS — PRIVATE NUISANCES.

V. GOVERNMENTAL SUPERVISION OF HYDRAULIC MIN- ING IN CALIFORNIA — THE CALIFORNIA DEBRIS COMMISSION — ITS JURISDICTION AND POWERS.

Chapter I.

DRAINAGE OF MINES — RELATIVE RIGHTS AND DUTIES OP MINERS OPERATING AT DIFFERENT LEVELS, WITH RESPECT TO WATER.

J 806. Introductory — Statutory regulations on the subject of mine drainage.

$ 807. The law of natural flow. $ 808. Foreign water — Flooding.

g 806. Introductory — Statutory regulations on the subject of mine drainage. — Many of the states of the union have enacted laws upon the subject of mine drainage and the care of water encountered in the exploitation and development of mines. Some of these laws purport to authorize condemnation proceedings, whereby one mine owner may acquire easements through lands of others for the purpose of securing artificial outlets. In Massachusetts, Kentucky, and Tennessee, mining is considered a public use, and the right of eminent domain may be lawfully exercised for mining purposes, and laws in this behalf have been passed,

Colorado and Arizona have statutes regulating the subject, the former based upon a provision of its organic law authorizing the legislative branch of the state government to make such regulations from time to time as may be necessary for the proper equitable drainage of mines," and the latter' acting under the supposed authority granted by Section twenty-three hundred and thirty-eight of the Revised Statutes.

We have heretofore treated of this class of legislation and its application to mining easements generally.*

Ante, $ 19,

Art. xvi, $ 3, Constitution of Colo.; Mills' Annot. Stats. $$3172-3180.

' Rev. Stats. 1887, $$ 2362-2557. Ante, $$ 252-2M.

§807 Drainage Of Mines. 1014

There is another class of legislation, such as found in Pennsylvania/ which may fall within the police power of the state, providing for methods for the prevention of damage by releasing accumulated water through adits or drifts run under official supervision. ,

It is not our purpose to analyze these special laws. To some extent they embody the equitable principles established by the courts in the absence of any legislation. Where they go beyond these, they are not altogether free from constitutional objections.''

Our presentation of the subject is intended to be limited to the consideration of the equitable rules which guide the courts in defining the relative rights and duties of coterminus or adjacent mine owners in the care and discharge of percolating waters encountered in mining operations. These principles, generally speaking, will be found to be of universal application.

They are few and simple, are based upon rational and natural laws and the dictates of common sense. They are peculiar to no locality. While local subterranean conditions vary in a geological sense, water is encountered everywhere pursuing the same universal and unvarying natural laws until interfered with by the artificial devices of jnan. To recognize these natural forces is just as essential in the case of the underground circulatory system as it is with surface flowage. The subject does not afford much latitude for judicial disagreement, and in the literature of this branch of jurisprudence we rarely encounter discordant decisions. The questions most likely to arise in any community where mining is carried on may be determined by reference to a few well-established maxims.

g 807. The law of natural flow. — In conducting mining operations, water, as was said by Lord Tenterden, is a sort of common enemy, against which each man must defend

Laws of 1893, p. 52, art. 14, $ 3.

See People v. Parks, 58 Cal. 624.

Rex V, Pagham Commissioners of Sewers, 8 B. Jb C. 355.

1015 The Law Of Natural Plow. §807

himself. Yet while this property right of defense is a natural one, it must be so exercised as not to endanger the lives or property of others.

Each mine owner has all the rights of property in his mine, and, among them, the right to extract all minerals therefrom, provided he works with skill and in the usual manner; and if, while the occupier of a higher level, exercises that right, nature causes water to flow to a lower mine, he is not responsible for this operation of nature.*

Land on a lower level owes a natural servitude to that on a higher, in respect of receiving, without claim to compensation, the water naturally flowing down upon it.

From the necessity of the case, every owner of a mine must submit to the inconvenience of having water of an adjoining mine upon a higher level descend upon his land so long as it descends in the natural course of drainage.' . If the owner of the servient heritage wishes to guard against this operation, he must leave barriers " to bay back the water of his higher neighbor."

Otherwise the resulting damage, if any, is damnum basque wjuria; but the owner of the higher level has no right, by the use of artificial methods, to become an active agent in sei\fiing water into the mine of his lower .neighbor. He is not authorized to interfere with the gravitation, so as to make it more injurious to the lower mine or advantageous to himself.®

" The rule defining the rights and liabilities of adjoin- " ing mine owners may be stated in this form: For dam- " ages resulting from natural causes or from lawful acts "done in a proper manner, the law gives no redress; but " where one of tlie two adjoining mine owners conducts

' Baird v. AVilliamson, 15 Com. B. Rep. N. S. 376.

Smith r. Kerwick, 7 Com. B. 615, 18 L. J. N. S. C. P. 172; Lord Carbon Iron Mfg. Co., 'SS N. J. Eq. 452,

Attorney-General r. Council Birminprham, 4 Kay <fc J. 528.

Baird r. Williamson, supra: Jegon v. Vivian, L. U. G C?h. App. 742. Lord V, Carbon Iron Mfg. Co., 38 N. J. Eq. 452.

Baird i'. WiUiamaon, supra.

§808 Drainage Op Mines. 1016

" water into his neighbor's mine which would not other- " wise go there, or causes it to go there at diflFerent " tiroes and in larger quantities than it would go there " naturally, he commits a wrong which the law will " redress."*

Or, as stated in another form by Lord Hatherley in Phillips V. Homfray —

"The natural percolation of water from one mine to " another is not a matter as to which the owner of the " lower mine has any right of complaint as against the " owner of the other mine. The owner of the upper mine " has a right to work it just as he likes, and his neighbor " below cannot complain unless he finds that the water " has been turned into his mine by a channel or artificial " arrangement."

But where the owner of the lower mine seeks to protect himself from the flowage of water from the adjoining higher levels by means of natural barriers left standing in his own land, the upper owner will not be permitted to remove such barriers, so as to permit the water to flow into his neighbor's mine. While the higher proprietor has the right to extract all of his mineral up to the common boundary, and the lower must submit to the inconvenience of receiving the water into his mine which reaches it by natural gravitation, he has no right to interfere with the lawful methods adopted by the owner of the lower level to protect his own property.' -

After the removal by the higher proprietor of such a barrier, the duty is enjoined upon him of preventing the flow of the water into the mine of the lower owner.

g 808. Foreign water — Flooding. — In conformity with the rules announced in the preceding section, the owner of the upper mine will not be permitted to introduce into the works of the lower proprietor foreign water whicli would

Lord V. Carbon Iron Mfg. Co., 38 N. J. Eq. 452. 3 6 L. R. C. Ch. App. 770. 3 Bannon v. Mitchell, 6 111. App. 17.

Firmstone v. Wheeley. 2 Dowling <fc L. (Q. B.), 203. See Clegg v. Dearden, 12 Q. B. 576.

017 Foreign Water — Flooding. §808

not by gravitation flow into the works of the lower owner*

This doctrine was applied by the supreme court of Pennsylvania to a case where the owner of a coal mine in working it removed the pillars which supported the roof. The superincumbent surface subsided, forming a catchment basin. The rains and melted snow penetrated into the defendant's mine through cracks and breaks in the basin, and thence flowed in great quantities into the plaintiffs' mineS/ which were lower than defendants*. The suit was by the plaintiffs to recover damages. The defendants pleaded, and supported the plea by evidence, that the flowing of the water into plaintiffs* mine was the result of the ordinary and proper working by defendants of their mine, and not the result of negligence or want of care. They also sought to establish the existence of a neighborhood custom which approved the removal of pillars without reference to its effect as to the sinking of the surface.

The appellate court affirmed the judgment which held the defendants liable, intimating that if the alleged custom existed it would be unreasonable and would not furnish a ground of defense."

Where the owner of the upper mine impounds water upon his premises by means of embankments or artificial reservoirs for his own convenience, it would seem that he owes a duty to the lower proprietor to so construct his devices that thev will withstand all pressure which mav bo reasonably anticipated.

In the leading case of Fletcher v. Rylands," the extreme doctrine was announced by the English court of exchequer chamber, that where such artificial reservoirs were subsequently discharged onto the lands of the lower proprietor,

Baird v. WiUiamson, 15 Com. B. N. S. 376.

Homer v. Watson, 79 Pa, St. 242. See Wilson v, Waddell (2 L. R. Appeal Cases, 95), where it was held that the owner of the upper level had a right to remove all the coal, and was not liable, if the surface sabsided, for water introduced into the lower proprietor's mine through percx>lation8 from the artificial basin thus formed.

1 L. R. Ex. 265.

§808 Drainage Of Mines. 1018

the liability of the owner upon the higher level for damages thus caused was absolute, and it was no defense to plead that the devices were constructed skillfully and properly, or that the discharge was not caused by his fault or negligence.

Said Justice Blackburn : —

" We think that the rule of law is, that the person who, " for his own purposes, brings on his land and collects and " keeps there anything likely to do mischief if it escapes, " must keep it at his peril; and if he does not do so, is, " prima faciei answerable for all the damage which is the " natural consequence of its escape. . . . The person " whose grass or corn is eaten down by the escaping cattle " of his neighbor, or whose mine is flooded by the water " from his neighbor's reservoir, or whose cellar is invaded " by his neighbor's privy, or whose habitation is made " unhealthy by the fumes and noisome vapors of his neigh- " bor's alkali works, is damnified without any fault of his " own; and it seems but reasonable and just that the neigh- " bor who has brought something on his own property " (which was not naturally there), harmless to others so " long as it is confined to his own property, but which he " knows will be mischievous if it gets on his neighbor's, " should be obliged to make good the damage which ensues " if he does not succeed in confining it to his own property; " but for this act in bringing it no mischief could have " accrued, and it seems but just that he should, at his peril, " keep it there so that no mischief may accrue, or answer " for the natural and anticipated consequences; and upon " authority, this, we think, is established to be the law, " whether the things so brought be beasts or water or filth " or stenches."

This doctrine was fully approved on appeal to the house of lords.

In the later case of Fletcher v. Smith,'* however, this doctrine seems to have been somewhat relaxed. The facts were these: Fletcher's mine was on the higher, Smith's on the lower level; Fletcher had diverted the course of a

3 L. R. H. L. 330.

''2L. R. App. Cases, 781. For decision of the Court of Exchequer, see 7 L. R. Exch. 305.

1019 Foreign Water — Flooding. §808

stream, and had made a new course for it; in working his mine he had occasioned certain portions of the surface to sink into holes, though in doing this he had not acted negligently. On the happening of a very heavy downfall of rain the water had overflowed its new course, got into the holes on the surface and passed into Fletcher's mine and thence flooded Smith's mine.

The jury having determined that the new channel by which the course of the stream was diverted was insufiSciently constructed, Fletcher was held liable.

While the opinion of the lords justices delivered by Lord Penzance is somewhat ambiguous, we think the rule to be deduced therefrom is fairly stated in the headnotes to the report of the case: —

"A mine owner will not be liable to the owner of an adjacent mine for injury occasioned to such adjacent mine, where such injury proceeds from natural causes in themselves beyond his control, though his own acts may have " conduced to produce the injury, if his acts have only " been those of the proper and ordinary working of his own mine without default or negligence."*

In the American courts the English cases have been the subject of frequent quotation and analysis. The discussion has taken a very wude range between the ultra doctrine of the Rvlands-Fletcher case and the more moderate rule suggested by the headnote to the Smith-Fletcher case.*

The commission of appeals for the state of New York

See, alsOf Nichols i*. Marsland, L. K. 10 Excb., 255 8. C. on appeal, 2 Exch. Div. 1, where Ry lands v, Fletcher is ditferentiated and its doctrine limited.

'The American courts are not altogether agreed as to the true purport of the decision in this case, some of them insisting that it supports the radical doctrine of Kylands r. Fletcher; others, that it is authority for the relaxation of that rule, making the question of negligence in all cases the test of liability. Still others contend that Kylands t'. Fletcher is authority only for the rule that the upper proprietor constructing artificial reservoirs is only prima facie liable, and that in cases of this character, the burden, whioh would ordinarily be cast upon the plaintiff to show negligence, is shifted to the defendant, who is compelled to prove affirmatively the exercise of care and diligence. As each case depends so much on the peculiar circumstances there arising, it is very difficult to evolve from the adjudicated cases a rule that is absolutely uniform.

§808 Drainage Of Mines. 1020

held that Rylands v, Fletcher was in direct conflict with the law as settled in this country. In this conclusion the New Hampshire and New Jersey courts' practically agree, whereas the supreme court of Minnesota seems to accept the doctrine of that case as the correct one/

The Minnesota case is a unique and interesting one, and arose out of the following state of facts: —

Hennepin Island divides the waters of the Mississippi River into two channels at the Falls of St. Anthony and above and below them, extending for about one thousand feet above and five hundred feet below. The bed of the river below is about thirty feet lower than the bed of the river above. A stratum of limestone, ten feet in thickness, forms the bed of the river above the falls, extends across the island and rests upon hard sand to the depth of the river below the falls. Cahill owned a leasehold estate of the island, and had constructed at the lower end a warehouse, mill, and machinery.

Eastman excavated a tunnel, starting from the lower end of the island and traversing its entire length, penetrating for the distance of several hundred feet under the bed of the river above the upper end of the island. The tunnel was driven through the stratum of hard sand underlying the limestone, and at a vertical depth of more than thirty feet below the level of the bed of the river above the falls. Opposite Cahill's mill it was dug within seventy-five feet of the east shore, which was a steep perpendicular bank down to the bed of the river below the falls, and as low as the bottom of the tunnel.

The water of the river burst into the tunnel at its upper end, washed through it in great volume, filling it and rending the rocks and tearing away the ground on the top and sides of the tunnel for its entire length. Thereafter the flow of the water was temporarily stopped, but

' Losee v, Buchanan, 51 N. Y. 476. - Garland r. Towne, 65 N. II. 67. 3 Marshall v. Wellwood, 38 N. J. 339. Cabin V. Eastman, 18 Minn. 324.

1021 P&EIG3f WATOt FIaWDIXi:*. § 50S

later, sad daring the ordinjiry spring I'nehet. ihe vater again boxai into the rannel. filling iu and washing ihTugh it vith sDcli Tolome and force that ii washed oui and undermiiied the Iot- end of ihe island and the land on whidi Gahill's mill and machinery stood. Heno the acdoD. The conn, in considering the ca, ejcamined it from the standpoint most favorable to the defendant, asom* ing that the tnimel was excavated with the utmost care and skill, and ander the belief that it was perfectly safe. yymmn vas held responsible upon the principle that by digging the tunnel he did an act which necessarily tended to injure Cahill, and that this liability existed without regard to the question of care and skill, following the doctrine announced in the R viands-Fletcher case: —

" He had artificially caused foreign water to get into plaintiff s mine, water which did not arise there nor " there by merely natural means, water which gtt there.

not by the defendants not preventing it, but by their cans*

ing it'"

The following excerpts from the decisions of ovnirts in other states of the union illustrate the current of judicial thought.

Where one builds a mill dam on a model, and the work is well and substantially done, he is not liable to an action, though it break away, in oonseiuonce of which his neighbor's dam and mill below is destri>yeil. Negligence should be shown in order to make him liable.*

Each proprietor, in exercising his own rights in his own territory, shall act with reasonable skill and care to avoid injury to others: and as an approximate rule for measuring that degree, it shall be that dejreo of ordinary skill, care, and diligence whicli men of common and ordinary prudence, in relation lo similar subjects, would exorcise in the conduct of their affairs.'

The measure of care required in such a case is that

' LfOsee v. Buchanan, 51 N. Y. 476. Seo, also, Pixley r. (Mark, JiS N. Y. G20; Sheldon v. Sherman, 42 N. Y. 484.

Inhabitants of Shrewsbury r. Smith, 12 Cush. 177.

§808 Drainage Of Minks. ' 1022

which a discreet person would use if the whole risk were his own.*

The dam should be constructed in such a manner as to resist such extraordinary floods as might be reasonably expected occasionally to occur.

One has a right to build a dam, and if in doing so he exercises ordinary care and skill, he will not be held liable for the consequences should it subsequently give way without his fault.

While it is customary for the owners of mines to keep them as free from water as practicable, yet they are not bound in law to do so. The only obligation resting upon them in such respect is that of self-interest. The upper owner may abandon his own mine whenever he pleases, notwithstanding his doing so may largely increase the flow of water into the mine below, and thereby greatly enhance the labor and expense of the owner in operating it. So the owner of a mine, for the purpose of protecting himself from the encroachments of water, which is regarded as the common enemy of mines and mining interests, may erect a dam or other structures on his own premises, if necessary for such purpose, subject to the limitation that such dam, or other structure, does not have the effect to collect water from adjacent territory and eventually cast it upon a lower mine, which, but for such dam or other structure, would not have reached it.'*

What is and what is not vis major, or act of God, in a legal sense, which will relieve parties from liability for damages caused by discharge of artificially stored water, will depend largely upon the extent to which human agency negligently contributed to the catastrophe. The correct rule in this class of cases must be determined by a consideration of the general law of negligence.

' Todd V. Cochell, 17 Cal. 1?7; Hoffman v. Tuolumne County Water Co., 10 Cal. 413; Wolf v. St. Louis Water Co., 10 Cal. 541; Campbell r. Bear River and Auburn W. <fe M. Co., 35 Cal. 679; Angell on Water Courses, (336.

The Mayor of New York v. Baily, 2 Denio, 433, 441; Angell on Water Courses, $ 366. Jones v. Roberteon. 116 111. 543.

1023 Foreign Water — Flooding. §808

Judge Thompson, in his work on this subject, has collated the authorities, both English and American, by reference to which the state of the law in the different jurisdictions may be fairly ascertained.*

A more extended discussion of this matter will lead us too far afield.

1 Thompson on Negligence, notes, pp. 77-106.

Chapter Ii.

t

MUTUAL RIGHTS AND DUTIES WHERE TITLE TO MINER- ALS IS SEVERED FROM THAT OF THE SURFACE.

Article I.

General Principles — Rights and Duties of Mink Owners — Use op Surpace.

II. Vertical or Subjacent Support.

III. Rights and Duties op Surpace Proprietor — Owner- ERSHip OP Separate Strata.

Article I. General Principles — Rights and Duties OF Mine Owners — Use of Surface.

$ 812. Application of the doctrine of the common law on the subject of severance — Severance under the federal law — General principles.

$ 813. To what extent owner of minerals may use surface —Ways of necessity.

$ 814. Manner of conductinur mining operations.

§ 812. Application of the doctrine of the common law on subject of severance — Severance under the federal laws — Oeneral principles. — We have already observed that under the English law nothing was more common than to sell or demise a piece of land, excepting the mines. In like manner the different strata of the subsoil might be shown to be the subject of different rights; also that there might be in one mine different minerals which were the property of different persons. Thus one person might be entitled to the iron and another to the limestone. One seam or stratum of coal in the same lands might belong to a third person, and another distinct seam to a fourth owner. When the surface and underlying mines or the different strata of the subsoil were differently

tt

1025 The Common Law On Subject Of Severance. § 812

owned, they were separate tenements, with all the incidents of separate ownership, a distinct possession and distinct inheritance/

When Lord Campbell, as chief justice of the Queen's Bench, delivered the opinion in the leading case of Humphries v, Brogdou,' he sought in vain among the law writers of other nations for precedents touching questions arising out of the severance of the title to minerals from that of the surrounding soil.

Said that distinguished jurist: —

" We have attempted, without success, to obtain from " the codes and jurists of other nations information and assistance respecting the rights and obligations of persons to whom sections of the soil, divided horizontally, belong as separate properties. This penury, where the subject of servitude is so copiously and discriminately treated, probably proceeds from the subdivision of the " surface of the land and the minerals under it into separate holdings, being peculiar to England."

After observing the absence of any suggestions on the subject in the civil law he continues : —

" The American lawyers write learnedly on the support " which may be claimed for land for lateral pressure, and " for buildings which have long rested against each other, but are silent as to the suppoft which the owner of the " surface of lands may claim from the subjacent strata when possessed by another."

This " penury " of American legal literature upon this interesting subject was due solely to the lack of opportunity. Were Lord Campbell permitted to rewrite his decision in the light of the present exposition of the law in America, he would have no occasion to complain of the dearth of American precedents. Lord Campbell and his contemporary judges, in whose bosom rested the common law, had easy tasks compared with those assigned to some of our American judges half a century later.

Said Justice Paxson, speaking for the supreme court of

N

Ante, J 9. 1850, 12 Q. B. 739.

3

§812 Severance Of Title. 1026

Pennsylvania (1893) in Chartiers Coal Company v. Mellon:* —

" The discovery of new sources of wealth and the spring- " ing up of new industries (petroleum and natural gas) which " were never dreamed of half a century ago, sometimes " present questions to which it is difficult to apply the " as it has heretofore existed. It is the crowning merit of " the common law, however, that it is not composed of " ironclad rules, but may be modified to a reasonable " extent to meet new questions as they arise. This may be " called the expansive property of the common law. Min- " ing rights are peculiar, and exist from necessity, and the " necessity must be recognized and the rights of mine and " land owners adjusted and protected accordingly."

A few years after the decision Lord Campbell we find the supreme court of Pennsylvania (1858) reiterating the doctrine of the common law.

" Coal and minerals in place are land. It is no longer " to be doubted that they are subject to conveyance as " such. Nothing is more common in Pennsylvania than " that the surface right should be in one man and the " mineral right in another. It is not denied, in such a case, " that both are land owners, both holders of a corporeal " hereditament."

And in a comparatively recent case (1891) we find the same court announcing, that we have for nearly half a " century judicially regarded the ownership of mineral, " where it has been severed from the surface, as the owner- " ship of land, to all intents and purposes."' .

These rules prevail wherever in the United States conditions exist in an economic sense, making their application necessary.*

1 152 Pa. St. 286.

2 Caldwell v, Fulton, 31 Pa. St.. 475

3 Lilliebridsre v. Lackawanna Coal Co., 143 Pa. St. 293. See, also.Caldwell Copeland, 37 Pa. St. 427; Scranton v. Phillips, 94 Pa. St. 15; Sanderson r. Scranton City, 105 Pa. St. 469; Delaware, etc., R. R. Co. v. Sanderson, 109 Pa. St. 583.

Williams V. Gibson, 84 Ala. 228; Marvin v. Brewster, 55 N. Y. 538; Ryckman v. Gillis, 57 N. Y. 68; Benavides v. Hunt, 79 Tex. 3&3; Silvav. Rankin, 80 Ga. 79; Knigbt v. Indiana Co., 47 Ind. 105; Arnold r. Stevens, 24 Pick. 106; Hartwell v. Camman, 10 N. J. Eq. 128; Massot v, Moses, 3 S. C. 168.

1027 The Commom Law On Subject Of Severance. § 812

In the mining regions of the west, where lands of the public domain are held under federal mining tenures, the subject of severance of title is not encountered as frequently as it is in the older states of the union. As a rule the title emanating from the government carries both surface and all the minerals.* There are three instances, however, where the government itself has provided for the creation of such a severance : —

(1) In issuing patents to Mexican grants, under the act of March 3, 1891, situated in Colorado, Wyoming, Utah, Nevada, New Mexico, and Arizona ;

(2) In issuing patents to incorporated cities for townsites, under the act of March 3, 1891, recognizing correlative rights of lode mining claimants and prior occupants of the surface; '

(3) By granting a lode throughout its entire depth, although it may enter the land adjoining.*

As between private individuals, where a severance is created, it rarely happens that their mutual rights are not precise and ascertained by the deed, by which the right to mines is acquired, and then the only question would be as to the construction of the deed, which may vary in each case.

Be that as it may, whenever and wherever such a severance is affected, certain reciprocal rights and obligations arise between the two classes of owners, with reference to the manner in which the respective estates may be enjoyed, each having due regard for the rights of the other.

It is necessary to briefly consider the nature and extent of these rights and obligations.

The underlying principles involved maj' be thus expressed: The proprietor of the minerals has a right to win them. In exercising this right all privileges reasonably

Ante, $80. Ante, $568.

Ante, 127. Rowbotham v, Wilson, 8 H. L. Cases, 348, 360.

Ante, $172 (4).

§813 Severance Of Title. 1028

necessary for its full and fair enjoyment are necessarily implied; but these privileges must bB exercised with due care and in a lawful manner, so as not to wantonly or unnecessarily interfere with the rights of the surface ojuqt. The owner of the surface is subjected to such inconveniences as naturally flow from the severance of the underlying minerals and the incidents necessarily attaching to mineral ownership. To this extent the estate in the entire fee, which originally was in one and the same person, has been lessened and burdened. The surface owner must exercise his rights in such a manner as not to wantonly or unlawfully impair the rights of the owner of the minerals or interfere with the necessary means by which they are won and brought to the surface.

g 813. To what extent owner of minerals may use surface. — A grant of minerals implies the right to win them from the underlying soil. The use of some portion of the surface is necessary for the proper enjoyment of this right. To reach the minerals the miner must pass from the surface downward. To do this he has a right of way of necessity. He may sink through such land from the surface to the mines, in order to reach and work them.*

This way of necessity ought not to be of larger dimension than is reasonably requisite.

This right, however, cannot be extended to the use of other lands belonging to the grantee, for the purpose of transporting ore;' nor can it be asserted for any purpose not legitimately associated with the search for and extraction of the minerals.

And it would seem that this right of surface user is not

Warden v, Watson, 93 Mo. 107; MacSwinney on Mines, 372; Stewart on Mines, 33; Goold v. Gt. West Coal Co., 2 De G. J. <fc S. 600; Rogers v. Taylor, 1 H. <fe U. 706; Turner v, Reynolds, 23 Pa. St. 199.

'MacSwinney on Mines, 372; Monmouth Cannl Co. v. Harford, 1 Cr. M. <fe R. 614, 634.

' Goold V. Gt. Western Coal Co., 2 De G. J. A S. 600.

Monmouth Canal Co. v. Harford, 1 Cr. M. & R. 614.

1029 Owner Op Minerals Using Surface. §813

restricted by reason of the fact that the surface owner had granted a right of way for a tunnel, by means of which the ore could be removed from the mine.

Where the instrument by which the title to the minerals is severed from that of the superjacent soil does not define the extent to which the grantee of the minerals may use the surface, he has a right to use so much of such surface as is strictly necessary and reasonable. He cannot claim as an incident that which is simply convenient; he can only have, as to the surface, that which is necessary, but .that which is necessary he may have in a convenient way.'

This involves the right to use such means and processes, for the purpose of mining and removing the minerals, as may be reasonabl}* necessary in the light of modern invention and of the improvements in the arts and sciences.

It includes the necessary ground for machinery for working the mine** and stowing the ore in its first marketable state, but not for the erection of smelting works, or accessories, for the purpose of treating the product, such as converting coal into coke or clay into brick.'

What improvements are reasonably necessary for the profitable and beneficial working of the mines, is a question of fact to be determined from the evidence in each particular case.

Where it is necessarv to artificiallv store water as an adjunct to mining operations, a limited quantity of the surface may be devoted to that purpose.*

So a right of ingress and egress over the surface, to and from the necessary mine openings, for the purpose of transporting supplies, machinery, and the product of the

Rankin's Appeal (Pa.), 16 Atl. Rep. 82. 'Turner r. Reynolds, 23 Pa. St. 199. 'Marvin v. Brewster, 55 N. Y. 538.

Williams r. Gibson, 84 Ala. 228; Bainbridge, 4th ed., p. 208. Warden v. Watson, 93 Mo. 107.

Bainbridge, 4th ed., p. 208; Marvin r. Brewster, 55 N. Y. 538; Williams V. Gibson, 84 Ala. 228; Dand i'. Kingscoto, 6 M. and W. 174.

' Williams r. Gibson, 84 Ala. 228. Dand r. Kingscote, 6 M. and W. 174.

§814 Severance Of Title. 1030

mine, would be a way of necessity;* but the exercise of this right must be in the course least prejudicial to the owner of the surface.*

The acquisition and enjoyment of surface easements and rights of way for mining purposes other than those of necessity are the subject of private contract. The existence of such rights, as well as their proper measure, depends entirely upon the true interpretation of the instrument creating or reserving them. With reference to proceedings in invitum, to condemn lands for such purposes under the eminent domain laws, we have endeavored in preceding sections' to explain what we conceive to be the state of the law, and have also noticed what easements were contemplated under the federal laws, subject to which mining rights upon the public domain are granted.* It is unnecessary to here recur to these subjects.

g 814. Manner of conducting mining operations. —

The owner of a mine beneath the surface, though he have a right of way through the surface soil, has no right so to exercise the same as to interfere with the power of the owner of the land to make any lawful use thereof.**

He is bound to erect proper guards around his mine openings, so as to prevent them from being a source of danger to the cattle of the surface owner.

He is not liable for any incidental damage necessarily occasioned by the ordinary and careful operation of his mine.

The loss of springs to the owner of the surface by reason of the ordinary working of the mines does not render the owner of the minerals liable for damages.'

Clark v. Vermont <fc C. R. R. Co., 28 Vt. 103. Farnum v. Piatt, 8 Pick (Mass.), 339. 3 Atite, $$ 252-264.

Ante, 9$ 629-531.

Park Coal Co. v. O'Donnell, 7 Leg. Gaz. 149.

Williams v. Groncott. 4 B. & Sm. 149. T Williams v. Gilmoii, 84 Ala. 228.

" Coleman r. Chadwick, 80 Pa. St. 81. See, also, Haldeman v, Bruckhart, 45 Pa. St. 514; Trout v. McDonald, 83 Pa. St. 144; Wheatley v. Baugh, 25 Pa. St. 628.

3 BHSBBVATIOK OF 3UBFA0B SUfPORT.

§818 J

t mine owner is not responsible to the surface owner ] disturbances caused by necessary blasting in the mine;' but this necessarily implies that the blast must not be dia- j charged in an improper or negligent manner.'

As heretofore noted, the miner is authorized to use such ' means and processes for tlie purpose of raining and rean ing the minerals as may be reasonably necessary in the light of modern invention and of the improvements in the arts and sciences.'

fflS. RiBhl ail absolute one — NeBllgeiice not involved. iSBft. Ittght llmltetl to support of

Abticle ir. Vertical oh Subjacent SuproRT.

Boil in its natural slat BuildinKB.

ifSl. Waiver or release of Che riRhi,

822. Statutory regnlationa on Btibjeel of 8ub)Baeiit Blipport.

g 818. Right of surface rapport reserved by implication in grant of minerals — Nature of the right. — In every grant of mines there is an implied reservation of surface support.*

There is a prima facie inference at common law upon I every grant of minerals or other subjacent strata, where the surface is retained by the grantor, that the grantor in granting them does so in such a manner as is consistent with the retention by himself of his own right to support. In the absence of express words showing clearly that he has waived or qualiRed his right, the presumption is, that what he retains is to be enjoyed by him modo li fonmi and with the natural support which it possessed before the grant."

The owner of the surface of land from which the title

' Marvin v. Ilrewiitr, fiS N. Y. fi-IS. ' Mood]' v, McUonali), 1 Cal. 207. ' WtinoinH Glbitoii. 144 AU. !2S.

Proud I'. Bates. 34 L. J. Cli. JU: Wilma v. Jess. tH 111. 4i>4: Yandes v. Wriichl, en lN.1. in: WUIIama Hay, I2U Pa. St. 1S5. Dugdnle i: Kobertaon, 3 Kay it Johnaoiit 7W.

§819 Vertical Or Subjacent Support. 1032

to the minerals has been severed has, in the absence of a contrary agreement, an absolute right to have it supported as it was in its original state, and one mining under it is answerable for damages arising from failure to properly support it, or from negligence in conducting mining operations, or from both of these causes together.

Of natural right the surface land is entitled to support from the strata below, and when one owning the whole'fee grants the minerals, reserving the surface to himself, his grantee is entitled to so much of the minerals as he can get without injury to the superincumbent soil.

A grant or reservation of all and " every part of the " mines and minerals in the land " in the strongest possible terms would not authorize the owner of the minerals to excavate without leaving proper support for the surface.

"By reasonable intendment the grantee of minerals or " the grantor of the minerals reserving the surface could only be entitled to so much of the mines below as would " be consistent with the proper enjoyment of the surface."'

This rule obtains without reference to the nature of the strata or the difficulty of substituting artificial for natural supports or the comparative value of the surface and mineral.

The mineral proprietor may substitute artificial supports in place of the ore removed, but being bound under the law to leave sufficient ribs or pillars to support the soil,* he substitutes the artificial for the natural at his peril.

g 819. Right an absolute one — Negligence not involved.— This right of subjacent support exists entirely

Pringle v. Vesta Coal Co., 172 Pa. St. 438.

Coleman v. Chadwick, 80 Pa. St. 81, 87; Jones v. Wagner, 66 Pa. St. 429,434.

Horner r. Watson, 79 Pa. St. 242, 249 (citing Harris v. Ilyding, 5 Mees. A W. 60); Mickle f. Douglass, 75 la. 78; Richards v. Jenkins. 18 Law- Times U. S. 438.

Lord Campbell in Humphries Brogden, 12 Q. B. 739; Horner r. Watson, 79 Pa. St. 242, 250.

1 Thompson on Negligence, note 8, p. 280.

1033 Right Of Surface Support. §820

independent of the question of negligence on the part of the mine owner.*

If subsidence is caused by not leaving sufficient support, it will be no defense that he worked the mines carefully and according to custom.

The entire removal of the inferior strata, however skillfully done, if productive of damages by withdrawing that degree of support to which the owner of the surface was entitled is actionable, the duty of the owner of the servient tenement forbidding him to do any act whereby the enjoyment of the easement could be disturbed.'

One who conveys land to another, reserving the right to remove the underlying coal, is bound to exercise care in the removal and, if necessary, to leave pillars to support the surface, although the reservation exempted him from liability by reason of " mining operations."

The right of support is not affected by a provision in the deed that the minerals shall be rained and removed " with as little damage as possible to the surface."

A neighborhood custom, by which the proprietor of the minerals was permitted to take out pillars and remove all supports, has been held to be unreasonable and void,® and is no defense to an action for damages, where the subsidehce occurs through failure to support.

g 820. Bight limited to the support of the soil in its natural state — Buildings. — The right of subjacent support, in the absence of agreement, express or implied, is limited to the soil in its natural state. The owner of the minerals is not called upon to support superadded

'Nelson v. Miller, 1 Leg. Re. 187 (Pa.); Yandes v. Wright, 66 Ind. 319. '

' 1 Thompson on Negligence, note 8, p. 28<) (citing Humphries r. Brogden, supra). See, also, Harris r. Ryding, 5 Mees. <fc W. 556; Proud r. Bates, 34 L. J. Ch. 406; Wilms v. Jess, 94 III. 464.

'Humphries v. Brogden, 12 Q. B. 7.19. See, also, Carlin v. Chappel, 101 Pa. St. 348.

Livingston r. Moingona Coal Co, 49 la. 369.

Williams Hay, 120 Pa. St. 485.

Hilton V, Lord Granville, 5 Q. B. 701.

§821 Vertical Or Subjacent Support. 1034

weight occasioned by the erection of buildings or superstructures.*

Although the mine owner is not bound to leave support more than sufficient, to stay the surface, yet if a subsidence occur, the mere presence of the building will not prent a recovery, unless it be shown that the subsidence would not have occurred without the aid of the buildings, and the mine owner will be liable for damage both to the building and to the land.

g 821. Waiver or release of right of surface support.— The owner of land may, in the instrument whereby he severs the title of the minerals from that of the overlying surface, waive or surrender this right of support,' and whjen th ere is such waiver or surrender, the miner may take out all the mineral, even though the surface fall in;* but it must clearly appear that the grantor, in conveying the minerals, has released his right to support. Such release will not be inferred from ambiguous clauses in the instrument.*

The right of surface support may be divested by grant to the party working the mineral, and the subsequent purchaser of the surface will take subject to such grant.

And in case of leases, the terms of the lease may be

Rogers v. Taylor, 2 Hurl. <fe N. 828.

Wilms V. Jess, 94 111. 464, Hilton v. Lord Granville, 5 Q. B. 701. See, also, Gumbert v, Kilgove (Pa.), 6 Cent. Hep. 406; Humphries v, Brogden, 12 Q. B. 739; Hamer v. Knowles, 6 H. <fe N. 454; Jeffries v. Williams, 5 Exch. 792; Hilton v. Whitehead, 12 Q. B. 734; Hunt v. Peake, 1 Johnson (Eng.), 705; Brown v. Robins, 4 H. <fc N. 186; Backhouse r. Bownie, 9 H. L. Gases, 503; Bell v. Love, 10 Q. B. D. 547.

' Rowbotham v. Wilson, 8 H. L. cases, 348; Williams v. Gibson, 84 Ala. 228, 5 Am. St. Rep. 368; Smart r. Morton, 5 Ellis A Bl. (40 Eng. Eq.) 30; Jones V. Wagner, 66 Pa. St. 429; Smith v. Darby, 7 L. R. Q. B. 716; Aspden v. Seddon, 10 L. R. Ch. App. Cases, 394.

Scranton v. Phillips, 94 Pa. St. 15.

Robertson v. Youghobogency R. R. Co., 172 Pa. St. 566; Williams i*. Hay, 120 Pa. St. 485, 6 Am. St. Rep. 719.

Smith r. Daiby, 7 L. R. Q. B. 716; Williams r. Bagnall, 12 Jurist A N. S.987.

Statutory Begulations.

§§ 822-826

such that the lessee is compelled to extract all the mineral, regardless of surface support/

§ 822. Statutory regulations on subject of subjacent support. — In some of the mining states legislation exists on the subject of subjacent support. Colorado has enacted the following provision : —

" When the right to mine is in any case separate from " the ownership or right of occupancy to the surface, the " owner or rightful occupant of the surface may demand " satisfactory security from the miner, and if it be refused, " may enjoin such miner from working until such security is given. The order for injunction shall fix the amount " of the bond/'"

Wyoming' and the two Dakotas,* and probably other states have similar provisions. We are not aware that this class of legislation has been the subject of judicial investigation. It seems to us that such legislation is not altogether free from constitutional objections.

Article III. Rights and Duties of Surface Proprietor— Ownership of Separate Strata.

826. Responsibility of surface owner for injuries to miners' rififhts.

$ 827. Rinhts of access to lower strata — Reciprocal servitude between owners of different strata.

g 826. Responsibility of surface owner for injuries to miners' rights. — The owner of the surface owes the same duty to the owner of underlying mines as the latter owes to the former. The obligations are reciprocal. While the doctrine of absolute liability, independent of the

Sbafto V, Johnson, 8 B. A S. 252.

Mills' Annot. Code, $ 3159. $ 3139 of the same code is as follows: No person shall have the right to mine under any building or other improvement unless he shall first secure the parties owning the same against all damages, except by priority of right."

Laws of Wyoming 1888, p. 83.

Rev. CJode of Dak. 1877, p. 159.

§ 826 Rights And Duties Op Surface Proprietor. 1036

elements of negligence announced in the English case of Rylands v. Fletcher, discussed in a preceding chapter under the subject of drainage/ has been modified by some of the American courts as between individuals whose estates are more or less removed from each other, yet when the special relationship of surface and mineral proprietor exists in the same tract, we think the rule of that case is fairly applicable.

The principle is aptly illustrated in the case of Bagnall V. L. & N. W. Railway Co., decided by the English court of Exchequer.*

The plaintiffs owned and occupied a coal mine. The surface soil, as well as the coal below, formerly belonged to the same owner, but a railway company took the surface under the authority of a private act of Parliament for their railway, and constructed it thereon.

The railway company removed the surface soil to a depth of twenty feet vertically over the plaintiffs coal mine to reach the level at which they laid their rails. The surface soil was clay, impervious to water; by removing it a porous rock was reached. On the occurrence oif a freshet, the water overflowing the banks of a neighboring brook found its way by gravitation to the cut overlying the plaintiff's mine, and seeping through the porous rocks, loosened them so that the surface subsided, causing the injury to the mine below. The railway company was held liable, the court also announcing that the reasoning applied to water other than that from the flood. Through no default of the plaintiffs the natural condition of things had bee\i altered, and the railway company having failed to protect the mine by the maintenance of sufficient drains, it was mulcted.

This is but the application of the same principle governing the duties of the mine owner in regard to surface support. Negligence is not a test of liability. As skillful and prudent working is no defense to the miner, where

Antey $ 808.

' 7 Hurlstone <fe N. 423; affirmed on appeal, 1 Hurlstone it C. 544.

1037 Right Of Access To Lower Strata. §827

the surface subsides for lack of support, so the careful and ordinary use of the surface will not excuse the surface owner if damage occurs to the underground workings through such use.

Mr. Wood, in his treatise on the law of nuisances,' draws the following conclusion from the adjudicated cases: —

The fact that the surface owner makes a lawful use of his premises, or uses it for one of the ordinary purposes of life, and is in the exercise of the highest care, will not excuse him if the consequences are wrongful to, and in contravention of, the rights of another.

§ 827. Right of access to lower strata — seiritudes as between owners of different strata. — A grant of minerals underneatli a given surface docs not divest the grantor of the ownership of anything underlying them ; but how may he reach strata underlying a stratum conveyed to another? Having sold the mineral underlying the surface, is he to be forever barred from reacliing his estate lying beneath it ?

True, in most instances there would be but little inducement to reach it: but cases are bv no means rare where, underlying a granted mineral zone, there areotlier zones of the same character, or even other deposits of a different nature, possessing economic value.

The foregoing inquirio; wam suggenUd by the supreme court of Pennsylvania in a cas'; of this iharacUr, the facts of which were as follows : —

The plaintiff owned the coal b<fn<;atlj surface, having acquired it by deed, not only convryin; all coal, but also the mining rights and privilr-g-)-, inclu*iin;j: tlj<; rilit to enter the mines and carrv awav all the *;oal, tlj<; ri'lit to make openings or entries, air cours<-s, water cours<:s, drainage, and shafts, with right of ingn.*s? and t-'rt" lor purpose of making such operiingS; with right of way for

Cluirtiers Block Coal (Jo. v, Mellon, V/Z ia. Kl. '/m.

§ 827 Rights And Duties Of Surface Proprietor. 1038

taking such coal, or any other coal, through the entries, and also the right to use the surface of the land for the purpose of storing the coal and waste.

" The grantor, in conveying the coal with these privil- ' eges, reserved to himself no right, privilege, or ease- ' ment in said coal, or any part thereof, and no right of ' way through said coal from the surface to obtain gas, or

oil, or any other substance. It is not likely at the' time ' the grant was made that it occurred either to the grantor

or the grantee of the coal that underneath the latter there

might lie another substance of perhaps greater value than

the subject of the rant itself. It now appears that the

coal is underlaid with oil and gas-bearing sand, which can

only be reached by sinking wells from thesurface through

the strata of coal. . . . The surface owner made

leases for oil and gas purposes, and the lessees began at

once to drill."

Under this state of facts the coal company applied for an injunction to restrain the lessees from drilling any wells which would pass through the coal, basing its right to equitable relief upon two grounds : (1) That the defendants had no right to drill the wells ; (2) That assuming that they had such an abstract right, it was impossible to so drill them as to allow the removal of all the coal without exposing the mine to leakage from gas from said wells and rendering the mine operations so hazardous as to greatly injure and depreciate the value of coal property, if not wholly destroy it.

The court below refused the injunction, upon condition that the defendants should execute bonds indemnifying the coal company for any damage which might inure from the operation of sinking the wells and removing the oil and gas. This decision was based upon the theory that the owner of the surface has a right of way by necessity through the coal to reach his oil and gas lying beneath it.

The appellate court affirmed the ruling of the court below and dismissed the appeal, but not, as we shall hereafter observe, for the reasons given by the trial court. In

RlCillT or ACCESS TO LOWER STRATA. S S27 '

Jourse of its opmioQ, which they say is one of " first ressions," the court, speaking; through ilr. Justice I, said : —

:ior to the sale of the coal tlie estate of the surface T reached from ttie heavena to the center of " earth. With the exception of the coal, his estate i3 stiJl i " bounded by these liniil9. Il is impossible for hiir " reach liis underlying estate, except by puncturing the I " earth's surface and going down through the coal he has j " sold. While the owner of the coal may have an estate j " in fee therein, it is at the same time an estate that is 1 " peculiar in its nature. Much of the confusion of thought " upon this subject arises from a misapprehension of the " character of this estate. We must regard it from a busi- " nessuse as well as a legal standpoint. The grantee of " the coal owns the coal, but nothing else, save the right , " of access to it and the right to lake it away. ... It " is the grant of an estate which owes a servitude of sup- " port to the surface. When the coal is all removed, the " estate ends, for the plain reason that the subject of it has i " been carried away. The space it occupied reverts to the " grantor by operation of law. ... It cannot be " seriously contended that, after the coal is removed, the " owner of the surface may not utilize the space it occupied " for his own purposes, either for shafts or wells to reach " the underlying strata. The most that can be claimed is, " thftt pending the removal his right of access to the lower , " strata is suspended. The position that the owner of the coal is also the owner of the hole from which it has been " removed, and may forever prevent the surface owner " from reaching underlying strata, has no authority in " reason, nor do I think in law.' The right may be sus- " pended during the operation of the removal, to the extent of preventing any wanton interference with the coal niin- " iug. and for every necessary interference with it, the " surface owner must respond in damages. The owner of " the coal must so enjoy his own rights as not to interfere " with the lawful exercise of the rights of others who may own the estate, either above or below him. The right of

The aaaie oourt bad previotisl]' said: " How muld thu ilefeticlHiit " own the coni nbaolutely aoil not own tbe HpAce It nfcupled f How ia it "poBBUiIe to voueeWeof micli a tbiiig as ownership of the apture Inde- " pendenllf o( the coulT" (Lllliebridgo t. LiiL-kawaurm Coal Co., H.T l' St.al.f

§ 827 Rights And Duties Of Surface Proprietor. 1040

" the surface owner to reach his estate below the coal exists " at all times. The exercise of it may be more difficult at " some times than at others, and attended with both trouble " and expense."

In the light of this reasoning the conclusions reached by the majority of the court seems somewhat inconsistent. While in another portion of the opinion the court extols the " expansive property " of the common law and its elastic susceptibility of application " to meet new questions " as they arise," it declined to apply the common-law right of way of necessity over the surface to the facts of the case.

" While the right of the surface owner to reach, in some " way, his underlying strata is conceded, it involves too " many questions affecting the rights of property and of " injury to the underlying strata to be settled by the " judiciary."

It then referred the matter to the legislature, but affirmed the ruling of the court below in refusing the injunction, on the ground that the coal company had not as yet sustained any irreparable damage by reason of the sinking of the wells, and it might never do so.

Mr. Justice Williams, in a specially concurring opinion, touched the keynote of the situation. Said Justice Williams: —

" I concur in the decree made in this case and in the " opinion which so ably vindicates it, but I would go " further. I would lay down the broad proposition that " the several layers, or strata, composing the earth's crust " are, by virtue of their order and arrangement, subject to " reciprocal servitude; and as these are imposed by the laws of nature, and are indispensable to the preservation " and enjoyment of the several layers, or strata, to and " from which they are due, the courts should recognize and " enforce them. As it now stands, the decree of this court " recognizes the existence of a right of access existing in " the nature of things, wholly independent of all statutory " enactments, and yet refuses to enforce that right or regu- " late its exercise. It says to the owner of the lower " estate: ' You have an undoubted right of access to the " layer of th earth's crust in which your wealth lies, but

1041 Right Of Acce8S To Lower Strata. §827

" ' equity will not protect or aid you in its exercise. The " owner of the intermediate stratum may sue you and " recover damages from you for doing what it is your riglit " to do, and a cnancellor cannot hear your complaint or " lifthis hands to protect you until the legislature has " provided him with ears and hands for that purpose/ I " would hold, that the jurisdiction is as clear as tne right of access; that the parties are in a court competent to " deal with the whole subject, and that the decree of the " court below should be affirmed for that reason and at " the cost of the appellant."

This concurring opinion " snaps like a whip." Its force and logic are irresistible. If it be true, and the court in this case so says, that each of the separate layers, or strata, becomes a subject of taxation, of encumbrance, levy, and sale, precisely like the surface, why should the ownership of each successive strata not be clothed with the same attributes as surface ownership, and be invested with all things necessary or incident to the right of enjoyment?

Each overl34ng stratum would have the right of support from the lower;" all being under a common servitude to the surface owner, and each owner would owe a dutv to the other to so conduct his operations as to not interfere with his over or underlying neighbor.

The suggestion that the remedy of the parties being doubtful, relief should be sought from the legislature, is hardly practicable. If the right of access does not arise out of the very nature of the estate or is not conceded by contract, it is difficult to conceive how, in Pennsylvania at least, the legislative branch can interfere. The supreme court of that state has determined that private property cannot be condemned for purpose of ways to be used as mere appurtenances to a mine.

It seems to us that the opinion of Justice Williams heretofore quoted is unanswerable, and affords the only correct solution of the problem.

Chartiers Block Coal Co. r. xMellon, 152 Pa. St. 28<5. Mundy v, Rutland, 23 Ch. Div. 81, 9(j; Dixon r. White, 10 L. R. App. Cases, 833, 842. Ante, $ 261.

§ 827 Rights And Duties Op Surface Proprietor, 1042

Where minerals are granted or reserved, it is to be presumed that they are to be enjoyed, and, therefore, that a power to get them must also be granted or reserved as a necessary incident.*

There is no substantial difference between a title by exception or reservation out of a grant and a title by direct grant of the same subject. The books make no distinction.'

Howbotham v. Wilson, 8 H. L. Cases, 348, 360.

' Lilliebridge v, Lackawanna Coal Co., 143 Pa. St. 293; Marvin v, Brewster, 56 N. Y. 358.

Chapter Iii.

Lateral Or Adjacent Support.

t83L Introdactory. §834. The riflht of lateral support m

$832. General Principles— Negli- ; applied to mines worked

gence as an element. 1 hydraulic process.

i 833. Right limited to support of soil in its natural state.

g 831. Introdactory. — The right of lateral or adjacent support is founded on the same general principles as that of vertical or subjacent support.* To what extent this right exists in connection with ownership of land used for mining purposes, will be considered! after we have outline! the general rules of law governing it. In comparing the adjudicated cases on the subject of vertical with those dealing with lateral .supf>ort, we may observe some slight variations in the principles; but these, we think, are more apparent than real. A brief fetatement of the doctrine of adjacent supfxrt, conhidere<l in the light of adjudicated case*, will serviceable. We would harily l>e justified in investigating the subject exhaustively, for the simple reason that in prosf?<:uliijg ruirjiug ventures it is relatively unimiyrtant. When controversies do arise involving the (question ltween two coienniuous naiuing properties, where tbe riglji of adja<x-jjt suiport exists to any degree, we look for their siutiou Vj the d'.vision'; and treatises on the subject generaijy. wsekjijg there arjaio;ies and applying them.

g 832. Gkneral principle — Mtgligence as an ele- — Every man has the natural right to the ube of his

8tewart ou Mines, p. XiS. lilacwixixM oo Miaw,

§ 832 Lateral Or Adjacent Support. 1044

land in the situation in which it was placed by nature, surrounded and protected by the soil of adjacent lots. When one adjoining owner removes the soil, he is not doing simply what he may with his own, but he is interfering with the right which his neighbor has in the same soil/

" Few principles of law can be traced to an earlier or to " a more constant recognition, through a long series of " uniform and consistent decisions, than

In the case of land which is fixed in its place, each owner has the absolute right to have the land remain in its natural condition, unaffected by any act of hisneighbor; and if the neighbor digs upon or improves his own land so as to injure this right, the one injured may maintain an action against him without proof of negligence.'

The right of lateral support is an absolute one. The obligation to respect it is in no way affected by the question of negligence.

" If the owner of the adjoining land takes away the " natural support, it does not matter whether he acts with " due care and is guilty of no negligence."

With regard to the element of negligence, some confusion of thought has arisen by a failure to recognize the distinction between negligence in law and negligence in fact. Where a measure of duty is ordinary and reasonable care, it is a question of fact.

"In such cases the standard of dutv is not fixed, but " variable. . . . When the standard shifts with the " circumstances of the case, it is in its very nature inca- " pable of being determined as a matter of law; . . . " but when the standard is fixed, when the measure of " duty is defined by the law and is the same under all

Loaee r. Buchanan, 51 N. Y. 476 (citini: Farrand v. Marshall, 21 Barb.

409).

'Foley r. Wyeth, 2 Allen, 131, 132.

Chief Justice Gray in Gilmore v, Driscoll, 122 Mass. 199.

Washburn on Easements, 4th ed., p. 582. See Victor M. Co. r. Morning Star M. Co., 50 Mo. App. 525.

1045 Support Of Land In Its Natural State. §833

" circumstances, its omission is negligence, and niny bo so " declared by the court." '

There may be instances wliere this duty is not enjoined at all; but wherever it is enjoined, its standard and measure is fixed. If one may not excavate his hmd, so that by using ordinary or even the highest degree of skill, ho will be unable to prevent his neighbor's soil from being disturbed, the duty is enjoined upon him to* refrain from excavating. If he violates this <luty, ho is guilty of negligence in law. If by the exercise of care ho may reniovo his soil without disturbing his neighbor's, yet fails to exorcise such care, he is guilty of negligence in fact. There may bo a shade of difference in the legal principle to bo applied ; but where the neighbor's land falls, without any net of his contributing to it, the one whoso acts j)r()ximately eaus(Ml it will be responsible. He is guilty of either iniglig(;nee in law or fact.

We think this is the rule doducible from a fair consiilrration of all the authorities, although there an; prciMuhMits which seem to inject the element of n<fglig<!n(:(; in lnc;t into all cases of this character.'

g 833. Bight limited to support of soil in its natural state. — As in the cns(; of suhj;i(;cnt support, tlie hitteral rightappliesonly to the land in its natural (condition.

" While each owner may huihl upon iind improve his own estate at his pleasurf.*, provid<'d h; dop not inl'rinj.V' 'upon the natural right of his iKrihlor, no ti\n- cnu, liy ' his own act, enlar;re the liability of liis nti;;hhor (or nn 'interference with thin natural ridit. If a man be not 'content to enjoy land in it-, natural condition, but 'wishes to build or improver upon it, \n: mu-:t. eith<:r brake 'an agreement witii hi- neidit;or, or 'ii; hi-, fotindation 'so deep, or take ru-h other jr'-eautio[i a- to in-ure tlie 'stability of lii buiidiu'Tr or improvemerL-, whatever

Clarke, Pa. St. ir.o, ifp-,.

'SeePanton r. HoJan'J. 17 .Johrm.'.r

§834 Lateral Or Adjacent Support. 1046

" excavation the neighbor may afterwards make upon his "own land in the exercise of his right."*

This rule is well established in America and in England.'

The rule is inoperative where the right to the lateral support of the land with the superadded weight of structures has been acquired by prescription or by contract.

Also where a grant of land is made expressly for the purpose of erecting buildings thereon, or where, in contemplation of the parties, the land conveyed is to be enjoyed in a particular manner or for a particular purpose, a legal easement is created in favor of the land purchased, and a corresponding servitude imposed on the adjoining land held by the grantor for support to the land with the superimposed structures.

This statement of the principles governing the law of lateral support is, we think, suflBcient for all practical purposes.

g 834. The right of lateral support as applied to mines worked by hydraulic process. — The English and Scotch writers on mining subjects devote some considerable space to the exposition of the law of lateral support and its application to the conduct of raining operations,* and there can be no doubt that in the main the doctrine of the English and Scotch cases is closely followed and adopted in the United States.

Gilmore v, Driscoll, 122 Mass. 199.

"Thurston r. Hanccjck. 12 Mass. 220; Chaiiess v. Rankin, 22 Mo. 566; Quincy v. Jones, 76 111. 231; Stevenson r. Wallace, 27 Gratt. 77; Mamer v. Lussem, 65 111. 484; Busby v. Holthaus, 46 Mo. 161; McGuire v. Grant, 25 N. J. L. 356.

Wyatt V. Harrison, 3 Barn. & Add. 871; Peyton v. Mayor and Commonality of London, 9 Barn. A Cress. 725; Partridge i'. Scott, 3 M. <fe W.

Robinson v. Grave, 27 L. T. 648; Rijfby v. Bennett, 21 Ch. D. 559; 8. C. 40 L. T. 47; Murchie v. Black, 19 C. B. N. S. 190; Caledonian R. R. Co. V. Sprot, 2 Jurist N. S. 623; Palmer v, Fleshees, 1 Sid. 167; Cox v. Mathews, 1 Vent. 237.

Bainbridge, 4th ed. pp. 284-293; Rogers, pp. 632-644; Stewart, p. 166; MacSwinney, p. 293.

1047 Hydraulic Mines — Lateral Support. §834

In the precious-metal-bearin states where vein mining is extensively carried on, we do not find that the question has assumed a serious degree of importance. The lodes, or veins, osoallv descend into the earth on planes approaching the vertical. Where the miner in the pursuit of his vein on its downward course passes out of his boundaries and enters the land adjoining, as he may lawfully do. he is usually so far removed vertically from the overlying sur&ces as to render it impossible that his neighbor should be injured by the underground exploitation. In pursuing the lode on its strike or onward course, upon reaching a common boundarv there is little likelihood of the undisturbed portion of his neighbor's vein falling into the oj*ening&. It is usually rock in a mo5i compact form. " in place." held in the firm embrace bv the enclosing rocks. " in the mass " of the mountain."

In dealing with the auriferous gravels exisiiD? ;:: \hr form of surerncial der>'j=iis wliich are minei bv The hvdraulic proces*. that :-j bv ineans of iLe ar-i'licTion o: water under pressure irjro-jgh a liozzie azaiis: a naiural bank, the sujireme cour: of California Las he-i iLe right of lateral ?upp#ort -oer no: exit. The ease in which this doctrine was anr-iO-rjce-i "sras an action of tresrass. coupled with a prayer for irrunciion/ and arctse out of the following faci-: —

Plaintiff and defen-ia:.: owne'j adjoining j'laeer mining claims, conviriini: of r -rface 'Jer-orii of gold-bearin? ravel, worke<3 by te Lvdrau;:-: pr'..ve--. Iiu njining it? own ground the defendaiit wari'jed av.-ay tne £:rave] to a j-oint distant in one piac*-e. i?even;y fret. and at o:jier j-iaoer from one ijundred to one h'jndred and nfiv f*re: from the t'iaintiffs /.aim. At these T'O.l:? t:;e oank wa- deer.'- and ar a :-e:-e-rsarv .:-:.n- sequence of '-:fendant'r ai-ir a portion of plaint:-"-? ciaim gave way and feil onto defendcjnt' ;rroT:rjd. Tnir ;.'.n:on contained a r-Tnal: amount '-.f 'O-d-bearin:: irrave]. a jan of which defendant washed away; b-Jt the va.'je of the g-'dJ

Hudriuk. Spring VailfT M.. d: J. v.. -J f.'kL. IW'.

§834 Lateral Or Adjacent Support. 1048

extracted was much less tlian the necessary cost of extracting it. Some time after the defendant ceased to work its ground, large portions of the surface of plaintiff's claim caved and fell upon the adjoining ground of defendant, where it still remains. All of the caving was caused by the mining doue by the defendant, but it was not claimed that the defendant's work was performed in a careless or improper manner. Said the court: —

" The question in the case is, whether the doctHne of " lateral support applies to cases like the present. We " think not. The very purpose of locating the ground, " both on the part of the plaintiff and the defendant, was " to tear it down and wash it away. Its only value con- " sisted in the gold it contained. To apply the doctrine " contended for by appellant (plaintiff) to ground of this " character, would, therefore, to a great extent defeat the " very purpose for which it was located.

" Defendant would be liable for the gold taken from the " gravel that fell from the plaintiff's claim but for the fact " that its value was less than the necessary cost of extract- " ing it."

At the time the alleged trespass was commited, and when the case was decided, the following statutory provision, not referred to by either court or counsel, in the case, was (and still is) in force in California : —

" Each coterminous owner is entitled to the lateral and

subjacent support which his land receives from the

adjoining land, subject to the right of the owner of the

adjoining land to make proper and usual excavation on

the same for the purpose of construction, on using ordi-

nary care and skill and taking reasonable precautions to

sustain the land of the other and giving previous reason-

able notice to the other of his intention to make such

excavations." '

As the case was considered independently of any questions of priority of location, it logically follows from the doctrine announced, that as to which one of the coterminous owners of placer mining ground worked by the hydraulic process is to sufifer an inevitable diminution of

Civil Code, $ 833.

1040 lOKlES WORKING BY HYDRAULIC PROCESS. §834

his estate, will depend entirely upon which one of them exercises the most diligence in approaching the common boandarj*

The Hendricks-Spring Valley case was cited and strongly urged by counsel in Victor Mining Co. u Morning Star Mining Co., considered by the court of appeals of the state of Missouri. We find no mention of it, however, in the opinion of the court, which expresses the following views:—

" If the character of the adjoining soil is such that it " will, and does, sustain its own weight, and the natural pressure thereon by the power of its coherence without " the aid of the support of the surrounding soil, the adjoin- " ing owner may remove his soil without liability to " damage."

' 50 Mo. App. 525.

Chapter Iv.

DEPOSIT OF MINING DEBRIS IN RUNNING STREAMS AND ON LAND OF OTHERS - PRIVATE NUISANCES.

$ 838. The use of water in the conduct of mining operations.

$ 839. Pollution of streams — The English rule— Tin streaming in Cornwall.

$840. The American rule as declared in states not accepting the Pacific Coast doctrine as to right of appropriation and user of water.

t

$ 841. The rule in the mining states

and territories where the right of appropriation is recognized.

J 842. The remedy by injunction to prevent pollution of water.

$ 843. The deposit of tailings and refuse on the lands of others.

i 844. Measure of damages for unlawfully depositing debris on anothers land.

§ 838. The use of water in the conduct of mining operations. — Water in the conductor mining ventures is an all important factor. Without it mining operations cannot be prosecuted. While in underground exploitations it is looked upon as a common enemy to be met and conquered, yet when brought to the surface, or found in the running brooks and streams, it becomes an indispensable auxiliary in the various processes by which the miner extracts the metals from the rocks and ore-bearing earth. The right to appropriate and use water for such purposes, and the manner in which such rights may be acquired and enjoyed, is so intimately associated with the mining industry, particularly in the precious-metal-bearing states and territories, that it is almost impossible to treat of some of the phases of mining law without discussing the law pertaining to the use of water. Yet, to intelligently present even in outline this interesting branch of the law and reach

I Use Of Water Ix Conduct Of Misixg Operations. J

conclusions as to the underlying principles which control it fts applied to mining, we would not only be forced to recognize (ind draw geographical lines, bat would be compelled to introduce into the discussion elements involving the utilization of water for an infinite variety of purposes wholly disassociated with mining ventures.

In one section of the union the strict doctrine of riparian ownership as known to the common law is administered with rigid uniformity. In another there has been a 1 manifest tendency to depart from the doctrine by reason of j industrial environments and public necessity.

It may be assumed, without examining or citing J authorities, " where we meet on embarrassment of abund- " ance," ' that under the common law no absolute right of appropriation of water for useful or hrneficial purposes was recognized. The owner of land through or along which a stream flowed had a right to insist that it should so flow, whether in so flowing he derived any practical benefit from it or nol. His neighbor above had no right to divert it or use any part of it iu such a way as to either appreciably diminish its quantity or affect its quality, unless he had acquired a right to do so by grant or prescription. The iiiaxim, Aqua currif ei dfbcl currere, ut currere wfia/, embodies both the letter and spirit of the common ' law.

We have also the privilegeof assuming that this maxim ia not, nor was it ever, recognized as possessing controlling force in the Pacific states and territories. In this behalf we may accept without question the slatements announced by the supreme court of the United States in the cases of Atchison r. Peterson' and Basey v. Gallagher.'

"By the custom which has obtained among miners i "the Pacific slates and territories where mining for the " precious metals is had on the public lands of the United " States, the first appropriator of mines, whether in placers, , veins, or lodea, or of waters in the streams on such lauda

'I. llaggia, 00 Cal. 2Sa,

§838

Deposit Op Debris In Running Streams.

for mining purposes, is held to have a better right than others to work the mines or to use the waters. The first appropriator who subjects the property to use, or takes the necessary steps for that purpose, is regarded, except as against the government, as the source of title in all controversies relating to the property. As respects the use of water for mining purposes, the doctrines of the common law declaratory of the rights of riparian owners were, at an early day after the discovery of gold, found to be inapplicable, or applicable only in a very limited extent, to the necessities of the miners, and inadequate to their protection. By the common law the riparian owner on a stream not navigable takes the land to the center of the stream, and such owner has the right to the use of the water flowing overthe land, as an incident to his estate. . . .

This equality of right (at the common law) among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream; but the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common law doctrines of riparian proprietorship with respect to the waters of these streams. The government, by its silent acquiescence, assented to the general occupation of the public lands for mining, and to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale and the acquisition of title by settlement. And he who first connects his own labor with property thus situated and open to general exploration, does in natural justice acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public land throughout the Pacific states and territories, by their qustoms, usages, and regulations, everywhere recognized the inherent justice of this principle; and the {principle itself was at an early period recognized by Icgisation, and enforced by the courts in those states and territories. . . .

" This doctrine of right by prior appropriation was recognized by the legislation of congress in 1866 [quoting the statute of congress]. The right to water by prior appropriation, thus recognized and established as the law of miners on the mineral lands of the public domain, is

1053 Use Of Water In Coxduct Of Mining Operations. § 838

" limited, in everv case, in quantity and quality, by the " uses for which the appropriation is made. . . ."

In the case of Basey r. Gallagher,* Mr. Justice Field, speaking for the court, after quoting the decision in Atchison V. Peterson said : —

"The views there expressed and the rulings made are " equally applicable to the use of water on the public lands " for purposes of irrigatioti. No distinction is made in the "states and territories of the Pacific coast bv the customs " of miners or settlers or by the courts, in the rights of the " first appropriator from the use made of the water, if the " usebe a beneficial one."

After referring to the California case of Tartar v. Spring Valley M. Co./* he adds: —

"Ever since that decision, it has been held generally " throughout the Pacific states and territories that the right " to water by prior appropriation for any beneficial pur- " pose is entitled to protection. Water is diverted to pro- " pel machinery in flour mills and sawmills and to irrigate " land for cultivation, as well as to enable miners to work " their mining claims; and in all such cases the right of the " first appropriator, exercised within reasonable limits, is " respected and enforced. We say within reasonable limits, " for this right to water, like the right by prior occupancy "to mining or agricultural land, is not unrestricted. It " must be exercised with reference to the general condition " of the country and the necessities of the people, and not " so as to deprive a whole neighborhood or community of " its use, and vest an absolute monopoly in a single indi- " vidual."

The doctrine of these decisions is fullv recognized in all the Pacific states and territories in cases where the appropriation of water is made prior to the conveyance by the government of lands through which the stream flows. Whoever purchases land from the United States or from the state after the whole or some part of the water of a natural water course running through such land has been

20 Wan. 670. 5Cal. 396.

'See. also, Jennison Exr. v. Kirk, 08 U. S. 453; Broder v, Natoma Water Co., 101 U. S. 274.

§ 838 Deposit Op Debris In Running Streams. 1054

appropriated by someone else, takes subject to the rights acquired by such appropriator/

' But the supreme court of California, by a divided court, has denied any right of appropriation as against a nonconsenting riparian owner acquiring title prior to the act of attempted appropriation. In other words, where the government sells lands traversed by running streams, the common law doctrine of riparian rights, with all its incidents and attributes, attaches immediately upon such sale, and prevents any future appropriation of the water as against such riparian proprietor.

The supreme court of Oregon coincides with this view.' The supreme court of Nevada has declined to acquiesce in this interpretation of the law,* following the rule announced by the supreme court of Colorado : —

"The right to water in this country by priority of " appropriation, we think, is and has always been the " duty of the national and state governments to protect. "... It is entitled to protection as well after patent " to a third party of the land over which the natural " stream flows as when such land is a part of the public " domain."*

In addition to the conflict of opinion in the diflerent states as to the extent to which the doctrine of the common law on the subject of appropriation and use or water for useful purposes has been modified, it may also be noted that in each state and territory where the right of appropriation is recognized we encounter legislation more or

Black's Pomeroy on Water Rishts (Mr. Black's addendum to $ 26, citing Lux v. HasKin, 69 Cal. 255; South Yuba Water Co. v. Rosa, 80 Cal. 333; Barnes v, Sabron, 10 Nev. 217; Speake v, Hamilton, 21 Ore. 3; Kaler V. Campbell, 13 Ore. 596; Drake v, Earhart, 2 Idaho, 716: Kirk v, Bartholomew, 2 Idaho, 1087; Elliott v. Whitmore, 8 Utah, 253.

' Lux V. Haggin, 69 Cal. 255, and California cases cited supra; Hargrave r. Cook, 108 Cal. 72.

' Curtis V, La Grande Water Co., 20 Ore. 34.

Jones V. Adams, 19 Nev. 78 (overruling Vansickle v, Haines, 7 Nev. 249); Reno Smelting M. A K. Works v. Stevenson, 20 Nev. 260.

Coffin v. Left Hand Ditch Co., 6 Colo. 443. See, also, Armstrong v, Larimer Co. Ditch Co., 1 Colo. App. 49; Golden Canal Co. v. Bright, 8 Colo. 144.

Pollution Of Streams. §8

ls comprehensive in its scope, regulating the manner in which water may be appropriated and the nature and extent of its uae.

ConBidering all these varying conditiona, it would be impossible for us to deal comprehensively with the subject of water without practically writing a special treatise. This it is wholly unnecessary to do, Others have devoted themselves to the task, and to their works we should necessarily turn for enlightenment upon this branch of the law. W'e are permitted here to deal with it only in a collateral and limited way. We shall confine ourselves to the question of fouling the waters of the running streams in the conduct of mining operatious, and the injuries flowing from the deposit of tailings and other refuse upon the lands of others.

g 839. Pollution of streams — The English role — Tin streaming in Cornwall. — The English and Scotch authors on mining subjects are agreed, generally speaking, 83 to the extent to which the waters of running streama may be used by persons engaged in conducting mining and manufacturing operations on their banks, independently of rights acquired by grant or prescription. We may accept their conclusions without undertaking a citation or analysis of all the cases from which these conclusions are adduced.

We quote from Bainbridge: —

" A riparian owner has the general right to receive the " waters in as pure a state as nature atTords them.and such " owners are equally bound to transmit them to- pro- " prietors below without diminution, diversion, or deterior- " ation. For all riparian owners acquire no property in " Uie water itaelf, but only the privilege of using it in its " passage by reasonable interference. For the same reason " the waters cannot be forced back upon the owners above, " nor so retarded or accelerated as to cause injury to those " below." '

Mr. Rogers says; —

" Prima facie, no one has a right to defile water, and " there is no distinction in this respect between water ' Bainbrldie, 4lh ed. (19rS), p. S2T.

§ 839 Deposit Of Debris In Running Streams. 1056

" which flows and water which percolates through the "soil."

Mr. MacSwinney states the rule more liberally: —

" On the same principle that a riparian owner may " use a stream in a reasonable degree, or abstract or divert " it in reasonable quantities, he may, by washing his min- " erals by means of it, or pumping water from his mines " into it, alter its quality in a reasonable degree ; but, as he " may not sensibly diminish the body of the stream, he may " not sensibly alter its qup,lity. He must not, therefore, " prima /acie, impregnate the stream with poisonous or foul " matter." ''

We select the following excerpts from the recent treatise of Mr. Ross Stewart.*

" A lower heritor has this interest in the stream: that " in passing through the lands of others it shall be trans- " mitted to him undiminished in quantity, unpolluted in quality, and unaflected in force and natural direction and current, except in so far as the primary uses of it may legitimately operate upon it within the lands of the upper " heritor. . . . Any one may, prima faciei use a running stream for the purpose of washing minerals, or, if it would have reached the stream naturally within his own lands, may pump the water from his mine into it, provided it does not thereby alter its quality to the prejudice of his neighbor. No upper heritor is entitled to pollute the water of a stream to the injury of those below him, and in the act of throwing impurities into the river artificially produced, he is a wrong-doer. He has no right to do this merely because the premises he occupies are on " the banks of the stream."

And quoting from the Esk pollution case: —

" Riparian proprietors are entitled to use the water in any way they may like as it passes through their property, subject to only certain conditions. Now these

n u l( i(

Rojrers, 2d ed. (1876), p. 667.

2 MacSwinney on Mines (1884), p. 396.

3 Stewart on Mines and Minerals (Edinburgh, 1894), pp. 223, 230.

Primary use of water includes its use for all domestic purposes, including, as well, its use for man or beast.'' (Wood on the Law of Nuisances, $ 445.)

Duke of Buccleuoh v. Cowan, 2 App. Cases, 344.

1057 Pollution Of Streams. § S39

" conditions are, that they shall send down the water to " their neighbors below undiminished in quantity and " unimpaired in quality. ... As regards the matter of purity, it is impossible, in the nature of things, that a " running stream should not receive in its course certain " impurities as it passes along. The action of nature is inconsistent with such a condition as that; but the meaning of the condition is, that no unnecessary or artificial '' impurity shall be put into the stream so as thereby to " diminish the purity of the water as it passes to the pro- " prietors or the inhabitants below."

But in England there are some localities where the common law rules in this behalf do not obtain. In the mining regions where water is necessary for the proper conduct of mining operations, we find that the law elsewhere prevailing has been there altered by custom.

"Streaming" for tin, which is the ancient method of getting tin in Cornwall, is a process of obtaining granular tin by means of washing. It is necessarily carried on entirely by means of open workings, and it appears usually to result in as complete a destruction of the surface as takes place in the case of quarrying/ or in mining by the hydraulic process in the auriferous placers of the United States.

Therefore, in Cornwall, by a custom founded upon industrial necessitv, tin bounders wosa entitled to the free use of the water over the whoWj rlitrict within their bounds, and to the right of diverting that water into other streams. Cleansing the produce of their workings by " streaming" is almost always a necessary i>art of their operations."

Therefore, tin bounders are entitled bv custom to wash their minerals in the streams of water within their bounds, and to send down such streams the sand, stone, rubble, and other stuff dislodged in the proce-ss of njaking, and the right exists even in the case of natural surface streams,

' MacSwinney on Mines, p. 384.

p. 4:W fcitlnu Rogers v. Brenton, 10 Q. B. 25; iaved r. Martyn, 19 C. B. N. S. 72, 751...

f>3

§ S40 Deposit Op Debris In Running Streams. 1058

although its exercise may either foul or obstruct them to the damage of other riparian owners.'

So a claim by custom to a right to foul the water of a stream is a defense to an action for polluting it, and such custom has been held not to be either indefinite or unreasonable, but limited to the necessary working of the minen

A right to so foul a stream might also be acquired by either grant or prescription, the prescription period, fixed by act of parliament, being twenty years.'

840, The American rule as declared in states ooS accepting the Pacific Coast doctrine as to right of appropriation and user of water, — With the exception of thus* mining states of the west accepting and recognizing tha right to appropriate, divert, and use running water (lh< doctrine referred to in a preceding section), the decisions oi the American courts follow in the main the English rule The American commentators and authors upon the subjecl restate and apply the maxima of the ICnglish conimoD law and there can be no doubt, generally speaking, that lh( doctrine prevails in most of the states of the union, excep! those wherein the federal mining laws are operative. observe, however, particularly in later years, a manifea tendency in the older states of the union towards relaxinj the common law rules of riparian ownership, with regan

Mai'Swinney on MlneB, p. 43,5 (citing Carlyon i-, lverliig.! H. N.7W (Tndpr the laws ur the sUnnaries, tliey must not. however, in exerdslp the rlKht, injure rivers or lands adjoining rivere, and. tfHs arooseiiiini of its exercise, lands bscome overflowed by u river, they are bonu within two days afler receivinK notice rrom any perRon thereby Injure to clear the river, anil in default are liable to damage and line; and te the protection of liavena and porU in Cornwall, persons wbofltroam U tin near any waters or rivers (tiiwine Into such bavensorportsKreiindi a statutory obligation to prevent the dislodged sand, alones, gravel, ao rubble from beinR conveyed into such havens or ports.

' MacSwinney on Mines, p. 3FrT.

The act of parliament passed In 187n 139 and 40 VIci. TG), known t the rivers pollution prevention avt, inhibits minora from permlulnc 1 flow into streams " any poisonous, noxious, or poUating solid or liqnl " niHlter proceedinft from any mine, other than water in its saroa oondl tion aa that in whieh it haa been drained or raise<l fmm aiioh mbML iBainbrldge, 4th ed.. p. SW.)

STATES SOT ACCKFTING PACIFIC t-OAST IHJCTRINE. § 840

nt to which the flowing waters may be used in connection with the manufacturiDg interests of the country and the industrial necessities of communities. While conceding that the upper proprietor must so uae the water of a stream as not to appreciably diminish its volume or impair its quality, the courts are liberally disposed when dealing with what constitutes such impairment.

As Mr. MacSwinney observes, purity is a relative term. Xo water is absolutely pure. No one would contend that in any state of the union one owner on the bank of n stream would have a right to deposit in such stream oll'al from slaughter houses, cattle yards, hog pens, or water charged through metallurgical operations with sulphuric or muriatic acid, where the proprietor below was compelled to use such water for domestic purposes. These substances injure and taint the water. The offensive elements will remain in solution perpetually, whether the water flows or is at rest; but between oH'ensive and poisonous elements of this character and Iho sand or tailings from an ordinary quartz mill or placer mine, or sawdust from a sawmill, there is a wide difference. The tailings from a mine are carried by the stream in suspension. When the water is at rest the sand, silt, and comminuted particles settle to the bottom. The water above is not tainted, and can be used for all the primary purposes for which water is used. Every stream on its road to the sea carries earthy substances in suspension and mineral substances in solution, gathered on its way from the operation of natural causes. Every storm in the mountains loads the running waters to the utmost of their carrying capacity with the same class of material that the gold miner places in them by artificial methods.

So with ordinary sawdust from the sawmills. Depositing sawdust in a stream is not, per ac, a nuisance. If the lumber manufacturer operates his works in a reasonable manner, he has a right to discharge the sawdust and waste from it into the stream in the ordinary course of his operations. Iff is not bound as a matter of law to prevent them

Deposit Of Debris In Rdnning Streams.

from going into the stream, nor to impound or Jraw tljeni I off or deposit them so that they cannot gel into the stream.'

"We may quote instructively from Chief Justice Redfield,

speakiDg for the supreme court of Vermont; —

" In regard to many uses of the water in streams, it has ' long been settled by common consent, or is so obvious in ' itself that it is determinable as matter of law. Such are ' the uses for irrigation, for propelling machinery, and for

watering cattle, aud some others. And in regard to somg debris or waste deposits i n such streams, there would seem to be no question. The uniform practice,theconvenieuce, " and in some instances the indispensable necessity would ' seem sufficiently to decide sucli cases. . . . The

I " deposit of sawdust to some extent is nearly indispensable '' in the running of sawmills and most other machinery

used in the manufacture of wood and propelled by water ' power. The reasonableness of such use must determine

I " the right, and this must depend upon the extent of the " detriment to the riparian proprietor below,"'

Of course, even the deposit of waste from a sawmill may I become a nuisance.

In Ijockwood Co. r. Lawrence, decided by the supreme I court of Maine;' the complainants were operating extensive Icntton manufactories on the Kennebec Uivor. Numerous

defendants were engaged at diflerent points above in

operating sawmills, planing mills, clapboard, and other I manufacturing machines, and discharging into the river Leiawdust, edgings, shavings, refuse, and other debris. Such I material commingling into one indistinguishable mass was I carried by the current of the river and broufjht to the Ipouds, raceways, and wheels of complainant, filling the Fsame, stopping the wheels and retarding and preventing

the running of the cotton mills.

An injunction was ordered restraining the deTendants

from casting or depositing in the river above complainant's

Idams and manufactories any refuse materials, edgings,

4Moba V. ADanI, 42 Vt. 303.

Quoted In Gould on WaterB, i 230, from Green t>. OiUiorl, M N, H. I, Sen, WftWrmnn i: Bnck, S8 Vt. SIS'.

1061 States Not Accepting Pacific Coast Doctrine. § 840

shavings, debris, wood refuse, and what is denominated " long sawdust," not including, however, common sawdust. As to this latter substance the court declined to consider it as a nuisance. In reaching its conclusions the court quoted approvingly from the Minnesota case of Red River Roller Mills V, Wright.

" In determining what is a reasonable use, regard must " be had to the subject-matter of the use, the occasion, and " the manner of its application, the object, extent, neces- " sity, and duration of the use; the nature and size of the " stream; the kind of business to which it is subservient; " the importance and necessity x)f the use claimed by one " party and the extent of the injury to the other party ; the " state of improvement of the country in regard to mills " and machinery, and the use of water as a propelling " power; the general and established usages of the country " m similar cases, and all the other and ever-varying cir- " cumstances of each particular case bearing upon the " question of the fitness and propriety of the use of the " water under consideration."

To the same effect is the case of Prentice v. Geiger,'* decided by the New York court of appeals, where it was held that the jury, in determining the question of reasonable use, would be entitled to consider all the circumstances, such as the general character and condition of the stream, its volume and rapidity, the degree of injury which it occasioned, the custom and usage of the country, and the necessity for using the stream for this purpose.

While sawdust, quartz, and placer tailings are, when discharged into running streams in reasonable quantities, comparatively speaking, innocuous, when we enter the coal and iron regions of the east and south we naturally look for the application of less liberal rules. Water used in cleansing the iron ores of the coal measures becomes charged with more or less deleterious chemical substances. So water used in washing coal, or which is pumped from coal mines, is almost invariably so impregnated with sulphur, coal gas, oil, or other mineral hydrocarbons, as to

30 Minn. 249. 74 N. Y. 341.

§ 840 Deposit Of Debris In Running Streams. 1062

render it unfit for any reasonable use. While the courts of all the eastern and southern states concede the operative force of the common law on the subject of the pollution of water in the conduct of mining operations, yet in many instances we find a disposition to qualify the law as interpreted by the English courts.

According to Judge Paxson, of the supreme court of Pennsylvania,* English cases are not safe precedents upon such a question. They are influenced to some extent by the social and political conditions of the country. The mines in England are generally located in highly improved sections, where the land possesses great intrinsic value and the streams are filled with choice fish, the sole right to which is in the nobility and landed gentry. Under such circumstances, we could hardly expect the English judges to lay down a rule suited to the rough mountain lands which, in the main, constitute the raining regions of Pennsylvania.

For the purpose of ascertaining the current of judicial thought on the subject in the eastern and southern states, we may advantageously select a few leading cases, without attempting to present such an exhaustive collection of authorities as may be found in the special treatises on the law of water courses or nuisances.

We naturally turn to the state of Pennsylvania when seeking precedents on raining questions disconnected with the features peculiar to the federal system. Of all the cases considered by the supreme court of that state involving the subject of pollution of water in the conduct of coal mining operations, the case of Sanderson v. Pennsylvania Coal Co. is the most noted. It was before the appellate tribunal four times," and has been referred to in every case of importance involving the pollution of running

' See his dissenting opinion rendered in Sanderson v. Pennsylvania Coal Co. (first appeal), 86 Pa. St. 401, which on the fourth appeal was adopted by the majority of the court. Pennsylvania Coal Co. r. Sanderson, 113 Pa. St. 126, a case fully discussed, post.

86 Pa. St, 401, 94 Id, 302, 102 Id. 370. 113 Id. 126.

8Tatss !<0T Acceptinc Pacific Coast Doctrine.

water which has been decided by the courts of any of the states since the first opinion was rendered.

It arose out of the following state of facts: Plaintiff, fndersoQ, purchased a tract of land in the city of Scranton and erected a residence thereon at a coat of eighty thousand dollars. Before the purchase, Meadow Brook, a stream of pure water, ran through the tract. The existence of this stream was the leading inducement to plaintiff to buy and build. Dams were built across it by plaintiff for the purpose of a fish and ice pond and to supply a cistern. Water was carried from the cistern to a ram, and thence to a tank in the attic of the house. After tlieae improvements were perfected, the Pennsylvania Coal Co., defendants, established a colliery on lands belonging to them along the stream and about two miles above the land of plaintiS'. A drift was first made into their mine and a shaft was afterwards sunk. The water which collected in the drift, as well as that pumped by powerful engines from the shaft, ran into Meadow Brook: It was alleged on the trial that the eflfect of the mine water was to corrupt the water of the stream and to render il worse than worthless for any domestic or household use. There was evidence that the fish in the brook were destroyed: that the willows along the bank died; that the pipes connecting with the cistern, the ram, and the house, were corroded and eaten out; that the water became unfit for domestic uses, and its use for all purposes was abandoned. The court below held that the facts were insufficient to warrant a verdict, and granted a nonsuit, from which ruling the plaintiff appealed.'

The coal company, in defending its right to pollute the water, asserted that it was conducting a lawful business in a lawful way: that in working its mine it encountered water, and the only way in which it could be disposed of was by raising it to the surface by means of pumps: n discharged at the surface it sought the natural

§ 840 Deposit Of Debris In Running Streams. 1064

outlet through Meadow Brook and thence to the Lackawanna River; that the material carried down the stream in suspension and solution was not the result of any artificial treatment of the coal after mining, but the contamination of the water arose from the natural underground percolation into the mine; that the operation of the mine would have to be abandoned unless such waters could be so discharged, and that were a rule to be recognized which inhibited it, anthracite coal mining in Pennsylvania would be practically at an end. It was urged that the law should be adjusted to the exigencies of the great industrial interests of the commonwealth, and that the production of an indispensable mineral should not be crippled and endangered by adopting a rule that would make collieries answerable in damages for corrupting a stream into which mine water would naturally run.

The appellate court, in reviewing the action of the trial court, took occasion to remark that in granting the nonsuit, sight appeared to have been lost of some distinctions which the law has settled, and that a mistake had been made in selecting the class of precedents there followed. While proprietors of large and useful interests should not be hampered or hindered for frivolous or trifling causes, and that for slight inconveniences or occasional annoyances they ought not to be held resjionsible, and in dealing with such complaints juries should be held with a steady hand, yet the appellate tribunal insisted that there must be one rule of law maintained for all men, and by that rule all men's rights must be tested.

" Undoubtedly," said the court, " the defendants were " engaged in a perfectly lawful business in which large " expenditures had been made and with which widespread " interests were connected; but however laudable an " industry may be, its managers are still subject to the rule " that their property cannot be so used as to inflict injury " on the property of their neighbors."

The decision is replete with quotations of common law maxims and citations from English cases. After (quoting

1065 States Not Accepting Pacific Coast Doctrine. § 840

from Justice Mellor's charge to the jury in St. Helen's Smelting Co. V, Tipping/ the court closes with the following: —

" Relaxation of legal liabilities and remission of legal duties to meet the current needs of great business organ- " izations in one direction would logically be followed by " the same relaxation and remission on the same grounds " in all other directions. One invasion of individual right " would follow another, and it might be only a question of " time when, under the operation of even a single colliery, " a whole countryside would be depopulated."

The judgment was reversed and the cause remanded for a new trial. The second trial was conducted upon the legal theories announced by the supreme court, and resulted in a verdict for plaintiff for two hundred and fifty dollars' damages. Both parties sued out writs of error, the defendant to secure reconsideration of the question of its liability, and the plaintiff who complained of errors in excluding testimony as to the quantum of damages.

The two appeals were heard separately. As to the defendant's liability the appellate court held to its former opinion. Said the court: —

" It is urged that mining cannot be carried on without " this outflow of acidulous water, hence neighboring streams " must be polluted. This is true; and it is also true that " coal mining would come to nothing without roads upon " which to transport the coal after it is mined; therefore " roads are necessary ; but it does not follow that for such " purposes the land of an adjacent owner may be taken or " his right of way encumbered without compensation."

The judgment was affirmed. This would have finally disposed of the case had it not been for the writ of error sued out by the plaintiff. His exceptions to the refusal of the court to admit certain testimony were sustained by the appellate court, and the case was remanded for a third trial,' upon which plaintiff received a larger judgment and

' 11 House of Lords Cases, 642.

Pennsylvania Coal Co. v. Sanderson, 04 Pa. St. 302-308. In Pennsylvania, mininif is not a public use." A coal miner could not condemn rights of way for roads or other mining easements {ante $ 261).

'Sanderson v. Pennsylvania Coal Co., 102 Pa. St. 3Q7.

§ 840 Deposit Of Debris In Running Streams. 1066

the coal company appealed. The question of the defendant's liability was reopened and reargued. In the meantime there had been a change in the personnel of the supreme bench. The court, sitting on the last appeal, declined to follow the former opinion rendered in the case. Said the court, reversing the judgment: —

" The plaintiff's grievance is for a mere personal incon- " venience, and we are of opinion that mere private per- " sonal inconvenience, arising in this way and under such " circumstances, must yield to the necessities of a great " public industry, which, although in the hands of a private " corporation, subserves a great public interest. To encour- " age the development of the great natural resources of a " country, trifling inconveniences to particular persons must " sometimes give way to the necessities of a great com- " munity. Nor do we say that a miner, in order that his " mines may be made available, may enter upon his neigh- " bor's lands or inflict upon him any other immediate or " direct injury, but we do say that in the operation of min- " ing in the ordinary and usual manner, he may, upon his " own lands, lead the water which percolates into his mine " into the streams which form the natural drainage of the " basin in which the coal is situated, although the quantity " as well as the quality of the water in the stream may " thereby be affected."

The court referred to the dissenting opinion written by Justice Paxson, when the case was first before the court, by quoting and adopting the following portion of it: —

The population, wealth, and improvements are the " result of mining and that alone. The plaintiffs knew " when they purchased their property that they were in a " mining region. The\' were in a city born of raining " operations and which had become rich and populous as " a result thereof. They knew that all mountain streams " in that section were affected by mine water, or were " liable to be. Having enjoyed the advantages which coal " mining confers, I see no great hardship nor any violence " to equity in their also accepting the inconveniences neces- " sarily resulting from the business."

Pennsylvania Coal Co. t*. Sanderson, 113 Pa. St. 126.

It must be candidly conceded tlial the rea9oning of these later opinions of the Pennsylvania court goes beyond that of any other case found in the books. They announce a doctrine which might become extremely dangerous, if generally accepted.

The court itself has, in subsequent cases, been careful to limit the application of the principles lastly announced to cases where the water discharged was such only as came into the mine by natural percolation, and has declined to extend it to instances where material was brought to the ground and artificially treated, the refuse and waste being discharged into the streams,' and it may be plausibly asserted that these later cases weaken the force of the rule finally announced in the Sanderson case." There is an abundance of authority in the earlier decisions for the doctrine that a stream of water may not be fouled by the introduction into it of any foreign substances to the damage and injury of the lower riparian proprietor.'

la a state wbicli does not recognize the right to appropriate and divert water for useful or beneficial purposes, or acquire by prior appropriation the right to use a running stream in a particular manner, there Is no sanctiou for any doctrine which measures the rights of an individual by his convenience or necessity.

"If the injury complained of were merely a fanciful " wrong, or produced simply personal discomfort, there " might be no real ground of complaint; but when the " result of the acts of one on his own land is a direct " and material injury to the property and property rights " of another, a very different question arises, and in such " cases the maxim of ir ufcrc tuo nt alicnutn von tiedaa " applies.'"

Aa was said by ihe supreme court of Ohio : —

Robb It. Cu-neEie, Ks Ps. SI. 324; Leutr v. Carnegie, 14!> Pn. St. SVi.

8m Hftiiek t: Tlrte Water Pipe Ltiie Co. M.. 153 P, St. sm-. Elder v. LykenB VMey Coiil Co.. 157 P. St. 490.

' Howell V, McCoy, 3 Kawle.SM; BarilAjr i-. Comnionwellh, I Tasey, SOSt McrMlhlin ('. OermBiilowii W. Co., 4 P. F. Smith. 40,

'ColiiiiibuBAIIoclcIng Coal A Iron Co. r. Tucker, W Ohio St. 41.

/

A

§ 840 Deposit Of Debris In Running Streams. J 068

" While the thing to be done maybe lawful in a general " way, there is and must be limitation upon the means by " which it is to be done. Nor is it of consequence that the " operation of mines tends to the development of the " natural resources of the country. ' But few enterprises, " the product of which is useful, fail to advance the gen- " eral good." '

The supreme court of Alabama, in a case involving the wasliing of iron ore and discharging the waste into a running stream, gives its sanction to the views expressed in the first decision of the supreme court of Pennsylvania in the Sanderson case, recognizing the exigencies of the great industrial interests of the country, and adds: —

" Nor must we shut our eyes to the tendency, the inevi- " table tendency, of these and other uses in which water is " an indispensable element, to detract somewhat from its " nominal purity. These modifications of individual right " must be submitted to in order that the greater good of the " public be conserved and promoted ; but there is a limit " to this duty to yield to this claim and right to expect and " demand. The water course must not be diverted from " its channel or so corrupted and polluted as practically to " destroy, or greatly impair, its value to the lower riparian " proprietor."'

This is in harmony with the rule declared in Georgia in a similar case.

In the very nature of things it is impossible to enunciate a general rule as to what constitutes a reasonable use of running water, which may be applied uniformly to all cases. It depends upon circumstances.

The limits which separate the lawful from the unlawful is a question of degree.

' Columbus <fe Hocking Coal <fc Iron Co. Tucker, 48 Ohio St. 41.

86 Pa. St. 401.

'Tennessee Coal, I. & R. Co. v. Hamilton, 100 Ala. 252. See, also, Drake <fe Lady Ensly Coal, I. & R. Co., 102 Ala. 501, wherein Pennsylvania Coal Co. V. Sanderson, 113 Pa. St. 126, was relied upon to sustain the right to pollute the water.

Satterfield r. Rowan, 83 Ga. 187.

Dilling V. Murray, 6 Ind. 324; Elliott v. Fitchburg R. R., 10 Cush. 191; Thurber r. Martin, 2 Gray, 394.

Mayor of Baltimore v, Appold, 42 Md. 442.

n

lOliO THE RL'LK IS THE I'ACIFIC COAST STATES. 5 841

No positive rule of law can be laid down to define and reguliitc auch use with entire precision. As to this al] courts agree.' It is a question of fact to be deteriuineil by the jury.'

I 841. The rale in the mining states and territories where the right of appropriation is recognized.— We reserve for a subsequent artist'lo the larger questions arising from the deposit of mining debris into navigable waters and their tributaries in the conduct of hydraulic mining on the gigantic scale practiced in some of the west ern states, and the regulation of this class of mining by congressioual law in certain portions of California — questions affecting the general public. For the present we confine ourselves to a consideration of the extent to wliich tlie miner in the Pacific coast states and territories is permitted to utilize the carrying power of water in the discharge of tailings and mining refuse into the running streams, and what are the limitations upon his permitting them to flow into the natural water courses.

As iieretofore noted' the common law rule regulating riparian rights has not been recognized or applied in the Pacific states and territories. This departure from the English doctrine had its origin in the same necessities which compelled the tin bounders of Ck)ruwaU in the early period of British history, or probably in the prehistoric period, to utilize the waters of the running streams for the purpose of mining and washing their ores.*

The peaceful invasion of California, upon the discovery of gold and the inauguration of placer mining, may not be likened to the Roman occupation of Britain and the inception of tin streaming in Cornwall; but there are

Ilmin ('. Bear, 2S Wis. 254. For a valuable collection oF esses upon tb subjeot nf reasnaable uae, uuusult the elabortito note to Davla i',

Batavta Mfa. Co. i'. Newton Wneo" Co., 91 III. 230; Hayea o. Waldrop, 44 K. H. 580. See note to Davla t: Ustcbell. Ttl Ain. Dec. 630, 644,

jlB(c. 5 838.

§ 841 Deposit Of Debris In Running Streams. 1070

marked analogies. The economic necessities of both were the same. In both countries a custom originated in these necessities. Both countries were new in an industrial sense. There were no fertile fields to injure, no cultivated farms or orchards to be destroyed, and no navigation of inland waters to be obstructed. In time these customs in both countries were recognized by those having proprietary dominion over the soil. The charters of John and Edward I. affirmed the right of tin bounders to appropriate and use the running waters, 'divertere aquas — sicui conmcverunt;" and the government of the United States, first by passive acquiescence and then by legislative enactment and judicial declaration, recognized and established as the law of miners on public mineral lands the customs and regulations adopted in the gold regions of the west.*

While in some of the Pacific states and territories the extent to which these customs, as defined by legislation and judicial sanction, have left their impress on the existing system, may be the subject of controversy, yet in all the states and territories of the west where mining is a prominent and permanent industry we find the right of appropriation and the use of running water for mining purposes to some degree, at least, well recognized and established.

In the early days of mining in California, where the miners' rules and customs originated, the right to mine and the right to divert water stood upon an equal footing, and when a conflict arose it was determined by the fact of priority. The miner who selected a piece of ground to work took it as he found it, subject to prior rights which had an equal equity on account of an equal recognition from the sovereign power."

The law did not tolerate any injury by one to the prior rights of another.

Bainbridfie on Mines, 4th ed. p. 153.

Atchison Peterson, 20 Wall. 507; Basey r. Gallagher, 20 Wall. 670; ante, $ 838.

' Irwin V. PhiUips, 5 Cal. 140. Hill v. Smith, 27 Cal. 476.

1071 THE RnX IX THE PACIFIC 0.>A:?T TATE?. § S41

The owner of a mining claim in the bed of a canon might erect dams acroas it for the pnrpoise of enabling him to work it, ereo if thereby other dams above were doomed. providevl the daim in the bed of the caiion held priority. In :!iuch cue the injarr sustained by the subsequent locators was

So the prior locator of a mining claim on the banks of a stream had the right to the use of the bed of the stream for the purpose of lluming and working his clainu and any subsequent erection of a dam which interfereii with the right was an encroachment for which damages might be recoTered.*

One who entered upon a stream of water above a prior appropriator and erected hydraulic works, was requireil to 80 construct tliem as not to impede the regularity of the flow of the water if its irregular tlow would injure the first appropriator.'

Where a ditch was dug by a prior appnpriator for the purpose of conducting water from a natural water iH)urse. a miner had no right to work a mine above the head of the ditch in such a manner as to mingle mud and sciiiment with the water and injure its value to the ditch owner for mining purposes, or to till up theditch and reservoir of the siame so as to lessen their capacity and increase the expense of cleaning them out.*

Some deterioration in tlie quality of the water necesstrily resulted from carrying on mining operations on a running stream. A prior ditch proprietor could not insist that the stream above him should not bo used to any degree by subsequent appropriators for mining purposes, and that the water should flow to the head of his ditch in a state of absolute purity. While the miner would not bo pomiittod to so conduct operations as to destroy the ditch, or

stone BumpuR, 46 Cal. 218.

Davis V, Smith, 7 Cal. 148.

'Phcenix Water Co. r. Fletcher, 23 Cal. 482; Bear Hlver, oti*., Co. r. New York M. Co., 8 Cal. 327.

Hin V. Smith, 27 Cal. 475; Hill i;. King. 8 Cal. 3:{7; JiinkaiiH v, Boririn, 67 CM. 267; McLaughlin r. Del Re, 71 Cal. 230.

§ 841 Deposit Of Debris In Running Streams. 1072

unreasonably interfere with its fair enjoyment, or to taint the water by the injection of poisonous chemicals,* the law rec6gnized the necessity for some deterioration, and within reasonable limits it was damnum basque injuria

Any other rule might have involved an absolute prohibition of the use of all the water of a stream above any ditch supplied by it in order to preserve the quality of a small portion taken therefrom.

In the case of Atchison v. Peterson the supreme court of Montana, while conceding that the first appropriator of water for mining purposes was entitled to the same as against subsequent appropriators, without material interruption in the flow thereof in quantity or quality, refused to enjoin a subsequent mining appropriator from discharging tailings into a stream which caused sediment and sand to be carried into the prior appropriator's ditch, thereby compelling him to construct a sand gate, or reservoir, which had to be " flushed " each day.

The supreme court of the United States affirmed the decree of the Montana court,* and laid down the law as quoted in a previous section.

As between those mining on the same stream, the true rule was thus stated by the supreme court of California:—

" Each person mining in the same stream is entitled to use in a proper and reasonable manner both the channel of " the stream and the water flowing therein, and where, from " the situation of different claims, the working of the same " will necessarily result in injury to others if the injury be " the natural and necessary consequence of the exercise of " this right, it will be damnum basque injuria and will furnish no cause of action to the party injured. The " reasonableness*of the use is a question for the jury, to be " determined by them upon the facts and circumstances of " each particular case." '

' Crane v. Winsor. 2 Utah, 248.

Bear River <fe Auburn Water Co. v. New York M. Co., 8 Cal. 327.

n Mont. 661.

20 WaU. 607. Ante, g 838. Esmond v. Chew. 15 Cal. 137.

1073 The Rule In The Pacific Coast States. §841

" Live and let live " was one of the homely maxims of the miners' law.

The foregoing illustrations serve to demonstrate the early doctrines as upheld and sanctioned by the courts. A retrospective view for the period of a half century fails to disclose any serious judicial innovations upon these rules. While the supreme court of California, in the case of Lux V, Haggin* and a line of cases following it, has limited the right of appropriation to waters traversing public lands, there has been no disposition to deny to the miners the privilege, reasonably or rationally exercised, of depositing tailings in the running streams." The customs of the miners have been recognized factors in administering the law in the mining regions. As was said by Justice Henshaw, speaking for the supreme court of California, in a recent case:' —

" There are certain essentials to the practical conduct of " all hydraulic mining operations. Water must be obtained " in quantities and carried to the mining ground under " pressure sufficient to disintegrate and wash down the " natural bank. For these purposes, in the mining districts of this state, reservoirs, ditches, flumes, and pipe lines are " indispensable. The soil and gravel thus eroded must be carried by gravity, and the force of the refluent water through cuts, sluice ways, and flumes, where the gold, by reason of its greater specific gravity, is deposited, caught, " and gathered. Lastly, by aid of the same beneficent agent, " the resulting waste matter, soil, and gravel must be carried away through convenient channels, so as not to impede " further operations. The water itself does not lose its " utility to the miner, nor become an impediment to his " work during any of these processes. Through them all "it is not only of high utility but an absolute necessity. "... These facts are of such general knowledge and undisputed acceptance, so inherent in the character of

69Cal. 255.

'This statement is subject to the qualiilcation noted in $ 841, with reference to the conduct of hydraulic mininfi in that portion of California subject to the jurisdiction of the California debris commission, as deAned in the chapter following.

'Jacobs V. Day (1896). Ill Cal. 571, 575.

§ 841 Deposit Of Debris In Running Streams. 1074

" hydraulic mining, that they scarcely need the evidence " of local custom or any evidence at all for their establish- " rent. . . . Every use of water for purposes of " hydraulic mining, sanctioned by local custom and law, is " recognized as a right and protected as such."

What is here said applies with equal force to general mining and milling operations. The tailings from an ordinary quartz mill, when discharged into the running streams, have no greater tendency to deteriorate the quality of the water than the material washed from the natural banks. As a physical impediment they are comparatively harmless. They are fine particles of sand artificially produced, but of the same character as that washed into the streams from the rocks eroded by processes of nature which are universal. While the privilege of depositing such tailings in the streams must be reasonably exercised, and so as not to materially impair or destroy -rights acquired by a lawful prior appropriaior, yet to say that the discharge of such tailings is a nuisance per se, or to restrict it within unreasonable limits, is to interdict the prosecution of a lawful enterprise and practically to confiscate property of inconceivable value. Should any such stringent rule be invoked in regard to either quartz or hydraulic mining, the industry would be abandoned, awaiting the advent of the magician who will separate gold and silver from the earth and rocks without the aid of water.

We think the decisions in the California cases have been generally followed by the courts in the mining regions. The hydraulic questions have not been as prominent in the other states and territories as in California. Most of the litigation encountered elsewhere has arisen out of injuries from depositing tailings and debris upon the lands of others, not involving necessarily the law of riparian rights or the rights of subsequent appropriators on the same stream ; and even cases of this character are comparatively few in number. They remain to be considered in a succeeding section.

PohU i 843.

1075 The Rule In The Pacific Coast States. § 841

A recent decision of the court of appeals of the state of Colorado in the case of Suffolk Gold M. and M. Co. v. San Miguel Cons. M. and M. Co./ invites attention.

The Suflfolk company erected a stamp mill on a stream and diverted part of the water there flowing, for the purpose of motive power and supplying the mill batteries. After so using, the water was returned to the stream through means of a ditch. As discharged from the Suffolk works it necessarily carried in suspension to the stream below pulverized quartz and pulp in the form of tailings. The Suffolk companys appropriation was prior in point of time. The San Miguel company, a subsequent appropriator of the waters of the stream lower down, utilized such waters for the purpose of generating electricity and transmitting it for use at the mines and in the town of Telluride. The waters were carried through a pipe and discharged onto a Pelton water wheel. The presence in suspension in the water of the particles of pulp, sand, and grit from the Suffolk mill had the effect of wearing away the nozzle and iron buckets of the San Miguel's water wheel and causing injury of a similar character to the pipe line. The San Miguel company applied for an injunction to restrain the pollution of tlie stream. There was no pretense that the Suffolk company was conducting its operations maliciously or recklessly; but the court found that it might, with little expense, impound the tailings and return the water to the stream in such a state as not to interfere with the San MigueFs enterprise, and that it was its duty to do so. An injunction was granted. The court was very guarded in its opinion, and was evidently oppressed with the fear that its decision might be misconstrued and improperly applied.

It seems to us that this is a resurrection of the "phan- " tom of riparian rights "" in a state where, by a consistent line of decisions, it has been effectually exorcised.

Were the decision one emanating from a court in Great

Colo. App., 48 Pac. 828.

' Judge Beatty in Drake v. Ear hart, 2 Idaho, 716.

§ 841 Deposit Of Debris In Running Streams. 1076

Britain, where no right of appropriation is recognized, it would occasion neither comment nor surprise. It has been held there that one using water for condensing purposes has a right to insist that his upper neighbor shall not discharge it from his works at an increased temperature,* and that a lower proprietor engaged in the manufacture of distilled spirits was entitled to relief in equity against the supra proprietor increasing the hardness of the water by discharging into the stream water pumped from his

Is the decision of the Colorado court of appeals in full harmony with Atchison v. Peterson, wherein the supreme court of the United States upheld a decree which practically compelled the subsequent appropriator to impound the water as it came from the upper proprietor, permit the matter in suspension to settle, and then " flush " his reservoir each day?

These suggestions are deferentially made. We appreciate the embarrassments which the courts encounter when dealing with these questions, and recognize that much depends upon the circumstances surrounding each particular case. The danger lies in an erroneous application of precedents which do not purport to enunciate general rules, to instances where the facts are materially different.

It would not be contended for a moment that where a prior appropriator of a virgin stream was engaged in supplying the inhabitants of a village with water for domestic and culinary purposes, that a subsequent appropriator on the same stream, for mining purposes, would be permitted to so pollute the entire stream as to render it unfit and unwholesome for human use.'

Nor could it be plausibly asserted that where the miner is the first appropriator, the next comer who desired to make a profit by supplying cities and towns with drinking water could compel the miner to cease his usual and customary

Tapping v. Eckersley, 2 K. 4: J. 264.

Bankier DistiHinj? Co. v. Young. 19 R. 103; affirmed, 20 R. H. L. 76.

5 Crane i'. Winsor, 2 Utah, 248.

1077 Injunction To Prevent Pollution. §842

method of working, and deliver the water to his neighbor below in the same state of absolute purity as he received it. Such a doctrine would be wholly incompatible with the ordinary use of water for mining purposes, and in direct antagonism to the liberal principles established and maintained by repeated decisions of the highest courts in the land.

g 842. The remedy by injunction to prevent pollution of water and deposit of tailings. — The ordinary rule in reference to the abatement of private nuisances and the remedy by injunction to prevent their continuance, is too well known to require elaboration in this treatise. It may be noted, however, in dealing with the subject of pollution of water through mining operations, that an injury arising from the deposit of tailings in running streams may be actionable, and at the same time may not, under all circumstances, justify a court of equity in granting an injunction.

It is not every case of nuisance or continuing trespass which a court of equity will restrain by injunction. Where the injury is merely temporary and trifling, and not permanent and serious, the writ will be refused ; and in determining whether the injury is serious or not, regard must be had to all the consequences which may flow from it.

The supreme court of Alabama has said, that in determining this question the court should weigh the injury that may accrue to the one or to the other party and also to the public, by granting or refusing the injunction.

The court should consider the necessity or importance of the right claimed, as well as the injury likely to be caused to the complaining party.'

" Whenever a court of equity is asked for an injunction " in cases of such a nature, it must have regard not only

Clifton Iron Co. v. Dye. 87 Ala. 468; Goldsmid v. Tunbridge Wells Impt. Co., L. R. 1 Ch. A pp. 354.

Clifton Iron Co. v. Dye, 87 Ala. 470. Hayes v. Waldron, 44 N. H. 580.

' § 843 Deposit Of Debris In Running Streams. 1078

" to the dry, strict rights of the plaintiff and defendant, but " also to the surrounding circumstances."

A case illustrative of this principle came before the supreme court of Michigan. A man bought for speculation certain bottom lands, upon which large quantities of sand were being deposited by a stream which operated a stamp mill higher up. He put a valuation upon the land from three to five times what it cost him, and tried to sell it to the corporation which owned the mill, but it declined to buy. Then he prayed for an injunction to restrain the corporation from sanding his land and polluting the stream. The supreme court, speaking through Judge Cooley, held that an injunction would not lie, and that the speculator was entitled to such remedy as the law would give him and no more.''

It has been said by the supreme court of Montana that it would require a very strong case for an injunction to justify the granting thereof when such an act would cause infinitely more damage than it would prevent.'

An injunction will be granted where its denial is tantamount to the denial of all protection;* but it may be refused where the injury complained of is comparatively trifling.*

§ 843. The deposit of tailings and refuse on the lands of othersL — While the deposit of mine tailings in running streams to a reasonable extent is permitted, subject to the limitations outlined in the preceding sections, the doctrine never has been extended so as to authorize the miner to flood his neighbor's lands, and by depositing thereon mining debris and "slickens" deprive such neighbor of any substantial right or depreciate the value of his property.

' Wood V. Sutcliflfe, 2 Sim. N. S. 163, 16 Jur. 75, 8 Eng. Law Eq. 217. 221.

Edwards v. Allouez M. Co., 38 Mich. 46. Atchison v. Peterson. 1 Mont. 561, 570.

Henshaw v. Clark, 14 Cal. 461.

See, also, Slade v. Sullivan, 17 Cal. 103; Jacobs v. Day, 111 Cal. 571; United States v. North Bloomfield O. M. Co., 53 Fed. 625.

1079 Deposit Of Tailings Etc. On Others* Lands. § 843

"No person, natural or artificial, has a right, directly " or indirectly, to cover his neighbor's land with mining " debris, sand, or gravel, or other material so as to render " it valueless."

While the miner is entitled to the free use of the channel for the purpose of carrying away his waste and tailings, he has no right to fill the channel with debris, causing the stream to overflow and thus deposit the material on the lands of the lower proprietor.*

The miner is entitled to use his claim in a lawful manner, but no use can be considered lawful which precludes others from enjoying their rights.'

However cautiously or carefully the miner works is of no consequence, for if his work in fact injures another he is none, the less liable.

The doctrine of necessity, which has been frequently invoked in justification of injuries of this character, has no application. Under certain circumstances a person may have a right of way by necessity over the land of another; but the doctrine that one person may have a right of necessity to go upon the land of another and erect thereon buildings, or other structures, such as flumes and ditches from which tailings are discharged, has never been recognized.'*

This doctrine is peculiar to no locality. It is one of universal application. A few illustrations will suflBce to demonstrate this.

In the case of Columbus and Hocking Coal and Iron Company v. Tucker, considered by the supreme court of the state of Ohio,® the following facts appeared : —

Plaintiff* owned a tract of land in the Hocking Valley, through which flowed Monday Creek. The channel of this

Hobbs V, Amador it Sacramento Canal Co., 66 Cal. 101. 3 Nelson v. O'Neal, 1 Mont. 284. Logan V. DriscoH, 19 CaL 623.

HiU I'. Smith, 27 Cal. 476; Levaroni v. Miller, 34 Cal. 231.

Esmond v. Chew, 15 Cal. 137. See, also, Ralston v. Plowman, I Idaho, 598.

48 Ohio St. 41.

§ 843 Deposit Of Debris In Running Streams. 1080

creek until after the acts of the coal company had been of sufficient capacity to carry its waters, except during usual freshets. The defendant placed the slack, dirt, and other refuse from its mine at such place upon its lands that they were carried off by various natural streams emptying into Monday Creek, and the effect of their being emptied into this latter creek was the filling of its channel through the plaintiff's farm, causing it to overflow its banks, inundating plaintiff's land, covering a portion thereof with debris, and rendering it valueless.

The defendant insisted that its mining operations were conducted in a prudent and careful manner, and in the mode generally employed in operating similar mines in the neighborhood ; that its acts were not characterized by any malice or negligence towards the plain tifif; that the deposits made upon its own land were upon the only feasible places on which they could be deposited so as to continue carrying on the business of mining for coal. Said the court : —

" The claim of the company that it had the right to " make the deposits in the places complained of, because it " was necessary to the successful conduct of its own business, " seems wanting in substance. The effect is to measure the " rights of the plaintiff in his lands and the waters of Mon- " day Creek by the convenience or necessity of the com- " pany's business. An owner of land in Ohio is not subject " to any such narrow and arbitrary rule."

In considering a parallel case, the supreme court of California said : —

"The refuse matter was the product of the defendant's " mining operations, and was deposited in the creek through " agencies controlled by the defendant; and although it was " not responsible for the inundation of the plaintiff's land " by the water of said creek, it was responsible for the " deposit of the deleterious substances with which said " water was charged through its agency upon said land. " This does not in any manner involve the question of the " defendant's right to mine or prosecute any other legiti- " mate business on its premises. It would not be claimed

1081 , Deposit Of Tailings Etc. On Others' Lands. § 843

' " that the defendant could convey and deposit refuse matter " from its mine by means of carts or cars, without incurring " liability for any damages which the plaintiff might " suflFer by reason thereof. And we know of no principle " upon which it could be held that a person may escape " liability by doing that indirectly which would render " him liable if done directly."

Where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, so as to efifectually destroy or impair its usefulness-, it is a taking of the property without compensation."

. The earlv customs of the western miners which were recognized and confirmed by the courts, both state and federal, never sanctioned any such taking. Where a place of deposit for tailings was necessary for the fair working of a mine, the miner had a right to appropriate unoccupied public land for the purpose, provided he did not interfere with existing rights, and those who came after him took subject to his prior privilege.

But this was the extent of the rule. While the right to foul the waters of a stream with mining debris to a reasonable extent may be asserted under custom, as in the case of tin streaming in Cornwall,* yet the law will not allow such a custom to take away and destroy the lands of others by depositing over the surface sand and debris. The custom of "free tailings" cannot be invoked to relieve one from liability for injuries thus occurring.

"A mining custom which would allow the total destruc- " tion of a junior locators mining operations, in a gulch " below prior locators, on ground which was vacant, cannot " be maintained under any statute or common mining law with which we are acquainted.'

>J5

Robinson v. Black Diamond Coal Co., 57iCal. 412, 413. See, also, Hobbs V. Amador and Sacramento Canal, 66 Cal. 161.

Pumpelly v. Green Bay Co., 13 Wall. 166; Ashley r. Port Huron, 35 Mich. 296; Arimoiid v. Green Bay Co., 31 Wis. 316; Rowe v. Portsmouth, 56 N. II. 291; Woodward v. Worcester, 121 Mass. 245.

Jones V, Jackson, 9 Cal. 2.38; O'Keife v. Cunningham, /(/. 589.

Carlyon v. Lovering, 1 Hurls. A N. 784, 26 L. J. Exch. 251.

Lincoln r. Rodgers, 1 Mont. 217, 224. See, also, Ralston v. Plowman, I Idaho, 595; Fuller v. Swan River, 12 Colo. 12, 14.

§ 843 Deposit Of Debris In Running Streams. 1082

In Colorado it is provided by statute that, —

" In no case shall any person or persons be allowed to " flood the property of another person with water, or wash " down the tailings of his or their sluice upon the claim or " property of other persons, but it shall be the duty of " every miner to take care of his own tailings or become " responsible for all damages that may arise therefrom."*

This we apprehend is nothing more than declaratory of the law as it existed prior to this enactment. It does not inhibit the use of the channel of the stream in a reasonable way to carry oflF tailings.

As was said by the supreme court of the United States: —

" No system of law with which we are acquainted toler- " ates the use of one's property in this way so as to destroy " the property of another."

This we understand to be fully supported by the California debris cases.'*

As was said by the supreme court of California in People V, Gold Run Ditch and Mining Co. —

" Undoubtedly the fact must be recognized, that in the " mining regions of the state the custom of making use of " the waters of streams as outlets for mining debris has " prevailed for many years ; and as a custom it may be con- " ceded to have been founded in necessity, for without it hydraulic mining could not have been economically operated. In that custom the people of the state have silently acquiesced, and upon the strength of it mining " operations, involving the investment and expenditure of a large capital, have grown into a legitimate business, " entitled equally with all other business pursuits in the " state to the protection of the law ; but a legitimate private " business founded upon a local custom may grow into a " force to threaten the safety of the people, and destruc- " tion to public and private rights; and when it develops " into that condition the custom upon which it is founded " becomes unreasonable, becjiuse dangerous to public and

MiUs' Ann. Stats., $ 2393. Jennison Exr. r. Kirk, 9SU. S. 453.

3 Woodruff V. North Bloomfleld G. M. Co., 9 Saw. 441; People v. Gold Run D. A M. Co.,66 Cal. 138; Hardt r. Liberty Hill, 11 Saw. 611. 66 Cal. 138.

" private rights, and cflnnot be invoked to justify the cou- " tiouance of the business in an unlawful manner."

The rule is undoubtedly correctly stated by the supreme court of Ohio: —

Upon reason we think the proposition sound, that " where no right by prescription exists to carry on a par- " ticular business in a particular manner at a particular " place, and the natural result of the place selected and " the manner adopted is to cause material injury to the " property rights of another, it is not a sufficient defeuse " to an action for damages to show that the locality where " it is carried on is one generally in use by persons in " such business, and the manner in which it is carried " on is commonly adopted by others in such business. " Even though it appear that the use made of the land, " while not the common ordinary use of land as such, is " not an unnatural nor improper one in and of itself, nor " even an unusual one, and the proposition will be found " sustained by abundant authority."'

That others engaged in like business have been accuatomed to disregard the rights of their neighbors can furnish no justification.

The general doctrine herein announced applies not only to refuse deposited on another's land by means of water, but to all other processes by which foreign material is conducted to the premises of another and there deposited to his detriment and injury. There is no difference in principle between transporting such material by rail and by water.

g 844. Measure of damages for anlawfnlly depositing debris on another's land. — There seem to be no decisions upon the question of the measure of damages where mining debris is deposited on the agricultural land of another. Where the eiTect of such deposit is to practically destroy its use for industrial purposes, and the injury is permanent, the measure would undoubtedly be the general one adopted in actions for injuries to real property ;

Columbus tllocklDKCoHl A I. Co. v. Tacker, 48 Ohio St. i.

§ 844 Deposit Of Debris In Running Streams.. 1084

that is, the difference between the market value of the land before and immediately after the injury is complete; but when the injury is only partial and the nuisance is one which may be abated by injunction, or for the continuance of which successive actions may be brought, the measure would be the same as in case of flooding; that is, the loss sustained by the continuance of the nuisance to the rental value of the property, and not the difference between its market value as an absolute estate before and after the nuisance.

' 2 Wood on Nuisances, p. 1318, and cases cited in note 5.

Pinney v. Berry, 61 Mo. 359, 367; Chicafo v. Huenerbein, 85 111. 544; Carli V. Union Depot R. R. Co., 32 Minn. 101; City of South Bend v. Paxon, 67 Ind. 228; Willey v. Hunter, 57 Vt. 479; 2 Wood on Nuisances, p. 1318, and cases cited in note 6.

Chapter V.

GOVERNMENTAL SUPERVISION OF HYDRAULIC MINING IN CALIFORNIA — THE CALIFORNIA DEBRIS COMMIS- SION—ITS JURISDICTION AND POWERS.

$ 848. Causes leading up to the passage by congress of the act creating the California debris commission.

$ 849. Hydraulic mining not a nuisance per se — Principles established by the debris cases.

4 850. Essential features of the congressional act creating the California debris commission and regulating hy-

draulic mining in the state of California.

$ 851. Necessity for definition of term hydraulic' minting."

J 852. What constitutes "hydraulic mining/' or mining by the hydraulic process,"

within the meaning of the

act.

$ 853. Judicial interpretation of the act — Its constitutionality.

g 848. Causes leading up to the passage by congress of the act creating the Oalifornia debris commission. — Mining in the United States is not a governmental function. As a rule the government does not interfere with it, looking upon it as a private industry, to be carried on by private enterprise, subject to the same general rules regulating its conduct as apply to other industries; but in California we have a novel instance of governmental intervention in the nature of police regulation, an anomaly in the federal mining system which deserves more than a passing notice. While the geographical scope of its operation is limited to that portion of the watershed of the Sierra Nevada Mountains representing the drainage areas of the principal navigable rivers of the state, the San Joaquin and the Sacramento, within this area is embraced not only the field of early placer mining, but by far the greater portion of the known auriferous gravel deposits of that

§ 848 Government Supervision Of Hydraulic Mining. 1086

marvelous state. The passage of the act of congress creating the California debris commission, and the causes which superinduced it, are matters of current history.

In the early days of placer mining in California, that industry was the paramount one. Everything else was subservient to its necessities and dependent upon its successful operation. While agricultural and pastoral pursuits were carried on to some extent, they were mere auxiliaries and the bases of supplies for the mining communities. The farmers and stockraisers produced, and the miners consumed. Waters of the running streams were appropriated, diverted from their natural courses, and utilized in winning the precious metals from the alluvial soils of the foothills and mountains. Streams were employed in carrying the resultant waste and debris, the coarser material finding lodgment near the scene of active operations and the finer carried in suspension to the channels of the navigable rivers, there to be deposited along the banks and in the beds, or else to be transmitted to the silent depths of the ocean, there to form the fine-grained slates and clays of future geological ages.

This process of sedimentation, at first gradual and almost inappreciable, grew with the years. The primitive methods of washing the auriferous gravels by the use of the " long "tom" and rocker were succeeded, first, by applying water to the natural banks under moderate pressure, through the medium of canvas, or rubber hose, with a nozzle of moderate dimensions, then by the powerful engines of demolition— the "little giants" and "monitors," through the large converging nozzles of which, water was forced under enormous pressure and directed against the banks, bringing down in great volume, bowlders, rocks, gravel, and the finer disintegrated substances, such as sand, silt, and slickens. Natural erosion, the denudation of the forests laying bare large surface areas to the direct action of the elements, and the extension of farming operations into the foothill regions also contributed in some degree, at least, to overtaxing the carrying power of the running streams. By these

1087 Act Creating California Debris Commission. §848

combined processes, natural and artificial, the channels of the rivers became clogged. The heavier material, washed from the natural banks by the hydraulic miners, was lodged within reach of the streams, overflowing their banks in seasons of extraordinary floods, and lands below were in places buried beneath the debris brought down by the mountain torrents. The story is graphically described in what is known as the " debris cases," particularly in WoodruflF V, North Bloomfield Gold Mining Co.* and in People V. Gold Run Ditch and Mining Co.

Farms and orchards were destroyed, and the industry of hydraulic mining as thus conducted became more than a menace. Under these conditions, land owners in the valleys organized, and through their eflbrts the courts interfered, injunctions were issued and made permanent, inhibiting to a great extent the conduct of hydraulic mining, and stopping what Colonel Mendell, the government engineer, styled the " irruption of the mountains."

Private individuals claiming to have suttered special damage arising out of the commission and continuance of a public nuisance, the state asserting an unauthorized encroachment upon and interference with its water highways,* and the government claiming that its right of navigation was being seriously obstructed,' invoked the aid of the courts to the temporary undoing of hydraulic mining on the extensive scale theretofore practiced. The legal struggle was a battle of giants. The question became one of great public importance. It divided communities, was discussed in platforms of political parties, and ultimately found its way into the halls of congress.

During the trial of the cases the only remedy for the evil suggested was the construction of restraining dams, behind which the heavier material might be impounded,

' 9 Saw. 441.

2 66Cal. 138.

Woodruff r. North Bloomfield G. M. Co., 9 Saw. 441.

People V. Gold Run D. M. Co., 66 Cal. 138.

'United States v. North Bloomfield G. M. Co., 53 Fed. 625.

§ 849 Government Supervision Of Hydraulic Mining. 1088

allowing the coarser substances to settle at the bottom of artificially constructed reservoifs, the finer silt being comparatively harmless, passing over the dam and being carried seawards/

In the hope that some mode might be devised for obviating the injuries, a clause was inserted by the United States circuit court in the decrees, giving leave on any future occasion, when some plan had been successfully executed, to apply to the court for a modification of the injunction; but when dams were constructed and application was made to vacate the injunction and permit the resumption of mining behind them, controversies arose over their efficiency for the purpose intended. Engineers disagreed as to the restraining power of the dams. They had been built under competent scientific supervision at large expense; but the farmers contended they were perpetual menaces, and supported their contention with expert testimony.

The court, considering that if any such dams were to be accepted they should only be those the ample sufficiency of which was established upon testimony of the most unquestionable and satisfactory character, declined to accept those concerning which there was a difference of opinion among engineers."

The people of the affected districts appealed to congress. This is a brief history leading up to the passage of the act creating the federal board known as the California debris commission.

g 849. Hydraulic mining not a nuisance per se — Principles established by the debris cases. — As was

recently said by Judge Ross in a case instituted in the United States circuit court, ninth circuit, by the government against tlie North Bloomfield Company:'* —

" In neither of the cases [theretofore decided by the circuit court] is mining by the hydraulic process regarded

United States v. North Bloomfield G. M. Co., 53 Fed. 625. 2 Hardt v. Liberty Hill Cons. M. A W. Co., 11 Saw. 611. ' United SUtes f. North Bloomfield M. Co., 81 Fed. 243.

1089 HYDRAULIC MIXING NOT A NUISAlCK PER SE. §849

It

ti

(C

in, and of itself, as unlawful. That it is not unlawful, but highly useful and commendable when properly con- " ducted, and without injury to the property or rights of " others, hardly needs judicial decision. Nobody wanted " gold mining by the hydraulic process stopped so long as " it could be prosecuted without injury to the navigable waters or to the property or rights of others."

This is a self-evident proposition.

"It seems to us," said the supreme court of California, " that the business of hydraulic mining is not within " itself unlawful or necessarily injurious to others. The unlawful nature of the business results from the manner " in which it is carried on, and the neglect of parties engaged therein to properly care for the debris resulting " therefrom, whereby it is allowed to follow the stream and " eventually to cause injury to property situated below."*

Without entering into a detailed analysis of the debris cases, the various defenses interposed, and the reasoning employed by the courts in arriving at the conclusions reached, we will state what we understand to be the principles laid down by the courts.

(1) Hydraulic mining, conducted as heretofore described, where it contributes or threatens to contribute in a material degree to the filling up of the river channels, impairing navigation, and covering the land of others with detritus or debris is a nuisance;

(2) Suit to enjoin such nuisance may be maintained (a) at the instigation of a private individual who has suffered special damage, by the state, whoso navigable water ways have been encroached upon, (c) by the government, whose right of navigation and to regulate commerce has been interfered with ;

(3) Such a nuisance has neither been authorized by state or national legislation nor legalized by implication, nor could it be so authorized or legalized;

(4) No right or title can be acquired by prescription to commit or continue a public nuisance;

**Ck>anty of Yuba r. Cloke, 79 Cal. 239. See, aUo. Peoole v. Gold Run D. A M. Co., 66 Cal. 138, 151; Civil Code of Cal.,

§ 850 Go Vernmentv Supervision Of Hydraulic Mining. 1090

(5) Such a nuisance cannot be authorized by custom ; such a custom would be in conflict with the laws and constitution of the state, and would be illegal and void.

These principles have been accepted as a finality by the hydraulic miners of California. An appeal was allowed to the supreme court of the United States in the leading case, but it was voluntarily abandoned.

g 850. Essential features of the congressional act creating the Oalifornia debris commission and regulating hydraulic mining in the state of Oalifornia.- The congressional act entitled, " An act to create the California "debris commission and regulate hydraulic mining in the " state of California," approved March 1, 1893, is printed in full in the appendix to this treatise. It is only necessary here to note its essential features and the controversies which have arisen over its constitutionality and true interpretation.

A commission is created, consisting of three members selected by the President, with the consent of the senate, from officers of the corps of engineers of the United States army, which commission exercises its powers under the supervision of the chief of engineers and under the direction of the secretary of war. The jurisdiction of the commission, in so far as it affects mining carried on by the hydraulic process, extends to all such mining in the territory drained by the San Joaquin and Sacramento river systems. The terms " hydraulic mining" and "mining by the hydraulic " process," as used in the act, are declared to have the " same meaning and application giveti to said terms in "said state."

Hydraulic mining, as so understood and defined, directly or indirectly injuring the navigability of the river systems named, carried on in the territory over which the jurisdiction of the commission extends, other than as permitted under the provisions of the act, is proliibited and declared unlawful.

1091 Essential Features Of The Congressional Act. § 850

The commission is required to formulate plans for improving the navigability of all rivers comprising the systems, deepening their channels, and protecting their banks, with a view of making the same efifective fts against the encroachment of, and damage from, debris resulting from mining operations, natural erosion, or other causes, and permitting mining by the hydraulic process to be carried on, provided that the same may be accomplished without injury to the navigability of the rivers, or to the lands adjacent thereto. The commission is also empowered to examine, survey, and determine the utility and practicability of storage sites for the storage of debris, with a view to the ultimate construction of impounding dams and reservoirs, and permitting hydraulic mining to be conducted behind them.

Parties desiring to work by the hydraulic process are required to submit themselves to the jurisdiction of the commission by filing a verified petition requesting the issuance of a permit, accompanied by an instrument executed and acknowledged, whereby such petitioner surrenders to the United States the right and privilege to regulate, as provided in the act and rules supplementing it, the manner and method in which the debris resulting from the working of the mine shall be restrained, and what amount shall be produced therefrom. Upon the filing of this petition the commission causes a notice, briefly specifying its contents, to be published. Pending publication an examination is made by the commission, or a committee thereof. A hearing is had, and, if the petition is granted, an order is entered directing the method and specifying in detail the manner in which operations shall proceed, and what restraining or impounding works shall be built and maintained. These works are to be constructed under the direct supervision of the commission, but at the expense of the parties, and the permit to commence mining is not issued until after inspection and approval of the completed work. This permit may, for cause, be revoked, or its terms modified from time to time.

§ 851 Government Supervision Of Hydraulic Mining. 1092

This outline will serve to indicate the general features of the law and furnish a basis for illustrating the few questions which have thus far been the subject of controversv.

g 861. Necessity for definition of term hydraulic mining." — As a preliminary to the discussion of the subject of definitions, it is of some importance that attention should be directed to the necessity and object of definition. While the avowed purpose of the act of congress is to protect the navigability of the San Joaquin and Sacramento Rivers, the jurisdiction of the commission does not extend to, nor has it any supervisory control over, any class of mining other than that carried on by the hydraulic process.

For illustrative purposes, we may divide mining as conducted within the territory described in the act into four classes: —

(a) Quartz or vein mining, where the ore extracted is crushed in stamp mills, and the resultant tailings, reduced to the form of pulp, find their way into the running streams;

(6) Drift mining, where the deep placers found in subterranean channels of ancient rivers are reached bv tunnels, shafts, or drifts, and the gold-bearing material resting on the bedrock is brought to the surface for treatment. If the material is cemented, it is crushed in a stamp mill, the same as in quartz mining. If it is loose gravel, it is carried into sluices and washed by a process similar to sluice mining in surface placers;

(c) Sluice mining, where the material is placed by manual labor into sluice boxes and the gold is captured in riffles;

(d) Hydraulic mining.

We apprehend that the distinctions between these different methods of mining have always been clearly understood, and the lines of demarcation are well defined. The scope of the congressional act and the jurisdiction of the

1093 What Constitutes. " Hydraulic Mining." § 852

debris commission is beyond question limited to mining by the hydraulic process. We may concede that quartz, drift, or ordinary sluice mining might be conducted in so wanton and reckless a manner as to injure, or contribute to the injury, of the navigable streams ; but this fact does not bring mining by either of these methods within the inhibition of the congressional law, nor subject those engaged in it to the jurisdiction of the debris commission. All kinds of mining other than that falling within the definition of " mining by the hydraulic process " may be carried on without a permit from the debris commission, and whether in a given instance such mining is or is not carried on in such a way as to amount to a nuisance, must be determined by the courts when their jurisdiction is invoked, regardless of any proceedings or lack of them before the debris commission. The situation may be thus stated in another form: No mining by the hydraulic process, however harmless in its results, carried on within the drainage area of the Sacramento and San Joaquin River systems, is lawful, unless conducted under a permit from the debris commission.*

All other classes of mining may be conducted without consulting such commission, subject, of course, to the right of courts to interfere in proper cases, where the manner of conducting is manifestly injurious to the rights of otliers. The necessity for determining what constituted hydraulic mining, or mining by the hydraulic process, at the time the act was passed, is therefore apparent.

g 862. What constitntes '' hydranlic mining," or mining by the hydranlic process," within the meaning of

the act ? — The act itself, as heretofore observed, provides, " that for its purposes hydraulic mining ' and mining " by the hydraulic process' are hereby declared to have " the meaning and application given to said terms in said

This statement is made upon the supposition that the decision of Jadge Ross, circuit judge, announced in the case of United States v. North Bloomfield 6. M. Co., 81 Fed. 243, outlined in $ 853, correctly states the law.

§ 852 Government Supervision Of Hydraulic Mining. 1094

" state." What was the " meaning and application given" in California to these terms at the time the act was passed ? The civil code of California provides as follows: —

"Hydraulic mining within the meaning of this title is " mining by means of the application of water under pres- " sure through a nozzle against a natural bank."

But this became a law after the approval of the congressional act.

This section of the code, therefore, may be referred to only upon the theory that it was but a legislative declaration of a definition which was commonly accepted at the time the law was passed. We have italicized the word natural in quoting from the code, for the reason that a controversy has arisen over the use of this word as an element of definition.

All parties seem to agree that the application of water under pressure and through a nozzle were always essential elements of definition of the terms " hydraulic mining " and "mining by the hydraulic process"; but it has been contended that unless the water is directed against a natural bank, one that is a part of the mass of the mountain in a state of nature, the application to it of water under pressure through a nozzle does not constitute hydraulic mining as understood in California. In other words, such application against a bank of material artificially constructed, such as a mine dump or deposit of tailings or loose gravel impounded or caved from its natural position by human agency, is not " hydraulic mining."

The California anti-debris association, representing the farming interests, contend that the term is, and always has been, sufiiciently comprehensive to embrace the application of water under pressure through a nozzle to any kind of a bank or body of material, natural or artificial, where the object sought was to liberate and secure the gold.

$1-425.

' The congressional act was approved March 1, 1893. The amendment to the civil code wts approved March 24, 1893, and took elTect sixty days after its passage.

1095 What Constitutes "Hydraulic Mining." §852

The lexicographers afiFord us but little aid in determining the local signification of phrases. The definition given in the Standard Dictionary is as follows : —

" Hydraulic Mining. A method of mining, in which a bank of gold-bearing earth or gravel is washed away by " a powerful jet of water and carried into sluices, where the " gold separates from the earth by its specific gravity."

Dr. Henry De (root, a writer of prominence on subjects connected with California, in his contribution to the Brittanica on the industrial history of that state, says: —

" Hydraulic mining consists in the plan of breaking "down and disintegrating the banks of auriferous gravel as they stand in place, by means of water discharged against the same in large quantity and under great pressure."

Lieut.-Col. G. H. Mendell, of the engineer corps, in his report made pursuant to the provisions of the river and harbor act of 1880, upon a project to protect the navigable rivers of California from the effects of hydraulic mining, gives the following definition : —

" Hydraulic mining, as it is understood in California, is that process by which a natural bank is excavated by a " jet of water and conveyed by the same water through the sluices to the dumps. Water does all the work ; manual labor is needless to a perfect bank. When bowlders are " found too large to pass through the sluice, they are some- " times blasted into smaller pieces. Where the bank is cemented or contains masses of pipe clay, it is shattered " by charges of powder."

Hon. John S. Hittell, the most noted of writers on the subject of Californian history, thus described the process: —

" Hydraulic mining is that mining where a stream of " water, led down from a considerable elevation through a " hose, is thrown by the pressure with great force upon the " dirt which is thus loosened, dissolved, and washed down '.intothe sluice. . . . Hydraulic mining is not a process of wasliing dirt, but of preparing it for washing."'

VoL i., Arrujrii'an SuppU'inent, p. ti9'i.

January 'Ji, 1Hh2.

HarKToft'H HandUxik of Minini, 8. F

§ 852 Government Supervision Of Hydraulic Mining. 1096

Mr. Aug. J. Bowie, Jr., a well-known mining engineer, in bis contribution to tbe American Institute of Mining Engineers, on tbe subject of hydraulic mining in California,* says: —

" Hydraulic mining may be defined as tbe act of extract- " ing gold from gold-bearing detritus, i. e. surface deposits, " placers, or washings, by means of water under great pressure, through pipes against the auriferous material."

And in his "Practical Treatise on Hydraulic Mining " in California,"' he defines it as, " that method of gold " mining in which the ground is excavated by means of water discharged against it under pressure (hydraulick- " ing)."

Dr. R. W. Raymond, in his " Glossary of Mining Terms," contributes the following: —

" Hydraulicking. (Pac.) Washing down a bank of " earth or gravel by the use of pipes conveying water under high pressure."

Prof. J. Ross Browne, in his report to the secretary of the treasury upon the mineral resources of the west,' tells us that the process was invented in 1852, and describes it as one " in which a stream of water was directed under " heavy pressure against a bank or hillside containing " placer gold, and the earth was torn down by the fluid " and carried into the sluice to be washed."

When we search for judicial definitions we are prac* tically limited to the debris cases.

Judge Sawyer, in Woodruff v. North Bloomfield G. M. Co.,* gives the following: —

" Hydraulic mining, as used in this opinion, is the pro- " cess by which a bank of gold-bearing earth and rock is " excavated by a jet of water, discharged through a converg- " ing nozzle of a pipe, under great pressure, the earth and debris being carried away by the same water through

' 1887. Trans. Am. Inst. M. E., vol. vi., p. 38. New York, 1886. ' 1867.

Saw. 441.

1097 What Constitutes "Hydraulic Mining." §852

" sluices and discharged on lower levels into the natural " streams and water courses below. Where the gravel or " other material of the bank is cemented, or where the " bank is composed of masses of pipe clay, it is shattered " by blasting with powder, sometimes from fifteen to twenty " tons of powder being used to break up a bank."

In the case of United States v. North Bloomfield Gravel Mining Co.,* involving the constitutionality of the congressional act, the government alleged that, —

" Hydraulic mining as now, and for more than twenty " years last past, practiced and understood in the state of " California, is a process of gold mining by which hills, " ridges, banks, and other forms of deposits of earth which " contain gold, are mined and removed from their position "by means of Idrge streams of water, which, by great " pressure, are forced through pipes terminating in nozzles " known as monitors ' or little giants '; that the water is " discharged from such nozzles with great force, by a water " pressure of from fifty to four hundred feet per second, " against and upon the hills, ridges, banks, and other " deposits, which are usually shattered or broken up by " means of blasts of powder, and softened by running water " over and along such shattered or broken banks of earth, " and undermined by streams of water flowing at the foot " of such'banks thus caving down and washing off por- " tions thereof before water is discharged from the nozzles " against them."

Judge Ross expressed the opinion that this allegation sufficiently set forth the meaning of the terms " hydraulic "mining" and "mining by the hydraulic process" as these terms were used in the congressional law.

There can be no question but that in all of the debris cases the process under consideration involved to some degree the use of artificial methods to loosen the soil, such as blasting, undermining with a stream of water and causing natural banks to cave, before the water under pressure was applied. It was a part of the process and a material aid to rapid and efficient work. It cannot plausibly be maintained that when the " little giants " and " monitors "

' 81 Fed. 243.

§ 852 Government Supervision Of Hydraulic Mining. 1098

were directed against the mass of material thus torn from the hill by blasting or caving, the miner was not engaged in " hydraulicking," and yet his efforts were not immediately directed against a natural bank.

The use of the term " natural bank " in the definitions given must be considered in connection with the context. We think the fair deduction from all the definitions, is this: The essential feature which distinguishes hydraulic mining from other classes of mining is the substitution of the power of water, under pressure, applied through a nozzle, for manual labor, in moving the rhaterial into the sluices, whence, if not impounded, it is carried into the running streams. Whether this application is made against a bank in its perfect natural state, or against one artificially created is, in our judgment, immaterial.

If a miner turns his monitor against a mass of impounded earth, rocks, and tailings, brought down by the streams from a higher operator, would anyone familiar with " mining by the hydraulic process " say that he was not "hydraulicking"? If he was not " hydraulicking," how would his method of operating be characterized in the mining vernacular?

Whether or not a miner conducting mining operations within the district defined by the congressional act is within the purview of the act, and subject to the jurisdiction of the commission, will depend not upon the fact that he is or is not contributing to injuries to the navigable streams, but the inquiry is simply, " Is he utilizing water " under pressure, through a nozzle, directed against a bank "or mass of earth for the purpose of extracting gold there- " from?" Whether the bank or mass was brought to its present abiding place by the carrying power of water during remote geological ages, or is the result of the recent utilization of such carrying power by human agency operating on a higher level is, in our judgment, of no legal significance. It is fair to assume that the future of the great industry of hydraulic mining in California rests in a liberal administration and interpretation of the existing

1099 Judicial Interpretation Of The Act. §853

law, or some law framed upon the same general lines. Insistence upon narrow rules of interpretation, which do violence to the spirit of the law, will impede rather than advance the interests of the industry.

g 863. Judicial interpretation of the act — Its con- Btitutionality. — We are aware of only one instance where the act in question was directly assailed in judicial proceedings, and that was in a case involving peculiar individual hardship, assuming the facts to have existed as alleged, and which for the purposes of the case the court accepted as true. We refer to the case of United States v. North Bloomfield Mining Company, recently decided by Judge Ross of the ninth circuit.*

Acting upon the suggestion embodied in the opinion of the United States circuit court, in Woodruff v. North Bloomfield, the North Bloomfield company constructed extensive, complete, and expensive impounding works, which were so maintained as to " successfully, completely, " and permanently impound all of the mining debris " resulting from its mining operations, except such light " and inconsiderable portion of the debris therefrom as will " not settle in water when affected by the least motion," and which light and fiocculent matter was carried by the currents to the ocean, neither injuring nor threatening to injure, either by itself or in connection with debris from other mines, any of the navigable or other waters. Shortly after work behind the dam was commenced (1888), the United States filed in the circuit court its bill seeking to enjoin the company from operating itsmine. The court. Circuit Judge Gilbert presiding, held that the impounding device was sufficient, that the fiocculent matter carried over the dam was innocuous, " that the danger to be appre- " hended from the operation of the North Bloomfield mine, with its impounding reservoirs as constructed and used " and intended to be used, is so remote and improbable " that the court is not justified in enjoining the use of the

81 Fed. 243. 9 Saw. 441, 644.

§ 853 Government Supervision Of Hydraulic Mining. 1100

" property and thereby interdicting a valuable industry." The injunction prayed for was denied. Thus matters stood when congress passed the act creating the California debris commission.

Several years after the act was passed, the government commenced the action now referred to/ alleging the same state of facts as in the former bill, with the supplemental averments as to the passage of the act of March 1, 1893, and the failure of the North Bloomfield company to submit itself to the jurisdiction of the California debris commission and secure a permit for the conduct of mining operations behind its dam. The court, for the purpose of ' decision, assumed that the company's operations were being conducted in the same manner as when Judge Gilbert refused the injunction in the former action between the same parties. The government was placed in the position of asserting, that although the operations of the company at the time of the passage of the act of congress were conducted in a strictly lawful manner, and that nothing had occurred since in the conduct of such operations which injured, or tended to injure, the navigable streams, yet the act of congress, propria vigor made such operations unlawful, and compelled the North Bloomfield company to submit itself to the jurisdiction of the debris commission, or cease its operations.

This view was sustained by Judge Ross, who ordered an injunction to issue, announcing the following conclusions as to the scope and constitutionality of the act: —

(1) Until the debris commission appointed under the act should find that such mining can be carried on without causing the prohibited injury, all hydraulic mining within the territory drained by the Sacramento and the San Joaquin River systems, is unlawful.

(2) The fact that prior to the passage of the act the United States had filed a bill to restrain the North Bloomfield company from carrying on hydraulic mining, and

81 Fed. 243.

1101 Judicial Interpretation Of The Act. § 853

that a decree bad been entered adjudging tbat impounding works erected by the company were suflScient to remove all injurious matter, and that the company could not be restrained under the then existing law, constituted no defense.

(3) That congress has absolute power, in the interest of interstate and foreign commerce, over the navigable waters of the United States, and may declare what may or may not constitute obstructions thereto. The act is therefore constitutional.

The case is now pending before the circuit court of appeals, the injunction having been suspended pending the appeal.

We are not aware that the act in question has been the subject of judicial interpretation in any other case.

Title X.

Mines And Mining Claims As Subjects Of Contract Between Individuai.

L MISCELLANEOUS CONTRACTS RELATING TO MINING VENTURES AND THEIR DISTINGUISH- ING FEATURES.

Chapter I.

MISCELLANEOUS CONTRACTS RELATING TO MINING VEN- TURES AND THEIR DISTINGUISHING FEATURES.

$857. Introductory.

$ 858. Grub stake " and prospecting contracts.

$ 859. Options, worlcing bonds, or

executory contracts of sale.

(860. Licenses and their distin- ITuisbing attributes.

i 861. Wbat constitutes a lease.*

§ 857. Introdnctory. — We have frequently announced that the scope of this work is limited generally to a discussion of the federal mining system. While some space has been devoted to cognate subjects, such as tenancies in common, mining partnerships, lateral and subjacent support, and the pollution of streams in the conduct of mining operations, it will be observed that these matters bore a direct relation to some of the phases of the federal system, or are subjects of peculiar interest in that section of the United States where mining tenures are based on congressional laws. When we approach the subject of contractual relations, it must be apparent that any attempt to deal with it in detail would not only destroy the unity of the treatise, but would render the author liable to the criticism of attempting to expand the work unreasonably and for no laudable purpose. The law of contracts is a special subject in itself, too vast, even in its outlines, to warrant treatment in a collateral way. The general principles governing contractual relations, where realty is the subject dealt with, the interpretation of written instruments and the manner of their execution, apply with equal force to contracts the subject-matter of which is mines.

The attempt to discuss conveyances, mortgages, or leases

§858 Miscellaneous Contracts. 1106

of mines, involving as it does the laws and tenures peculiar to each state of the union, would result in the collection of a vast multitude of incongruous cases, most of which involve the interpretation of individual instruments, and but few of which enunciate any rule of universal application.

English authors include these subjects in their treatises; but England is not a federation of states, and the law in one part of it is the law in the other. There is no division of legislative authority. The contrast between that country and the United States in this respect is too marked to require elaboration.

Take the subject of leases. In order to make this work useful in all the states, and to give the subject any extended treatment, we should be compelled to examine the nature of the land tenures of every state in the union, note the difference in the statutory law, and analyze by states the overwhelming mass of case lawfound in the numerousstate reports. Subjects of this character must necessarily be left to the legal encyclopedias, to the digests, or to the works of authors dealing specially with the several branches of the law involved. The utmost that can be expected of us is to briefly state the distinguishing features of the principal classes of contracts affecting mining properties. We may approximate a classification which may possibly be of some utility in a general way. Beyond this we are not permitted to go.

§ 868. "Orub stake" and prospecting contracts. —

- The early miner, in the construction of his vocabulary, did not always display a regard for euphony or the proprieties of language. He coined his terms inartistically, but avoided indirection and the suggestion of latent ambiguity. When he was called upon to characterize the relationship existing between those who furnished him with money and supplies to enable him to seek and discover mines, agreeing in return that those supplying him should share in his successes, he called the transaction '' grub staking."

1107 "grub stake" and prospecting contracts. §858

Hence the term " gnib stake " contract. Thia class of contracts is common in the mining regions of the west. They are not required to be in writing, as they are not within the statute of framJs.' They liave sometimes been called "prospecting partnerships,"" and are said to partake of the character of "qualifieii partnerships.'" Yet, unless the agreement goes beyond the mere furnishing of supplies in consideration of a participation in the discoveries, the word partncrghip is improperly used, and is misleading. It is simply a common venture, wherein one, called the outfitter, supplies the "grub," and the other, called the prospector, performs the labor, and all discoveries inure to the benefit of the parties in the proportion fixed by the agreement,*

The prospector has the right to insist on the outfitter performing his part of the agreement as a condition precedent to participation in such discoveries. 8liould he fail to do ao, the prospector may discover and locate for his own advantage, free from any obligation to the outfitter.''

On the other hand, where the outfitter fulfills his part of the agreement, when the prospector finds and locates a mine the relationship of tenancy in common as to such mine immediately arises," with its attendant rights and obligations.'

Should the prospector during the life of the contract locate in his own name to the exclusion of the one supplying the capital, the title thus accruiug to him would be held in trust for his associate in the joint venture to the extent of his interest,' not necessarily on the theory of partnership, but for the reason that his advances contributed to the acquisition of the property.

While there is no element of trust existing between

' Morftx i: Lavelle. 77 Cal. 10; Oora v. McBmyer, 18 Cal. 3'*2; MeyletCa V. Brentia. 2a Colo. 212. Se, bIho, HIrboiir v. ReeUitigi, 3 Mont. 13. Bouotaart. Mulverliill. 1 Monl. SOU. ' Berry v. Woodburn, ICfT Cal. SIH. ' Id.; Meyletto i>. Breiiiiu), 20 Colo. 242. ' Hurley c. Eunls, 2 Ciilo. 3<XI. Miner i<. Biiitecfield. 70 CaI. 62. AhI, t " Meylette BretinBa, 3Q Colo. -ML

tenants in common of mining property who are partners only for the purpose of exploration,' in cases of "grub " stake" orprospecting contracts where discoveries are made, the prospector may take no unfair advantage of his associate in dealing with the property. If he does, be will be held to account for the profits derived from his unfair practices. During the life of the contract, either party may, of course, purchase mining claims from his own funds and at his own risk, without enabling the other to participate in the purchase.'

The "grubstake" contract, properly speaking, applies to the search for and location of mines on the public domaia.

There is a distinction between a " grub stake " contract and a contract where a miner is employed on wages to obtain a paying mine, with a contingent increase of wages and ah interest in the property if the venture should prove successful. The latter is nothing more than a contract of hiring.*

We frequently encounter cases where the object of the venture is not only to search for and discover mines, but also to work and develop them and conduct a general mining business. This is something more than a " grub stake " contract. Such an agreement constitutes a partnersliip,*

We find in the reports frequent mention of this class of partnerships, formed in the Eastern states where expeditions were fitted out to prospect for gold in California, the articles of agreement being at times quite comprehensive and elaborate. The contracts thus formed had all the attributes of a partnership, and differed materially from the ordinary "grubstake" contract.*

Miller 0. Qutterfleld, 79 Cal. IJ2.

'Berry II. Woodhiirn. 107 Col. Sftl. See Sliiarl Adnms. SI) Cal. SflT.

<AliboUi'. Smith. 3 Colo. A)>p. 2tH; lUrriB v. Hillfgnna, 64 CbI. 463; Jennings RIclcard, 10 Colo. 365; iMwreace v. Kobloaon, 4 Coin. 367.

'Scolii'. ClttTk. 1 Ohio St. 382. See. alRO, Hoyt n. Sniltli, £.1 Coiin. 177, 27 Conn. 63, where tlie proBptwMr ws to profned lo CallforDla Knd "ounimeniedlKiciiiK tar go\d," Ih product to lieeqiiklly divided amnuK II oontrlbuliiiK to the ventureg Staples v. Wheelar, 38 Me. 373. where vof tain parties agreed to proceed with all poaalble diepatvh to the Rold

OPTIOMS, WOBKIIfO BONDS.

Hue of demarcation between the ordinary "grub Stako " contract and a partnersliip is sometimes difficult to determine. Generally it may be said that if the agreement extends beyond the discovery and location, and contains a stipulation for exploiting and developing, a mining partnership arises when actual work commences,'

In tlie absence of such agreement, neither party is called upon to joiu the other in the work of development. They are at liberty to remain as tenants in common, neither party having the right to hind the interest of the other.'

859. Options, working bonds, or ezecntory contracts of Bale. — There is nu class of contracts couueeted with the milling industry more familiar to the profession than that of options to purchase, working bonds, or executory contracts of sale. Unlike other classes of real estate, the value of a mine cannot be determined by mere superficial observation. Expensive investigations, involving measurements, examination of underground geological conditions, and Bampling, invariably precede the cousnmraatiou of a purchase or sale of mining property. In order to justify an intending purchaser in making the requisite investigations and incurring the attendant expense, he invariably exacts some contract from the owner by which he secures the first privilege of purchasing the property in the event the examination proves satisfactory. In addition to this, a large army of " promoters," recruited from the ranks of all professions, trades, and occupations, swarm through the mining regions, seeking exclusive privileges and "options" on mining properties of all classes, for the purpose of marketing them in the moneyed centers of the world. These conditions have given rise to a class of contracts infinite in variety, from a mere letter signed by the owner, agreeing to accept a certain price for his mine if paid within a.

digginKs in Callfornl*. tliere to labor with all diilgenue Dd fidelity to

tKQld 1q hd; honet maimer for theHpaca of one year frointlielr arrival

"the proceniB of auid labor, wlietlier in digttlne galii, laboring, or

' to be divided monE ull tiie partios equally.

We, ? TOT. ' Ante. J 79U, p. 987.

§859 Miscellaneous Contracts. 1110

certain time, to a formidable working bond, which contemplates entry into possession and extensive exploitation to prove the value of the mine before the privilege of purchase must be exercised. The ultimate object of all of them, however, is to secure the exclusive privilege of purchasing at a given price, within a specified time. Such contracts must be in writing,and in the main are governed by the same rules of law applicable to executory contracts for the sale of ordinary real estate. We do not propose to deal with these general rules, nor with the local laws which prescribe the formalities by which instruments affecting real estate must be executed; but there are a few principles, however, whose application to this class of contracts should be particularly noted, on account of the peculiar character of the subjectmatter.

It may be accepted as a general rule that time is not of the essence of ordinary contracts for the purchase of real estate, unless expressly so declared by the parties. An exception to this rule is well recognized where the character of the property renders it liable to fluctuations in value.

The authorities, both in England and America," recognize that where mines or mining properties are the subject of the contract, time is of the essence, independent of any express stipulation in that behalf inserted in the instrument.'

The rule is thus enunciated by the supreme court of the United States: —

" In Taylor v. Longworth the principle was recognized " that time may become of the essence of a contract for " the sale of property, not only by the express stipulation " of the parties, but from the very nature of the property " itself. This principle is peculiarly applicable where the " property is of such character that it will likely undergo " sudden, frequent, or great fluctuations in value. In

' Pomeroy on Contracts, $$ 384, 385, note 4.

Id., $$ 383, 384.

'Settle V. Winters, 2 Idaho, 199; Durant v. Comegys, 2 Idaho, 936.

14 Pet. 172, 174.

1111 Options, Working Bonds. § 859

u

u

tt U H

respect to miueral property, it has been said that it " requires, aud of all properties perhaps the most, the parties interested in it to be vigilant and active in assert- " ing their rights."

As is said by Fry in his work on specific performance: —

" The nature of all mining transactions is such as to render time essential, for no science, foresight, or examination can afford a sure guaranty against sudden loss, disappointment, and reverses, and a person claiming an interest in such an undertaking ought, therefore, to show himself in good time willing to partake of the possible loss as well as profit."'

The necessity for a strict adherence to the rule that in all contracts for the purchase of mines time is of the essence, is apparent. Were the rule to be relaxed and the owner of the mine executing the option or contract of sale, which is ordinarily unilateral and not mutual, to be compelled to resort to the courts to terminate the equities of the proposed vendor, or remain in a state of uncertainty, awaiting the lapse of an indefinite period called reasonable time," his property would remain practically unmarketable. The holder of the option would be given unreasonable opportunities to speculate, without the fear ol incurring any loss. The law would place him in a position to interdict a salel to anyone else, or to exact an unearned consideration for a surrender of phantom equities.

On the other hand, the rule that contracts which do not involve mutuality cannot be specifically enforced, is modified in favor of the holder of this class of contracts. He is afforded this equitable remedy, where he fully and fairly performs, or oflfers to perform, the terms of his contract within the time stipulated.

Waterman v. Banks, 144 U. S. 394 (citing Prendergast v. Turton, 1 Younjf <fe C. Ch. 110; Doloret v. Rotlischild, 1 Sim. <fe Sut. 590, 598; Fry's Specific Performance, 714, 715; Pomeroy on Contracts, 384, 585; Brown v. CovlHaud, 6 Cal. om, 572; Green v. CoviUaud, 10 Cal. 317. 324.

' See, also, Waterman on Specific Performance, $ 460.

§860 Miscellaneous Contracts. 1112

" The very purpose of an optional contract of this " nature is to extinguish this mutuality of right and vest " in one of the parties the privilege of determining whether " the contract shall be vitalized and enforced. An option " to buy or sell land, more than any other form of con- " tract, contemplates a specific performance of its terms; " and it is the right to have them specifically enforced " that imparts to them their usefulness and value."

g 860. Licenses and their distinguishing attributes.

— A license is an authority to go upon the land of the licensor to do an act or series of acts there, but passes no estate or interest in the land.

It is technically an authority to do something on the land of another without passing an estate in the land.'

Bainbridge says that the distinction between lease and license is, that the former is a distinct conveyance of an actual interest or estate in the lands, while the latter confers a mere incorporeal right, to be exercised in the lands of others. It is a profit a prendre, and, unlike an easement, may be held apart from the possession of land.

" There is a broad distinction," said the supreme court of California, between a lease of a mine under which the " lessee enters into possession and takes an estate in the property, and a license to work the same mine. In " the latter case the licensee has no permanent estate in '" the land itself, but only in the proceeds, and in such " proceeds not as realty, but as personal property, and his possession, like that of an individual under contract " with the owner of land to cut timber or harvest a crop " of potatoes for a share of the proceeds, is the possession of " the owner."*

Watts V. KeUar, 56 Fed. 1, quoted in note to 169, Pomeroy on Contracts, where will be found a large collection of authorities in support of this doctrine.

East Jersey Iron Co. Wright, 32 N. J. Eq. 248; Clute v. Carr, 20 Wis. 531; Mumford v, Whitney, 15 Wend. 380; Riddle v. Brown, 20 Ala. 412; Wynn v. Garland, 19 Ark. 23; Rhodes v. Otis, 33 Ala. 578.

Cook V. Stearns, 11 Mass. 534; Fuhr v. Dean, 26 Mo. 116; Massot r. Moses. 3 S. C. 168.

Bainbridge, 4th ed., p. 510. See, also, MacSwinney on Mines, p. 249.

Wheeler v. West, 71 Cal. 126 (citing Funk v, Haldeman, 53 Pa. St. 229; Gillett v. Treganza, 6 Wis. 343; Grubb r. Bayard, 2 Wall. Jr. 81; Caldwell v. Fulton, 31 Pa. St. 475; Potter v. Mercer, 53 Cal. 667).

1113 LICENSES AlD THEIR DISTINGUISHING ATTRIBUTES. § 860

It amounts to nothing more than an excuse for an act which would otherwise be a trespass/

In order to ascertain whether an instrument must be construed as a lease or a license, it is only necessary to determine whether the grantee has acquired by it any estate in the land in respect to which he might bring ejectment.

A license is personal, and not capable of being assigned or transferred by the person to whom it is granted.'

A transfer by the licensee operates as a forfeiture, unless it be coupled with an interest* which may be created by the instrument itself (when it is something more than a license), or grows out of expenditures made pursuant to its requirements.®

A mere grant of a right to take ore, no estate or interest in the land being granted, is a license only, and is not exclusive of the licensor, unless the expressed intention of the parties is otherwise, or the implication is so clear and strong as to be unavoidable/

A license is revocable, and its continuance depends upon the will of the grantor.*

Unless it is coupled with such an interest, or the privilege is conferred in such a manner as to work an estoppel against the grantor,® it is none the less revocable because a consideration has been paid for it.*°

Cook V, Stearns, 11 Mass. 534.

' Bainbridgo, 4th ed., p. 510; Doe ex dem, Hanley v. Wood, 2 B. tfc A. 182. 'Harris v. Gillinprhani, 6 N. H. 11; Hill r. Cutting, 113 Mass. 107; Jackson v, Babcock, 4 Johns. 418.

Dark i;. Johnson, 55 Pa. St. 164.

Watson t'. King, 4 Cainpb. 272; Ganssen v. Morton, 10 B. fc C. 731; Thompson v. McElarney, 82 Pa. St. 174; Miimford r. Whitney, 15 Wend.

Silsby I'. Trotter, 29 N. J. Eq. 228; Muskett v. Hill, 5 Blng. N. C. 694.

Silsby r. Trotter. 29 N. J. Eq. 228.

Bartlett v. Prescott, 41 N. H. 493; Desloge v. Pearce, 38 Mo. 588.

9 Muskett V. Hill, 5 Bing. N. C. 694; Riddle v. Brown. 20 Ala. 412; Bracken v. Rushville, 27 Ind. 346; Beatty v. Gregory. 17 la. 109; Hnff v, McCauley, 53 Pa. St. 206; Gillett v. Treganza, 6 Wis. 343; Wheeler v. West, 71 Cal. 126; East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248; Funk V, Haldeman, 53 Pa. St. 229.

'0 Wood V, Leadbetter, 13 Mees. & W. 838; Huff v. McCauley, 53 Pa. St. 206; Dark v, Johnson, 55 Pa. St. 164.

§861 Miscellaneous Contracts. 1114

It is terminated at the death of the party conferring it/ and a conveyance of the lacCd revokes it'

A license cannot be revoked, however, so as to make an entry under it or acts done under it trespasses;' but if the licensee continues work after revocation, he becomes a trespasser.*

A license is presumed to continue until revoked.*

Where parties have entered upon the enjoyment of the privileges granted by a license, upon its revocation the licensee is entitled to be compensated for his money and labor expended.®

Whether an instrument is a license or a lease will depend not upon what designation the parties give to it, but upon the manifest intent gleaned from a consideration of its entire contents.

A license may be given by parol, and when possession is taken under it, it is such a part performance as takes it out of the statute of frauds.®

In the practical mining world, mere licenses are not looked upon at this day as affording to the operator that degree of security which the investment of capital for development purposes requires. It is safe to assume that where enterprises of any magnitude are contemplated, the parties will, for mutual protection, require formal instruments of broader scope than those granting mere licenses.

g 861. What constitutes a lease.— A lease has been defined to be, —

Carter v. Page, 4 Ired. 424; De Haro r. United States, 5 Wall. 599.

Hays V. Richardson. 1 Gill <fe J. 366; Vollmer's Appeal, 61 Pa. St. 118; €obb V. Fisher, 121 Mass. 169.

3 Fuhr V. Dean, 26 Mo. 116.

Lockwood V, Lunsford, 56 Mo. 68; Lunsford v. La Motte Lead Co., 54 Mo. 426.

Keeler v. Green, 21 N. J. Eq. 27.

Beatty v. Gregory, 17 la. 109; Harkness v. Burton, 39 la. 101; Bush v, Sullivan, 3 G. Greene, 344.

' Gesner v. Cairns, 2 Allen (N. B.), 595; Desloge r. Pearce, 38 Mo. 588; Wheeler v. West, 71 Cal. 126.

Anderson v. Simpson, 21 la. 399.

1115 What Constitutes A Lease. §861

A contract for the possession and profits of lands and " tenements on the one side and a recompense of rent or " other income on the other; or it is a conveyance to a per- " son for life or years or at will in consideration of a return " of rent or other recompense."*

The line of demarcation between a license coupled with an interest and a lease, and between a lease and an absolute grant of the minerals with possessory privileges, is not clearly defined. There is considerable confusion in the adjudicated cases, rendering it difficult to draw any accurate or generally accepted conclusion. Precedents must be applied with care and discrimination. The rule in one state is not always followed in others.

The application of abstract definitions, which as a rule do not include all distinguishing elements, to instruments affecting the right of possession and working of mines, is not always productive of satisfactory results. We may best arrive at classification bv a consideration of the different classes of instruments which have come before the courts, where the question as to the nature of the instruments was directly involved, and thus illustrate the currei>t of judicial opinion in different jurisdictions as to what does and what does not constitute a lease.

As to whether an instrument is or is not a lease depends upon the intent of the parties and not upon the mere form in which it is prepared.

A contract giving the right to work a mine for a certain time, the gross product to be equally divided between the parties, is not a lease. Such a contract does not create the relation of landlord and tenant, but fixes a rule of compensation for services rendered. It is in all its essential features a contract for labor to be performed and to be paid for by a share of the profits.'

As in the case of cropping contracts" in the agricul-

Jackson ex dern. Webber v. Harsen, 7 Cow en, 323, 326.

Watson V. OHern, 6 WatU, 362; Oflferman v, Starr, 2 Pa. St. 394; Moore v. Miller, 8 Pa. St. 272; Muskett v. Hill. 5 Bing. N. C. 694.

Hudepohl v. Liberty Hill Cons. M. W. Co., 80 Cal. 553, 658; Stuart V, Adams, 89 Cal. 367.

g 861 MISCELLANEOUS CONTRACTS. 1116

tural regions, the parties become tenants in common of the products/

A lease of certain lands provided that the lessee should have all the coal underlying the lands for the term of ninety-nine years. The lessees were to mine a named minimum number of tons of coal each year, and pay so much a ton therefor until all the available coal was removed; and the said minimum number of tons was to be paid for annually, whether mined or not; hdd that this was an absolute sale of the coal, conditioned on its being removed."

In Gowan v. Christie' it was said that a mining lease is practically a sale of a portion of the land, notwithstanding the instrument designates the parties as lessor and

A "lease and demise " of " all the coal in and upon and " under certain land," which the said party 6f the second part can take from the same within and during twentyfive years, is a sale of the coal, and not a license to raise it.*

A written agreement by the owner of coal land, giving another the exclusive right to mine coal on such land for a term of years, is not a mere license, but an assignable lease.

An agreement in writing purported, in consideration of stipulated royalties, to lease land for mining purposes only, and, subject to the limitation that the grantee's rights should not be interfered with, reserved the right of

' Hudepohl v. Liberty Hill Cons. M. A W. Co., 80 Cal. 563, and cases cited; Bernal v. Hovious, 17 Cal. 542; Putnam v. Wise, 1 Hill, 234. See note. 37 Am. Dec. 317, 323.

'Hope's Appeal (Pa. Sup.), 3 Atl. Rep. 23 (followed In re Lazarus' Estate, 145 Pa. St. 1; Stewart v. North Eastern C. & I. Co., 147 Pa. St. 612.)

3 5Moak, 114.

*See. also, Harlan r. Lehigh Coal Co., 35 Pa. St. 287.

Delaware, etc., R. R. Co. v. Sanderson, 109 Pa. St. 583; Fairchild v. Fairchild (Pa.), 12 Atl. Rep. 74; Tiliey v. Moyers, 43 Pa. St. 404.

Raynolds v. Hanna, 55 Fed. 783. But see Austin v. Huntsville M. Co., 72 Mo. 535; Johnston Iron Co. v. Cambria Iron Co., 32 Pa. St. 241.

7 Consolidated Coal Co. of St. Louis v. Peers, 150 lU. 344.

1117 WHAT CONSTITUTES A LEASE. g 861

occupation for the purpose of cultivation to the grantor. It provided tliat it should remain in force until ther mineral should be exhausted, but otherwise had no fixed term. Heldf that the agreement was not a lease, since it had no determinate period, but that it passed title to all minerals within the land subject to the claim of the owner for royalties.*

The contract known as a " gas or oil lease," conveying premises for a term of years, and so long as gas or oil is produced in paying quantities, is a lease coupled with a conditional grant, dependent upon the production of gas or oil in paying quantities.

A contract granting for a term of years all the gas or oil under certain land, excepting and reserving to the grantee a certain part of the minerals produced, and providing that all wells drilled on the land should be drilled within three years, was in effect a lease, and as such was governed by the same rules of law as govern leases for land.'

The owners of land granted to another the right to enter thereon to test and search for minerals and oil, and to mine and quarry thereon, the second party to have the right to erect buildings and machinery for work in mines, and to pay twenty-five dollars per year if minerals were not mined, and to pay a royalty on all ores shipped. The instrument was termed therein a "lease," and was to continue for ninety-nine years. Ileldf that it was a lease and not a revocable license.

Hobart v, Murray, 54 Mo. App. 249. But aee Buchanan v. Cole, 57 Mo. App. 11.

Herrinfirton v. Wood, 6 Ohio Circ. Ct. Rep. 326; Evans v. Consumers' %aa Trust Co. (Ind. Sup.), 29 X. E. Rep. 398.

'Ohio Oil Co. V. Kelley, 9 Ohio Circ. Ct. Rep. 511; Id., 3 Ohio Dec. 186.

Young V. Ellis, 91 Va,, 297.

Title Xi.

Actions Concerning Mining Claims Other

Than Suits Upon Adverse Claims—

Auxiliary Remedies.

Chaftib

I. Trespass — Measure Op Damages.

Ii. Auxiliary Remedies.

Chapter I.

TRESPASS — MEASURE Ot' DAMAGES.

$ 865. Introductory.

$ 86tf. Burden of proof in cases of undernrround trespasses.

i 867. When the statute of limita-

tions commences to run against underground trespasses.

$ 868. Measure of damages.

§866. Introductory. — In the mining regions of the west the action of trespass is largely utilized, not only for the purpose of recovering damages for the unlawful extraction of ore, but, as a rule, the title to the property or some portion of it is involved and is frequently litigated, so that the action, generally speaking, is one of trespass to try title. The frequency with which this class of actions is encountered in the reports of the mining states is due to that feature of the federal law which permits the owner of a mine or mining claim holding within his surface boundaries the apex of a vein, to pursue such vein under certain conditions, into and underneath the land adjoining. So the action while in form is trespass quare clausam /legit, the issues naturally arising are those of ownership of the segment of the vein in dispute, and title is necessarily brought into question. It is with this class of actions that we are particularly concerned. The " law of the apex " is responsible for nine tenths of the expensive litigation arising in the conduct of quartz or vein mining, and out of it have grown several interesting and novel questions.

The rules governing the action in the case of underground invasion are the same, generally speaking, as where a surface trespass is committed. There are, however, certain elements in cases of underground trespasses deserving

§866 Trespass — Measure Of Damages. 1122

of special consideration. It is our purpose to briefly consider, (a) upon whom devolves the burden of proof in this class of actions, (6) the application of the statute of limitations to underground trespasses, and (c) the measure of damages.

g 866. Burden of proof in cases of underground trespasses.— Where mines are held under tenures which confine their owners to vertical planes drawn through their surface boundaries, as in the case of coal and placers in the states subject to the federal mining laws, and in all classes of mines in the older states of the union, the burden of proof in actions of trespass rests with the plaintiff to establish his right by a preponderance of evidence, and this burden remains with him throughout the trial. But this rule, when applied to controversies arising out of the exercise of the extralateral right granted by the federal laws, has been challenged, and there is some conflict of authority upon the subject.

To explain the views of the courts and the shades of difiference in their rulings, we will use a simple ijlustration.

A. and B. are coterminous lode mining proprietors, holding title by patents from the government. B., holding the apex of a vein within his boundaries, in pursuing it on its downward course crosses the vertical planes drawn through A's surface boundaries, and extracts ore from underneath A's surface. A. brings either ejectment or trespass against B.

B. justifies his presence underneath A's surface by asserting ownership of the apex of the vein and the right to pursue it throughout its entire depth, although it may enter the land adjoining. In other words, B. claims that the estate in the vein has been severed from tlie estate in the surface, and the estate overlying the dip of the vein is to that extent lessened.* The estate in the vein, assuming that the form of B's surface and the position of his apex is such as to warrant the legal conclusion that tlie vein has been granted throughout its entire deptli, is of the same dignity as that of the surface.'

1123 BURDEN OF PROOF IN UNDERGROUND TRESPASS. g 866

What legal presumptions are indulged in favor of the respective parties? How are these presumptions to be overcome, and upon whom rests the burden of proof?

The law which is the muniment of title of both A. and B. awards to them respectively, " the exclusive right of " possession and enjoyment of all the surface included " within the lines of their locations, and of all veins, lodes, " and ledges throughout their entire depth, the top, or " apex, of which lies inside of such surface lines extended " downward vertically, although such veins, lodes, or ledges " may so far depart from a perpendicular in their course " downward as to extend outside the vertical side lines of " such surface locations."

B's yein, not having its top, or apex, within A's ground, does not pass to A. by operation of the grant ; but A., being the owner of the surface, there is a prima facie presumption that he owns everything underneath such surface within the vertical planes drawn through the surface boundaries.' This was the rule at common law.*

Therefore, when A. introduces proof of title, and if the action be trespass, shows that ore has been extracted from underneath the surface and proves its quantity and value, he iSy prima facie, entitled to judgment.

It then devolves upon B. to establish, —

(1) The existence of an apex within his boundaries;

(2) The identity and continuity of the vein from its top, or apex, within such boundaries to the point in dispute.*

Rev. stats., $2322.

Montana Co. Ld, v. Clark, 42 Fed. 626; Iron S. M. Co. Cheesman, 116 U. S. 533; Jones ih Prospect Mt. T. Co., 21 Nev. 339, See, also, lieynolds V. Iron S. M. Co., 116 U. S. 687; Iron S. M. Co. v. Mike & Starr G. & S. M. Co., 143 U. S. 394. Ante, $ 364.

3 Iron S. M. Co. v. Elgin M. A S. Co., 118 U. S. 196; Bell v. Skillicorn, 6 New. Mex. 399; Cheesman r. Shreve. 37 Fed. 36; Leadville M. Co. v, Fitzgerald, 4 Morr. Min. Rep. 380; Iron S. M. Co. v, Campbell, 17 Colo. 267; Cheesman v. Hart, 42 Fed. 98; Jones Prospect Mt. T. Co., 21 Nev. 339; Cons. Wyoming G. M. Co. r. Champion M. Co., 6,3 Fed. 540; Doe r. Waterloo M. Co., 54 Fed. 935; Duggan v. Davey, 4 Dak. 110; Stevens i'. Gill, 1 Morr. Min. Hep. 576; Driscoll v, Dunwoody, 7 Mont. 394; Bluebird M. Co. V, Murray, 9 Mont. 468,

Ante, J 2. Ante, $ 615.

§ 866 Trespass — Measure Of Damages. 1124

So far we think the courts all agree; but as to the degree of proof required of B., and as to whether the burden shifts during the trial from one to the other, there is some difference of opinion.

Judge Bigelow, speaking for the supreme court of Nevada, announced the following rule: —

" Doubtless the production of a patent to the ground in " which the ledge is found makes out a prima facie case for " the plaintiff; that is, in the absence of any evidence tend- " ing to prove that the ledge apexes outside of the exterior " lines of the plaintiffs' patented ground, it would be pre- " sumed to apex inside those lines; but when evidence is " produced tending to show that the ledge apexes outside " those lines, this simply tends to prove that the plaintiffs, " notwithstanding their patent, do not own that ledge, " and they must now meet this evidence and overcome it, " or they will fail in establishing their title. As the plain- " tififs* ownership is denied, the burden of proving it, is " all along upon them. If the ownership depends upon whether the ledge apexes inside the exterior lines of the " mine, then this fact, the same as any other fact upon " which title depends, must be established by the party " asserting it. The plaintiffs must recover upon the " strength of their own title; if they do not own the ledge " from which the ore was extracted, it matters not who " does own it.* Evidence showing that the ledge apexes " outside the plaintiffs* ground is not offered to establish " a fact by way of confession and avoidance of the plain- " tiffs' case, as to which the burden would be upon the " defendant, but to show that they never had any case, " because they never owned that ledge. The burden of " showing ownership being placed by the pleadings upon the plaintiffs, it never shifts to the defendant, except in " the limited sense already spoken of. This is a universal " rule, applicable to all cases, and one that is supported by " both reason and the great weight of authority."'

This doctrine seems to be supported to some extent, at least, by the decision of the supreme court of the United States in Reynolds v. Iron Silver Mining Co., referred to in the opinion of Judge Bigelow, and also by the decision

' Reynolds v. Iron S. M. Co., 116 U. S. 687. 'Jones V, Prospect Mt. T. Co., 21 Nev. 339. 349.

1125 Burden Of Proof In Underground Trespass. § 866

of Judge Knowles in the case of Montana Co. Limited v. Clark;' but there are a number of well-considered cases wherein the doctrine is denied.

Judge Phillips, in Cheesman v. Hart,* held that one seeking to justify his presence underneath another's surface holds the laboring oar throughout on all vital issues, and that the burden of the real issue never shifts from him. This rule has received the approval of the supreme courts of Colorado,' Dakota, and New Mexico,* and of Judges 'Hallett,' Ross, and Hawley,* of the federal bench.

Judge Hallett's decision in Leadville Mining Co. v. Fitzgerald (mpra) has been quoted approvingly in almost all of the cases.

" Within the lines of each location the owner shall be " regarded as having full right to all that may be found, " until some one can show a clear title to it as a part of " some lode or vein having its top, or apex, in other " territory. In other words, we may say that there is a presumption of ownership in every locator as to the terri- " tory covered by his location, and within his own lines he " shall be regarded as the owner of all valuable deposits " until some one else shall show by preponderance of testi- " mony that such deposits belong to another lode having " its top, or apex, elsewhere."

Judge Hawley sums up his views succinctly: —

" Hands off of any and everything within my surface " lines, extending downward vertically, until you prove " you are working upon and following a vein which has its " apex within your surface claim."®

These rules apply to all classes of lands which may be invaded, whether agricultural or mineral.

We do not understand, however, that in the case

42 Fed. 626.

Id, 98.

' Iron S. M. Co. v. Campbell, 17 Colo. 267.

DuKgan v. Davey, 4 Dak. 110.

Bell v. Skillicorn, 6 New Mex. 399.

Leadville M. Co. v. Fitzgerald, 4 Morr. Min. Rep. 380.

' Doe t'. Waterloo M. Co., 64 Fed. 936.

" Cons. Wyoming G. M. Co. v. Champion M. Co., 63 Fed. 540.

§867 Trespass — Measure Of Damages. 1126

instanced there are no presumptions to be indulged in B's favor. If he establishes the existence of an apex, he is not compelled to show that it passes through his entire claim, crossing both end lines, or that it actually crosses either of them, so long as it does not appear that it crosses the surface boundaries in such a manner as to deprive him of all extralateral right/ Nor is he compelled to show by drifts and actual openings connection between the apex at the surface and the locus of the alleged trespass. Conclusive proof is not required. This is left to the domain of mathematics. He is certainly entitled to the benefit of all presumptions of fact which logically flow, in common mining experience, from other facts which may be proved. Nor are questions of doubtful construction of the mining laws to be resolved against him.

The rule requiring him to prove apex and identity by a preponderance of evidence is not a harsh one when rationally applied. In most cases the means of establishing them are peculiarly within his reach, and in this regard he has a large advantage over his opponent. In the progress of his work from the " grass roots to his lower workings he is afforded daily opportunities for information and knowledge, which are denied his adversary, and we cannot see that that rule reasonably invoked works any peculiar hardship.

He is also, to some degree, compensated in the conduct of a trial by being permitted to open and close the argument.' That the weight of authority is in ftivor of Judge Halletts decision in the Leadville-Fitzgerald case cannot, we think, be denied.

§ 867. When the statute of limitations commences to run against underground trespasses. — The time within which an action for trespass to real property must be commenced, is fixed bv statute in the diff'erent states. When that time commences to run in the case of underground

Ante, $ 615. ' Cheesman v. Hart, 42 Fed. 98.

SUver M. Co. v. Fall, 6 Nev. 454.

1127 THE STATUTE OF LIMITATIONS. g 867

trespasses, has been the subject of discussion. In cases of surface damage, where ample opportunity of observation is afforded, the statute, of course, runs from the date the act is committed. In cases of underground or concealed trespasses, it has been urged that it should only be set in motion from the date the injured party discovers that his rights have been invaded, or from the date when the fact of trespass could have been discovered by the exercise of reasonable diligence.

An adjoining mine owner has no access to the underground wgrks of his neighbor. It is by no means a difficult matter for such neighbor to drift across his line, following the trend of an ore body, extract the ore from an adjoining mine, and conceal the fact of the trespass for an indefinite period.

It has been contended that such a trespass is a species of frail, and that the rule applicable to cases of fraud and fraudulent concealment should apply to these secret invasions of another's rights, and that the statute should not commence to run until the discoverv.

In Montana there is a statute providing that the time does not commence to run until the discoverv of the facts constituting the trespass; but in the absence of such statutory declaration, the rule is to be determined from the application of general principles.

In England the rule at one time prevailed, that in actions at law the statute of limitations began to run from the date of the trespass, but in equity the plaintifif might plead concealment, lack of knowledge, or opportunity for ascertaining the facts as a bar to the running of the statute.

Mr. MacSwinney deduces the following from the English cases : —

" If the injured party can show that he could not have " discovered the wrongful act earlier than a particular " period, the statute of limitations will only begin to run

General Laws of Montana, 1893, p. 50. Hunter v. Gibbons, 1 Hurl. A U. 469.

§867 Trespass — Measure Of Damages. 1128

" from such period, unless it appears that he neglected to " use reasonable diligence, for an abstraction of minerals " diflFers from a mere ordinary trespass of goods. The " injured party may frequently be ignorant, and nothing " may happen to excite his suspicion that his minerals are " being abstracted."

Th5 supreme court of Ohio, in the case of Williams v. Pomeroy Coal Co.,' said, that there is no distinction in the application of the statute of limitations between trespasses underground and upon the surface, nor whether the cause of action is known or unknown to the plaintiflF within the line limited by the statute. It cites the case of Howk v, Minnick,' an action for larceny of money, and the English case of Hunter v. Gibbons (supra).

The case of Lewey r. H. C. Frick Co., decided by the supreme courts of Pennsylvania, is the most recent case upon the subject. It reviews many of the English and American cases on analogous questions, and the results reached may be gleaned from the following extracts from the decision : —

"The law does not require impossibilities. It recognizes " natural conditions and the immutability of natural laws. " The owner of the surface cannot see, and because he can- " not see, the law does not require him to take notice of " what goes on in the subterranean estates below him, with " which he has no communication through openings within " his enclosure or under his control. ... In the case " before us, no severance of the coal from the surface has " taken place. The title of the plaintiff extends from the " surface to the center, but actual possession is confined to " the surface.

" Upon the surface he must be held to know all that " the most careful observation by himself and his employees " could reveal, unless his ignorance is induced by the " fraudulent conduct of the wrongdoer. But in the coal

MacSwinney on Mines, p. 543 (citing Eccles. Comm'rs v, N. E. Ry. Co., L. R. 4 Ch. D. 845, 858; Gibbs v. Guild, 9 Q. B. D.67; Denys r. Shuckburgh. 4 Y. <fc C. Eq. Ex. 53; Dean r. Thwaite, 21 Beav. 621.

37 Ohio St. 583.

'19 Ohio St. 462; National C. Co. Minnesota M. Co., 57 Mich. 83.

166 Pa. St. 536.

veins, deep down in the eiirlli, he cannot see. Neither in " person nor by his servants nor employees can he explore " thir recesses in search for an intruder. If an adjoiner " goes beyond his own boundaries in the course of his min- " ing operations, the owner on whom he enters has no " means of knowledge within his reach. Nothing short of " an accurate survey of the interior of his neighbor's mines " would enable him to ascertain the fact. This would " require the services of a competent mining engineer and " his assistants inside the mines of another, which he would " have no right to insist upon. To require an owner under " such circumstances to take notice of a trespass upon his " underlying coal at the time it takes place, is to require " an impossibility; and to hold that the statute begins to " run at the date of the trespass, is in most cases to take " away the remedy of the injured party before he can know " that an injury has been done nim. A result so absurd " and BO unjust ought not to be possible. . . . We are " disposed to hold, therefore, that the statute runs against " an injury committed in or to a lower stratum from the " time of actual discovery, or the time when discovery was " reasonably possible."

If this be not the correct enunciation of the law, the conclusions reached and the reasoning employed oertainly commend themselves to the legislatures of every state and territory in the union where mining is carried on, and the rule should receive express statutory sanction.

§868. Measure of damasea. — The measure of damages in an action for unlawfully extracting ore from the premises of another, depends upon whether the invasion of the premises was through inadvertence or honest mistake, or waswillful.

If the trespass is the result of an honest mistake, the defendant is compelled to pay only the value of the ore as it was in the mine, and can, therefore, limit the recovery, first, by the value of what is taken; second, by the cost of mining, extraction, hoisting to the surface, or delivering it at the pit's mouth.

If, on the other hand, the defendant takes out the ore, not as the result of an honest "'''HftiMirJIl

§868 Trespass — Measure Op Damages. 1130

intention, but under circurastances which show that he has knowledge of the situation, he is entitled to no deduction, and he may not reduce the recovery by proving the cost of mining/

" Having been guilty of a willful trespass, they shall " reap no benefit from their own wrong, and shall pay the " value of the ore, without credit for the labor incident to " its extraction."

These rules have been fully sanctioned and approved by the courts of the United States, both federal and state.' They are also the English rules.

In some of the states it has been held that in cases of willful trespass, exemplary or punitive, damages may be recovered.'"

In others the rule is relaxed, even in cases of willful trespass, so that the measure of damages is practically the same in cases of innocent and willful extraction and removal.®

In California it has been said that the proper rule for damages in cases of this character is, —

"The value of the gold-bearing earth at the time it " was separated from the surrounding soil and became a

St. Clair r. Cash Gold M. tt M. Co. (Colo. App.), 47 Pac. 406.

3 Wooden ware Co. United States, 10(5 U. S. 432; lienson M. A S. Co. v. Alta M. tt S. Co., 145 U. S. 428; Alta M. tt S. Co. r. Benson M. A; S. Co. (Ariz.), 16 Pac. 565; Cheesnian r. Shreve, 40 Fed. 787; Cneeny v. Nebraska <fc C.Stone Co., 41 Fed. 740; Colo. Cent. Cons. M. Co. r. Tiirck, 70 Fed. 294; Aurora Hill Cons. M. Co. v. 85 M. Co., 12 Saw. :J55; Omaha Taber, 13 Colo. 41; Waters v. Stevenson, 13 Nev. 157; Patchen v. Keeley, 19 Nev. 404; Doughherty v. Chestnutt, 5 S. W. Rep. 444; Fitzgerald r. Clark, 17 Mont. 100; Forsyth r. Wells, 41 Pa. St. 291; Kge r. Kille, 84 Pa. St. 333; State I'. Pacific Guano Co., 22 S. C. 50; Sunnyside Coal tt Coke Co. i*. Reitz (Ind. App.), 39 N. E. Rep. 541; Austin i'. lluntsville Coal A M. Co., 72 Mo. 535; Winchester r. Craig, 33 Mioh. 205; Heard James, 49 Miss. 236; Baker r. Wheeler, 8 Wend. 505; Coal Creek M. <fc M. Co. v. Moses, 15 Lea, 300.

Eccles. Comm'rs v. N. E. Ry. Co., L. R. 4 Ch. D. 845; Livingston r. Rawyards Coal Co., L. R. 5 App. Cases, 2.3 (cited and quoted in Wooden - ware Co. i'. United States, supra): Wood v. Morevvood, 3 Q. B. 440.

Franklin Coad Co. McMillan. 49 Md. 549; 111. & St. L. Ry. Coal Co. V. Ogle, 92 III. 353; Barton Coal Co. v. Cox, 39 Md. 1.

Single I?. Schneider, 24 Wis. 299; Weymouth v. R. R. Co., 17 Wis. 550.

.1131 Measure Of Damages. §808

" chattel. ... In estimating these damages, the expense " of extracting the gold and separating it from the earth " after it is first moved from its original location is to be " deducted from the value of the gold taken out of the min- " ing ground of plaintiffs."

The supreme court of the United States, in the case of Woodenware Co. v. United States, after reviewing the American cases, concluded that the weight of authority sustains the doctrine there announced, that in innocent or unintentional trespasses the trespasser may deduct the cost of mining and raising to the surface; but if the invasion is willful, no such deduction can be made.

Where ore has been mined and raised to the surface, and a demand is made for it and refused, the owner may recover the value in the condition it was at the time the demand was made.'*

In all cases where there is an unlawful invasion of another's right, the law presumes at least nominal damages, and a defendant, however innocent of intentional wrongdoing, would not be permitted to avoid a judgment on the ground that the cost of mining exceeded the value of the ore.

It is the duty of the owner of a mine on approaching his boundaries to make surveys to prevent encroachments on the adjoining lands, and the least evidence of bad faith on his part would make every intendment in favor of the injured party

When a party has tl)e means of ascertaining a boundary line, he is guilty of negligence in not ascertaining its location.®

' Maye v. Yappen, 2.'} f'al. mi; (ioUar r. Ffttt, :V) Cal. '\x'2; Krnpin; (i. M. CJo. V. Bonanza G. M. Co., 67 Cal.

106U. S. 43*2.

Mayer. Yappen, 2.'i T'al. .'XW; Kobftrtson r. .fonoH, 71 III. 4o:.

Attwood Fricot, ITCal. .IS; Kriipiro O. .M. Co. Honanwi H. M. Co., 67 Cal. 40ft. For valuahlo notfrn rftirij ohhoh on nu'iiiiin* of dainaifi'H In actions of trespasn, conMiilt m Am. Hop. 770; '2*; hi. .Vi.'>; Id. IX, 'ih'j; 24 Am. Dec. 66.

'Coal Creek M. A M. Co. v, MmcH, Loa, TX).

*Maye v. YappcD, 23

§868 Trespass — Measure Of Damages. 1132

The good faith of a trespasser is a question for the jury/ In an action for damages for taking ore from a mining claim, the plaintiflf labors under great difficulty in proving the exact amount of damages he has sustained, and the defendant has the means in his power of showing the correct amount of ore taken out; and if he neglects to do so, he cannot complain that the jury by their verdict have fixed a large estimate upon the damages.'**

So in willful trespass, or where the defendant has mingled the ore, or taken any steps to prevent ultimate proof of its value, these acts are to be taken against the defendant, even so far as to throw the burden of proving the value upon the defendant.

" When the- nature of a wrongful act is such that it not " only inflicts an injury, but takes away the means of prov- " ing the nature and extent of a loss, the law will aid a " recovery against the wrongdoer, and supply the defi- " ciency of proof caused by his misconduct by making " every reasonable intendment against him and in favor of " the party injured. ... A man who willfully places " the property of others in a situation where it cannot be " recovered, or its true amount or value ascertained, by " mixing it with his own, or in any other manner, will " consequently be compelled to bear all the inconvenience " of the uncertainty or confusion which he has produced, " even to the extent of surrendering the whole if the parts " cannot be discriminated, or responding in damages for the highest value at which the property can reasonably " be estimated."

' St. Clair v. Cash G. M. M. Co. (Colo. App.), 47 Pac. 466. Antoine Co. Ridge Co., 23 Cal. 219.

3 Little Pittsburgh Co. i'. Little Chief Co., 11 Colo. 223; Cheesman v. Shreve, 40 Fed. 787.

Armory v. Delamirie, 1 Strange, 604.

Chapter 11.

AUXILIARY REMEDIES. $ 872. Injunction. $ 873. Inspection and survey.

§ 872. Injunction. — It was formerly the practice in equity, in cases of alleged trespasses on land, not to restrain the use and enjoyment of the premises by the defendant when the title was in dispute, but to leave the complaining party to his remedy at law. A controversy as to title was deemed sufficient to exclude the jurisdiction of the court. This doctrine has been greatly modified in modern times, and it is now a common practice in cases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, though the title to the premises be in litigation. The authority of the court is exercised in such cases, through its preventive writ, to preserve the property from destruction, pending legal proceedings for the determination of the legal title/

It comports more with substantial justice to both parties to restrain the trespass, than to leave the plaintiff to pursue his remedy at law."

In all cases of this character, an injunction should be granted, pending the determination of the issue as to ownership, unless it appear that the plaintiff's title is bad, or, at least, that there is no reasonable ground for the assertion of title by the plaintiff. The mere existence of a

'Justice Field in Erhardt v. Boaro, 113 U. S. 537.

Merced M. Co. v. Fremont, 7 Cal. 30(5,317 (quoting Chancellor Johnson in Kinsler v. Clark, 2 Hill Ch. 618).

§872 Auxiliary Remedies. 1134

doubt as to the title does not of itself constitute a sufficient ground for refusing an injunction.*

Always, in questions of injunction against the working of mines, the doubt should be resolved in favor of granting the writ.'

A denial of the preventive remedy by injunction, where the injuries complained of are of a character calculated to destroy the value of the land for all useful purposes, would be tantamount to a denial of all protection.

The doctrine is well settled, particularly in the mining states and territories of the west.

In this class of cases the solvency or insolvency of the defendant is of no moment, therefore an allegation of insolvency is immaterial. The injury in itself is irreparable.*

It is irreparable by definition, and going, as it does, to the substance of the estate, it is a matter of indifference whether the plaintiff is in or out of possession.

In some of the states the laws governing procedure permit the union of legal and equitable remedies in the same action, " the blending of an action at law with a " petition for ancillary relief to tlie equity side of the " court.'''

So in an action of ejectment or trespass, plaintiff may pray for an injunction, pc/irfe/ifc /i7e?, to restrain the future extraction of ore or the continuance of the trespass.®

Hunt V. Steeae, 75 Cal. 620, 624; Hess r. Winder, 34 Cal. 270.

'Judge Beatty, in Gilpin v. Sierra Nevada Cons. M. Co., 2 Idaho, 662.

'Henshaw r. Clark, 14 Cal. 461, 465.

Chapman r. Toy Long, 4 Saw. 35; Bishop v. Baisley. 28 Ore. 119; Le Roy r. Wright, 4 Saw. 530, 535; Cheesman v. Shreve, 37 Fed. 36; Derry V, Ross, 5 Colo. 29.5; Allen v. Dunlap, 24 Ore. 221), 232.

More I'. Massini, 32 Cal. 590; Merced M. Co. r. Fremont, 7 Cal. 306, 322; Hicks v. Michael, 15 Cal. 107, 116; Leach v. Day, 27 Cal. 643, 646; People V. Morrill, 26 Cal. 36<); Richards r. Dower, 64 ( -al. 62; Natoma W. <fc M. Co. V. Hancock, 101 Cal. 42, 68; 1 Beach on Injunctions, $ 35.

More V, Massini, 32 Cal. 590, 5iK>.

Natoma W. A M. Co. r. Clark, 14 Cal. 554.

More I'. Massini, 32 Cal. 500; PEster Dascey, 65 Cal. 403, 405; Hughes V. Dunlap, 91 Cal. 385, 390.

1135 INSPECTION AND SURVEY. g 873

In the federal courts and some of the states, the application for the preventive relief by injunction is an ancillary proceeding, and requires the institution of a separate, equitable action in aid of the action at law. In a state wherein the union of legal and equitable remedies is permitted, upon removal of the cause to the federal courts the pleadings must be recast and amended bills filed, one on the law and one on the equity side of the court.

The question of pleadings and practice will therefore depend upon the rules controlling the forum whose jurisdiction is invoked. These are subjects foreign to this treatise.

g 873. Inspection and survey. — We have no concern with the various state and territorial statutes which provide for the periodical inspection of mines by officials appointed for that purpose. These are in the nature of police regulations, and have for their principal object the protection of miners who are engaged in underground

In all mining litigation, particularly in actions wherein underground trespasses are alleged, and the ownership, situation, and value of ore bodies in dispute are necessarily involved, the subject of inspection and survey for the purpose of disclosing the facts is of the greatest importance, not only to the litigants, but to enable the court to apply the law.

Some of the states have special statutes upon the subject, more or less comprehensive, all, however, based upon the same underlying principles. Ordinarily, under these statutes, the pendency of an action is necessary to enable a party to enter upon and underneath the Idnds in possession of others, and the proceedings necessary to obtain an

Hurt V. Hollinjfsworth, H)0 U. S. 100; Perkins v, Hendrix, 23 Fed. 418; Northern Pacific R. R. v. Paine. 119 U. S. 561.

A reference to these statutes in the older states wiH be found in the notes to i 19, ante. In the appendix, where the legislation of each of the precious- metal -bearing: states of the west is given, there will also be found a reference to cognate legislation.

§873 Auxiliary Remedies. 1136

order of the court to inspect, sample, and survey are defined with more or less particularity.

In Montana the law authorizes an inspection and survey without suit, " whenever any person shall have any " right to, or interest in, any lead, lode, or mining claim " which is in the possession of another person, and it " shall be necessary for the ascertainment, enforcement, or protection of such right," giving the district court or judge thereof power, upon investigating the facts, to issue the necessary order. The constitutionality of this class of legislation has been upheld.

Similar legislation is found in other states;* but independent of any state legislation, as an aid to discovery in pending actions, the power to order an inspection of real property has long existed in the courts of equity.

As was said by Judge Baldwin, sitting as circuit judge in the ninth circuit:* —

" Ought a court of equity in a mining case, when it has " been convinced of the importance thereof for the pur- " poses of the trial, to compel an inspection and survey " of the works of the parties, and admittance thereto by " means of the appliances in use at the mine? All the " analogies of equity jurisprudence favor the affirmation " of this proposition. The very great powers with which " a court of chancery is clothed were given it to enable it " to carry out the administration of nicer and more perfect " justice than is attainable in a court of law. . . . *It " would be a denial of justice, and utterly subversive of the objects for which courts were created, for them to " refuse to exert their power for the elucidation of the " very truth — the issue between the parties. Can a court

California, C. C. P., $$ 742, 743; Colorado, Mills' Annot. Stats., $$ 31M, 3176; Nevada. Comp. Laws, $ 1321; New Mexico, Laws of 1887, p. 206; North Dakota, Rev. Code 1895, $ 1442; South Dakota, Rev. Stats. Dak., p. 95. See Comp. Iws Dak. 1887, $ 2014,

"Code of Civil Proc, $ 376.

St. Louis M. M. Co. v, Montana Co. Ld., 9 Mont. 228; affirmed on writ of error, 152 U. S. 160.

Idaho, Rev. Stats. 1887, $ 4542.

Thornburfh r. Savage M. Co., Fed. Cases, No, 13,986, 7 Morr. Min, Rep. 667.

u

ti

1137 Inspection And Survey. § 873

" justly decide a cause without knowing the facts? And can it refuse to learn the facts?"

The equitable jurisdiction to order such inspection and survey is well recognized in England."

As to the terms under which orders for such inspection are given under the existing English rules, Mr. MacSwinney says that the applicant will usually be required to submit to the following : —

" He will usually be required to give a reasonable notice " in writing, stating the time at which he proposes that the " inspection shall take place, and then names a description " of the persons whom he proposes as his agents for that " purpose. He will not be allowed to appoint agents to whom his neighbor may reasonably object. He will not be allowed to inspect, except for the purpose of ascertaining the fact of the encroachment. His neighbors will usually be allowed to attend the inspection. The obstruc- " tions which he may remove will usually be confined to " such matters as rubbish, framed dams, and barriers, and " recently erected walls, and then only when the removal can take place without danger to life and health; and (irrespective of life or health) he will not be allowed to do unnecessary damage to his neighbor's property or " operations. He will usually have to make good all dam- " age which his neighbor may sustain; and he may be " obliged to give security that he will do so, and he will usually have to bear all the costs of the inspection."'

In America the right of the courts to grant the privilege of inspection and survey in proper cases is well settled.*

The privilege of sampling within reasonable limits is

Qaoted in Montana Co. v. St. Louis M. A M. Co., l.Vi U. S. 160.

' Bainbridge on Mines, 4th eii., pp. 'M\ 317; MacSwinney on Mines, p. 640; Lonsdale v. Curwen, 3 Bligh, HiS; Walker t'. Fletcher, 3 Bligh, 172; Blakesley v. Wheeldon, 1 Hare, 176; Lewis v. Marsh, 8 Hare, 07; Bennett V. Whitehouse, 28 Beav. 119; Bennett v, Griffiths, 30 L. J. Q. B. 98; Whaley V, Braucker, 10 L. T. N. S. lo/i.

' MacSwinney on Mines, pp. 541, 542. See, also, Stewart on Mines, p.

*St, Louis M. <fe M. Co. v. Montana Co. Ld., 152 U. S. 100; Id., 9 Mont. 228; Dujfjjanr. Davey, 4 Dak. 110, 12H; Stockbridge Iron Co. ?\Cone Iron Works, 102 Mass. 80; Thomas ?'. Allentown M. Co., 28 X. J. Eq. 77; Blnebird M. Co. v, Murray, 9 Mont. 408.

§873 Auxiliary Remedies. 1138

also allowed, where the value of ote is a fact to be determined. Whether or not the cost of the inspection and survey will be allowed, the party in the event of his success in the litigation, depends upon the law of the particular state or territory. Costs are matters of statutory regulation, and no general rule may be laid down.

The extent to which the courts may grant the privilege of inspection and survey, the territorial limits within which it shall be confined, and other matters of detail, will depend upon the nature of the issues. The discretion of the court in this behalf must, of course, be reasonably exercised. The right has become so well recognized by the profession, that reciprocal privileges are usually granted by stipulation.

Appendix - Miscellaneous.

Title Xii.

Federal Statutes Relating To Mines, To- Gether With Land Department

Regulations.

[The section references in the foot notes are to the text of the treatise

unless otherwise specified.]

I. Lode and Water Law of July 26, 1866. II. Placer Law of July 9, 1870.

III. Gexer.vl Minixo Act of May 10, 1872.

IV. Title XXXII, Chap. H, of United States Revised Statutes Em-

bodying Existing Laws Relating to Mineral Lands.

V. Land Dkpartmknt Ivegulations upon Subject of Mineral Lands other than Coal.

VJ. Coal Land Law with Regulations Therecnder.

VIL Instructions Relatincj to Selkction of Lands by Railroads AND States.

VIII. Petkolkum Law of Fkh. 11, 181)7, and Circular Instructions Relate N(t Thkrkto.

IX. Alien A(T OF March 2, 1897.

X. Kkcknt Lkc.lslation and Rk(;ulati()Ns on the .Suiue(t of Mining Clalms Within Forest Reservation?.

i. LoDK AND Water Law July 2G, ISGG.

For a l.istory of the passage of this Act, Its essential features, Its construction by iho Land Department and the courts: see §§ 53-GO.

For an analysis of the changes made by the Act of May 10, 1872: see r,s-7::i.

Its i)lace in tlie present system as a muniment of existing titles: § 5r,4.

The extralatoral right under the act: §§ rG7, 572, 57G.

First six sent ions repealed by act of May 10. 1872, § 9, but repeal not to affect existing rights: §§ 9, H\. See also. Rev. Stats., § 2344.

1142 Appendix.

An Act (Granting the Right of Way to Ditch and Canal Owners Over the Public Lands and for Other Purposes.

14 Stats, at Large, chap. 262, page 251.

Who May Locate; What Laws Govern.

Be it enacted: § 1. That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.

Kepealed by Act of IIay 10, 1872, § 9.

Entry and Patent; Extralateral Kiht.

§ 2. And be it further enacted, that whenever any person, or association of persons claim a vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper, having previously occupied and improved the same according to the local customs or rules of miners in the district where the same is situated, and having expended in actual labor and improvements thereon an amount of not less than one thousand dollars, and in regard to whose possession there is no controversy or opposing claim, it shall and may be lawful for said claimant, or association of claimants, to file in the local land office a diagram of the same, so extended laterallv or otherwise as to conform to the local laws, customs, and rules of miners, and to enter such tract and receive a patent therefor, granting such mino, together with the right to follow such vein or lode, with its dips, angles, and variations, to any depth, although it may enter tlic land adjoining, which land adjoining shall bo sold subject to this condition.

Repealed by Act of May 10, 1872, § 9.

Patent Proceeding's.

§ 3. And be it further enacted, that upon the filing of the diagram as provided in the second section of this act, and post-

Federal Act Of 1866. 1143

ing the same in a conspicuous place on the claim, together with a notice of intention to apply for a patent, the register of the land office shall publish a notice of the same in a newspaper published nearest to the Jocation of said claim, and shall also post such notice in his olfice for the period of ninety days; and after the expiration of said period, if no adverse claim shall have been filed, it shall be the duty of the surveyor-general, upon application of the party, to survey the premises and make a plat thereof, indorsed with his approval, designating the number and description of the location, the value of the labor and improvements, and the character of the vein exposed; and upon the payment to the proper oiTicer of five dollars per acre, together with the cost of such survey, plat, and notice, and giving satisfactory evidence that said diagram and notice have been posted on the claim during said period of ninety days, the register of the land office shall transmit to the general land office said plat, survey, and description; and a patent shall issue for the same thereupon. But said plat, survey, or description shall in no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued.

Repealed by Act of May 10, 1872, § 9.

Surveys; Lenprth of Claim; Xiiin1>or of ClaiinH to Each Locator; Extralateral Kilit; Surface to Accompany Liode.

§ 4. And be it further enacted, that when such location and entry of a mine shall be upon unsurvcyed lands, it shall and may be lawful, after the extension thereto of the public surveys to adjust the surveys to the limits of the premises according to the location and possession and plat aforesaid; and the surveyorgeneral may, in extending the surveys, var)' the same from a rectangular form to suit the circumstances of the country and the local rules, laws, and customs of miners; provided, that no location hereafter made shall exceed two hundred feet in length along the vein for each locator, with an additional claim for discover}- to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations and angles,

1144 Appendix.

together with a reasonable quantity of surface for the convenient working of the same, as fixed by local rules; and provided further, that no person may make more than one location on the same lode, and not more than three thousand feet shall be taken in any one claim by any association of persons.

Kepealed by Act of May 10, 1872, § 9.

States May Supply Liegislation Regrulatiugr the Working- of Mines.

§ 5. And be it further enacted, that as a further condition of sale, in the absence of necessary legislation by Congress, the local legislature of any state or territory may provide rules for working mines involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent.

Repealed by Act of May 10, 1872, § 9.

Adverse Claim; Stay of Proeeedingrs.

§ 6. And be it further enacted, that whenever any adverse claimants to any mine, located and claimed as aforesaid, shall appear before the approval of the survey, as provided in the third section of this act, all proceedings shall be stayed until final settlement and adjudication, in the courts of competent jurisdiction, of the rights of possession to such claim, whon a patent may issue as in other cses.

Repealed by Act of May 10. 1872, § 0.

President Empowered to Kstablisli Tand Districts.

§ 7. And be it further enacted, that the President of the United States be, and is hereby, authorized to establish additional land districts, and to appoint the necessary oflicers under existing laws, wherever he may deem the same necessary for the public convenience in executing the provisions of this act.

Preserred in Rev. Stats.: § 2343, q. v.

Federal Act Of 1866. 1145

Bigrhts of Way Over Public Lands.

§ 8. And be it further enacted, that the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.

Preserved In Rev. Stats.: § 2477, q. v.

3f Prior Appropriators of Water Rigrlits Protected; Bigrhts of Way for Ditches, etc.

§ 9. And be it further enacted, that whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing and other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed; provided, however, that whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

Preserved in Rev. Stats.: § 2339, q. v.

Homesteads Upon Mineral Lands.

§ 10. And be it further enacted, that wherever, prior to the passage of this act, upon the lands heretofore designated as mineral lands, which have been excluded from survey and sale, tliere have been homesteads made by citizens of the United States, or persons who have declared their intention to become citizens, which homesteads have been made, improved, and used for agricultural purposes, and upon which there have been no valuable mines of gold, silver, cinnabar, or eop])er discovered, and which are properly agricultural lands, the said settlers or owners of such homesteads shall have a right of pre-emption thereto, and shall be entitled to purchase the same at the price of one dollar and twenty-five cents per acre, and in quantity not to exceed one hundred and sixty acres; or said parties may avail themselves of

1146 Appendix.

the provisions of the act of Congress approved May twenty, eighteen hundred and sixty-two, entitled "An act to secure homesteads to actual settlers on the public domain," and acts amendatory thereof.

Substantially preserved in Rev. Stats.: §2341, q. v.

Secretary of Interior May Set Apart Agrricultiiral Lands. I

§ 11. And be it further enacted, that upon the survey of the lands aforesaid, the secretary of the interior may designate and set apart such portions of the said lands as are clearly agricultural lands, which lands shall thereafter be subject to pre-emption and sale as other public lands of the United States, and subject to all the laws and regulations applicable to the same.

rroserved in Rev. Stats.: § 2342.

II. Placer Law of Jily 9, 1870.

For discussion of this act: see text, § G2.

Local rules and customs after the passage of this act: § 63.

Changes made by the Act of 1872: §§ 72. 447.

An Act to Amend ''An Act Granting the Right of Way to Ditch and Canal Owners Over the Public Lands, and for Other Purposes."

16 Stats, at Large, chap. 235, p. *21T.

Act of 1800 Amcndeil.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the act granting the right of way to ditch and canal owners, over the public lands, and for other purposes, approved July twenty-six, eighteen hundred and sixty-six, be, and the same is hereby amended, by adding thereto the following additional sections, numbered twelve, thirteen, fourteen, fifteen, sixteen, and seventeen, respectively, which shall hereafter constitute and form a part of the aforesaid act.

Federal Placer Act Of 1870. 1147

Placers Subject to Entry; Size of Claim; Group ClainiH.

§ 12. And be it further enacted, that claims usually called ''placers/' including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and f)atent under this act, under like circumstances and conditions, and upon similar proceedings as are provided for vein or lode claims;' provided, that where the lands have been previously surveyed by the United States, the entry, in its exterior limits, shall conform to the legal subdivisions of the public lands, no further Kurvey or plat in such case being required, and the lands may be paid for at the rate of two dollars and fifty cents per acre; provided, further, that legal subdivisions of forty acres may be subdividel into ten acre tracts; and that two or more persons, or association of persons, having contiguous.<< claims of any size, although such claims may be than ten acres each, may make joint entry thereof;* and, provided further, that no location of a placer claim, hereafter made, shall exceel one hundred and frixty acres for any one perm or aHoociation of persons, which luxation =ha]l conform to the United States bureys; and nothing in th:. tion contained feliaJl defeat or impair any bona fide pre--mpTion or homestead claim uj>fin agricultural lands, or authorize thfr ha> of the improvement* of any li'na fide settler to any rurihafrr.

S€e $ ZitS K'T. s>:;i.

Lof-aii'/Ti aja'i :-'jjr<-rj/-ri*> : Js 4.':::. V-m,

Harkir.;: '.i. ;rr'jf.*j JJ %TA \:z,

1148 Appendix.

where the same may be situated evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this act in the absence of any adverse claim; provided, however, that nothing in this act shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of a patent.

See § 2332 Rev. Stats.

Proceedings to obtain patent to lode claims generally applicable to placers: § 699.

Descriptiou of placer claims upon surveyed lands: §700.

Proof of expenditure: § 701.

Proof of mineral character of land and that no lodes within the limdts of the claim exist: 55 702, 703.

Survey of placer claim: G72.

Surveyor-general's cortiticate as to expenditures: § 673.

Verification of Affidavits.

§ 14. And be it further enacted, that all ex-parte affidavits required to be made under this act, or the act of which it is amendatory, may be verifii before any officer authorized to administer oaths within the land district where the claims may be situated.

Preserved in Rev. Stats. § 2335.

Fees.

§ 15. And be it further enacted, that registers and receivers shall receive the same fees for services under this act as are provided by law for like services under other acts of Congress; and that effect shall be given to the foregoing act according to such regulations as may be prescribed by the commissioner of the general land office.

See Rev. Stats. § 2235.

Public Surveys Kx tended.

§ 16. And he it further enacted, that so much of the act of !March third, eighteen liundred and fifty-tliree, entitled "An act to provide for the survey of the public lands of California, the granting of pre-emption rights, and for other purposes,'' as pro-

Federal Mining Act Op 1872. 1149

vides that none other than township lines shall be surveyed where the lands are mineral, is hereby repealed. And the public surveys are hereby extended over all such lands; provided, that all subdividing of the surveyed lands into lots of less than one hundred and sixty acres may be done by county and local surveyors at the expense of the claimants; and provided further, that nothing herein contained shall require the survey of waste or useless land.

Easements for Water Rigrhts.

§ 17. And be it further enacted, that none of the rights conferred by sections live, eight, and nine of the act of which this is amendatory shall be abrogated by this act; and the same are hereby extended to all public lands affected by this act; and all patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory. But nothing in this act shall be construed to repeal, impair, or in any way affect the provisions of the "Act granting to A. Sutro the right of way and other privileges to aid in the construction of a draining and exploring tunnel to the Comstock lode, in the state of Nevada, approved July twenty-fifth, eighteen hundred and sixty-six.

See Rev. Stats. §§ 2340, 2344.

III. General Mining Act of May 10, 1872.

For a history of the passage of this act: see §§ G8, 09.

For a discussion of the changes made In the then existing law by this act: see text §§ 70-72.

For a statement of the new provisions embodied in this act, not contained in previous acts: see § 73.

Extra lateral rights under this act: §§ 581-594.

An Act to Promote the Development of the Mining Resources of the United States.

17 Stats, at Large, chap. 152, p. 91.

1150 Appendix.

Valuable Mineral Deposits Open to Location; Who May Locate.

Be it enacted by the Senate and House of Eepresentatives of the United States of America, in Congress assembled, § 1. That all valuable mineral deposits in land belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States, and those who have declared their intention to become such,- under regulations prescribed by law, and according to the local customs or loiles of miners,* in the several mining districts so far as the same are applicable and not inconsistent with the laws of the United States.

Preserved in Rev. Stats. § 2319.

' The metallic or nonmetalllc character of deposits oocurrinir In veins as affecting the right appropriation: § 323.

Character of deposits subject to appropriation under placer laws: §§ 419-428.

Only citizens may locate, or those who have declared their intention to become such: § 223.

Who are citizens: §§ 224-226.

Citizenship, how proved: § 227.

Acquisition of title to unpatented claims by aliens: §§ 231-234.

Effect of naturalizing alien after he has located his claim: § 232.

Rights of aliens in the states: §§ 237-238.

General property rights of aliens in the territories: §§ 242-244.

Limits within which state may legislate: 5§ 249-250.

Subjects upon which states have enacted laws the validity of whicb are open to question: § 251.

Permissive scope of local regulations: § 270. Penalty for noncompliance with district rules: § 274. Subject of district rules generally: §§ 268-275.

Leng'th of Liode Claim; Discovery Ksseutial to Location; Width of Claim; End Lines Must Be Parallel.

§ 2. That raining claims upon veins or lodes of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits heretofore located, shall be governed, as to length along the vein or lode, by the customs, regulations, and laws in force at the date of their location. A mining claim lo-

Federal Mining Act Of 1872. 1151

cated after the passage of this act, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in Jength along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode xiithin the limits of the claim located. 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, except where adverse rights existing at the passage of this act shall render such limitation necessary. The end Jines of each claim shall be parallel to each other.**

Preserved in Rev. Stats. § 2320.

Lenrth of lode claim: § 3G1.

Surface conflicts with prior locations: § 303.

Discoverj' as tbe source of miner's title: § 335. What constitutes a valid disco verj': § 330. Where discovery must be made: § 337.

Effect of los of discovery upon remainder of location: § 338. Extent of locator's rights after discovery and prior to completion of locaUon: § 339. Surface must include apex: § 3G4. Width of lode claims: § 3(>1.

End lines must be parallel : §§ 367, 582. Side-end lines: § 3G7.

Extralat<ral and Intraliinital Kigrhts.

§ 3. That tlie locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists at the passage of this act, so long as they conij)ly with the laws of the United States and the state, territorial, and local regulations, not in conflict with said laws of the United States, governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations and of all veins, lodes, and ledges, throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, althougli such veins, lodes or ledges may so far depart from a perpendicular in their course downward as to extend out-

1152 Appendix.

side the vertical side lines of said surface locations; provided, that their right of possession to such outside parts of said veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as aforesaid, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of said veins or ledges. And provided further, that nothing in this section shall authorize the locator or possessor of a vein or lode which extends, in its downward course, beyond the vertical lines of his claim, to enter upon the surface of a claim owned or possessed by another.

Preserved in Rev. stats.: § 2322.

The "dip right" under local rules: § 566.

The right to pursue the vein in depth prior to patent, under act of 1866: § 567.

Nature of estate in the vein created by grant of "dip right": § 567.

Extralateiral rights on the original lode under patents issued prior to May 10, 1872: §§ 572-574.

ParaUolism of end-lines not required under act ot 1866 but required by Act of 1872: §§ 576, 582.

Extralateral rights in locations made under Act of 1872: §§ 581-594.

"Broad lodes": $ 583.

Vein entering and departing through same side-line: § 584.

Vein crossing two parallel side Unes: §§ 586-589.

Vein CT'tossing two opposite non-parallel side-lines: § 590.

Vein crossing one end line and a side line: § 591.

Vein with apex wholly within location but crossing no boundary: §592.

Extilateral rights as to veins other than the one upon which the location is based: § 593.

Extralateral rights conferred by Act of 1872 on locators of other lodes located before 1872: §§ 598-600.

Legal obstacles Interrupting extralateral rights: §§ 608-015.

Union of veins on the dip: § 614.

Cross lodes: §§ 557-560.

Intralimital rights: §§ 548-553.

Tuuncl Rig-hts; Lcngth of Tunnels.

§ 4. That where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel.

Federal Mhtdsg Act Of 1872. 1153

to the same extent as if discovered from the surface; and locations on the lines of snch tunnel of veins or lodes not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid; but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the rit to all undiscovered veins on the line of said tunnel.

Presred in Bev. Stats. S 2323.

Tunnel locations prior to the enactment of federal laws: S 467.

Acts to be performed in acquiring tunnel rights: S 472.

'Xine'' and 'face*' of tuim deflned: %% 473-474.

Marking of tunnel location on the ground: S 475.

Length upon discovered lode awarded to tunnel owner by above section: S 481.

Necessity for appropriation of discovered lode by surface location: I 482. See note to S 2323, Rev. Stats.

To what extent does the Inception of a tunnel right and* its perpetuation by prosecuting work with reasonable diligence operate as a withdrawal of the surface from exploration by others?: §§ 483- 481. See note to § 2323, Bev. Stats., post.

Liocal Rules Made by Miners; Marking: Boundaries; Records; Annual Labor; Forfeiture; Resumption of Work; Forfeiture to Co-Owners.

§ 5. That the miners of each mining district may make rules and regulations not in conflict with the laws of the United States, or with the laws of the state or territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. On each claim located after the passage of this act, and until a patent shall have been issued therefor, not less than one hundred dollars worth of labor shall be performed

1154 Appendix.

or improvements made during each year. On all claims located prior to the passage of this act, ten dollars' worth of labor shall be performed or improvements made each year for each one hundred feet in length along the vein until a patent shall have been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be opened to relocation in the same manner as if no location of the same had ever been made; provided, that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after such failure and before such location. Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required by this act, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if, at the expiration of ninety days after such notice in writing or by publication, such delinquent should fail or refuse to contribute his proportion to comply with this act, his interest in the claim shall become the property of his co-owners who have made the required expenditures.

Amended March 3, 1873, so that the time for the first annual expenditure on claims located prior to the passage of the act of May 10, 1872, should be extended to June 10, 1875. Again ameml<ed June 6, 1874, so that the time for such expenditure on this claiss of claims should be extended to Januaiy 1st, 1875: 18 Stats, at Large, 61.

See Rev. Stats. § 2324.

Local rules and regulations: §§ 208-275.

"What Is sufficient marliing under federal law: § 373; under state statutes: § 374.

Location certificate and record: §§ 379-392.

Annual labor: §§ 623-G38.

Requirement as to annual labor imperative: § 624.

Worlc done within the limits of a group of claims: § r>30.

Failure to perform labor renders claim open to rolocntiou: §§ 642-

Forfeiture to co-owners: § 646.

Resumption of work: §§ 651-654.

FEDERAL HnmG ACT Of ]

(ent ProceedlDEit.

That a patent for any land claimed and located for valuable dejWEits may be obtained in the following manner: Any ]ier- Eon, association, or corporation authorized to locate a claim under this act, having claimed and located a piece of land for such purposes, who has, or have, complied with the terms of tliis ai't, may lile in the proper land ollice an application for a patent, under oath, showing such compliance, together willi a plat and field notes of the claim or claims in common, made by or under the direction of the United States surveyor general, showing accurately ttie boundaries of the claim or claims, which shall be distinctly marked by monuoienta on the grounds, and shall post a copy of snch plat, together nith a notice of such application for a patent, in a consjiicuous place on the land embraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted as aforesaid, and shall file a copy of said notice in such land oSice, and shall thereupon be entitled to a patent for said land in the manner following: The register of the land ollCice, upon the tiling of such application, plat, and field-notes, notices, and affidiLvite, shall publish a notice that such application bos been made, for the period of sixty days, in a newspaper to be J by him designated as published nearest to said claim; and he i shall also post such notice in his office for the same period. Tha ! claimant, at the time of filing his application, or at any time thereafter within sixty days of publication, shall file with the J register a certificate of tlie United Slates surveyor general that [ Sxe hundred dollars' worth of labor has been expended or improTement made upon the chiim by himaetf or grantors; that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description, to be incorporated in the patent. At the expiration of the sixty days of publication, the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during said period of publication. If no adverse claim shall have been filed with the register and the receiver of the proper land office at the esj)iration of the sixty days of pubUcatioD, it shall be assumed that the applicant is entitled to a patent, upon

1156 Appendix.

the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with this act.

Preserved Rev. State. § 2325. Survey for patent: §§ 670-673. The survey of lodes: § 671. For plaicers: § 672. Posting of notice and copy of plat: § 677. ludtiatory proceedings: S 678.

liand embraced within the claim must be clear on tract books: $ Application: S 681. Verification of application: § 682. Proofs: §§ 683-692. Application to purchase: § 694. Patents for placers: §§ 699-704.

Adverse Claim, How Filed and Adjudicated; Proof of Citizenship.

§ 7. That where an adverse claim shall be filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice, and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the register of the land office, together with the certificate of the surveyor general that the requisite amount of labor has been expended, or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together Anth the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by

Federal Mining Act Op 1872. 1157

the register to the commissioner of the general land ofSce, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it shall appear from the decision of the court, that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the surveyor general, whereupon the register shall certify the proceedings and judgment roll to the commissioner of the general land office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. , Proof of citizenship under this act, or the acts of July twenty-sixth, eighteen hundred and sixty-six, and July ninth, eighteen hundred and seventy, in the case of an individual, may consist of his own affidavit thereof, and in case of an association of persons unincorporated, of the affidavit of their authorized agent, made on his own knowledge or upon information and belief, and in case of a corporation organized under the laws of the United States, or of any state or territory of the United States, by the filing of a certified copy of their charter or certificate of incorporation; and nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining claim to any person whatever.

See Rev. Stats. §§ 2321. 2320. Adverse claims: §§ 712-706. What courts have jurisdiction: §§ 746-750.

Is a suit involving an adverse claim legal or equitable in its nature: § 754. Form of Judgment: § 763. Effect of judgment : § 765. Citizenship, how proved: § 227. See note to § 2326 Rev. Stats.

Description of Claim on Surveyed and Unsurveyed Land.

§ 8. That the description of vein or lode claims, upon surveyed lands, shall designate the location of the claim with reference to the lines of the public surveys, but need not conform therewith; but where a patent shall be issued as aforesaid for claims upon unsurveyed lands, the surveyor general, in extending the sur-

1158 Appendix.

veys, shall adjust the same to the boundaries of such patented claim, according to the plat or description thereof, but so as in no case to interfere with or change the location of any such patented claim.

Preserved in Rev. Stats. § 2327.

UPatents for Claims Located Prior to 1872, but Patented Subsequently; Rigrhts Under Patents Issued Before Act of 1872.

§ 9. That sections one, two, three, four, and six of an act entitled, "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes,' approved July twenty-sixth, eighteen hundred and sixty-six, are hereby repealed, but such repeal shall not affect existing rights. Applications for patents for mining claims now pending may be prosecuted to a final decision in the general land office; but in such cases where adverse rights are not affected thereby, patents may issue in pursuance of the provisions of this act; and all patents for mining claims heretofore issued under the act of July twenty-sixth, eighteen hundred and sixty-six, shall convey all the rights and privileges conferred by this act where no adverse rights exist at the time of the passage of this act.

See Rev. Stats. § 2328.

Extralateral rights on the original lode under patents issued prior to May 10, 1872. §§ 572-577.

. Extralateral rights on 'other lodes conferred by Act of 1872 on owners of claims previously located: §§ 598-600.

Construction of patents applied for prior but issued subsequent to Act of 1866: § 604.

Placer Patents; Act of 1870 Amended; Homesteads.

§ 10. That the act entitled "An act to amend an act granting the right of way to ditch and canal owners over the public lands, and for other purposes," approved July ninth, eighteen hundred and sevent}', shall be and remain in full force, except as to the proceedings to obtain a patent, which shall be similar to the proceedings prescribed by sections six and seven of this act for obtaining patents to vein or lode claims; but where said placer

Federal Mining Act Op 1872. 1159

claims shall be upon surveyed lands, and conform to legal subdivisions, no further survey or plat shall be required, and all placer mining claims hereafter located shall conform as near as practicable with the United States system of public land surveys and the rectangular subdivisions of such surveys, and no such location shall include more than twenty acres for each individual claimant, but where placer claims can not be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands; provided, that proceedings now pending may be prosecuted to their final determination under existing laws; but the provisions of this act, when not in conflict with existing laws, shall apply to such cases; and, provided also, that where by the segregation of mineral land in any legal subdivision a quantity of agricultural land less than forty acres remains, said fractional portion of agricultural land may be entered by any party qualified by law, for homestead or pre-emption purposes.

See Rev. Stats. § 2331.

Patents for placers: §§ 609-704.

Description of placers upon surveyed lands: § 700.

Proof of expenditures: § 701.

Proof of mineral character: § 702.

Proof that no known lodes exist within limits of placer claim: §703

Patents for Liodes Within Placers.

§ 11. That where the same person, association, or corporation, is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be ma,de for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case (subject to the provisions of this act and the act entitled "An act to amend an act granting the right of way to ditch and canal owners over the public lands, and for other purposes/' approved July ninth, eighteen hundred and seventy) a patent shall issue for the placer claim, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings; and where a vein or lode, such as is de-

1160 Appendix.

scribed in the second section of this act, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or a lode in a placer claim is not knowTi, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof.

Preserved in Rev. Stats. § 2333. Patents for lodes within placers: § 704.

Deputy Mineral Surveyors; Expenses of Patent; Notices, Where Published; Desigrnation of Newspaper; Fees of Offlcei*s.

§ 12. That the surveyor general of the United States may appoint in each land district containing mineral lands as many competent surveyors as shall apply for appointment to survey mining claims. The expenses of the survey of vein or lode claims, and the survey and subdivision of placer claims into smaller quantities than one hundred and sixty acres, together with the cost of publication of notices, shall be paid by the applicants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The commissioner of the general land office shall also have power to establish the maximum charges for surveys and publication of notices under this act; and, in case of excessive charges for publication, he may designate any newspaper published in a land district where mines are situated for the publication of mining notices in such district, and fix the rates to be charged by such paper; and, to the end that the commissioner may be fully informed on the subject, each applicant shall file with the register a sworn statement of all charges and fees paid by said applicant for publication and surveys, together with all fees and money paid the register and the receiver of the land office, which statement shall be transmitted, with the other ])papers in the case, to the commissioner of the general land office. The fees of the

Federal Mining Act Of 1872. 1161

register and the receiver shall be five dollars each for filing and acting upon each application for patent or adverse claim filed, and they shall be allowed the amount fixed by law for reducing testimony to WTiting, when done in the land office, such fees and allowances to be paid by the respective parties; and no other fees shall be charged by them in such cases. Xothing in this act shall be construed to enlarge or affect the rights of either party in regard to any property in controversy at the time of the passage of this act, or of the act entitled "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes,'* approved July twenty-sixth, eighteen hundred and sixty-six], nor shall this act affect any right acquired under said act; and nothing in this act shall be construed to repeal, impair, or in any way affect the provisions of the act entitled "An act granting to A. Sutro the right of way and other privileges to aid in the construction of a draining and exploring tunnel to the Comstock lode, in the state of Nevada,'' approved July twenty-fifth, eighteen hundred and sixty-six.

See Rev. Stats. §§ 2334, 2338. 2344. Survey ors-ffeneral and deputies: § 059. Statement of fees and charges: § G03.

Affidavits, Before Whom To Be Made.

§ 13. That all afiidavits required to be made under this act, or the act of which it is amendatory, may be verified before any officer authorized to administer oaths within the land district where the claims may be situated, and all testimony and proofs may be taken before any such officer, and, when duly certified by the ofiicer taking the same, shall have the same force and eifect as if taken before the register and receiver of the Land Office. Tn cases of contest as to the mineral or agricultural character of land, the testimony and proofs may be taken as herein provided, on personal notice of at least ten days, to the opposing party; or if said party cannot be found, then by publication of at least once a week for thirty days in a newspaper, to be designated by the register of the land office as published nearest to the location of such land; and the register shall require proof that such notice has ]>een given.

See Rev. Stats. §§ 2325, 2335.

1162 Appendix.

Cross IxMles, Uniting Veins.

§ 14. That where two or more veins intersedt or cross each other, priority of title shall govern, and such prior location shall be entitled to all oi-e or mineral contained within the space of intersection: provided, however, that the subsequent locatioD shall have the right of way through said space of intersection for the purposes of convenient working of the said mine: and provided, also, that where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intei*section.

Preserved In Rev. Stats. § 2336. Cross lodes: §§ 557-5G0. Union of veins on dip: § 614.

Millsites, Patents for.

§ 15. That where non-mineral land, not contiguous to the vein or lode, is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surfaceground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary requirements as to survey and notice as are applicable under this act to veins or lodes; provided, that no location hereafter made of such non-adjacent land shall exceed five acres, and payment for the same must be made at the same rate as fixed by this act for the superficies of the lode. The owner of a quartz mill or reduction works, not owning a mine in connection therewith, may also receive a patent for his mill-site as provided in this section.

Preserved in Kev. Stats. § 2337. Mlllsites: §§ 519-524, 708.

Location of millsite with reference to lode: § 522. Nature of use required in case of location by lode proprietor: § 523. lyght to millsite; how initiated: § 521.

Millsite used for quartz-mill or reduction works disconnect<l with lode ownership: § 524.

Repealing- Clauses.

§ 16. That all acts and parts of acts inconsistent herewith are hereby repealed: provided, that nothing contained in this act

Federal Mining Laws — Revised Statutes. 1163

shall be construed to impair, in any way, rights or interests in

mining property acquired under existing laws. See Rev. Stats. § 5596.

IV. Title XXXII, Chap. 6, of United States Revised Statutes Embodying Existing Laws Relating to Mineral Lands.

Reservation of Mineral Lands from Sale Under General Laws.

§ 2318. In all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law.

General policy of government as to reservation of Mineral lands: Terms of re<9ervation used In various grants: § 86. Keservation of Mineral lands in grants to states: §§ 136-139, 140. Reservation in Mexican grants under Act of 1891: § 127. Reservation in railroad grants: §§ 152, 154, 155.

Mineral Deposits Open toLiOcation; Who May Locate.

§ 2319. All valuable mineral deposits in lands belonging to the United States, both snrseyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.*

Same as sec. 1, Act 1872.

"Mineral Lands" and kindred terras defined: §§ 85-98.

Rules for determining mineral character of land: § 98.

A recent ruling of secretary Bliss in Pacific CJoast Marble Company V. N. P. R. R., decided Sept. 9, 1897, fully supports the views of the author announced in the text as to what constitutes "Mineral Lands."

*The mertalUc or non-metallic character of deposits occurring in veins as affecting the right of appropriation: § 323.

Character of deposits subject to appropHation under placer laws: §S 419-428.

1164 Appendix.

=Only citizens or those wiio have declared their intention to become such may locate: § 223.

Who are citizens: §§ 224-226.

Citizefnship how proved: § 227.

Acquisition of title to unpatented claims by aliens: §§ 231-234.

Effect upon location of naturalizing an alien after he has located his claim: § 232.

lUghts of aliens in the states: §§ 237-238.

General property rights of aliens in the territories: §§ 242-244.

Limits within which state may legislate: §§ 249, 250.

*Permijssive scope of local regulations: § 270.

District regulations, generally: §§ 2G8-275.

Lengrth of Lode Claims; Discovery Essential to Liocation; Width of Claims; End-Lines Must Be Parallel.

§ 2320. Mining claims upon vcIds or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining claim located after the tenth day of May, eighteen hundred and seventytwo, whether located by one or more persons, may equal, but

r

shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discover} of the vein or lode within the limits of the claim located.2 Xo 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, except where adverse rights existing on the tenth day of May, eighteen hundred and seventy-two, render such limitation necessary .3 The end lines of each claim shall be parallel to each other.

Same as § 2, Act of 1872.

Length of lode claims: § 3G1.

Location in excess: § 362.

Surface conflicts with prior locations: § 303.

"Discovery as the source of miner's title: § 335.

What constitutes a valid discovery: 336.

Where discovery must be made: § 337.

Effect of loss of discovery upon remainder of location: § 338.

Federal Mining Laws — Revised Statutes. 1165

Extent of locaitor's rights after discovery and prior to completion of location: § 339. Surface must include apex: § 364. of lode claims: $ 361. End lines must be parallel: § 582. Side-end lines: § 367.

Proof of Citizenship.

§ 2321. Proof of citizenship, under this chapter, may consist, in the case of an individual, of his own affidavit thereof; in the case of an association of persons unincorporated, of the affidavit of their authorized agent, made on his own knowledge, or upon information and belief; and in the case of a corporation organized under the laws of the United States, or of any state or territory thereof, by the filing of a certified copy of their charter or certificate of incorporation.

See § 7, Act of 1872.

Supplemented by Act of April 26 1882, which provides as follows:

"That applicants for mineral patents, if residing beyond the limits of the district wherein the claim is situated, may make any oath or affidavit required for proof of citizenship before the clerk of any court of record, or before any notary public of any state or territory.' 22 Stats, at Large, p. 49, chap. 106.

Citizenship, how proved: S 227.

Bxtralateral and Intralimital Rigrlits.

§ 2322. The locators of all mining locations heretofore made or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as they comply with the laws of the United States, and with state, territorial, and local regulations not in conflict with the laws of the United States governing their possessor' title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although

1166 Appendix.

such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through -the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another.

Siame as § 3, Act of 1872.

Intrallmital right: §§ 548-553.

*Right to pursue the vein In depth prior to patent under act of 1866: See § 567.

Nature of estate in vein created by grant of "dip right": S 567.

Extralateral rights on original lode under patents issued prior to May 10, 1872: §§ 572-574.

Parallelism of end lines not a condition precedent to exercise, under act of 1866. of extralateral right, but is under Rev. Statutes, discussed: §§ 576, 582.

Extralateral right under Rev. Statutes, discussed: §§ 581-594.

"Broad lodes": § 583.

Vein entering and departing through same side Une: § 584.

Vein crossing two parallel side lines: §§ 586-589.

Vein crossing two opposite non-parallel side-lines: § 590.

Vein crossing one end-line and a side line: § 591.

Vein with apex wholly within location but crossing no boundary: § 592.

Extralateral rights as to veins other than the one upon which the location is based: § 593.

Extralateral rights conferred by Act of 1872 on locators of other lodes located before 1872: §§ 598-600.

Legal obstacles interrupting extralateral rights: §§ 608-615.

Tunnels and Tunnel Kigrlits; Lengrtli of Tunnels.

§ 2323. Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not preously known to exist, discovered in such tunnel, to the

rBDSBAL MINDtO LAWS — BEVISBD STATUTES.

Bame extent as if discovered from the Burface; and location on the line of such tunnel or veins or lodes not appearing on the sur- , face, made hy other purtics after the commencement of the tunnel, and while the 8anie is being prosecuted vrith reasonable diligence, shall be invalid; but fail\ire to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel.

Bame as D 4, Act of 18T2.

Tuauel locations prior ta tlie enartnient of fnleraJ laws: i 467.

Acts to be rertoriued In acquiring tiwDiel rights: f 472.

"Line" and "face" of tunuel defined: Sf 473474.

Uarting or lunnei locations on the ground: i 47B.

Length upon discovered lode awardi-d lo tunnel owner bj above Bectlon: i 4S1.

NecwMJty for apiiropriatlon of disecvered lode by Burtace locallon: S 4&2.

To whnt extent doea tlie inception of a tunnel right and Its perpetuation by pi'osecuthig worli with reoBonable diligence operate as a wltMrawal of tlie surface from exploration by others? 483-491.

After Ue chapter on Ttmnel Claims liuite, 407, 481) had been printed, the Supreme Court of the United States rendered its decision In two l)iK>r1ant eases discussed in the text. Campbell v. Dtlet, 187 U. B., adopts the rule that a failure to mark on the surface of the ground the point of discovery and the boundaries of a trad claimed wlil not destroy the right of the tunnel owner to mineral veins which be has discovered in the tunn'l. when he posted tbe proper notices At the mouth of the tunnel and flJed them fn Jhe office required by the local statute, i Affirming Ellet v. Campbell, 18 Colo. 510.)

In Enterprise Mining Co. v. Rico-Aspen Cons., 167 T'. S. 108, it was determined:

(1) The right of the owner of a tunnel to all veins or lodee not previously known to exist, which are within 3000 feet from Its face m the line thereof, is supeirlor to tlie right of one wlio subsequently makes a discovery and location of another claim. If the two conflict,

(2) The right lo n vein discovered In a tunnel dates by relation ba lo the time of the location of the tunnel site.

(S) The location of a claim to a vein discovered in a tunnel may be made on its discovery by taking the full length of 1500 feet allowed ty C S, Ilev. Stnts., 2320, on either side of the tunnel, or any snch proportion tltereof on either side as Khe locator may desire, and Is not limited to 750 feet on each side of tlie tunae] on nccount of a failure to Indlcnle. when the luimel was located, what particular 1500 feet

he 1

-uM Hni

1168 Appendix.

Thu£P affirming the decision of the Circuit Court of Appeals (66 Fed. 200).

These decisions clear the atmosphere to some extent, but thre yet remain many questions to be settled, the embarrassments of which will be apparent, when the law as declared in these cases is applied to the subject of extralateral and conflicting undergnmnd rights.

liOeal District Rules; Marking* Boandaries; Records; Annaal Labor; Forfeiture; Resamption of Work; For feitore to CoOwners.

§ 2324. The miners of each mining district may make regulations not in conliict with the laws of the United States, or with the laws of the state or territory in which the district is situated, governing the location, manner of recording, amount of work necessaiy to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by referencie to some natural object or permanent monument as will identify the claim. On each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year. On all claims located prior to the tenth day of May, eighteen hundred and seventy-two, ten dollars' worth of labor shall be performed or improvements made by the tenth day of June, eighteen hundred and seventy-four, and eacli year thereafter, for each one hundred feet in length along the vein until a patent has been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location. Upon the failure of any one of several coowners to contribute his proportion of the expenditures required

Federal Mining Laws— Revised Statutes. 1169

hereby, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-ownr personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to cohtribute his proportion of the expenditure required by this section, his interest in the claim shall become the property of his co-owners who have made the required expenditures.

Tunnel Amendment, February 11 1875.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that section two thousand three hundred and twenty-four of the Revised Statutes be, and the same is hereby, amended so that where a person, or company has or may run a tunnel for the purpose of developing a lode or lodes, owned by said person or company, the money so expended in said tunnel shall be taken and considered as expended on said lode or lodes, whether located prior to or since the passage of said act; and such pei'son or company shall not be required to perform work on the surface of said lode or lodes in order to hold the same as required by said act. 18 Stats, at Large, page 315, chap. 41.

ArMndmnt of Jamiry Z£, 1880.

'Provided, that the period within which the work required to be done annually on all unpatented mineral claims shall commence on the first day of January succeeding the date of location of such claim, and this section shall apply to all claims located since the tenth day of May, Anno Domini eighteen hundred and seventy-two.' 21 Stats, at Large, p. 61, chap. 9.

LimltB within which local regulations may be made: § 270. What is sufficieoit markinig under federal law: S 373. Under State Statutes: § 374. Necessity and object of marking: S 371. Time allowed for marking: % 372. Perpetuation of monuments: % 375. 'Natural objects*' and permanent moniunents*' defined: S 883.

w'

1170 Appendix.

Location certificate. and record: §§ 379-392. Anmial labor: §§ 623-638.

Requirement as to annual labor imperative: § 624. Value of annual labor, how estimated: § 635. Circumstances under which annual labor is excused: ft 634. Failure to perform lalwr remlers claim open to relocation: §§ 642- Work done within limits of a jrit>up of claims: § 630. Forfeiture to co-owners: 5 646. Resumption of worlt: §§ 651-<>54.

. Poc<ediDg:s to S€>oure a Patent.

g *2'kV2o. a patent for any land claimed and located for valuable deposits may be obtained in the following manner: Any person, association, or corporation authorized to locate a claim under this chapter, liavinjr claimed and located a piece of land for such purposes, who has, or have, complied with the terms of this chapter, may iile in the proper land otlice an api)lication for a patent, under oath, showing such compliance, together with a plat and field notes of the claim or claims in common, made by or under the direct iim of the United States surveyor general, showing accurately ilie boundaries of the claim or claims, which shall be distinctly marked by monuments on tlie ground, and shall post a coi)y of such plat, together with a notice of such application for a patent, in a conspicuous })lacc on the land embraced in such plat previous to the liling of the a})}>lication for a patent, and shall Iile an artidavit ot at least two persons that such notice has been duly posted, and shall tile a eoj)y of the notice in such land oflice, and shall thereupon be entitled to a patent for the land, in the manner following: The register of the land otlice, upon the tiling of ap])li(aiion. plat, ticld noto, n-juices, and affidavits, shall jmblish a notice that such application ha< l)een made, for the perio<l of >i.\ty days, in a niwspajer hf by him designated ,iiili>i!'d nearest to such clain:: and hr >hall also surh noti< in lii< nilioc for the same period. Tho rlaimant at the tinif of tiling thi- ap]>licarion. or at any tiiur tliereafter, within t!ie sixty days of ]uibiication, shall rile with ilu- register a criif:ati- 'f the United States s\irveyr i:eneral that five hundn.M' liillars' worth of labor has been expended or improvements made upon the claim by himself or grantors: that the plat is cor-

Federal Mining Laws — Revised Statutes. 1171

rect, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description, to be incorporated in the patent. At the expiration of the sixty days of publication the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during such period of publication. If no adverse claim shall have been filed with the register and the receiver of the proper land office at tlie expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter. Same as § 7, Act 1872.

Amended January 1880 by adding the following proviso:

"Provided, that where the claimant for a patent is not a resident of or within the land district wherein the vein, lode, ledge, or deposit sought to be patented is located, the application for patent and the affidavits re([uired to be made in this section by the claimant for such patent may be made by his, her, or its authorized agent, where said agent is conversant with the facts sought to be estal)lished by said affidavits; and, provided, that this section shall a])ply to all applications now pending for patents to mineral lands." 21 Stats, at Large, p. 61, chap. 9.

Survey for patent: §§ G70-672.

Application for IxKle Patents and proceed<lin therein: §§ 677-695.

Application for Placer Patents and proceedings therein: $§ 099-701.

Application for MlUsite Patents: § 708.

Application for patent, contents: § 080. Application by one of several co-own<*r8. or by corporations: § 681.

Land embra>cetl within the claim must be clear on tract boolcs: %

Verification of application and proofs: 5 62.

Proof of (rompliance with law: §§ 683-692.

Statement of fees and charges: § 693.

Application to purcliase: § 694.

Proof of five hundred<l tlollars' expenditure on placers: § 700.

For forms used in patent proceedings, see i>ost. "Forms."

S'

1172 Appendix.

Adverse Claims, Filings of, and Suit Upon.

§ 2326. Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed imtil the controversy shall have been settled or decided by ft court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do* shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any pori;ion thereof, may, without giving further notice, file a ceri;ified copy of the judgment roll with the register of the land office, together with the certificate of the surveyor general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the register to the commissioner of the general land office, and a patent hall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay tor his portion of the claim with the proper fees, and file the certificate and description by the surveyor general, whereupon the register shall certify the proceedings and judgment roll to the commissioner of the general land office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of a title conveyed by a patent for a mining claim to any person whatever.

Substantially same as § 7, Act of 1872.

Federal Mining Laws — Revised Statutes. 1173

Supplemented by Act of March Srd, 1881, which provided as follows:

"That if, in any actioir brought pursuant to section twentythree hundred and twenty-six of the Kevised Statutes, title to the ground in controversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to* the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the land oflB(e or be entitled to a patent for the ground in controversy until he shall have perfected his title/' 21 Stats, at Large, page 505, chap. 140.

And by the Act of April 6, 1882 {22 Stats, at Large 4.9) which provides:

"That the adverse claim required by section twenty-three hundred and twenty-six of the Revised Statutes may be verified by the oath of any duly authorized agent or attorney in fact of the adverse claimant cognizant of the facts stated; and the adverse claimant, if residing or at the time being beyond the limits of the district wherein the claim is situated, may make oath to the adverse claim before the clerk of any court of record of the United States or the state or territory where the adverse claimant may then be, or before any notary public of such state or territory.'* 22 Stats at Large, p. 49, chap. 106.

What is and what is not subject of adverse claim: §§ 717-730.

How when and where adverse claim must be asserted: §§ 734-742.

Action to determine adverse claims: § 746-706.

Pleadings and Practice: § 754-758.

The judgment and its effect: § 763-7G6.

What courts have jurisdiction: § 746.

From whence do state courts derive their Jurisdiction to try such cases? § 750.

Are suits involving adverse claims In their nature legal or equitable? § 754.

Description of Claims Upon Surveyed and Unsurveyed

Lands.

§ 2327. The description of vein or lode claims, upon surveyed lands, shall designate the location of the claim with reference

1174 Appendix.

to the lines of the public surveys, but need not conform therewith; but where a patent shall be issued for claims upon unsurveyed lands, the surveyor general, in extending the surveys, shall adjust the same to the boundaries of such patented claim, according to tlie ])lat or description thereof, but bo as in no case to interfere with or change the location of any such patented claim.

Same as § 8, Act of 1872. Description: §§ 671-672,

Patents for Claims Located Under Former Laws; Patents Issaed Under Prior Laws.

§ 2328. Applications for patents for mining claims under former laws now pending may be prosecuted to a final decision in the general land office: but in such cases where adverse rights are not affected thereby, patents may issue in pursuance of the provisions of this chapter; and all patents for mining claims upon veins or lodes heretofore issued shall convey all the rights and privileges conferred by this chapter, where no adverse rights existed on the tenth day of May, eighteen hundred and seventytwo.

See § 9. Act of 1872.

Extralateral rijrlits on other lodes conforrtHl by Act of 1S72 on owners of claims previously located: §§ r>08-<iOO.

Extralateral rijrlits on the origiiisil lode un<l4*r i>a tents issiuil prior to Ma: 10. 1872: §5 572-577.

Construction of patents applied for prior !)Ut issiicl subsequent to Act of 1872. § 004.

Placers and Other Forms of Deposit not in Place May Be Entered and Patente<l.

§ 2329, Claims usually called "placers/' including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to ontvy and patent, under like circumstances and conditions, and upon similar proceedings, as are })rovided for vein or lode claims; but where the lands have been ])reviously

Federal Mining Laws — Revised Statutes. 1 175

surveyed by the United States, tlie entry in its exterior limits shall conform to the legal subdivisions of the public lands.

Substantially same as first clause of § 12, Act of 1870. Ghaivtcteir of deposits subject to appropriation under placer laws: $§419-428. Placer patents: §§ 672, 673, 690-703. Description of placer claims upon surveyed lands: § 700.

Sabdi visions of Claims; Group Entries; Maximum Extent of Placers.

§ 2330. Legal subdivisions of forty acres may be subdivided into ten-acre tracts; and two or more persons, or associations of persons, having contiguous claims of any size, although such claims may be less than ten acres each, may make joint entry thereof; but no location of a placer claim, made after the ninth day of July, eighteen hundred and seventy, sliall exceed one hundred and sixty acres for any one person or association /)f persons, which location sliall confirm to the Tnited States surveys; and nothing in this section contained shall defeat or impair any .bona iide pre-emption or homestead claim ujmn agricultural lands, or authorize the sale of the improvements of any bona fide settler to any purcliaser.

See § 12, Act of 1870.

Form and extent of placer locations prior to Uev. Statutes: § 447.

Form and extent under Uev. Stats.: § 448.

Placer locjitlons by eorix)ration8: $ 449.

Locations by several persons in the interest of one: § 450.

Number of locations by an individual: § 450.

Placer LocatiouH .Must Conform to Public Surveys; Homesteads.

§ 2331. AVluTe placer claims are upon surveyed lands, and conform to legal su])divisions, no further survey or plat shall be required, and all placer mining claims located after the tenth day of May, eighteen hundred and seventy-two, shall conform as near as practica])le with the United States system of public land surveys, and the rectangular subdivisicms of such surveys, and no such location shall include more than twenty acres for each indi-

1176 Appendix.

vidual claimant; but where placer claims cannot be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands; and where by the segregation of mineral lands in any legal subdivision a quantity of agricultural land less than forty acres remains, such fractional portion of agricultural land may be entered by any party qualified by law, for homestead or pre-emption purposes.

See § 10. Act of 1870.

See S 16, Act of 1872.

Survey of placer claims: $ 672.

Des>cription of placer claims upon surveyed lands: § 700.

Placer PatentH, When and How Obtained.

§ 2332. Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the state or territory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to estaHish a right to a patent thereto under this chapter, in the absence of any adverse claim; but nothing in this chapter shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property tliereto attached prior to the issuance of a patent.

Substantially same as $ 13, Act of 1870.

Placer patents: §§ 699-704.

Proof of title without possession under this section: § 688.

Proof of Ave hundred dollars* expenditure: § 701.

Proof of mineral character of land: § 702.

Patents for Lodes Within Placers.

§ 2333. Where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer

Federal Mining Laws — Revised Statutes. .1177

claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings; and where a vein or lode, such as is described in section twenty- three hundred and twenty, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim: but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof.

Same as § 11 of Act 1872.

Right to appropriate lodee within placers: § 413.

Manner of locating lodes within placers: §414.

Width of lode locations within placers: § 415.

Patent for lodee within placers: S 704.

What is conveyed by Placer Patent: 781.

"Lodes known to exist": § 781.

Deputy Mineral Surveyors; Expenses of Survey and Patent; Publication of Notices; l>esigrnatioii of Newspaper; Fees of Officers.

§ 2334. The surveyor general of the United States may appoint in each land district containing mineral lands as many competent surveyors as shall apply for appointment to survey mining claims. The expenses of the survey of vein or lode claims, and the sur\'ey and subdivision of placer clainls into smaller quantities than one hundred and sixty acres, together with the cost of publication of notices, shall be paid by the applicants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at lil)erty to employ any United States deputy surveyor to make the survey. The commissioner of the general land office shall also have power to establish the maximum charges for surveys and publication of notices under this chapter; and, in case of cxcessivo charges for jiublication. he may designate any newspaper j)ubli>hcd in a land district where mines are situated for the j)ublication of mining notices in such district, and fix the rates to be charged by such paper; and, to the

1178 Appendix. '

end that tho commissioner may be fully informed on the subject, each applicant shall file with the register a sworn statement of all charges and fees paid by such applicant for publication and surveys, together with all fees and money paid the register and the receiver of the land office, which statement shall be transmitted, with the other papers in the case, to the commissioner of the general land office.

Surveyors-g<?neral and deputies: § 659.

Statement of fees and charges in patent prooeMlings: § 693.

Affidavits, Before What Officers To Be Made.

§ 2335. x\ll affidavits required to be made under this chapter may be verified before any officer autliorized to administer oaths within the land district where tlie claims mav be situated [see amendment to sec. 2325, ante], and all testimony and proofs may be taken before any such offi<'er, and, when duly certified by the officer taking the same,- shall have the same force and effect as if taken before the register and receiver of the land office. In cases of contest as to the mineral or agricultural character of land, the testimony and proofs may be taken as herein provided on personal notice of at least ten days to the o})po.sing party; or if such party cannot be found, then l)y puhlication of at least once a week for thirty days in a newsy)aper, to bo designated by the register of the land office as published nearest to the location of such land; and the register shall require ])roof that such notice has been given.

Same as § V, Act of 1872. Seo also, § 14. Act of 1S7(). Proof of niincral character of lajids: §§ 689, 702.

Cross Lodes and Unitiiigr Veins.

§ 233(. AVliere two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection; but the subsequent location shall have the right of way through the space of intersection for the purposes of the conven*

FEDERAL MINING LAWS — {lEVISED STATUTES. 1179

ient workiDg of tlie mine. And where two or more veins unite, the oldest or prior location sliall take tlie vein below the point of union, including all the space of intersection.

Same as § 14, Act of 1892. Gross lodes: §§ 557-560. Uniou of veins on dip, § 614.

MillsiteSy Classes, Patents For.

§ 2337. Where non-mineral land not contiguous to the vein or lode is u§ed or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface ground may be embraced and included in an application for it patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary requirements as to survey and notice as are applicable to veins or lodes; but no location hereafter made of such non-adjacont land shall exceed five acres, and -payment for the same must be made at the sanu rate as fixed by this chapter for the suj)erricies of the lode. The owner of a quartz mill or reduction works, not owning a mine in connection therewith, may also receive a patent for his millsite, as provided in this section.

Same as § 15, Act of 1872.

Milfedtes: §§ 519-524, 708.

Classes of millsites: § 520.

Right to miUsito, how inltiatetl: § 521.

Ijooation with rt'feronee to lodt: 8 522.

Nature of use requirtd in case of location by lode proprietor: § 523.

Millsite used for (lunrtz mill or reiluetlon works: § 524.

Maim-er of ac<iuiring patent for millsites: § 708.

State Legrislatures May Pass Supplementary LawH.

§ 2338. As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any state or territory may jirovidc rules for working mines, involving casements, drainage, and other necessary means to their compK'te development; and those conditions shall be fully expressed in the patent.

Same as S 5, Act 18G0.

Easements, drainage. et<M §§ 252-2t54. 52t>-.'Vl.

JJmits within whicli state may leislatr: §§ 240-25).

1180 Appendix.

Prior Rigrhts to Water Protected; Rigrhts of Way For Ditches.

§ 2339. 'VMieneTer, by i)ribrity of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or dapiage.

Same as § 9, Act of 1866.

Rights of way for ditches and canals: § 530.

Patents Granted, Subject to Easements.

§ 2340. All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water-rights, or rights to ditches and reservoirs used in connection with such water-rights, as may have been acquired under or recognized by the preceding section.

See § 17, Act of 1870.

Location subject only to pre-existing easements: § 531.

Homesteads Upon Mineral Lands.

§ 2341. Wlierever, upon the lands heretofore designated as mineral lands, which liave been excluded from survey and sale, there have been homesteads made bv citizens of the United states, or persons who have declared their intention to become citizens, which homesteads have been made, improved, and used for aglicultual jnirposes, and upon which there liave been no valuable mines of gold, silver, cinnabar, or copper discovered, and which are proiierly agricultural lands, the settlers or owners of such homesteads shall have a right of ])re-emption thereto, and shall be entitled to purchase the same at the ])rice of one dollar

Federal Mining Laws — Revised Statutes. 1181

and twenty-five cents per acre, and in quantity not to exceed one hundred and sixty acres; or they may avail themselves of the provisions of chapter five of this title, relating to "Homesteads/*

See 8 10, Act of 1866.

Oharacter of lands, when and how established: S§ 107, 207, 717.

HoineBtead and other agricultural lands: §§ 202-212.

Secretary of Interior May Set Apart Agrricultaral JLands.

§ 2342. Upon the survey of the lands described in the preceding section, the secretary of the interior may designate and set apart such portions of the same as are clearly agricultural lands, which lands shall thereafter be subject to pre-emption and sale as other public lands, and be subject to all the laws and regulations applicable to the same.

See S 11> Act of 1866.

Additioual JLand Districts, Establishmeut of.

§ 2343. The president is authorized to establish additional land-districts, and to appoint the necessary officers under existing laws, wherever he may deem the same necessary for the public convenience in executing the provisions of this chapter.

See § 7. Act of 1866.

Construction of Act, Generally.

§ 2344. Nothing contained in this chapter shall be construed to impair, in anjr way, rights or interests in mining property acquired under existing laws; nor to affect the provisions of the act entitled "An act granting to A. Sutro the right of way and other privileges to aid in the construction of a draining and exploring tunnel to the Comstock lode, in the state of Nevada, approved July twenty-five, eighteen hundred and sixty-six.

See i 8, Act 1866. See § 16, Act 1872. Laws of 1866 and 1870 discuspsed: §§ 53-64.

1182 Appendix.

Miningr Ijaws Not Applicable to Certain States*

§ 2345. The provisions of the preceding sections of this chapter shall not apply to the mineral lands situated in the States of Michigan, Wisconsin, and linnesota, which are declared free and open to exploration and purchase, according to legal subdinsions, in like manner as before the tenth day of May, eighteen hundred and seventy-two. And any bona fide entries of such lands within the states named since the tenth of May, eighteen hundred and seventy-two, may be patented without reference to any of the foregoing ])rovisions of this chapter. Such lands shall be ofTered for public sale in the same manner, at the same minimum price, and imder the same rights of preemption as other public lands.

States wherein federal miuing laws are operative: $$ 18-21.

Mineral Lands Not Granted to States or Corporations.

§ 234G. Xo act passed at the first session of the thirty-eighth Congress, granting lands to states or corporations to aid in the construction of roads or for other j)urposes, or to extend the time of grants made prior to the thirtieth day of January, eighteen hundred and sixty-five, shall be so construed as to embrace mineral lands, which in all eases are reserved exclusively to the United States, unless otherwise specially ])r<>vidod in the act or acts making the grant.

V. Land Department Rkoilatioxs upon Sib-tkct of Mineral Lands Other Than Coal.

Force and effect of <lec'lsIons and regulations of Lind department:

Mineral Lands Open to Exploration, Occupation and Purchase.

1. It will l)e ]K*roeived that by the foregoing provisions of law the mineral lands in the public domain, surveyed or unsur-

I ' Department Regulations — Generally. 1183

veyed, are open to exploration, occupation, and })urcliasc by all citizens of the United States and all those who hav(. declared their intentions to become such.

Status of Lode Claims Located Prior to May 1872.

2. By an examination of the several sections of the Revised Statutes it will be seen that the status of lodo claims located previous to the 10th May, 1872, is not changed with regard to their extent along the lode or width of surface.

3. Mining riglits acquired under such ])revious locations are, however, enlarged by such Revised Statutes in the following respect, viz: The locators of all such previously taken veins or lodes, their leirs and assigns, so long as they comply with the laws of Congress and with state, territorial, or local regulations not in contiict therewith, governing mining claims, are invested with the exclu.ive possessory right of all the surface included within the lines of their locations, and of all veins, lodes, or ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downwanl vertically,

although sucli veins, hxles, or ledges may so far d(])art from a ]>eri)endicular in their course downward as to extend outside the vertical side lines of such locations at the surface, it being expressly provided, however, that the right of possession to such outside [mrts c>f said veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward, as aforesaid, through the end lines of their IfKrations so continued in their own direction that such ]danes will intersect such t;vtTior parts of such veins, lodes, or h-dges: no right being grant*d, hrwever, to the claimant of such outside ]M)rtion of a vein or ledge to enter upon the surface location of another claimant.

4. It is to be li-;tinctlv unb-rstood. however, that the law limits the oo-M--orv riirhts to veins, lode?*, or ledges, other than the one nainer] jn the original loeation, to such a- were not adverselv clainierl on Mav lo, and that where sueh other vein or Ird'e ua- -o advepr-r-lv claimed at that date, tlie ri.trht of the p§rty so adversely elainiin;: i? in no way imyaired by the provisions of the IJevised Statutes.

1184 Appendix.

5. In order to hold the possessory title to a mining claim located prior to May 10, 1872, and for which a patent has not been issued, the law requires that ten dollars shall be expended annually in labor or improvements on each claim of one hundred feet on the course of the vein or lode until a patent shall have been issued therefor; but where a number of such claims are held in common upon the same vein or lode, the aggregate expenditure that would be necessary to hold all the claims, at the rate of ten dollars per hundred feet, may be made upon any one claim; a failure to comply with this requirement in any one year subjecting the claim upon which such failure occurred to relocation by other parties, the same as if no previous location thereof had ever been made, unless the claimants und the original location shall have resumed work thereon after such failure and before such relocation. The first annual expenditure upon claims of this class should have been performed subsequent to May 10, 1872, and prior to January 1, 1875. From and after January 1, 1875, the required amount must be expended annually until patent issues. By decision of the honorable secretary of the interior, dated March 4, 1879, such annual expenditures are not required subsequent to entry, the date of issuing the patent certificate being the date contemplated by statute.

6. Upon the failure of any one of several co-owners of a vein, lode, or ledge, which has not been entered, to contribute his proportion of the expenditures necessary to hold the claim or claims so held in ownership in common, the co-owners, who have performed the labor or made the improvements as required by said Revised Statutes, may, at the expiration of the year, give such delinquent co-owner personal notice in writing, or notice by publication in the newspaper published nearest the claim for at least once a week for ninety days; and if upon the expiration of ninety days after such notice in writing, or upon the expiration of one hundred and eighty days after the first newspaper publi* cation of notice, the delinquent co-owner shall have failed to contribute his proportion to meet such expenditures or improvements, his interest in the claim by law passes to his co-owners who have made the expenditures or improvements as aforesaid. Where a claimant alleges ownership of a forfeited interest undr the foregoing provision, the sworn statement of the publisher as

Department Regulations — Patents — Locations. 1185

to the fact of publication, giving dates and a printed copy of the notice published, should be furnished, and the claimant must swear that the delinquent co-owner failed to contribute his proper proportion within the period fixed by the statute.

Patents for Veins or Lodes Heretofore Issued.

7. Bights under patents for veins or lodes heretofore granted under previous legislation of Congress are enlarged by the Revised Statutes so as to invest the patentee, his heirs or assigns, with title to all veins, lodes, or ledges throughout their entire depth, the top or apex of which lies within the end and side boundary lines of his claim on the surface, as patented, extended downward \vertically, although such veins, lodes, or ledges may 80 far depart from a perpendicular in their course downward as to extend outside the vertical side lines of the claim at the surface. The right of possession to such outside parts of such veins or ledges to be confined to such portions thereof as lie between vertical planes drawn downward through the end lines of the claims at the surface, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges; it being expressly provided, however, tliat all veins, lodes, or ledges, the top or apex of which lies inside such surface locations, other than the (ne named in the patent, which were adversely claimed on the 10th May, 1872, are excluded from such conveyance by patent.

8. Applications for patents for mining-claims pending at the date of the act of May 10, 1872, may be prosecuted to final decision in the general land office, and where no adverse rights affected thereby, patents will be issued in pursuance of the provisions of the Revised Statutes.

Manner of Locating Claims on Veins or Lodes After May lO, 1872.

9. From and after the 10th May, 1872, any person who is a citizen of the LTnited States, or who has declared his intention to become a citizen, may locate, record, and hold a mining claim of fifteen hundred linear feet along the course of any mineral vein or lode subject to location; or an association of persons, severally

1186 Appendix.

qualified as above, may make joint location of such claim of fifteen hundred feet, but in no event can a location of a vein or lode made subsequent to May 10, 1872, exceed fifteen hundred feet along the course thereof, whatever may be the number of persons composing the association.

10. "With regard to the extent of surface-ground adjoining a vein or lode, and claimed for the convenient working thereof, the Revised Statutes provide that the lateral extent of locations of veins or lodes made after May 10, 1872, shall in no Case exceed three himdred feet on each side of the middle of the vein at the surface, and that no such surface rights shall be limited by any mining regulations to less than twenty-five feet on each side of the middle of the vein at the surface, except where advene rights existing on the 10th May, 1872, may render such limitation necessary; the end lines of such claims to be in all cases parallel to each other. Said lateral measurements cannot extend beyond three hundred feet on either side of the middle of the vein at the surface, or such distance fis is allowed by local laws. For example: 400 feet cannot be taken on one side and 200 feet on the other. If, however, 300 feet on each side are allowed, and by reason of prior claims but 100 feet can be taken on one side, the locator will not be restricted to less than 300 feet on the other side; and when the locator does not determine by exploration where the middle of the vein at the surface is, his discovery shaft must be assumed to mark such point.

11. By the foregoing it will be perceived that no lode-claim located after the 10th May, 1872, can exceed a parallelogram fifteen hundred feet in length by six hundred feet in width, but whether surface-ground of that width can be taken, depends upon the local regulations or state or territorial laws in force in the several mining districts; and that no such local regulations or state or territorial laws shall limit a vein or lode claim to less than fifteen hundred feet along the course thereof, whether the, location is made by one or more persons, nor can surface rights be limited to less than fifty feet in width, unless adverse claims existing on the 10th day of May, 1872, render such lateral limitation necessarj'.

12. It is provided by the Revised Statutes that the miners of each district may make rules and regulations not in conflict

Department Regulations — Lode Locations. 1187

with the laws of the United States, or of the state or territory in which such districts are respectively situated, governing the location manner of recording, and amount of work necessary to hold possession of a claim. They likewise require that the location shall be so distinctly marked on the ground that its boundaries may be readily traced. This is a very important matter, and locators cannot exercise too much care in defining their locations at the outset, inasmuch as the law requires that all records of mining locations made subsequent to May 10, 1872, shall contain the name or names of the locators, the date of the lo'cation, and such a description of the claim or claims located, by reference to some natural object or permanent monument, afl will identify the claim.

13. The statutes provide that no lode-claim shall be recorded until after the discovery of a vein or lode within the limits of the claim located, the object of which provision is evidently to prevent the appropriation of presumed mineral ground for speculative purposes to the exclusion of bona fide prospectors, before BufB.cient work has l)cen done to determine whether a vein or lode really exists.

14. The claimant should, therefore, prior to locating his claim, unless the vein can be traced upon the surface, sink a shaft, or run a tunnel or drift, to a suflicient depth therein to discover aitd develop a mineral-bearing vein, lode, or crevice; should determine, if possible, the general course of such vein in either direction from the point of discovery, by which direction he will be governed in marking the boundaries of his claim on the surface. His location notice should give the course and distance as nearly as practicable from the discovery-shaft on the claim, to some permanent, well-known |>oints or objects, such, for instance, as stone monuments, blazed trees, the confluence of streams, point of intersection of well-known gulches, ravines, or roads, prominent buttes, hills, etc., which may be in the immediate vicinity, and which will serve to perpetuate and fix the locus of the claim and render it susceptible of identification from the description thereof given in the record of locations in the district, and should be duly recorded.

15. In addition to the foregoing: data, the claimant should state the names of adjoining claims, or, if none adjoin, the rela-

1188 Appendix.

tive positions of the nearest claims; should drive a post or erect a monument of stones at each comer of his surface-ground, and at the point of fliscovery or discovery shaft should fix a post, stake, or board, upon which should be designated the name of the lode, the name or names of the locators, the number of feet claimed, and in which direction from the point of discovery; it being essential that tlie location notice filed for record, in addition to the foregoing description, should state whether the entire claim of fifteen hundred feet is taken on one side of the point of discovery or whether it is partly upon one and partly upon the other side thereof, and in the latter case, how many feet are claimed upon each side of such discovery-point.

IG. Within a reasonable time, sav twentv days after fllt Idcation shall have been marked on the ground, or such time'tl il allowed by the local laws, notice thereof, accurately describing the claim in manner aforesaid, should be filed for record with the proper recorder of the district, who will thereupon issue the usual certificate of location.

17. In order to hold the possessory right to a location made since Alay 10, 1872, not less than one hundred dollars' worth of labor must be performed, or improvements made thereon annually until entry shall have been made. T'nder the provisions of the act of Congress approved January 22, 1880, the first annual expenditure becomes due and must be performed during the calendar year succeeding that in which the location was made. Ex[enditure made or labor performed prior to the first day of January succeeding the date of location will not be considered as a part of, or applied upon the first annual expenditure required by law. Failure to make the ex])enditure or perform the labor required will'subject the claim to relocation by any other party having the necessary qualifications, unless the original locator, his heirs, assigns, or legal representatives have resumed work thereon after such failure and before such relocation.

IS. The expenditures required upon mining-claims may be made from the surface or in running a tunnel for the development of such claims, the act of February 11, 1875, providing that where a person or company has, or may, run a tunnel for the purpose of developing a lode or lodes owned by said person

Department Regulations — Tunnels. 1189

or company the money so expended in said tunnel shall be taken and considered as expended on said lode or lodes and such person or company shall not be required to perform work on the surface of said lode or lodes in order to hold the same.

19. The importance of attending to these details in the matter of location, labor, and expenditure will be the more readily perceived when it is understood that a failure to give the subject proper attention may invalidate the claim.

Tannel Bigrhts.

20. Section 2323 provides that where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the lino of such tunnel of veins or lodes not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid; but failure to prosecute the work on the tunnel for six montlis shall be considered as an abandonment of the right to all undiscovered veins or lodes on the line of said tunnel.

21. The effect of this is simply to give the proprietors of a mining tunnel run in good faith tlie possessory right to fifteen hundred feet of any blind lodes, cut, discovered, or intersected by such tunnel, which were not ])reviou8ly know to exist, within three thousand feet from the face or point of coniniencemcnt of such tunnel, and to prohibit other parties, after the commencement of the tunnel, from prospecting for and making locations of lodes on the line thereof and within said distance of three thousand feet, unless such lodes appear upon the surface or were previously known to exist.

22. The term "face,' as used in said section, is construed and held to mean the first working-face formed in the tunnel, and to signify the point at which the tunnel actually enters cover; it being from this point that the three thousand feet are to be counted, upon which prospecting is prohibited as aforesaid.

1190 Appendix.

23. To avail themselves of the benefits of this provision of law, the proprietors of a mining tunnel will be required, at the time they enter cover as aforesaid, to give proper notice of their tunnel location by erecting a substantial post, board, or monument at the face or point of commencement thereof, upon which should be posted a good and sufficient notice, giving the names of the parties or company claiming the tunnel-right; the actual or proposed course or direction of the tunnel; the height and width thereof, and the course and distance from such face or point of commencement to some permanent well-known objects in the vicinity by which to fix and determine the locus in manner heretofore set forth applicable to locations of veins or lodes, and at the time of posting such notice they shall, in order that miners or prospectors may be enabled to determine irtiffflMT or not they are within the lines of the tunnel, establish ffae boundary lines thereof, by stakes or monuments placed along such lines at proper intervals, to the terminus of the three thousand feet from the face or point of commencement of the tunnel, and the lines so marked will define and govern as to the specific boundaries within which prospecting for lodes not previously known to exist is prohibited while work on the tunnel is being prosecuted with reasonable diligence.

24. At the time of posting notice and marking out the lines of the tunnel as aforesaid, a full and correct copy of such notice of location defining the tunnel claim must be filed for record \vith the mining recorder of the district, to which notice must be attached the sworn statement or declaration of the owners, claimants, or })rojectors of such tunnel, setting forth the facts in the case: stating (he amount expended by themselves and their predecessors in interest in prosecuting work thereon; the extent of the work performed, and that it is bona fide their intention to prosecute work on the tunnel so located and described with reasonable diligence for the development of a vein or lode, or for the discovery of mines, or both, as the case may be. This notice of location must be duly recorded, and, with the said sworn statement attached, kept on the recorder's files for future reference.

25. By a compliance with the foregoing much needless difficulty will be avoided, and the way for the adjustment of legal

Department Regulations — Patent Proceedings. 1191

lights acquired in virtue of said section 2323 will be made much more easy and certain.

26. This office will take particular care that no improper advantage is taken of this provison of law by parties making or professing to make tunnel locations, ostensibly for the purposes named in the statute, but really for the purpose of monopolizing the lands lying in front of their tunnels to the detriment of the mining interests and to the exclusion of bona fide prospectors or miners, but will hold such tunnel claimants to a strict compliance with the terms of the statutes; and a reasonable diligence on their part in prosecuting the work is one of the essential conditions of their implied contract. Negligence or want of due diligence will be construed as working a forfeiture of their right to all undiscovered veins on the line of such tunnel.

Manner of ProcoedinK" to Obtain 'Government Title to Vein or Lode Claims.

27. By section 2325 aiitliority is given for granting titles for mines by patent from the govorimient to any person, association, or corporation having the necessary qualifications as to citizenship and holding the riglit of possession to a claim in compliance with law.

28. The claimant is required in the first place to have a correct survey of his claim made under authority of the surveyorgeneral of the state or territory in which the claim lies; such survey to show with accuracy the exterior surface boundaries of the claim, which boundaries are required to be distinctly marked by monuments on the ground. Four plats and one copy of the original field notes, in each case, will be prepared by the surveyor-general; one plat and the original field notes to be retained in the office of the surveyor-general, one copy of the plat to be given the claimant for posting upon the claim, one plat and a copy of the field notes to be given the claimant for filing with the proper register, to be finally transmitted by that officer, with other papers in the case, to this office, and one plat to be sent by the surveyor-general to the register of the proper land district to be retained on his files for future reference. As there is no resident surveyor-general for the state of Arkansas, appli-

1192 Appendix.

cations for the survey of mineral claims in said state should be made to the commissioner of this office, who, under the law, is ex-officio the U. S. surveyor-general.

29. The claimant is then required to post a copy of the plat of such survey in a conspicuous place upon the claim, together with notice of his intentioli to apply for a patent therefor, which notice will give the date of posting, the name of the claimant, the name of the claim, mine or lode, the mining district, and county; whether or not the location is of record, and if so, where the record may be found; the number of feet claimed along the vein and the presumed direction thereof; the number of feet claimed on the lode in each direction, from the point of discovery, or other well-defined place on the claim; the name or HAMW of all adjoining and conflicting claims, or, if none adjom, names of the nearest claims, etc.

In effect June 1, 1897.

See ClPC. Inst. Mch. 11, 1897, 24 L. D. 266.

See § 677, and note.

30. After posting the said plat and notice upon the premises, the claimant will file with the proper register and receiver a copy of such plat and the field notes of surs'ey of the claim, accompanied by the affidavit of at least two credible witnesses, that such plat and notice are posted conspicuously upon the claim, giving the date and plac< of such posting; a copy of the notice so posted to be attached to, and form a part of, said affidavit.

31. Accompanying the field notes so filed must be the sworn statement of the claimant that he has the possessory right to the premises therein described, in virtue of a compliance by himself (and by his grantors, if he claims by purchase) with the mining rules, regulations, and customs of the mining district, state, or territory in which the claim lies, and with the mining laws of Congress; such sworn statement to narrate briefly, but as clearly as possible, the facts constituting such compliance the origin of his possession, and the basis of his claim to a patent.

32. This affidavit should be supported by appropriate evidence from the mining recorder's office as to his possessory right, as follows, viz: Where he claims to be the locator, or a locator in company with others who have since conveyed their interest in the location to him, a full, true, and correct copy of such loca-

DEPARTMENT REGULATIONS — PATENT PROCEEf)INGS. 1193

tion notice should be furnished, as the same appears upon the mining records; such copy to be attested by the seal of the recorder, or if he has no seal, then he should make oath to the same beiug correct, as shown by his records. Where the applicant claims only as purchaser, a copy of the location record must be filed under seal or upon oath as aforesaid, with an abstract of title, under seal or oath as aforesaid, brought down to date of filing the application, tracing the right of possession by a continuous chain of conveyances from the original locators to the applicant, also certifying that no conveyances affecting the title to the claim in question appear of record other than those set forth in the accompanying abstract.

The abstracts herein required may be certified to by the proper recorder, or by any abstracter or abstract company, duly authorized by state or territorial statute, if abstracts so certified by abstracters or abstract companies are by statute receivable as evidence in the courts of such state or territory, in the same manner and to like extent that abstracts certified by the recorder are now admitted; provided, that proof be furnished that the abstracts so certified by abstracters or abstract companies are receivable as evidence in the courts as aforesaid.

33. In the event of the milling records in any case having been destroyed by fire or otherwise lost, affidavit of the fact should be made, and secondary evidence of possessory title will be received, which may consist of the affidavit of the claimant, supported by those of any other parties cognizant of the facts relative to his location, occupancy, possession, improvements, etc.; and in such case of lost records, any deeds, certificates of location or purchase, or other evidence which may be in the claimant's possession and tend to establish his claim, should be filed.

34. Upon the receipt of these papers the register will, at the expense of the claimant (who must furnish the agreement of the publislier to hold applicant for patent alone responsible for charges of publication), publish a notice of such application for the period of sixty days in a newspaper published nearest to the claim, and will post a copy of such notice in his office for the same period. When the notice is published in a weekly newspaper ten consecutive insertions are necessary; when in a daily

1194 Appendix.

newspaper the notice must appear in each issue for sixty-one consecutive issues, the first day of issue being excluded in estimating the period of sixty days.

35. The notices so published and posted must be as full and complete as possible, and embrace all the data given in the notice posted upon the claim. ,

36. Too much care can not be exercised in the preparation of these notices, inasmuch as upon their accuracy and completeness will depend, in a great measure, the regularity and validity ol the whole proceeding.

37. In the publication of final-proof notices the register has no discretion under the law to designate any other than the newspaper 'nearest the land'' for such purpose when such papei is a newspaper of general circulation. But he will in all )M0 designate the newspaper of general circulation that is putLHiad nearest the land, geographically measured. When two or more such newspapers are published in the same town, nearest the land, he may select the one which, in liis honest and impartial judgment as a public officer, will best subserve the purpose of the law and the general interests of the public.

Tomay v. Stewart, 1 L. D. 570. In re Arnold, 2 L. D. 758. Ante, § 685.

38. Newspaper charges must not exceed the rates established by this office for the publication of legal notices.

39. The claimant, either at the time of filing these papers with the register or at any time during the sixty days' publication, is required to file a certificate of the surveyor-general that not less than fwo hundred dollars' worth of labor has been expended or ini])rovenicnts made upon the claim by the applicant or his grantors; that the plat filed by the claimant is correct; that the field notes of the survev, as filed, furnish such an accurate description of the claim as will, if incorporated into a patent, serve to fully identify the })remises, and that such reference is made therein to natural objects or permanent monuments as will perpetuate and fix the locus thereof.

40. It will be the more convenient wav to have this certificate indorsed by the surveyor-general, both upon the plat and field-notes of survey filed by the claimant as aforesaid.

Department Regulations — Patent Proceedings. 1195

41. After the sixty days' period of newspaper publication has expired the claimant will furnish from the office of publication a sworn statement that tlie notice was published for the statutory period, giving the first and last day of such publication, and his own affidavit showing that the plat and notice aforesaid remained conspicuously posted upon the claim sought to be patented during said sixty days' publication, giving the dates.

42. Upon the filing of this affidavit the register will, if no adverse claim was filed in his office during the period of publication, permit the claimant to pay for the land according to the area given in the plat and field notes of survey aforesaid, at the rate of five dollars for each acre and five dollars for each fractional pari; of an acre, the receiver issuing the usual duplicate receipt therefor. Tlie claimant will also make a sworn statement of all charges and fees paid by him for publication and surveys, together with all fees and money paid the register and receiver of the land ofiice; after which the whole matter will be forwarded to the commissioner of the general land office and a patent issued thereon if found regular.

43. In sending up the papers in the case the register must not omit certifying to the fact that the notice was posted in his office for the full period of sixty days, such certificate to state distinctly when such posting was done and how long continued.

44. The consecutive series of numbers of mineral entries must be continued, whether the same are of lode or placer claims or millsites.

45. The surveyors-general should designate all surveyed mineral claims by a progressive series of numbers, beginning with survey Xo. 37, irrespective as to whether they are situated on surveyed or unsiirveyed lands, the claim to be so designated at date of issuing the order therefor, in addition to the local designation of the claim; it being required in all cases that the plat and field-notes of the sursTy of a claim must, in addition to the reference to permanent objects in the neighborhood, describe the locus of the claim, with reference to the lines of public surveys, by a line connecting a corner of the claim with the nearest public corner of the United States surveys, unless such claim be on unsurveyed lands at a distance of more than two miles from such public comer, in which latter case it should be connected

1196 Appendix.

with a Tnited States mineral monument. Such connecting line must not be more than two miles in length and should be measured on the ground direct between the points, or calculated from actually surveyed traverse lines if the nature of the country should not permit direct measurement. If a regularly established survey comer is within two miles of a claim situated on imsurveved lands, the connection should be made with such comer in preference to a connection a United States mineral monument. The connecting line must be surveyed by the deputy mineral surveyor at the time of his making the particular survey, and be made a part thereof.

46. Upon the approval of the survey of a mining claim made upon surveyed lands, the surveyor-general will prepare aiiA transmit to the local land office and to this office a diagram traCK ing showing the portions of legal 40-acre subdivisions made fra# tional by reason of the mineral sur\'ey, designating each of such portions by the proper lot number, beginning with No. 1 in each section and giving the area of each lot.

47. The survey and plat of mineral claims, required by section 2325, Revised Statutes of the United States, to be filed in the proper land office, with application for patent, must be made subsequent to the recording of the location of the mine; and when the original location is made by survey of a United States deputy surveyor such location survey can not be substituted for that required by the statute, as above indicated.

48. The surveyor-general should derive his information upon which to base his certificate as to the value of labor expended or improvements made from his deputy who makes the actual survey and examination upon the premises, and such deputy should specify with particularity -and full detail the character and extent of such improvements.

49. The following particulars should be observed in the survey of every mining claim:

(1) The exterior boundaries of the claim should be represented on the plat of survey and in the field notes.

(2) The intersection of the lines of tlie survey with the lines of conflicting prior surveys should be noted in the field-notes and represented upon the plat.

Department Regulations — Patent Proceedings. 1197

(3) Conflicts with unsurveyed claims, where the applicant for surrey does not claim the area in conflict, should be shown by actual survey.

(4) The total area of the claim embraced by the exterior boundaries should be stated, and also the area in conflict with each intersecting survey, substantially as follows:

Acreft.

Total area of claim 10.50

Area in conflict with survey No. 302 1.56

Area in conflict with survey No. 948 2.33

Area in conflict with Mountain Maid lode mining claim, unsurveyed 1.48

It does not follow that because mining surveys are required to exhibit all conflicts with prior surveys the areas .of conflict are to be excluded. The iield-notes and plat are made a part of the application for patent, and care should be taken that the description does not inadvertently exclude portions intended to be retained. It is better that the application for patent should state the portions to be excluded in express terms. A survey executed as in the example given will enable the applicant for patent to exclude such conHicts as may seem desirable. For instance, the conflict with survev o. 302 and with tlie Mountain Maid lode claim might be excluded and that with survey No. 948 included.

50. The rights granted to locators under section 2322, Revised Statutes, are restricted to such locations on veins, lodes, or ledges as may be "situated on the public domain." In applications for lode claims where the survey conflicts with a prior valid lode claim and the ground in conflict is excluded, the applicant not only has no right to the excluded ground, but he has no right to that portion of any vein or lode the top or apex of which lies within such excluded ground, unless his location was prior to May 10, 1872. Uis right to the lode claimed terminates where the lode, in its onward course or strike, intersects the exterior boundary of such excluded ground and passes within it. The end line of his survey should not, therefore, be established beyond such intersection.

51. TMiere, however, the lode claim for which survey is be-

1198 Appendix.

ing made was located prior to the conflicting claim and such conflict is to be excluded, in order to include all ground not so excluded the end line of the survey may be established within the conflicting lode claim but the line must be run so as nottoextend any farther into such conflicting claim than may be necessary to make such end line parallel to the other end line and at the same time embrace the ground so held and claimed. The useless practice, in such cases, of extending both the side lines of a survey into the conflicting claim, and establishing an end line wholly within it, beyond a point necessary under the rule just stated, will be discontinued.

Placer Claiius. --a.

T'

52. The proceedings to obtain patents for claims usu4V called placers, including all forms of deposit, excepting veins of quartz or other rock in place, are similar to the proceedings prescribed for obtaining patents for vein or lode claims; but where said placer claim shall be upon surveyed lands, and conforms to legal subdivisions, no further survey or plat will be required, and all placer mining claims located after May 10, 1872, shall conform as nearly as practicable with the United States system of public-land surveys and the rectangular subdivisions of such surveys, and no such location shall include more than twenty acres for each individual claimant; but where placer claims can not be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands. But where such claims are located previous to the public surveys, and do not conform to legal subdivisions, survey, plat, and entry thereof may be made according to the boundaries thereof, ])roviclod the location is in all respects legal.

53. The proceedings for obtaining patents for veins or lodes having already been fully given, it will not be necessary to repeat them here, it being thought that careful attention thereto ])y applicants and the local officers will enable them to act understandingly in the matter and make such slight modifications in the notice, or otherwise, as may be necessary in view of the different nature of the two classes of claims, placer claims being

Departmest Regulations — Placers. 1199

fixed, however, at two dollars and fifty cents per acre, or fractional part of an acre.

64. By section 2330, authority is given for the subdivision of forty-acre legal subdivisions into ten-acre lots, which is intended for the greater convenience of miners in segregating their claims both from one another and from intervening agricultural lands.

55. It is held, therefore, that under a proper construction of the law these ten-acre lots in mining districts should be considered and dealt with, to all intents and purposes, as legal subdivisions, and that an applicant having a legal claim which conforms to one or more of these ten-acre lots, either adjoining or cornering, may make entry thereof, after the usual proceedings, without further survey or plat.

56. In cases of this kind, however, the notice given of the application must be very specific and accurate in description, and as the forty-acre tracts may be subdivided into ten-acre lots, either in the form of squares of ten by ten chains, or if parallelograms five by twenty chains, so long as the lines are parallel and at right angles with the lines of the public surveys, it will be necessary that the notice and application state specifically what ten-acre lots are sought to be patented, in addition to the other data required in the notice.

57. Where the ten-acre subdivision is in the form of a square it may be described, for instance, as the "SE. J of the SW. J of NW. i," or, if in the form of a parallelogram as aforesaid, it may be described as the "W. i of the W. i of the SW. i of the NW. 1 (or the X. i of the S. i of the NE. i of the SE. i) of section

, township , range /' as the case may be; but, in

addition to this description of the land, the notice must give all the other data that is required in a mineral application, by which parties may be put on inquiry as to the premises sought to be patented. The proofs submitted with applications for claims of this kind must show clearly the character and the extent of the improvements upon the premises.

Inasmuch as the surveyor-general has no duty to perform in connection with the entry of a placer claim of legal subdivisions, the proof of improvements must show their value to be not less than five hundred dollars and that they were made by the appli-

1200 Appendix.

cant for patent or his grantors. ' The annual expenditure to the amount of $100, required by section 2324, Revised Statutes, must be made upon placer claims as well as lode claims.

58. Applicants for patent to a placer claim, who are also in possession of a known vein or lode included therein, must state in their application that the placer includes such vein or lode. The published and posted notices must also include such statement. If veins or lodes lying within a placer location are ownea by other parties, the fact should be distinctly stated in the appUcation for patent, and in all the notices. But in all cases whether the lode is claimed or excluded, it must be surveyed and marked upon the plat; the field notes and plat giving the area of the lode claim or claims and the area of the placer separately. It should be remembered that an application which omits to include an application for a known vein or lode therein, must hb construed as a conclusive declaration that the applicant ioM Bu right of possession to the vein or lode. WTiere there is no Imowi* lode or vein, the fact must appear by the affidavit of two or mort witnesses.

59. Bv section 2330, it is declared that no location of a placer claim, made after July 9, 1870, shall exceed one hundred and sixty acres for any one person or association of persons, which location shall conform to the United States surveys.

60. Section 2331 provides that all placer-mining claims located after May 10, 1872, shall conform as nearly as practicable with the United States systems of public surveys and the subdivisions of such surveys, and no such locations shall include more than twentv acres for each individual claimant.

61. The foregoing provisions of law are construed to mean that after the 9th day of July, 1870, no location of a placer claim can be made to exceed one hundred and sixty acres, whatever may be the number of locators associated together, or whatever the local regulations of the district may allow; and that from and after Mav 10, 1872, no location made bv an individual can exceed twentv acres, and no location made bv an association of individuals can exceed one hundred and sixtv acres, which location of one hundred and sixty acres can not be made by a less number than eight bona fide locators: and no local laws or mining regulations can restrict a placer location to less than twenty acres, although the locator is not compelled to take so much.

Department Regulations — Placers. 1201

62. The regulations hereinbefore given as to the manner of marking locations on the ground, and placing the same on record, must be observed in the case of placer locations so far as the same are applicable, the law requiring, however, that where placer claims are upon surveyed public lands the locations must hereafter be made to conform to legal subdivisions thereof as near as practicable.

63. The first care in recognizing an application for patent upon a placer claim must be exercised in determining the exact classification of the lands. To iliis end the clearest evidence of which the case is capable should be presented.

(1) If the claim be all placer ground, that fact must be stated in the application and corroborated by accompanying proofs; if of mixed placers and lodes, it should be so set out, with a description of all known lodes situated within the boundaries of the claim. A specific declaration, such as is required by section 2333, Revised Statutes, must be furnished as to each lode intended to be claimed. All other known lodes are, by the silence of the a])plicant, excluded by law from all claim by him, of whatsoever nature, possessory or otherwise.

(2) Section 3395, Revised Statutes (subdivision 7), requires the survevor to *note in his field books the true situation of all mines, salt licks, salt springs, and mill seats which come to his knowledge"; also ''all water-courses over which the lines he runs may pass." It further requires him to *"note the quality of the lands.*' Those descriptive notes are required by subdivision 8 to be incorporated in the plat by the surveyor-general.

(3) If these duties have been ])performed, the pu])lic surveys will furnish a reasonable guide to the district officers and to claimants in prosecuting their applications. But experience has shown that great neglect has resulted from inattention to the law in this res])ect, and the regular plats are of very little value in the matter. It will, therefore, be required in tlie future that deputy surveyors shall, at the expense of the parties, make full examination of all placer claims surveyed by them, and duly note the facts as specified in the law, stating the quality and composition of the soil, tlip kind and amount of timber and other vegetation, the locus and size of streams, and such other matters as may appear upon the surface of the claim. This ex-

1202 Appendix.

amiiiation should include the character and extent of all surface and underground workings, whether placer or lode, for mining purposes.

(4) In addition to these data, which the law requires to be hhown in all cases, the deputy should report with reference to the proximity of centers of trade or residence; also of wellkno-n systems of lode deposits or of individual lodes. He should also report as to the use or adaptability of the claim for placer mining; A-hether water has been brought upon it in sufficient quantity to mine the same, whether it can be procured for that purjK>se; and, finally, what works or expenditures have been made by the claimant or his grantors for the development of the claim, and their situation and location with respect to the same as applied for.

(5) This examination should be reported by the deputy under oath to the surveyor-general, and duly corroborated; and a copy of the same should be furnished with the application for patent to the claim, constituting a part thereof, and included in the oath of the applicant.

(6) Applications awaiting entry, whether published or not, must be made to conform to these regulations, with respect to examination as to the character of the land. Entries already made will be suspended for such additional proofs as may be deemed necessary* in each ease.

Mill-Sites.

B4. Section 2337 provides that "where nonmineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such nonadjaeent surface ground may be orabraced and inciuded in an application for a j)atent for such vein or Icnle. and the same may be patented therewith, subject to the same preliminary recjuirements as to survey and notice as are applicable to veins or lodes; but no location hereafter made of such nonadjaeent land shall exceed five acres, and payment for the same must be made at the same rate as fixed by this chapter for the superticies of the lode. The owner of a quartz-mill or reduction-works, not owning a mine in connection therewith, may also receive a patent for his mill-site, as provided in this section."

Department Regulations — Mill8Itk8. 1203

65. To avail themselves of this provision of law, parties holding the possessory right to a vein or lode, and to a ])iece qf nonmineral land not contiguous thereto, for mining or milling purposes, not exceeding the quantity allowed for such j)urpo8o by section 2337, United States Revised Statutes, or prior laws, under which the land was appropriated, the proprietors of such vein or lode may file in the proper land-oflice their application for a patent, under oath, in manner already set forth herein, which application, together with the plat and field-notes, may include, embrace, and describe, in addition to the vein or lode, such noncontiguous mill-site, and after due proceedings as to notice, etc., a patent will be issued conveying the same one claisL

66. In making the survey in a case of this kind, the lode claim should be described in the plat and field-notes as ''Sur. No. 37, A," and the mill-site as "Sur. No. 37, B," or whatever may be its appropriate numerical designation; the course and distance from a corner of the mill-site to a comer of the lode claim to be invariably given in such plat and fiold-noten, and a copy of the plat and notice of application for patent must Ve conspicuously posted upon tlie mill-site as well as upon the vein or lode for the statutory' period of sixty days. In making the entry no separate receipt or certificate nt-ed be issued for the mill-site, but the whole area of both lode and mill-ite will be embraced in one *:nin\ the price being five dollars for each acre and fractional oart of an acre embraced bv surh lode and millsite claim

67. In ca-T*-:- th-: owner of a panz-mill or reduction- works Is not the owner or claimant of a vein or lode, the law permits him to make aorili':a:iOn rhereror 'n the same manner pr*s:T:r;eii herein for minir.:: ciirr.s. ard a:':er -Vie n'-'-ioe nn-i 7 e.=iiLrj5, in the ab*i.=-r.'--: of .1 :'A .i-r -r-r Ll:r.z. -rr.ttrr anl reoeie a patent for h.A ::...,-r: an -a. i pr i; oer i.:>:.

land claimp'i a.-, i rr r:-" - t.-tu - :::jri.r-r. irhich proof may. -vl-.f-r-: rr.a*r.r -.r. ."rst::r.eil, j!:T..-:i*: "j. the

1204 Appendix.

Possessory Rigrht.

69. With regard to the proofs necessary to establish the possessory right to a mining claim, section 2332 provides that "where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the state or territory where the same may ])e situated, evidence of such possession and working of the claims for such period shall be suificient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim.''

70. This provision of law* will greatly lessen the burden of proof, more especially in the case of old claims located many years since, the records of which, in many cases, have been destroyed by tire, or lost in other ways during the lapse of time, but concerning the possessory right to which all controversy or litigation has long been settled.

71. When an applicant desires to make his proof of possessory right in accordance with this provision of law, he will not be required to produce evidence of location, copies of conveyances, or abstracts of title, as in other cases, but will be required to furnish a duly certified copy of the statute of limitation of mining claims for the state or territory, together with his sworn statement giving a clear and succinct narration of the facts as to the origin of his title, and likewise as to the continuation of his possession of the mining ground covered by his application; the area thereof; the nature and extent of the mining that has been done thereon; whether there has been any opposition to his possession, or litigation with regard to his claim, and, if so, when the same ceased: whether such cessation was caused by compromise or by judicial decree, and any additional facts within the claimant's knowledge having a direct bearing upon his possession and ])ona fides which he may desire to submit in supj)ort of his claim.

72. There should likewise be filed a certificate, under seal of the court having jurisdiction of mining cases within the judicial district embracing the claim, that no suit or action of any character whatever involving the right of possession to any portion of the claim applied for is pending, and that there has been

DEPARTMENT REGULATIONS — CITIZENSHIP. 120o

no litigation before said court affecting the title to said claim or any part thereof for a period equal to the time fixed by the statute of limitations for mining-claims in the state or territory as aforesaid other than that which has been finally decided in favor of the claimant. ,

73. The claimant should support his narrative of facts relative to his possession, occupancy, and improvements by corroborative testimony of any disinterested person or persons of credibility who may be cognizant of the facts in the case and are capable of testifying understandingly dn the premises.

74. As a condition for the making of application for patent according to section 2325, there must lie a preliminary showing of work or expenditure upon each location, either by showing the full amount sullicient to the maintenance of possession under section 2324 for the ponding year; or, if there has been failure, it should be shown that work has been resumed so as to prevent relocation by adverse parties after abandonment.

The 'Spending year'' moans the calendar year in which application is made, and has no reforonce to a showing of work at date of the final entry.

75. This preliminary showing may, whore the matter is unquestioned, consist of the affidavit of two or more witnesses familiar with the facts.

Proof of Citizenship of Miiiiiigr Claiinaiits.

TC. The j)roof necessary to establish the citizenship of a])plicants for mining i)atent.s must l)e made in the following manner: in case of an incorporated company, a certified copy of their charter or c-ortiticato of incorporation must be filed. In case of an association of persons unincorporated, the affidavit of their duly authorized agent, made upon his own knowledge or upon information and ])belief, setting forth the residence of each person forming such association, must be submitted. This affidavit must be accompanied by a power of attorney from the parties forming such association, authorizing the person who makes the affidavit of citizenshi]) to act for them in the matter of their application for }>atent.

1206 Appendix.

77. In case of an individual or an association of individuals who do not appear by their duly authorized agent, you will require the affidavit of each applicant, showing whether he is a native or naturalized citizen, when and where bom, and his residence.

78. In case an applicant has declared his intention to become a citizen or has been naturalized, his affidavit must show the date, place, and the court before which he declared his intention, or from which his certificate of citizenship issued, and present residence.

79. The affidavit of the claimant as to his citizenship may be taken before the register or receiver, or any other officer authorized to administer oaths within the land district; or, if the claimant is residing beyond the limits of the district, the affidavit may be taken before the clerk of any couri; of record or be- , fore any notary public of any state or territory.

80. If citizenship is established by the testimony of disinterested persons, such testimony may be taken at any place before any person authorized to administer oaths, and whose official character is duly verified.

Adverse Claims.

SI. Section 2326, and the act of April 26, 1882, provide for adverse claims, fix the time within which thev shall be filed to have legal effect and prescribe the manner of their adjustment etc.

82. An adverse mining claim must be filed with the register and receiver of the land office whore the application for patent was filed, or with the register and receiver of the district in which the land is situated at the time of filing the adverse claim. It must be on the oath of the adverse claimant, or it may be verified by the oath of any duly authorized agent or attorney-infact of the adverse claimant, cognizant of the facts stated.

83. Vhere an agent cr attorney-in-fact verifies the adverse claim, he must distinctly swear that he is such agent or attorney, and accompany his affidavit by proof thereof.

84. The agent or attorney-in-fact must make the affidavit in verification of the adverse claim within the land district where the claim is situated.

Department Regulations— Adverse Claims. 1207

85. The adverse notice iiiiist fuUv set forth the nature and extent of the interference or conflict; whether the adverse party claims as a purchaser for valuable consideration or as a locator; if the former, a certilied copy of the original location, the original conveyance, a duly certified copy thereof, or an abstract of title from the ofhce of the proper recorder should be furnished, or if the transaction was a merely verbal one he will narrate the circumstances attending the purchase, the date thereof, and the amount paid, which fact should be supported by the affidavit of one or more witnesses, if any were present at the time, and if he claims as a locator he must file a duly certified copy of the location from the office of the proper recorder.

SG, In order that the "boundaries*' and "extern of the claim may be show n, it will be incumbent upon the adverse claimant to file a plat showing his entire claim, its relative situation or position with the one against which he claims, and the extent of the conflict. This plat must be mado from an actual survej by a United States dejmty surv(y(ir, wlio will officially certify thereon to its correctness; and in addition there must be attached to such plat of survey a j'ertificatt- or swoku statement by the surveyor as to the proximate value or tlu* labor ])performed or improvements made upon the claim by the adverse party or his predecessors in interest, and the })lat must indicate the position of any shafts, tunnels or other improvements, if any such exist, upon the claim of the party opposing the application, and by which party said improvements were made: provided, however, that, if the application for patent describes th( claim by legal subdivisions, the adverse claimant, if also claiming by legal subdivisions, may describe his adverse claim in the same manner without further survey or plat.

87. Upon the foregoing being filed within the sixty days asj aforesaid, the register, or in his absence the receiver, will give notice in writing to both parties to the contest that such adverse claim has been filed, informing them that the party who tiled the adverse claim will he required williin thirty days from the date of such filing to commence ])rocec'(lings in a court of competent jurisdiction to determine' thv question of right of possession, and to prosecute the same with reasonable diligence to final judg-

1208 Appendix.

ment, and that, should snch adverse claimant fail to do so, his adverse claim will be considered waived, and the application for patent be allowed to proceed upon its merits.

88. When an adverse claim is filed as aforesaid, the register or receiver indorse upon the same the precise date of filing, and preserve a record of the date of notifications issued thereon; and thereafter all proceedings on the application for patent will be suspended, with the exception of the completion of the publication and posting of notices and plat, and the tiling of the necessary proof thereof, until the controversy shall have uecn adjudicated in court, or the adverse claim waived or withdrawn.

89. Where an adverse claim has been filed and suit thereon commenced within the statutory period, and final judgment determining the right of possession rendered in favor of the applicant, it will not be suflicient for him to file with the register a certificate of the clerk of the court, setting forth the facts as to such judgment, but he must, before he is allowed to make entry, file a certified copy of the judgment, together with the other evidence required by section 2326, Revised Statutes.

90. Where such suit has been dismissed, a certificate of the clerk of the court to that eft'ect, or a certified copy of the order of dismissal, will be sufficient.

91. In no case will a relinquishment of the ground in controversy, or other proof, filed with the register or receiver, be accepted in lieu of the evidence required.

92. WTiere an adverse claim has been filed, but no suit commenced against the applicant for patent within the statutory period, a certificate to that effect by the clerk of the state court having jurisdiction in the case, and also by the clerk of the circuit court of the United States for the district in which the claim is situated, will be required

93. A party who is not an applicant for patent under section 2325, Revised Statutes, or the assignee of such applicant, is not entitled to make entry under said section, and in no case will the name of such party be inserted in the certificate of entry. This regulation has no reference to proceedings under section 232(5.

94. Any party applying to make entry as trustee must disclose fully the nature of the tnist and the name of the cestui que trust; and such trustee, as well as the beneficiaries, must furnish

Department Regulatioks — Surveyors. 1209

satisfactory proof of citizenship; and the names of beneficiaries, as well as that of the trustee, must be inserted in the final certificate of entry.

95. No entry will be allowed until the register has satisfied himself, by a careful examination, that proper proofs have been filed upon all the points indicated in official regulations in force, and that they show a sufficient bona fide compliance with the laws and such regulations.

96. The administration of the mining laws as prescribed by these regulations \idll be, so far as ai)plicable, adopted for, and extended to Alaska.

(1) The ex-officio register, receiver, and surveyor-general, while acting as such, and their clerks and deputy surveyors, will be deemed subject to the laws and regulations governing the official conduct and responsibilities of similar officers and persons under general statutes of the United States.

(2) The Commissioner of the General Land Office will exercise the same general supervision over the execution of the laws as are or mav Ik cX( rcis( 1)V liiip in otlier mineral districts.

Appointment of l>ei>uty Surveyors of Mining Claims; Chargres for Surveys and Publications; Fees of Keisters and Receivers, etc.

97. Section 2334 provides for the appointment of surveyors of mineral claims, authorizes the commissioners of the general land oflice to establish the rates to be charged for surveys and for newspaper pul)lications.

Under this authority of law the following rates have been established as the maximum charges for newspaper publications in mining cases:

(1) Wliero a daily newspaper is designated, the charge shall not exceed seven dollars for each ten lines of space occupied, and where a weekly newspaper is designated as the meditfti of publication Ryo. dollars for the same space will be allowed. Such charge shall ])e accepted as full payment for publication in each issue of the newspa])er for the entire ])eriod required by law.

It is expected that these notices shall not be so abbreviated as to curtail the description essential to a perfect notice, and the

1210 Appendix.

said rates established upon the understanding that they are to be in the usual body-type used for advertisements.

(2) For the publication of citations in contests or hearings involving the character of lands, the charges shall not exceed eight dollars for five publications in weekly newspapers, or ten dollars for publications in daily newspapers for thirty days.

98. The surveyors-general of the several districts will, in pursuance of said law, appoint in each land district as many competent deputies for- the survey of mining claitais as may seek such appointment; it being distinctly understood that all expenses of these notices and surveys are to be borne by the mining claimants and not by the United States: the system of making deposits for mineral surveys, as required by previous instructions, being hereby revoked as regards field work; the claimant having the option of employing any deputy sur\'eyor within such district to do his work in the field.

99. With regard to the platting of the claim and other office work in the surveyor-generals office, that officer will make an estimate of the cost thereof, which amount the claimant will deposit with any assistant United States treasurer or designated depositor}' in favor of the United States treasurer, to be passed to the credit of the fund created by "individual depositors for surveys of the public lands,'' and file with the surveyor-general duplicate certificates of such deposit in the usual manner.

100. The surveyors-general will endeavor to appoint mineral deputy surveyors, so that one or more may be located in each mining district for the greater convenience of miners.

101. The usual oaths will be required of these deputies and their assistaiits as to the correctness of each survey executed by

them.

The duty of the deputy mineral surveyor ceases when he has executed the sursev and returned the field notes and proliniinarv plat thereof with his report to the surveyor-general. He will not be allowed fo prepare for the itiinin claimant the papers in support of an application for patent, or otherwise perform the duties of an attorney before the land office in connection with a

mining claim.

The surveyors-general and local land officers are expe(*ted to report any infringement of this regulation to this office.

Department Regulations — Surveyors. 12 1 U

102. The law requires that each applicant shall file, with the register and receiver a sworn statement of all charges and fees paid hy him for })iiblication of notice and for survey, together with all fees and money paid the register and receiver, which sworn statement is required to be transmitted to this office for the information of the commissioner.

103. Should it appear that excessive or exorbitant charges have been made by any surveyor or any publisher, prompt action will be taken with the view of correcting the abuse.

104. The fees payable to the register and receiver for filing and acting upon applications for mineral-land patents are five dollars to each officer, to be paid by the applicant for patent at the time of filing, and the like sum of five dollars is payable to each officer by an adverse claimant at the time of filing his adverse claim. (Sec. 2238, R. S., paragraph 9.)

105. All fees or charges under this law may be paid in United States euiTency.

106. The register and receiver will, at the close of each month, forward to this oflice an a))stract of raining ap])lication8 filed, and a register of receipts, accompanied with an abstract of mineral lands sold and an abstract of adverse claims filed.

107. The fees and purchase money received by registers and receivers must be placed to the credit of the Knited States in the receiver's monthly and quarterly account, charging up in the disbursing account the sums to which the register and receiver may be respectively entitled as fees and commissions, with limitations in regard to the legal maximum.

ProceeclingTH Belong the Koi;>:iHtor and Kf<u?iver and Surveyors-General in ('ontests and llearinfH to KstabliHli tlie Charact4r of Lands.

108. The *Rulrs of practice in cases before the United States district land oHifes, the general land office, and the department of the interior," apj)roYed August 13, 188o, will, as far as ap])lic!il)lo, c:ovom in all cases and })rooeodiiigs arising in contests, and hearings to determine tlie mineral or nonmineral character of lands.

109. No ]u})lic land shall be withheld from entry as agricultural land on account of its mineral character, excapt such

i2l2 APPENDIX.

as 18 returned by the surveyor-general as mineral; and the presumption arising from such a return may be overcome by testimony taken in the manner hereinafter described.

110. Hearings to determine the character of lands are practically of two kinds, as follows:

1. AVhen lands are returned as mineral by the surveyor-general.

When such lands are sought to be entered as agricultural under laws which require the submission of final proof after due notice by publication and posting, the filing of the proper nonmineral alHdavit in the absence of allegations that the land is mineral will be deemed suflicient as a preliminary requirement. A satisfactory showing as to character of land must be made when final proof is submitted.

In case of application to enter, locate, or select such lands as agricultural, under laws in which the submission of final proof after due publication and posting is not required, notice thereof must first be given by publication for thirty days and posting m the local office during the samje period, and affirmative proof as to the character of the land submitted. In the absence of allegations that the land is mineral, and upon compliance with this requirement, the entry, location, or selection will be allowed, if otherwise regular.

?. Wlien lands which are sought to be entered as agricultural are alleged by affidavit to be mineral or when sought as mineral their nonmineral character is alleged. The proceedings in this class of cases are in the nature of a contest between two or more known parties and are provided for in the rules of ])ractice.

111. At the hearings under either of the aforesaid classes, the claimants and witnesses will be thoroughly examined with regard to the character of the land: whether the same has been thoroughly prospected: whether or not there exists within the tract or tracts claimed any lode or vein of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, or copper, or other valuable deposit which has ever been claimed, located, recorded or worked: whether such work is entirely abandoned, or whether occasionallv resumed: if such lode does exist, by whom claimed, under what designation, and in which subdivision of the land it lies: whether any ])lacer mine or mines exist upon

Department Rules — Character Of Lands. 1218

the land; if so, what is the character thereof — whether of the shallow-surface description, or of the deep cement, blue lead or gravel deposits; to what extent mining is carried on when water can be obtained, and what the facilities are for obtaining water for mining purposes; upon what particular ten-acre subdivisions mining has been done, and at what time the land was abandoned for mining purposes, if abandoned at all.

112. The testimony should also show the agricultural capacities of the land, what kind of crops are raised thereon, and the value thereof; the number of acres actually cultivated for crops of cereals or vegetables, and within which particular ten-acre subdivision such crops are raised; also which of these subdivisions embrace the improvements, giving in detail the extent and value of the improvements, such as house, bam, vineyard, orchard, fencing, etc., and mining improvements.

113. Tlie testinjony sliould be as full and complete as possible; and in addition to the loading points indicated above, where an attemj)t is made to prove thr niin(;ral character of lands which have been eiitered unlcr tlu* agricultural laws, it should show at what date, if at all, valuable deposits of mineral were first known to exist 'n tho laiirls.

114. When the oiJM* coiiu*.s before this o!!ice, such decision will be n!ad*i as tlu- iniH the facts may justify; and in ca-ses where a tiirxey is n<'<'f>hary to set apart the mineral from the agricultural liJiid, the- (i -jiry iii-triKtions will be given to enable the proper jmrty at his own oxjx-nse to have the work done, at bis option, either by IniK-d State-? deputy, county, or other local sun'vor: tlK- survey in viuh f-ahc, where the claims to be segregat'd are vein or lode rJMini-, nuisi be e.\<'Ciife<l in such manner as will ('<tul*nui Ui tbe rejiiireni'nt in section 'io'iK Y. S. Kevi-e/j .staiMK'-. ji- io leurtJi jinrl width anl parallel end lines.

11 o. Such -urvi'V wjjr-jj r\r(fit(-rj iriu-T be jirop'-rly s\vorTi to bv the riirvevor. ejtjjer befojr- a iiotarv rniMic. otljrer of a court of recor'l. or before ihe re;:ier or receiver, the deponent's character and creflibiliiy To br j>roperJy certifier] tr, the officer administerin;! the oaih,

110. T'poji tbe f*.!in;r of the |,]at anO field note?: of cuch survey. dn]\ hWhvii to a- aforesaid, vmtj will transmit the same to

1214 Appendix.

the siuveyor-general for his verification and approval; who, if he finds the work correctly performed, will properly mark out the same npon the original township plat in his office, and furnish authenticated copies of such plat and description both to the proper local land office and to this office, to be affixed to the duplicate and triplicate township plats respectively.

117. With the copy of plat and description furnished the local office and this office, must be a diagram tracing, verified by the surveyor-general, showing the claim or claims segregated, and designating the separate fractional agricultural tracts in each 40- acre legal subdivision by the proper lot number, beginning with No. 1 in each section, and giving the area in each lot, the same as provided in paragraph 45, in the survey of mining claims on surveyed lands.

118. The fact that a certain tract of .land is decided upon testimony to be mineral in character is by no means equivalent to an award of the land to a miner. A miner is compelled by law to give sijty days publication of notice, and posting of diagrams and notices, as a preliminary step; and then, before he can enter the land, he must show that the land yields mineral; that he is entitled to the possessor}- right thereto in virtue of compliance with local customs or rules of miners, or by virtue of the statute of limitations; that he or his grantors have expended, in actual labor and improvements, an amount of not less than five hundred dollars thereon, and that the claim is one in regard to which there is no controversy or opposing claim. After all these proofs are met, he is entitled to have a survey made at his own cost where a survey is required, after which he can enter and pay for the land embraced by his claim.

119. Blank forms for proofs in mineral cases are not furnished by the general land office.

VI. Coal LaxND Law with Regulations TuERErNDER.

Coal Lands, Who May Enter; Size of Location; Price.

§ 2347. Every person above the age of twenty-one years, who is a citizen of the United States, or who has declared his intention to become such, or any association of persons severally qualified

Coal Lands — Statutes. 1215

as above, shall, upon application to the register of the proper land office, have the right to enter, by legal subdivisions, any quantity of vacant coal-lands of the United States not otherwise appropriated or reserved by competent authority, not exceeding one hundred and sixty acres to such individual person, or three hundred and twenty acres to such association, upon payment to the receiver of not less than ten dollars per acre for such lands, where the same shall be situated more than fifteen miles from any completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road.

Classillcation of coal as mineral, and charaeterisrtics of system: §495. Bnles for determining character of land: § 496. Who may enter coal lands: § 501. Different classes of entries: § 502. Private entry: § 503. Declaratory statement: § 505.

Preferential Rigrhts of Purchase.

§ 2348. Any person or association of persons severally qualified, as above provided, who have opened and improved, or shall hereafter open and improve, any coal mine or mines upon the public lands, and shall be in actual possession of the same, shall be entitled to a preference-right of entry, imder the preceding section, of the mines so opened and improved; provided, that when any association of not less than four persons, severally qualified as above provided, shall have expended not less than five thousand dollars in working and improving any such mine or mines, such association may enter not exceeding six hundred and forty acres, including such mining improvements.

Declaratory Statement, When Filed.

§ 2'oVJ. All rlaims under the preceding section must be presented to the register of the proper land district within sixty days after tho date of actual possession and the commencement of improvemf-nts on the land, by the filing of a declaratory statement therefor: but when the township plat is not on file at the date of siuh improv*ment, filing must be made within sixty days from the n'Cfipt of mirh plat at the district office: and where the

1216 Appendix.

improvements shall have been made prior to the expiration of three months from the third day of March, eighteen hundred and seventy-three, sixty days from the expiration of such three months shall be allowed for the filing of a declaratory statement, and no sale under the provisions of this section shall be allowed until the expiration of six months from the third day of March, eighteen hundred and seventy-three.

Declaratory statement: § 505.

jOne Person Shall Make but one Entry.

§ 2350. The three preceding sections shall be held to authorize only one entry by the same person or association of persons, and no association of persons any member of which shall have taken the benefit of such sections, either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof; ajid no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their provisions; and all persons claiming under section twenty-three hundred and fortyeight shall be required to prove their respective rights and pay for the lands filed upon within one year from the time prescribed for filing their respective claims; and upon failure to file the proper notice, or to pay for the land within the required period, the same shall be subject to ontr}' by any other qualified applicant.

Purchase price: § 507. Final entry: § 508.

Conflicting' Claims.

§ 2351. In case of conflicting claims upon coal lands where the improvements shall be commenced, after the third day of March, eighteen hundred and seventy-three, priority of possession and improvement, followed by proper filing and continued good faith, shall determine the preference right to jjurchase. And also wliere improvements have already been made prior to the third day of March, eighteen hundred and seventy-three, division of the land claimed mav be made bv leral subdivisions, to inelude, as near as may be, the valuable improvements of the re-

Coal Lands — Department Regulations. 1217

spective parties. The commissioner of the general land office is authorized to issue all needful rules and regulations for carrying into eflfect the provisions of this and the four preceding sections.

Application of Precediugr Sections.

§ 2352. Nothing in the five preceding sections shall be construed to destroy or impair any rights which may have attached prior to the third day of March, eighteen hundred and seventythree, or to authorize the sale of lands valuable for mines of gold, silvei, or copper.

Rules and Kegrulations of Land Department.

Under the authority conferred by said section 2351 the following rules and regulations are issued for carrying into effect the provisions ot said law:

1. Sale of coal lands is provided for —

By ordinary private entry under section 2347. By granting a preference right of purchase, based on priority of possession and improvement, under section 234,8.

2. The land entered under either section must be by legal subdivisions, as made by the regular United States survey. Entry is confined to surveyed lands; to such as are vacant, not otherwise appropriated, reserved by competent authority, or containing valuable minerals other than coal.

3. Individuals and associations may purchase. If an individual he must be twenty-one years of age and a citizen of the United States, or have declared his intention to become such citizen.

4. If an association of persons each person must be qualified as above.

5. A person is not disqualified by the ownership of any quantity of other land, nor by having removed from his own land in the same state or territorv.

6. Any individual may enter by legal subdivisions as aforesaid any area not oxooeding one hundred and sixty acrrs.

7. Any association may enter not to exceed throe hundred and twentv acres.

1218 Appendix.

8. Any association of not less than four persons, duly qualified, who shall have expended not less than $5,000 in working and improving any coal mine or mines, may enter un4er section 2348 not exceeding six hundred and forty acres, including such raining improvements.

9. One person can have the benefit of one entry or filing only. He is disqualified by having made such entry or filing alone or as a member of an association. Xo entr}* can be allowed an association which has in it a single person thus disqualified, as the law prohibits the entry or holding of more than one claim either by an individual or an association.

10. Lands that are sufficiently valuable for gold, silver, or copper to prevent their entry as agricultural lands can not be entered as coal lands; and you will not allow any entry to be made under the above named provisions of law of lands valuable for their deposits of said minerals.

11. The present rules relative to 'Tiearings to establish the character of lands,'' contained in general land office regulations of October 31, 1881, issued under the mining laws, will, as far as applicable, govern your action in determining the character of lands sought to be entered as coal land.

12. The price per acre is $10 where the land is situated more than fifteen miles from any completed railroad, and $20 per acre where the land is within fifteen miles of such road. The price of the land, however, must be determined by its distance from a completed railroad at the date of payment and entry irrespective of the preference right of entry.

13. AVhen application is made to purchase coal land at the rate of $10 ])er acre you will in all cases require satisfactory proof that the land applied for is, at date of entry, situated more than fifteen miles from any completed railroad. Tliis ])roof may consist of the ailidavit of the applicant, or that of his duly authorized agent, corroborated by the affidavit of some disinterested credi])le l)arty showing personal knowledge of the faets.

14. Where tiie land lies parti v within fifteen miles of such road and in part outside such limit, the maximum price must be |)aid for all legal subdivisions the greater part of which lie within fifteen miles of such road.

Coal Lands — Department Regulations. 1219

16. he term "completed railroad is held to mean one which 18 actually constructed on the face of the earth; and lands within fifteen miles of any point of a railroad so constructed will be held and disposed of at $20 per acre.

16. Any duly qualified person or association must be preferred as purchasers of those public lands on which they have opened and improved, or shall open and improve, any coal mine or mines, and which they shall have in actual possession.

17. Possession by agent is recognized as the possession of the principal. The clearest proof on the point of agency must, however, be required in every case, and a clearly defined possession must be established.

18. The opening and improving of a coal mine, in order to confer a preference right of purchase, must not be considered as a mere matter of form; the labor expended and improvements made must be such as to clearly indicate the good faith of the claimant.

19. These lands are intended to be sold, where there are ad- 'verse claimants therefor, to the party who, by substantial improvements, actual possession, and a reasonable industry, shows an intention to continue liis development of the mines in preference to those who would purchase for speculative purposes only. With this view, you will require such proof of compliance with the law, when lands are applied for under section 2348 by adjVerse claimants as the circumstances of each case may justify.

20. In contlicts where improvements have been or shall hereafter be commenced, i)riority of possession and improvement shall govern the award when the law has been fully complied with by each party. A more ])possession, however, without satisfactory iniprovemoiits, will not secure the tract to the first occupant when ji subsoquont claimant shows his full compliance with the law.

21. After an entry lias been allowed to one party, you will make no investigation concerning it at the instance of any person except on instructions from this ollice. You will, however, receive all allidavits ooncoriiiiig such rase and forward the same to this oflico, {UToni])ani(Hl by a statement of the facts as shown bv vour records.

1 220 Appendix.

22. Prior to entry it is competent for you to order an investigation, on sufficient grounds set forth under oath of a party in interest and substantiated by the affidavits of disinterested and credible witnesses.

Mauuer of Obtaiuingr Title.

23. When title is sought by private entr}' the party will himself make oath to the following application, which must be presented to the register:

I, , hereby apply, under the provisions of the Ke-

vised Statutes of the United States relating to the sale of coal lands of the United States, to i)purchase the quarter of section — : , in township , of range , in the district

of lands subject to sale at the land office at , and containing acres; and I solemnly swear that no portion of said

tract is in the possession of any other party; that I am twentyone years of age, a citizen of the United States (or have declared my intention to become a citizen of the United States), and have never held nor purchased lands under said act, either as an individual or as a member of an association; and I do further swear that I am well acquainted with the character of said described land, and with each and every legal subdivision thereof, having frequently passed over the same; that my knowledge of said land is such as to enable me to testify understandingly with regard thereto; that said land contains large deposits of coal and is chiefly valuable therefor; that there is not to my knowledge within the limits thereof any vein or lode of quartz or other rock in place bearing gold, silver, or copper, and that there is not within the limits of said land, to my knowledge, any valuable deposit of gold, silver, or copper. So help me God. .

24. Thereupon the register if the tract is vacant will so certify to the receiver, siatinp: the price, and the applicant or his duly authorized agent must then pay the amount of purchase money.

25. The receiver will then issue to the purchaser a duplicate receij)t, and at the close of the month the register and receiver will make returns of the sale to the general land office, from whence, when the proceedings are found regular, a patent or complete title will he issued; and on surrender of the duplicate re-

Coal Lands — Department Regulations. 1221

ceipt such patent will be delivered, at the option of the patentee, either by the commissioner at Washington or by the register at the district land oilice.

26. This dispotion at private entry will be subject to any valicl prior adverse right which may have attached to the same land and which is protected by section 2348.

27. Second. When the application to purchase is based on a priority of possession, etc., as provided for in section 2348, the claimant must, when the township plat is on file in your oiSice, file his declaratory statement for the tract claimed sixty days from and after the first day of his actual possession and improvement. Sixty days, exclusive of the first day of possession, etc., must be allowed.

28. The declaratory statement must be substantially as follows, to-wit:

I , do solemnly swear that I am years of

age, and a citizen of the United States (or have declared my intention to become a citizen of the United States), that I never have, either as an individual or as a member of an association, held or purchased any coal lands under the provisions of the Bevised Statutes of the United States relating to the sale of coal lands of the United States, and I do hereby declare my intention

to purchase, under the ])ro visions aforesaid, the quarter of

section , in townsliip , of range , of lands subject to

sale at the district land office at r, and that I came into possession of said tract on the dav of , A.D. 18 — , and have

ever since remained in actual possession coniiiuiouiily: that I have located and opened a valuable mine of coal thereon, and have expended in labor and improvements on said mine the sum

of dollars, the lal.)or and improvements being as follows:

[here describe the nature and character of the improvements]; and I do furthermore solemnly swear that I am well acquainted Nvith the character of said described land, and with each and every legal subdivision thereof, having frequently passed over the same; that my knowledge of said land is such as to enable me to testify understandingly with regard thereto; that there is not, to my knowledge, within the limits thereof any vein or lode of quartz or other rock in place, -bearing gold, silver, or copper, and

1222 " " Appendix.

that there is not within the limits of said land, to my knowledge, any valuable deposit of gold, silver, or copper. So help me God.

29. When the township plat is not on file at date of claimant's first possession the declaratoiy statement mnst be filed within sixty days from the filing of such plat in your office.

30. One year from and after the expiration of the peri9d allowed for filing the declaratory statement is given within which to make proof and payment; but you will allow no party to make final proof and payment except on notice to all others who appear on your records as claimants to the same tract.

31. A party who otherwise complies with the law may enter after the expiration of said year, provided no valid adverse right shall have intervened. He postpones his entry beyond said year at his own risk, and the government cannot thereafter protect him against another who complies with the law, and the value of his improvements can have no weight in his favor.

32. Each claimant at the time of actual purchase must make affidavit as follows:

I, — , claiming under the provisions of the Kvised

Statutes of the United States relating to the sale" of coal lands

of the United States, the right of purchase to the quarter

of section y in township of range , subject to sale

at , do solemnly swear that I have never had the right of

purchase under the aforesaid provisions of law either as an individual or as a member of an association, and that 1 liave never held any other lands under its jn-visions; I further swear that I have expended in developing coal mines on said tract in labor and imi)rovcments the sum of dollars, the nature of such improvements being as follows: ; that I am now in

the actual possession of said mines, and make the entry for my own and benefit, and not directly or indirectly for the use and benefit of any other party; and I do furthermore swear that I am well acquainted with the character of said described land, and with each and every legal subdivision thereof, having frequently passed over the same; that my knowledge of said land is such as to enable me to testify understandingly with regard thereto; that the same is chiefly valuable for coal; that there is not, to my knowledge, within the limits thereof any vein or lode of quartz

Coal Lands — Department Regulations. 122H

or other rock in place bearing gold, silver, or copper, and that there is not within the limits of said land, to riiy knowledge, any valuable deposit of gold, silver, or copper. So help me God

33. The application, declaratory statement, and the affidavit required at the time of actual purchase, the forms of which are given above under paragraphs 23, 28, and 32, may be sworn to before any officer authorized by law to administer oaths, but the authority of such officer must be properly shown.

34. Any party duly qualified under the law, after swearing to his application or declaratory statement, may, by a sufficient power of attorney duly executed under the laws of the state or territory in which such pari;y may then be residing, empower an agent to file with the register of the proper land office the application, declaratory statement, or affidavit required at the time of actual purchase, and also authorize him to make payment for and entry of the land in the name of such qualified party; and when such power of attorney shall have been filed in your office you will permit such agent to act thereunder as above indicated.

35. Where a claimant sliows by alTidavit tliat he is not personally acquainted with the character of the land, his duly authorized agent whb possesses such knowledge may make the required affidavit as to its character; but whether this affidavit is made by principal or agent it must be corroborated by the affidavits of two disinterested and credible witnesses having knowledge of its character.

3G. Nothing in these regulations shall be so construed as to prevent a party from proving his citizenship or age, or establishing the status of the lands sought to be entered, in accordance with ordinary rules of evidence; and any proof regularly introduced for that purpose that would be competent in a court or before a commissioner charged with the ascertainment of facts may be considered.

37. Assignments of tlie right to purchase will be recognized when properly executed. Proof and payment must be made, however, within the prescribed ])eriod, which dates from the first day of the possession of the assignor who initiated the claim.

38. The "Rules of practice in cases before the United States district land offices, the general land office, and the department

1224 Appendix.

of the interior," approved December 20, 1880, will, as fax aa applicable, govern all cases and proceedings arising under the sections of the Revised Statutes above quoted providing for the sale of coal lands of the United States.

39. You will report at the close of each month as "sales of coal lands' all filings and entries in separate abstracts, commen' ing with number one and thereafter proceeding consecutively in the order of their reception. Where a series of numbers has already been commenced by sale of coal lands you will continue the same without change.

VII. Instructions Rklating to Selection of Lands by

Railroads and States.

A. Railroads.

Secretary Smith to the Commissioner of the General Land Office, July 9, 194.

In the matter of the selection, by railroad companies, of lands in satisfaction of their grants, the following rules and regulatiojis will beobserved in determining whether the lands selected are mineral or non-mineral lands:

J . Where the lands have been returned by the surveyor general as mineral, a hearing may be had to determine the character of the land, under rules 110 and 111 of Rules and Regulations issued December 10, 1891, controlling the disposal of mining claims.

2. AM] ere ihe lands selected by the company are within a mineral belt, or proximate to any mining claim, the railroad company will be required to file with the local land officers an affidavit by the land agent of the company, which affidavit shall be attached to said list when returned, setting forth in substance that he has caused the lands mentioned to be carefully examined by the agents and employees of the company, as to their mineral or agricultural character, and that, to the best of his knowledge and belief, none of the lands returned in said list are mineral lands.

Tpon receipt of said list you will cause it to be examined, and a clear list to be prepared of all lands embraced therein that are

Selection Of Lands By Railroads. 1225

not within a radius of 6 miles from any mineral entry, claim, or location, which list shall be transmitted to the department for its ai]roval. If any of the lands embraced in said list of selections are found upon examination to be thin a radius of 6 miles from any mineral entry, claim, or location, you will cause a supplemental list of such lands to be prepared, and return the aame to the register and receiver of the district in which they are situated, and notify the railroad company that they have been so returned. The register and receiver will at once cause notice to be published in such newspapers as shall be designated by the commissioner of the general land office, containing a statement that the railroad company has applied for a patent for the lands designating the same by townships, and has filed lists of the same in the local land office; that said lists are open to the public for inspection; that a-coi)y of the same, by descriptive subdivisions, . has been conspicuously posted in said land office for inspection by persons interested, and the public generally: and that the local land officers will receive protests, or contests, within the next sixtv davs, for niiv of >aiil tnut> or subdivisirms of land claimed to be more valnaMr lor mincrul tlian for agricultural purposes. At the oxniratiun of said sixtv dav.s, tin- n';ri>i<'r and receiver 'will return to tlie couiniissioiKM- of the gMieral land oIVkm* said supplemental list, noting thereon any ])rot(.*sts, r)r contests, or suggestions, as to the mineral character of any of such lands, together witli any information they may liave reeeived as to the mineral character of anv of the lands mentioned in sail list. After the same shall have been returned by the register and receiver, vou will first eliminate from said supplemental list all the lands that have been j)rote>terl, or crntested, or claimed to be more valuable for mineral tlian for agricultural juirposes, or concerning which any sugijestion ha-< been made as to their mineral character. The remaiuiTiL' land- you will certify to this department for ajiproval an<l patenting as agricultural.

Ill regard to lands protested or contested, or r-laiuicd to be hiineral. or coneerning which any suggest(m has been made, or report hv tie reiri.-ter and receivr-r, as to their min-ral character,

Ate

you will order a healing to be had by the loeal land officers in each case, after giving due notice to the i>ersons furnishing such information, and to the railroad company, under the existing

1226 Appendix.

rules and regulations of the department concerning hearings in cases where the land has heen returned as mineral land.

The railroad company shall pay to the register and receiver the cost of advertising said lands in the manner set forth.

You are further instructed that all lists which have been heretofore prepared in accordance with any rules, regulations, or instructions of the secretary of the interior, where such rules have been complied with (such as furnishing affidavits showing the nonmineral character of the lands in accordance with the instructions of the interior department), and such mineral affidaAits furnished for each subdivision of 40 acres, shall be excej)tod from the tenns of the foregoing regulations. Also, where lists of selections are now pending of lands returned by the surveyor general as mineral, where hearings have been had in accordance with rules 110 and 111 of Rules and Regulations of December 10, 1891, above referred to, and the local officers have determined that said lands are nonmineral in character, and such detennination has been approved by the general land office, such lands shall be submitted to the department for approval, without further investigation, although they may be within 6 miles of any mineral claim or location, unless since said hearing mineral claims or locations have been made of any tract embraced in said lists, in which event vou will eliminate said tract from said list, and hold the same for further investigation.

B. Circular Instriietioii with Rcferoiieo to Seleetioo of Liauds by States.

De])artment of the Interior, General Land Office,

Washington, 1). C, Xovcmber 27, 189r>. Registers and Receivers, T. S. Land Offices.

Sirs: Ilereaiter where the lands selected by the states, under their grants, are within a mineral belt or proximate to any mining claim, the state will be required to file with the local land officers, with each selection list, a satisfactory nonmineral affidavit, covering each legal subdivision of land selected. If any of the lands selected are found, upon examination, to be with-

SELErriON OK LANDS KY STATKS. !*2'J7 .

in a township containing any minoral oniry, olaini or looation* you will at once notify the proper state otVuvr as io the spiH*i!le tracts, and require liini to at onee ])iihlish mtii-e in sonu* newnpaper of general circulation (to be desijrnated by yo\0 within the vicinity of said lands, setting forth that the stat has ap plied for the lands designated, and has lUed list8 for th(> sainr in your office; that said lists are open to the puhlie for inspec tion, and that a copy of the same by descri]>tive suhdiviHions ban been conspicuously posted in your ofVice for inspection by persons interested and the public generally; and thai you will receive protests or contests within the next sixty days for any c)f said tracts or subdivisions of land claimed to l)e more vahiable for mineral than for agricultural purposes.

At the expiration of the sixty days you will make full n*porl to this office as to any ])r<teKts or eorjtests, or siigi'stions as to the mineral character of any of such lands, togelluT with any information you may have received in ri'tTHnl th*n'lo.

You will also notify tli(j proper stat*- (AVici'r that a failiin- to make the required publication within tliirty days wil) n'sriill in the cancellation of the H'h'ftions rcffrrctl to, 1h<r b*- ing reported to thin oflirr-.

The notice will b<? publirbwl ojiir a wi--k for ten eonM*<'iitivi' weeks.

The original iJKtr. witli proper noUitionf- to the land*; within mineral lown*;bip'. wjlj b<' duly forwarded Ut thij oiYit'At, without awaitJn; the puoli'-anon of notj'i-, tlnjt j>roj/<'r aUon sir.iw be takeii iu r<-j to tii*- tttmutnn'/ la/jdj-.

modified .

Appendix.

VIII. Petroleum Law of Feb. 11, 1897, and Circular Instructions Relating Thereto.

Petroleum.

Department of the Interior, General Land Office.

Washington, D. C, February 25, ISd'i. Registers and Receivers, U. S. Land Offices.

Sirs: Your attention is directed to the act of Congress, approved on February 11, 1897, as follows:

[Public No. 57.]

An act to authorize the entry and patenting of lands containing petroleum and other mineral oils under the placer mining laws of the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that any person authorized to enter lands under the mining laws of the United States may enter and obtain patent to lands containing petroleum or other mineral oils, and chiefly valuable therefor under the provisions of the laws relating to placer mineral claims; provided, that lands containing such petroleum or other mineral oils which have heretofore \)een filed upon, claimed, or improved as mineral, but not yet patented, may be held and patented under the provisions of this act the same as if such filing, claim or improvement were subsequent to the date of the passage hereof.

It is to be observed that though the provisions of the placer mineral land laws are by said act extended so as to allow the location and entry thereunder of public lands chiefly valuable for petroleum or other mineral oils, yet the substances named are not expressly stated to be mineral, in view of \vhich it would appear that the prior assertion of a legal adverse claim to land valuable for petroleum or other mineral oils would preclude the acquisition of any rights thereto under the provisions of the mineral land laws.

ALIEN ACT OF 1597. li;:!

Ckims to knds of the character mentioned, heretofore initiated under the mineral land laws are bv said act eipressly confined; but this conlinnation must, of course, be construed as applying only to cases where, prior to February 11, 189*, no valid adTeise claim to lands involved had been acquired under other than the mineral land laws.

In proceeding under this law, you will act in accordance with the views herein set forth.

Very respectfully,

S. W. Lamoreux,

Commissioner. Approved:

David B. Fbaxcis,

Secretary.

IX. .\liex Act of M.\rch 2, 1S07.

An Act to better define and regulate the rights of aliens to hold and own real estate in the Territories.

Aliens not to Hold Lands in Terrifories K\oept ote.

An Act entitled "An Act to restrict the ownership of real estate in the Territories to American citizens, and so forth/' approved iarch 3, 18ST, except so far as it atTtH?ts real estate in the I)i6trict of C(>himbia, be, and the same is hereby, amended so as to read as follows:

1. *'That no alien or person who is not a citizen of the United States, or who has not declared his intention to become a citizen of the United States in the manner provided by law, shall acquire title to or own anv land in anv of the territories of the United States except as hereinafter ]>rovided; provided, that the prohibition of this section shall not apply to cases in which the right to hold or dispose of lands in the United States is secured by existing treaties to citizens or subjects of foreign countries, which rights, so far as they may exist by force of any such treaty, shall continue to exist so long as such treaties are in force, and no

longer. Rights of aUens in territories prior to this act: §§ 242-244. Power of Coupress over territories: § 242. General scope of former act: § 244. For discussion of this act: See § 084, and note, page 863.

1230 Appendix.

Resident Aliens may Hold Lands; Aliens may Acquire and Hold Mines.

"§ 2. That this act shall not apply to land now owned in any of the territories of the United States by aliens, which was acquired on or before March 3, 1887, so long as it is held by the then owners, their heirs or legal representatives, nor to any alien who shall become a bona fide resident of the United States, and any alien who shall become a bona fide resident of the United States or shall have declared his intention to become a citizen of the United States in the manner provided by law, shall have the right to acquire and bold lands in either of the territories of the United States upon the same terms as citizens of the United States; provided, that if any such resident alien shall cease to be a bona fide resident of the United States then such alien shall liave ten years from the time he ceases to be such bona fide resident in which to alienate such lands. This act shall not be construed to prevent any persons not citizens of the United States from acquiring or holding lots or parcels of lands in any incorporated or platted city town, or tillage, or in any mine or mining claim, in any of the territories' of the United States.

Aliens may Acquire Lands by Descent and Mortgagre, but Must Dispose of Them.

3. That this act shall not prevent aliens from acquiring lands or any interests therein by inheritance or in the ordinary course of justice in the collection of debts, nor from acquiring liis on real estate or any interest therein, nor from lending money and securing the same upon real estate or any interest therein; nor from enforcing any such lien, nor from acquiring and holding title to such real estate, or any interest therein, upon which a lien may have heretofore or may hereafter be fixed, or upon which a loan of money may have been heretofore or hereafter may be made and secured; provided, liowevc-r, that all lands so acquired shall be sold within ten years after the title shall be perfected in him under said sale or the same shall escheat to the United States and ho forfeited as hereinafter provided.

Alien Act Of 1897. 1231

CoDveyances in Evasion of tliis Act Ar© Void.

"§ 4. That any alien who shall hereafter hold lands in any of the territories of the United States in contravention of the provisions of this act may nevertheless convey his title thereto at any ' time before the institution of escheat proceedings as hereinafter provided; provided, however, that if any such conveyance shall be made by such alien, either to an alien or to a citizen of the United States, in trust and for the purpose and with the intention of evading the provisions of this act, such conveyance shall be null and void, and any such lands so convoyed shall be forfeited and escheat to the United States.

£scheat Proceeding's; Notice.*

"§ 5. That it shall be the duty of the attorney general of the United States, when he shall be infonued or have reason to believe that lands in any of the territories of the United States are being held contrary to the provision of this act, to institute or cause to be instituted suit in behalf of the UniitKl States in the district court of the territory in the district where such land or a part thereof may be situated, praying for tlie esclieat of the same on behalf of the United States to the United States; provided, that before any such suit is instituted the Attorney Ueneral shall give or cause to be given ninety days* notice by registered letter of his intention to sue, or by personal notice directed to or delivered to the owner of said land, or the person who last rendered the same for taxation, or his agent, and to all other persons having an interest in such lands of which he may have actual or constructive notice. In the event personal notice can not be obtained in some one of the modes above provided, then said notice shall be given by publication in some newspaper published in the county where the land is situate, and if no newspaper is ])ublished in said countv then tlie aid notice shall be published in some newspaper nearest said count}'.

Sale of T.and; I>iHi>osal of Proceeds; Allen licconilnr Qualified.

"§ 6. That if it shall be determined upon the trial of any such escheat proceedings that the lands are lield contrary to the provisions of tliis act, the court trying said case shall render judg-

Appendix.

ment condemning such lands and shall order the same to be sold as under execution; and the proceeds of such sale, after deducting costs of such suit, shall be paid to the clerk of such court so rendering judgment, and said fund shall remain in the hands of such clerk for one year from the date of such payment, subject to the order of the alien owner of such lands, or his heirs or le- ' gal representatives; and if not claimed within the period of one year, such clerk shall pay the same into the treasury of the territory in which the lands may be situated, for the benefit of the available school fund of said territory; provided, that the defendant in any such escheat proceedings may, at any time before final judgment, suggest and show to the court that he has conformed with the law, either becoming a bona fide resident of the United States, or by declaring his intention of becoming a citizen of the United States, or by the doing or happening of any other act which, under the provisions of this act, would entitle him to hold or own real estate, which being admitted or proved, such suit shall be dismissed on- payment of costs and a reasonable attorney fee to be fixed by the court.

General Application of the Act.

"§ 7. That this act shall not in any manner be construed to refer to the District of Columbia, nor to authorize aliens to acquire title from the United States to any public lands in the United States or to in any manner affect or change the laws regulating the disposal of the public lands of the United States. And the act of which this act is an amendment shall remain in force and unchanged by this act so far as it refers to or affects real estate in the District of Columbia.

"§ 8. Thai all laws and parts of laws so far as they conflict with the provisions of this act are hereby repealed.''

X. Kkcknt Legislation and Kigilations on Subject OF Mining Claims witjiin Forest Keskkvations.

Since the portion of the text relating to forest reservations (ante, sees. 19(>, 198) was vritten, Congress passed an act making appropriations for sundr}' civil expenses of the government, ap-

Forest Reservations. 1238

proved Jiuie 4, 1897, and embodied therein, certain regulations relating to forest reservations among which were the following:

is not the purpose or intent of these provisions, or of the act providing for such reservations, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes

"The secretary of the interior may permit, under regulations to be prescribed by him, the use of timber and stone found upon such reservations, free of cliargo, by bona fide settlers, miners, residents, and prospectors for minerals, for firewood, fencing buildings, mining, prospecting and other domestic purposes, as may be needed by such persons for such purposes

"N'or shall anything herein prohibit any person from entering upon such forest reservations for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof; Provided, that such persons comply with the rules and regulations covering such forest reservati(m8. . . .

"All waters on such reservations may be used for domestic, mining, milling or irrigation purposes, under the laws of the state wherein such forest reservations are situated, or under the laws of the United States and the rules and regulations established thereunder.

"Upon tJic recommendation of the secretary}' of the interior with the apj)roval of the president, after sixty days' notice thereof published in two papers of general circulation in the state or territory wherein any forest reservation is situated, and near the said reservation, any public lands embraced within tlie limits of any forest reservation, which after due examination by personal inspection of a competent person appointed for that purpose by the secretaiy of the interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And any mineral lands in any forest reservation which have been or which may be shown to be such and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding, any provisions h<Tein contained.'*

Under the authority vested in the secretarv of the interior bv the act to insure the objects for which forest reservations are ere-

1234 Appendix.

ated, rules and regulations were prescribed June 30, 1897, by the commissioner (24 L. D. 589), among which the following are important:

It is the intention to exclude from these reservations, as far as possible, lands that are more valuable for the mineral therein, or for agriculture, than for forest purposes; and where such lands are embraced with the boundaries of a reservation, they may be restored to settlement, location and entry.

"19. The law provides that any mineral lands in any forest reservation which have been or which may be shown to be such, and suly ect to entry under the existing inining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding the reservation. This makes mineral lands in the forest reserves subject to location and entry under the general mining laws in the usual manner.

"20. Owners of valid mining locations made and held in good faith under the mining laws of the United States and the regulations thereunder, are authorized and permitted to fell and remove from such mining claims any timber growing thereon, for actual mining purposes in connection with the particular claim from which the timber is felled or removed/'

Mining Laws Of Arizona. 1235

Title Xiii.

State and Territorial Legislation on Mining Subjects.

(llie sections referred to in tlie notes are those of the text of this

treatise unless otherwise expressed.)

Abizoxa.

I. Acr OF 1896 Relating to the Ix)cation and Development of Mixing Claims.

IL Act of 1891 Relating to Forfeiture of Mixing C'laimb.

III. Reference to Miscellaneous Legislation ox Mining 8urtects.

I. Act of 1895 Relating to tiik Location and Develoi-

MENT of Mining Claims.

[In effect July 1, 1895; Laws of 1895, pp. 53-55.]

Contents of Location Xotice.

§ 1. Every notice of location of mining claim shall contain: First, the name of the claim located; second, the name of the locator; third, the date of location; fourth, the number of feet in length of said claim and the number of feet claimed on each side of the center of the discovery shaft, lengthwise of the claim; fifth, the general course of the lode deposit or premises located; sixth, the locality of the claim with reference to some natural object, or permanent monument, as will identify the claim.

Referred to in text: §§ 35:, 379.

Requirements of Federal Law as to contents of recorded notices:

§ 2324, Rev. Stats, ante, p. lliiS and note. Purpose of location certificate: 9 379. Rules of construction applied: § 381.

1236 Appendix.

Location Certificates Void unless They Contain Necessary Recitals.

§ 2. All mining locations hereafter located, the certificate of location of which shall not contain: First, the name of the lode or premises; second, the name of the locator or locators; third, the date of location; fourth, the number of feet in length of said claim and the number of feet claimed on each side of the center of the discovery shaft, lengthwise of the claim; fifth, the general course of the lode, or premises, as near as may be; sixth, the locality of the claim with reference to some natural object or permanent monument, as will identify the claim, shall be void.

Effect of failure to comply with the law as to contents of certificate: § 384.

Time allowed for recording in absence of State law fixing it: § 389.

Effect of failure to record: § 390.

The record as evidence: § 392.

LfOde Claim, How Liocated; Discovery Shaft; Posting: Notice.

§ 3. Before filing such location certificate with the county recorder of the proper county, the discoverer shall locate his claim by: First, sinking a discover}' shaft upon the premises, so claimed,' to a doptli of at least ten feet from the lowest part of the rim of such shaft at the surface, and deeper if necessary, until there is shown by such work a lode deposit or mineral in place; second, by posting at the point of discover}', on the surface, a plain sign or notice substantially conforming to the location certificate; third, bv marking: such claim or ])remises on the ground so that its boundaries can be readily traced.

Statute referred to in the text: § 343.

Relationship of discovery to discovery shaft: § 345.

Object of requirement as to development work: § 344.

Extent of development worlc: § 346.

May such preliminary work be credited on account of first year's representation? 5 632.

preliminary notice and its postinjr describeil: §§ 350-356.

'Markiuj: of tlie location on the surface, necessity for and object of: §§ 371-375.

Mining Laws Of Arizona. 1237

Markingr of Boundaries.

§ 4. Such surface boundaries shall be marked by eight substantial posts, projecting at least three feet above the surface of the ground, or by substantial stone monuments at least three feet high, to wit: One at each comer of said claim, and one at the center of each end and side line thereof.

Statute referred to in tlie text: § 374, p. 486. Necessity for and object of marking: §§ 371-375.

Bquivalent of Discovery Shaft.

§ 5. Any open-cut, cross-cut, adit or tunnel, which shall be made as above provided for, as a part of, the location of a mining claim, and wliich shall be equal in amount of work to a shaft ten feet deep and four feet wide by six feet long, and which shall cut a lode or mineral in place at the depth of ten feet from the surface, shall be equivalent, as a discover}' work, to a shaft sunk from the surface.

See note to § 3 of this act.

Time Withiu Discovery Work Must Be Performed.

§ 6. The discoverer shall have ninety days from the date of discovering the lo(e and the posting of the notice thereon, to perform said discovery work thereon.

See note to § 3 of this act.

Relocation l>y Owner; Aniendcd Location Ortifi<'atc; Changre of lioundarics.

§ 7. If at any time the locator of any mining flaini lierctofore or hereafter located, or his assigns, shall learn that his original certificate was defective, or that the re(iuircment8 of the law had not been complied with before filing, or shall be desirous of changing his surface boundaries, or of taking in any additional ground which is subject to location, or in case the original certificate was made prior to the passage of tliis law, and he shall be desirous of securing the benefits of this act, such locator or his

1238 Appendix.

assigns may file an amended certificate of location subject to the provisions of this act, regarding the making of new locations.

Statute refeirred to in text: § 397, p. 506.

Object and fuDictions of amended location certificates: § 398, p. 507. Circumstaneef? justifying change of boundaries: $ 396, p. 604. Privilege of changing boundaries exists in the absence of iniecreiiing rights, independent of state legislation: § 397, p. 506.

Amount of Annual Work Governed by the Laws of the United States.

§ 8. The amount of assessment, or representation, work or improvements, to be done or made during each year, after the completion of the location as heretofore provided, and the time for ,doing the same, shall be as provided by the laws of the United States.

Effect of above section discussed: § 626.

Statute referred to in text: § 626.

Provision of federal law on 'subject discussed: § 623.

Requirement as to annual labor imperative: § 624.

Subject discufised generally: §§ 623-638.

Affidavit of Performance of Annual Labor.

§ 9. Within three months after the expiration of the period of time fixed for the performance of annual labor or the making of improvements upon any mining claim or premises, the person on whose behalf such work or improvement was made, or some person for him, knowing the facts, may make and record in the office of the eountv recorder of the county wherein such claim is situate an affidavit in substance as follows:

Territorv' of Arizona, ) County. j

, being duly sworn, deposes and says, that he is

a citizen of the United States and more than 21 years of age, and resides at in county, Arizona Territory, and is personally acquainted with the mining claim and premises located

and known as mining claim or lode, situate in mining

district, county of , Arizona Territory, the notice of location

Mining Laws Of Arizona. 1239

of which premises is recorded in the office of the county recorder

of said county, in book of records of mines, at page ;

that between the — day of , A. D. 189 — , and the —'day of

y A. U. 189 — y at least dollars' worth of work and improvements wer done and performed upon said premises or lode, not including the location work of said claim. Such work and im-

proTements were made by and at the expense of owners of

said premises for the purpose of compl}'ing with the law of the United States pertaining to assessments or annual work, and (here name the miners or men who worked upon the claim in doing the work) were the men emplojd by said owner and who labored upon said premises and who did said work and improvements, and said work so done upon said premises is described as follows, to wit: (here describe the work done).

Signature.

Subscribed and sworn to before me, this day of y

189 — . Notary Public.

]W8 of 1895, p. 54.

Statute referred lo in text: § p. 8(H>.

Object and purpose of the affidavit: S 636.

Effect of failure to file affidavit, discussotl: § 636, p. 800.

Such Affidavits as Kvideiice.

§ 10. Such affidavit when s6 recorded shall be prima facie evidence of the performance of such labor or the making of such improvements, and said original affidavit after it has been recorded, or a certified copy of record of same, shall be received as evidence accordingly by all the courts of this territory.

Affidavits as evidence: § 630.

Relocation of Forfeited and Abandoned I.iode Claim.s.

§ 11. The relocation of forfeited or abandoned lode claims shall only be made by sinking a new discovery shaft and fixing new boundaries in the same manner and to the same extent as is required in making a new location; or the relocator may sink the original discover}- shaft ten fett deeper than it was at date of conun en cement of such relocation, and shall erect new, or make the old, monuments the same as originally recjuired. In either case a new location monument shall be erected and the location

1240 Appendix.

t

certificate shall state if the whole or any part of the new location is located as abandoned property.

Circumstances under which relocations may be made: § 402, p. 511.

New discovery not essential as basis of relocation: § 403, p. 512.

Relocation admits yalldity of oriirinal: § 404, p. 512.

Relocation by original locator: § 405, p. 513.

Relocation by one of several original locators in hostility to the others: § 406. p. 51T.

Relocation by agent or others occupying contractual or fiduciary relations with original locator: § 407, p. 518.

Manner of perfecting relocations: § 408, p. 519.

Rights of second locator to improvements made by the first: $ 409, p. 522.

II. Act of 1891 Relating to Forfkiture of Mixing

Claim??. [In effect March 19, 1891; Stats, of 1801, pp. 140, 141.]

Forfeiture to Co-owners, How Eftected.

§ 1. Whenever a co-owner or co-owners shall give to a delinquent co-owner or co-owners the notice in writing or notice by publication provided for in section twenty-three hundred and twenty-four (2324) of the Revised Statutes of the United States; an affidavit of the person giving such notice, stating the time, place, manner of service, and by whom and upon whom such service was made, shall be attached to a true copy of such notice, and such notice and affidavit must be recorded in the office of the coimty recorder of the county in which the mining claim is situate, within ninety (90) days after the giving of such notice, or, if such notice is given by publication in a newspaper, there shall be attached to a printed copy of such notice an affidavit of the editor, publisher or foreman of such paper an affidavit stating the date of the first, last and each insertion of such notice therein, and when and where the newspaper was published during that time, and the name of such newspaper. Such alii davit and notice shall be recorded as aforesaid witliin one hundred and eighty days after the tirst publication thereof.

, Validity of this class of laws questioned: §§ 251, CAO,

Forfeiture to co-owners under Federal law discussed: § 646. For Departmental Regulations on this subject: See Appendix, page

1184. par. 0.

Mining Laws Of Arizona. 1241

Failure of Co-owner to Contribute, How Proved.

§ 2. The original of such notice and affidavits or the records thereof, shall be evidence that the delinquent mentioned in said section 2324 has failed or refused to contribute his proportion of the expenditure required by that section, and of the services or publication of said notice; provided, the writing or affidavit hereinafter provided for is not of record.

See note to preceding section.

Certificate of Contribution by Co-owner Within Ninety I>ays After Xotice.

§ 3. If such delinquent shall, within the ninety days required by section 2324 aforesaid, contribute to his co-owner or co-owners his proportion of such expenditures, such co-owner or co-owners shall sign and deliver to the delinquent or delinquents a writing, stating that the delinquent or delinquents by name, has within the time required by section 2324 of the Revised Statutes of the

United States, contributed liis slinre for the year upon the

mine, and furtlier stating therein the districts, county and

territory where the same is situated, and the book and page where the location notice is recorded. Such writing shall be recorded in the office of the county recorder of said county.

See note to § 1.

Penalty for Failure to Deliver Certifieate of Contribution.

§ 4. If such co-owner or co-owners shall fail to sign and deliver sucli writing to the delinquent or delinquents within twenty days after such contribution, the coowner or co-owners so failing as aforesaid, shall be liable to a penalty of one hundred dollars, to be recovered by any person for the use of the delinquent or delinquents, in any court of competent jurisdiction. If such co-owner or co-owners fail to deliver such writing within said twenty days, then the delinquent, with two disinterested persons having personal knowledge of such contribution, may make an affidavit, setting forth in what manner, tlie amount of, to whom and upon

1242 Appendix.

what mine, such contribution was made. Such affidavit or a record thereof in the office of the county recorder of the county in which said mine is situate, shall be prima facie evidence of such contribution.

See note to § 1.

Description of Minings Claims in Notices and Proceeding's for Forfeiture to Go-owner.

§ 5. In all actions, proceedings, judgments, grants, notices, conveyances or writings it shall be a sufficient description of a mining claim, if it can be intelligently learned therefroA the- name of the claim, the district, county and territory where same is Stuate, and the book and page where the notice thereof is recorded.

See note to § 1.

III. Reference to Miscellaneous Legislation on Mixing

Subjects.

1. Providing that destruction of notices of location shall be punished as a misdemeanor. Rev. Stat. 1887, p. 746, par. 947.

2. Empowering mining districts to make regulations and providing for recording notices. Rev. Stat. 1887, p. 412, par. 2349-

3. Concerning drainage of mines. Rev. Stats. 1887, p. 412, par., 2352.

4. Providing for condemnation of rights of way for roads, ditches, tunnels, flumes and other easements for mining purposes. Rev. Stat. 1887, p. 314.

5. Providing for miners' liens. Rev. Stats. 1887, p. 402, par.

6. Providing a penalty for "salting'' ores. Laws ol 1895, p.

7. Relating to optional sales of mining property when belonging to estates. Laws of 1897, p. 111.

Mining Laws Op California. 1243

California.

I. Act of 1897 Relating to Location and Development of Mining

Claims. IT. Act of 1891 Relating to Performance and Proof of Labor.

III. Regulating the Sale of Mineral Lands Belonging to the State.

IV. Congressional Act Regulating Hydraulic Mining in California. V. Reference to Miscellaneous Legislation on Mining Subjects.

I. Act of 1897 Relating to Location and Df.velopment

OF Mining Claims.

[In effect May 26, 1897; Stats. 1897, p, 215.]

This act was passed after the early chapters of the work had been printed. This accounts for the absence of a proper classification in the text of the legislation of this state, e. g. §§ 339, 343, 351.

The passage of the act shortly after these sections had been printed, enabled the author to note it in the text in subsequent sections, e. g. §§ 380, 385, etc.

Provisions of the Act to Govern Location of Mining: Claims.

§ 1. The location of mining claims upon the public domain of the United States shall be made and perfected as provided in this act.

liOde Claims, Preliminary Notice and its Posting*

§ 2. The discoverer of any vein or lode shall immediately, upon making a discover}', erect at the point of discovery a substantial monument or mound of rocks, and post thereon a preliminary notice, which shall contain:

First — The name of the lode or claim;

Second — The name of the locator or locators;

Third — The date of the discovery;

Fourth — The number of linear feet claimed in length along the course of the vein each way from the point of discovery;

Fifth — The width claimed on each side of the center of the vein;

1244 Appendix.

Sixth — The general course of the vein or lode, as near as may be; '

Seventh — That such notice is a first or preliminary notice.

Such notice shall be recorded in the office of the county recorder of the county in which the same is posted within twenty days after the posting thereof. Upon the erection of said monument and posting such notice, the discoverer shall be allowed the period of time specified in section three of this act to enable him to perfect his location as hereinafter provided.

See note 10 preceding* section.

The object of this enactment was evidently to allow the discoverer an opi)ortunlty after discovery to trace the course of his vein before being comi)elled to marlc liis boundaries. While in the Circuit Court of Appeals, Ninth Circuit, it was determined that in the absence of State legislation nxiug a period the locator had a reasonable time to mark his boundaries, the Supreme Court of California announced the rule that no time was allowed for this purpose. To remedy the difficulty arising from the conflict of decision as well as for other reasons suggested in § 339 of the text, the act was passed which gives the locator sixty days from discovery to perfect his location. (.See next section.)

The provision for the recording of this preliminary notice, has led to a criticism that such notice in form as prescribed by the section, does not cromply with the federal law, which provides that: "All records of mining claims hereafter made shall contain a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim." (Rev. Stats.

If by this is meant that the boundaries of tlie claim are to be marked and connected with some natural object or permanent monument and such marking is required before a lawful record of the preliminary notice may be made, the object of the California law is defeated.

We suggest two solutions of the difficulty:

(1) The preliminary notice is not the one contemplated by Congress. The final certificate of location provided for by section 2 of the act being the notice of perfected location which defines the boundaries, and is required to contain everything contemplated by the federal law, is the notice which Congress had In view. (See text § 379.) The provision for recording the preliminary notice is a mere local regulation concerning an act of location within the permissive sanction of the federal law.

(2) A reference to a natural object or permanent monument, in close proximity to the discovery monument, will satisfy the law, not

Mining Laws Of California. 1245

as to marking the boundaries of the location which follows within sixty days thereafter, but as identifying the claim.

In the Title on Forms and Precedents (pt), we have presented forms of the two classes of notices, preliminary and final, required by this act, which we think will obviate the difficulty, and are in harmony with the letter and spirit of both laws.

Utah has passed a law somewhat similar to the California Statute, omitting the element of recording. (See post p. 1331.) For distinction between this class of preliminary posted notices and those required in Arizona and New Mexico, see § 379 of the text.

Posting not required by Federal Law: fi 350. p. 456.

State legislation requiring posting of notices, states grouped': §§/ 361, 354, p. 457.

Liberal rules of construction applied to notices: § 365, p. 460.

Place and manner of posting dscussed: §§ 356, p. 461.

liOde Claims; Development Work; Markingr Boundaries, Location Certificate.

§ 3. Within sixty days from the date of the discovery of a vein or lode, the discoverer must perform fifty dollars' worth of labor in developing his discovery, and distinctly mark his location on the ground so that its boundaries can be readily traced, and must file in the office of the county recorder of the county in which the claim is situated, a certificate of location, which said certificate shall state:

1. The name of the lode or claim;

2. Tlie name of the locator or locators;

3. The date of discovery and posting of the notice provided for in section two of this act, which shall be considered as the date of the location;

4. A description of the claim, defining the exterior boundaries as they are marked upon the ground, and such additional , description by reference to some natural objects, or permanent monument, as will identify the claim.

5. A statement that such certificate is the final or completed notice of location, and that he has performed the aforesaid fifty dollars" worth of labor in development work thereon within the aforesaid sixty day period, stating generally the nature thereof. Said certificate shall be dated and signed by or on behalf of the locator or locators, and verified by them or by some one in their behalf, and when filed for record shall be deemed and considered

1246 Appendix.

as prima facie evidence of the facts therein recited. A copy of such certificate of location, certified by the county recorder, shall be admitted in evidence in all actions or proceedings with the same effect as the original.* The performance of such labor shall be deemed a necessary act in completing such location and a part thereof, and no part thereof shall inure to the benefit of any subsequent location.

See note to preceding section.

Object of requirement as to developmeirt worlc: fi 344.

Validity of sfuch laws upheld: § 250 (15).

Value of labor and improvements, how estimated: § 635.

May development work be credited on first year's work: fi 632.

*Act referred to in text: § 380.

PuFpoee of location certificate: fi 379.

Rules of construction applied: $ 381.

Verification of certificates: fi 385.

Right of second locator to improvements made by first: § 409.

Placers; Manner of Lioeatinj;; Certificate of liOcation; Record; Development Work; Aftidavit of Perforniauee.

§ 4. The discoverer of placers or other forms of deposit, subject to location and appropriation, under mining laws applicable to placers, shall locate his claim in the following manner:

First — He must immediately post in a conspicuous place at the point of discovery thereon a notice or certificate of location thereof, containing:

(a) The name of the claim.

(b) The name of the locator or locators.

(c) The date of the discover}' and posting of the notice, hereinbefore provided for, which shall be considered as the date of the location.

(d) A dcvscription of the claim by reference to legal subdivisions of sections, if the location is made in conformity with the public surveys; otherwise, a description with reference to some natural object or permanent monument as will identify the claim, and where such claim is located by legal subdivisions of the public surveys, such location shall, notwithstanding that fact, be marked by the locator upon the ground, the same as other locations.

4

Mining Laws Of California. 1247

Second — Within thirty days from the date of such discovery he mnjBt record such notice or certificate of location in the office of the county recorder of the county in which such discovery is made, and so distinctly mark his location on the groimd that its boundaries can be readily traced.

Third— Within sixty days from the date of the discovery the discoverer shall perform labor upon such location or claim in developing the same to an amount which shall be equivalent in the aggregate to at least ten dollars ($10) worth of such labor' for each twenty acres, or fractional part thereof, contained in such location or claim.

Fourth — A failure to perform such labor within said time, shall cause all rights under such location to be forfeited and the land covered thereby shall at once be open to location by qualified locators other than the preceding locators, but shall not in any event be open to location by such preceding locators, and any lahoT performed by them thereon shall not inure to the benefit of any subsequent locator thereof.

Fifth — Such locator shall, upon the performance of such labor, tile with the recorder of the county an affidavit, showing such performance, and generally the nature and kind of work so done.

Location of placer claims under U. S. laws In absence of supplementary state legislation: § 432.

Location of placers where State Legislation exisits: § 433.

Character of deposits subject to appropriation under laws applicable to placers: §§ 419-428.

Section referred to In text: §§ 443, 459.

Preliminary development work required by state laws upon placer locations: § 443.

General principles applicable to lode claims govern placers: § 463.

Records as Evidence.

§ 5. The affidavit provided for in the last section, and the aforesaid placer notice or certificate of location when filed for record, shall be deemed and considered as prima facie evidence of the facts therein recited. A copy of such certificate, notice, or affidavit, certified by the county recorder, shall be admitted in

1248 Appendix.

evidence in all actions or proceedings with the same effect as the original.

The record as evidence: fi 392.

Proof of annual labor under state laws: fi 636.

liocatious Void Unless Conformingr to Requirements.

§ 6. All locations of qnartz or placer formations or deposits, hereafter made, which do not conform to the requirements of this act, in so far as the same are respectively applicable thereto, shall be void.

Eftect of failure to comply with the law, as to contents of certificate: § 384.

Records of Mining: Claims not to be Made in District Records; Records so Made before tlie Passagre of tlie Act are Valid; Transmission of Records.

§ 7. No record of a mining claim or miUsite, made after the passage of this act, in the records of any mining district, shall be valid. All notices of location of mining claims, millsites, and other notices, heretofore recorded in such district records, if such notices conform t(5 the local rules and regulations in force in such district, are hereby declared valid. Within thirty days after the passage of this act the district recorder or custodian of the records of the several mining districts in this state shall transmit to the county recorders of the respective counties wherein the respective districts are situated, all the records of said respective districts, and henceforward such county recorder shall be deemed and considered the legal custodian of such records. Thereafter copies of such records, certified by the county recorder, may be received in evidence with the same effect as the originals.

Some controversy has arisen over this section. We thinly it is a proper and valid law. It has been our view throughout this treatise Ihar when tho state legislrftos upon theso subjects the districts are l>owerless: H 24S, 2t;S. 270.

I.ocal rej?ulationji cannot (.ontravene state laws: Erhardt v. Boaro 113 U. S. 527.

See, also. Cal. Code. C. P. 748.

Place of recdrd In California before the above section went into effect: § 389, p. 501.

Mining Law|J Of California. 1249

11. An Act Entitled an Act Relating to the Working, Rights of Way, Easement and Drainage of Mines in THE State of California.

[In effect March 31, 1891. Laws of 1881, pp. 219-221.]

Proof of Labor; Forfeiture for Failure to Perform labor; Presumption of Work; Forfeiture to Co-owners.

§ 1. Whenever any mine owner, company, or corporation shall have performed the labor and made the improvements required by law for the location and ownership of mining claims or lodes, such owner, company, or corporation shall file or cause to be filed, Mthin thirty days after the time limited for performing such labor or making such improvements, with the county recorder of deeds of the county in which the mine or claim is situated, particularly describing the labor performed and improvements made, and the value thereof, which affidavit shall be prima facie evidence of the facts therein stated. Upon the failure of any claimant or mine owner to comply with the conditions of this act in the performance of labor, or making of improvements upon any claim, mine or mining ground, the claim or mine upon which such failure occurred shall be opened to relocation in the same manner as if no location of the same had ever been made. But if, previous to relocation, the original locators, their heirs, assigns, or legal representatives, resume work upon such claim, and continue the same with reasonable diligence until the required amount of labor has been performed or improvements made, and the required statement of accounts and affidavits filed vith the county recorder, then the claim shall not be subject to relocation because of previous failure to file accounts. Upon the failure of any one of the several co-owners to contribute his portion of the. expenditures required hereby, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice, in writing, or by publication in the newspaper })ublished nearest the claim, for at least once a week for ninety days; and if, at the expiration of ninety days after such notice in writing or publication, such delinquent shall fail or refuse to contribute his portion of the

Appendix.

expenditures required by this section, his interest in the claim shall become the property of his co-owners who made the required expenditures. A copy of such notice, together with an affidavit showing personal service or publication, as the case may be, of such notice, when filed or recorded with the recorder of deeds of the county in which such mining claim is situated, shall be evidence of the acquisition of title of such co-owners. Where a person or company has or may run a tunnel or cuts, in good faith, for the purpose of developing a lode, lodes, or claims owned by said person, or company, or corporation, the money so expended in running said tunnel shall be taken and considered as expended on said lodes or claims; provided, further, that said lode, claim, or claims shall be distinctly marked on the surface as provided by law.

*P'or discussion of this subject: See § 636.

*See similar provision in Federal Statutes: Rev. Stats., § 2324; ante, p. 1168.

For discussion of subject of forfeiture for failure to perform anni labor: See § 645.

'Restoration of estate by resumption of work discussed: §§ 651-654.

*Validiity of this class of laws questioned: § 251.

Forfeiture to co-owners: 646.

For departmental regulations on this subject: See Appendix, pB.ge 1184, par. 6.

III. Regulating Sale of Mineral Lands Belonging to

THE State.

A law was passed in 187 1 providing for the disposal of 16th and 36th sections belonging to the state which were found to be mineral in character. Stats. 1873-74, p. 766; Amended Stats. 1875-76, p. 20; Amended Stats. 1880, p. 26.

This act and those amendatory thereof were repealed by the Act of April 1, 18J)7 (Stats, of 1897, p. 438). The repealing act contained the following provisions:

§ 2. When it shall be shown by ailidavits or otherwise, to the satisfaction of the surveyor-general that any portion of a sixteenth or thirty-sixth section belonging to the state is valuable for its mineral deposits, the surveyor-general shall not approve any application to purchase the same, nor shall the register of the state land office issue a certificate of purchavSe therefor until the ques-

California Debris Act. 1251'

tion of the character of the land has been referred, for determination, to a court of competent jurisdiction, in the manner provided by section thirty-four hundred and fourteen of the Political Code, and adjudged not to be valuable as mining land. § 3. The sixteenth and thirty-sixth sections belonging to the state, in which there may be found valuable mineral deposits, are hereby declared to be free and open to exploration, occupation, and purchase of the United States, under the laws, rules, and regulations passed and prescribed by the United States for the sale of mineral lands. § 4. This act shall take effect from and after its passage.

The peculiarity of these provisions deserves notice. Formerly mineral lands within 16th and 36th sections were sold by the state under special laws, which are repealed by this act. Title of the state to these sections vests upon approval of the survey if at that date the lands were not known to be mineral (ante, § 142). If they were then known to be mineral the state received no title. The act therefore can have no possible application to any lands except 16th or 36th sections wherein mineral has been discovered subsequent to the approval of the survey and vesting of title in the state. What is the object of the act? The title gives no clue. It does not purport to revest title in the federal government. If it did it would not be effectual for any such pirpose, without the consent of Congress. States have no power to compel the United States to , resume sovereignty over such lands nor impose upon the national government the obligation to include such lands within its public land system without .some concurrent Congressional legislation, accepting the burden.

If the intent of the act is to provide a method of location upon the theory of the retention of the title by the state, it is open to several constitutional objections. No act of a state legislature which should dieclare that the law of another state, without re-enacting it, should be the rule of civil conduct on a certain subject, could be upheld. We see no diflferonco in principle when a federal statute is named. Nevada has a similar law (see post, Nevada) which is open to the same objection.

IV. Congressional Act Requlating Hydhailic Mining in

California.

Causes loading up to the passage by Congress of the Act creating the Debris Commission: § 848.

Hydraulic mining not a nuisance I'er se— Principles established by the debris cases: § 849.

Essential features of the congressional act creating the California

1252 Appendix.

Debris Commission and regulating hydraulic mining in the State of California: fi 850.

Necessity for definition of term "hydraulic mining": § 851.

What constitutes "hydraulic mining" or "mining by the hydraulic process" within the meaning of the act: § 852.

Judicial interpretation of the act— its constitutionality: § 853.

California Debris Commission, How Comi>osecl.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that a commission is hereby created, to be known as the California Debris Commission, consisting of three members. The President of the United States shall, by and with the advice and consent of the Senate, appoint the commission from officers of the corps of engineers, irnited States army. Vacancies occurring therein shall be filled in like manner. It shall have the authority, and exercise the powers hereinafter set forth, under the supervision of the chief of engineers and direction of the secretary}' of war.

Orgrauization of Commission; Compensation; Adoptiou of Rules.

§ 2., That said commission shall organize within thirty days after its appointment by the selection of such officers as may be required in the perfohnance of its duties, the same to be selected from the members thereof. The membei*s of said commission shall receive no greater compensation than is now allowed by law to each, respectively, as an officer of said corps of engineers. It shall also adopt rules and regulations, not inconsistent with law, to govern its deliberations and prescribe the method of procedure under the provisions of this act.

Territorial Jurisdiction of Coniniisjsion; Hydraulic Mining: Proliibited.

§ 3. That the jurisdiction of said commission, in so far as the same ailects mining carried on by the hydraulic process, shall extend to all such mining in the territory drained by the Sacramento and San Joaquin river systems in the state of California. Hvdraulic mining, as defined in section eight hereof, directly or

California Debris Act. 1253

indirectly injuring the navigability of said river systems, carried on in said territory other than as permitted under the provisions of this act is hereby prohibited and declared unlawful.

Duty of Com mission to Adopt Plans to Restore Navigrability of Rivers, and Permit Hydraulic Miniugr Under Proper Restrictions.

§ 4. That it shall be the duty of said commission to mature and adopt such plan or plans, from examinations and surveys already made and from such additional examinations and surveys as it may deem necessary, as will improve the navigability of all the rivers comprising said systems, deepen their channels, and protect their banks. Such plan or plans shall be matured with a view of making the same effective as against the encroachment of and damage from debris resulting from mining operations, natural erosion, or other causes, with a view of restoring, as near as practicable and the necessities of commerce and navigation demand, the navigability of said rivers to the condition existing in eighteen hundred and sixty, and permitting mining by the hydraulic process, as the term is understood in said state, to be carried on, provided the same can be accomplished without injury to the navigability of said rivers or the lands adjacent thereto.

Duty of Commission to Investigrate Practicability of Storagre Sites and of Settlingr Reservoirs.

§ 5. That it shall further examine, survey, and determine the utility and practicability, for the purposes hereinafter indicated, of storage sites in the tributaries of said rivers and in the respective branches of said tributaries, or in the plains, basins, sloughs, and tule and swamp lands adjacent to or along the course of said rivers, for the storage of debris or water or as settling reservoirs, with the object of using the same by either or all of these methods to aid in the improvement and protection of said navigable rivers by preventing deposits therein of debris resulting from mining operations, natural erosion, or other causes, or for affording relief thereto in flood time and providing sufficient water to maintain scouring force therein in the summer season; and in connection therewith to investigate such hydraulic and

1254 Appendix.

other mines as are now or mav have been worked bv methods intended to restrain the debris and material moved in operating such mines by impounding dams, settling reservoirs, or otherwise, and in general to make such study of and researches in the hydraulic mining industry as science, experience, and engineering skill may suggest as practicable and useful in devising a method or methods whereby such mining may be carried on as aforesaid.

Duty to Xote the Effect on Streams of Such Miningr as the Commission may Permit.

§ 6. That the said commission shall from time to time note the conditions of the navigable channels of said river systems, by cross-section surveys or othervise, in order to ascertain the effect therein of such hydraulic mining operations as may be permitted by its orders and such as is caused by erosion, natural or otherwise.

Annual Report of Commission.

§ 7. That said commission shall submit to the chief of engineers, for the information of the secretary' of war, on or before the fifteenth day of November of each year, a report of its labors and transactions, with plans for the construction, completion, and preservation of the public works outlined in this act, together with the estimates of the cost thereof, stating what jtmounts can be profitably expended thereon each year. The secretary of war shall thereupon submit same to Con<press on or before the meeting thereof.

" Hydraulic Mining" Defined.

§ 8. That for the purposes of this act 'iiydraulic mining' and "mining by the hydraulic process," are hereby declared to have the meaning and application given to said terms in said state.

What constitutes "hydraulic mining" or "mining by the hydraulic process": §§ 851, 852.

Permit to Mine, How Obtain<Hl; Petition.

§ 9. That the individual proprietor or proprietors, or in case of a corporation, its manager or agent appointed for that purpose.

California Debris Act. 1255

owning mihing ground in the territory in the state of California, mentioned in section three hereof, which it is desired to work by the hydraulic process, must file with said commission a verified petition, setting foii;h such facts as will comply with law and the rifles prescribed by said commission.

Bigrht to Begrulate tbe Restraining: of the Debris to be Surrendered by Petitioner.

§ 10. That said petition shall be accompanied by an instrument duly executed and acknowledged, as required by the law of the said state, whereby the owner or owners of such mine or mines surrender to the United States the right and privilege to refgulate by law, as provided in this act, or aay law that may hereafter be enacted, or by such rules and regulations as may be prescribed by virtue thereof, the manner and method in which the debris resulting from the working of said mine or mines shall be restrained, and what amount shall be produced therefrom; it being understood that the surrender aforesaid shall not be construed as in any way affecting the right of such owner or owners to operate said mine or mines by any other process or method now in use in said state: provided, that they shall not interfere with the navigability of the aforesaid rivers.

Joint Petition by Adjoining: Owners.

§ 11. That the owners of several mining claims situated so as to require a common dumping ground or dam or other restraining works for the debris issuing therefrom in one or more sites may file a joint petition setting forth such facts in addition to the re- (juirements of section nine hereof; and where the owner of a hydraulic mine or owners of several such mines have and use common dumping sites for impounding debris or as settling reservoirs, which sites are located below the mine of an applicant not entitled to use same, such fact sliall also be stated in said petition. Thereupon the same proceedings shall be had as provided for herein.

1256 Appendix.

Notice of Petition to be Published; Examination of Mine; Plans may be filed; Further Hearingrs.

§ 12. A notice specifying briefly the contents of said petition and fixing a time previous to which all proofs are to be submitted shall be published by said commission in some newspaper or newspapers of general circulation in the communities interested in the matter set forth therein. If published in a daily paper such publication shall continue for at least ten days; if in a weekly paper in at least three issues of the same. Pending publication thereof said commission, or a committee thereof, shall examine the mine and premises described in such petition. On or before the time so fixed all parties interested, either as petitioners or contestants, whether miners or agriculturalists, may file affidavits, plans and maps in support of heir respective claims. Further hearings, upon notice to all parties of record may be granted by the commission when necessary.

. Decision of Commission ; Order Direetiiigr Manner of Construction of Dam and Condition Under which Operations may be Carried on.

§ 13. That in case a majority of the members of said commission, within thirty days after the time so fixed, concur in a decision in favor of the petitioner or petitioners, the said commission shall thereupon make an order directing the methods and specifying in detail the manner in which operations shall proceed in such mine or mines; what restraining or impounding works, if facilities therefor can be found, shall be built and maintained; how and of what material; where to be located; and in general set forth such further requirements and safeguards as will protect the public interests and prevent injury to the said navigable rivers, and the lands adjacent thereto, with such further conditions and limitations as will observe all the provisions of this act in relation to the working thereof and the payment of taxes on the gross proceeds of same; provided, that all expenses incurred in complying with said order shall be borne by the owner or owners of such mine or mines.

California Debris Act. 1257

Submission of Plans for Correction; Construetion of Works.

§ 14. That such petitioner or petitioners must within a reasonable time present plans and specifications of all works required to be built in pursuance of said order for examination, correction and approval by said commission; and thereupon work may immediately commence thereon under the supervision of said commission or representative thereof attached thereto from said corps of engineers, who shall inspect same from time to time. Upon completion thereof, if found in every respect to meet the requirements of said order and said approved plans and specifications, permission shall thereupon be granted to the owner or owners of such mine or mines to commence mining operations, subject to the conditions of said order and the provisions of this act.

When Mine Owner may Commence Mining*.

§ 15. That no permission granted to a mine ownr or owners under this act shall lake cfl'( et, so far as regards the working of a mine, until all impounding dams or other restraining works, if any are prescribed by the order granting such permission, have been completed and until the impounding dams or other restraining works or settling reservoirs provided by said commission have reached such a stage, as, in the opinion of said commission, it is safe to use the same; provided, however, that if said commission shall be of the opinion that the restraining and other works already constructed at the mine or mines shall be sufficient to protect the navigable rivers of said systems and the work of said commission, then the owner or owners of such mine or mines may be permitted to commence operations.

Joint Construction and Use by Adjoining Owners; Kxpense, how Divided; Where Dams must be Constructed.

§ 16. That in case the joint petition referred to in section eleven hereof is granted, the commission shall fix the respective amounts to be paid by each owner of such mines toward providing and building necessary impounding dams or other restraining works. In the event of a petition being filed after the entry

1258 Appendix.

of. such onier, or in case the impounding dam or dams or other restraining works have already been constructed and accepted by said commission, the ci>mmission shall fix such amount as mav be reasonable for the privilege of dumping therein, which amount shall be divided between the original owners of such impounding dams or other restraining works in proportion to the amount tesjHVtively paid by each party owning same. The expense of maintaining and protecting such joint dam or works shall be dividtnl among mineHwner? using the same in such proportion as the i\mnu$sion shall determine. In all ises where it is practicable, restraining and impounding works are to be provided, constructtxl. and maintaineii bv mine-iwners near or Ivlow :he mine or mintii Ivtorv* navhinir the main tributaries of said navirable water?.

No Mininsr to be Allowett where l>ebHs cannot be Impmtaded.

§ K. Tha: at uo liuie shall anv vielcis U .Lrm::;-! :o W w*?hei aw;iv frvn anv h.driiilio r.i::.t niir.t s::ui:i on the trtbu:;ines of <?juv: rivr?. ar.vl :hr r:rr::vr rr:hes o: each,

wvritxi iir.cer th<: io>v:>:or.s o: :h:s avt. :hir. vAu :z:7?iii*ied

0iils!kMi May Rev>ke or Modify the Order AHowiai Ower to Operate.

Rciit to Mine.

California Debris Act. 1259

ployees of either, of the conditions of the order granted pursuant to section thirteen, or such modifications thereof as may have been made by said commission, shall work a forfeiture of the privileges thereby conferred, and upon notice being served by the order of said commission upon such owTier or owners, company, or corporation, or agent in charge, work shall immediately cease. Said commission shall take necessary steps to enforce its orders in case of the failure, neglect, or refusal of such owner or oiTiers, company, or corporation, or agents thereof to comply therewith, or in the event of any person or persons, company, or corporation working by said process in said territory contrary to law.

Duty of Commission to Visit Mines in Operation.

§ 20. That said commission or a committee therefor or officer of said corps assigned to duty under its orders, shall, whenever deemed necessary, visit said territory and all mines operating under the provisions of this act. A report of such examination shall be placed on file.

Public Lands and Timber and Stone thereon may be Used by the Commission.

§ 21. That the said commission is hereby granted the right to use any of the public lands of the ITnited States, or any rock, stone, timber, trees, brush, or material thereon or therein, for any of the purposes of this act; and the secretary of the interior is hereby authorized and requested, after notice has been filed with the coniniissioDcr of the general land office by said commission, setting forth what pulilic lands are required by it under the authority of this seoiion, that such land or lands shall be withdrawn from sale and entry under the laws of the United States.

Penalty for Willfully Injuring Dams, and for Workinf? by Hydraulie Process Contrary to Law.

§ 22. That any iKTSon or persons who willfully or maliciously injure, damage, or destroy, or attenii)t to injure, damage, or destroy, any dam or other work erected under the ])rovisions of this act for restraining, impounding, or settling ])urposes, or for use in connection therewith, shall be guilty of a misdemeanor, and

1260 Appendix.

upon conviction thereof shall be fined not to exceed the sum of five thousand dollars or be imprisoned not to exceed five years, or of both such fine and imprisonment, in the discretion of the court. And any person or persons, company, or corporation, their agents or employees, who shall mine by the hydraulic process, directly or indirectly, injuring the navigable waters of the United States, in violation of the provisions of this act, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both such fine and imprisonment, in the discretion of the court; provided, that this section shall take effect on the first day of May, eighteen hundred and ninety-three.

Tax of Three Per Cent on Gross Proceeds of Mine to be Paid into Treasury of United States; Debris Fund.

§ 23. That upon the construction by the said commission of dams or other works for the detention of debris from livdraulic mines and the issuing of the order provided for by this act to any individual, company, or corporation, to work any mine or mines by hydraulic process, the individual, company, or corporation operating thereunder working any mine or mines by hydraulic process, the debris from which flows into or ms in whole or in part restrained by such dams or other works erected by said commission, shall pay a tax of three per centum on the gross proceeds of his, tlieir, or its mine so worked ; which tax of three percentum shall be ascertained and paid in accordance with regulations to be adopted by the secretary of the treasury, and the treasurer of the united States is hereby authorized to receive the same. All sums of money paid into the treasury under this section shall be set apart and credited to a fund to be known as the ''Debris Fund/' and shall be expended by said commission under the supervision of the chief of engineers and direction of the secretary of war, in addition to tlie ap])ropriations made by law in the construction and maintenance of such restraining works and settling reservoirs as may be proper and necessary: provided, that said commission is hereby authorized to receive and pay into the treasury- from the owner or owners of mines worked by the hydraulic process, to whom ]x*rnussion may have been granted so to work under the provisions hereof, such money advances as may be ottered to aid

California Debris Act. 1261

in the construction of such impounding dams or other restraining works, or settling reservoirs, or sites therefor, as may be deemed necessary by said commission to protect the navigable channels of said river systems, on condition that all moneys so advanced shall be refunded as the said tax is paid into the said debris fund; and provided furi;her, that in no event shall the government of the United States be held liable to refund same except as directed by this section.

Commissiou may Consult with a CommiHsion of Kii- Srineers Autliorizcd by the State to Act.

Sec. 24. That for the purpose of securing harmony of action and economy in expenditures in the work to be done by the United States and the state of California, respectively, the former in its plans for the improvement and protection of the navigable streams and to prevent the depositing of mining debris or other materials within the same, and the latter in its plans. authorized by law for the reclamation, drainage, and protection of its lands, or relating to tlie working of hydraulic mines, the said commission is empowered to consult thereon with a commission of engineers of said state, if authorized by said state for said purpose, the result of such conference to be reported to the chief of engineers of the United States Army, and if by him approved shall be followed by said commission.

Commission may Construct Dams to Restrain Debris Alreaily Ijoagrecl in Tributaries of Main Hi vers— Certain Recommendations Adopted and Made liasis of Operations— Appropriation.

"Sec. 25. That said commission, in order that sucli material as is now or may hereafter be lodged in the tributaries of the Sacramento and San Joacuin river systems resulting from mining operations, natural erosions, or other causes, shall he jirevented from injuring the said navirahle rivers, or such of the tributaries of either as may he navipihle and the land adjacent thereto, is hereby directed and empowered, when ap])r()j)riations are made therefor by law, or sullicient money is dei)osited for that purpose in said debris fund, to hnild at such points ahov the head of navigation in said rivers and on the main tributaries thereof, or

1262 Appfxdii.

branches of uch tributaries, or at any place adjacent to the same, which in the jadgmcnt of said c-ommission will effect said object (the same to be of such material as will insure safety and permanency), restraining or impounding dams and settling reservoirs, with canalS; lock, or other works adapted and required to complete same. The recommendations contained in executiTe docimient numbered two hundred and sixty-scTen, fifty-fiiist Congress, sec-ond session, and executive document numbered ninetjeight, forty-seventh Congress, first session, as far as they refer to impounding dams, or other restraining works, are hereby adopted, and the same are directed to be made the basis of operations. The sum of fifteen thousand dollars is hereby appropriated, from moneys in the trc-asur}' not othenk*ise appropriated, to be immediately available to defray the exienses of said commission.

V. Refkrenck to MiscELLANEor? Lkgislati\ on Mi.mng

SlBJE TS.

For the rulings of the Supreme Court on this subject and a general dificassion of this class of legslation. See 252-2t54.

1. Bights of way for roads, tunnels, ditches, flumes, and other eaements for mining purposes. Stats. 1&95, p. 89: amending § 1 -'38 C. C. P., -Eminent Domain."

2. Act establishing a uniform system of mine hell signals. Stats. 1S93, p. 82.

3. An act for the protection of stockholders in mining companies. Laws of 18T3-:4: amended Feb. 2i, 1>9:, Stats. 1897, p. 38; Laws of 1880, p. 130, amended Stats. 189T, p. 9G.

4. Providing for the maintenance and establishment of a state mining bureau. Stats. 1893, p. 203.

5. Mining partnerships. Civil Code, $S 2310-2516.

(k Providing for egress from mines (escape shafts). Stats.

181 1-T, p. 413.

7. Defining hydraulic mining. Civil Code, J5§ 1425-6.

s. Providing for appointment of debris commissioner. Stats. 1893, p. 339; amended March IT, 1897. Stats. 1897, p. 169; Code Civ. Proc. §742, 743.

9. Kesenin rights of way over mining claims for purpose of working' other mines: Mill's Ann. Stats., 31GL 3176; Gen.

Stats. 1883, pp. 725, 726.

10. Mining corporations. Civil Code, §§ 584-587.

Mining Laws Of Colorado. 1263

Colorado.

I. Provisions Relating to Kode Claims.

II. Provisions Relating to Placer Claims.

III. Provisions Relating to Tunnels and Tunnel, Claims.

IV. Reference to M iscellaneoub Legislation on M ining Subjects.

I. Lkqislation Relating to Lode Claims.

1. Lode Claims; Lengrtli.

The length of any lode claim hereafter located may equal, but not exceed fifteen hundred feet along the vein. Mills' Ann. Stats. 3148; Gen. Stats. 1883, p. 722.

The above regulation is merely a re-euactment of the Fed-eral rule as to length. Subject discussed In text: § 361.

2. Lode Claims; Widtli.

The width of lode claims hereafter located in Gilpin, Clear Creek, Boulder, and Summit counties, shall be seventy-five feet on each side of the center of the vein or crevice; and in all other counties the width of the same shall be one hundred and fifty feet on each side of the center of the vein or crevice; provided, that hereafter any county may, at any general election, determine upon a greater widtli, not exceeding three hundred feet on each side of the center of the vein or lode, by a majority of the legal votes cast at said election, and any county, by such vote at such election, may determine upon a less width than above specified. Mills' Ann. Stats., § 3149; Gen. Stats. 1883, p. 722.

Subject discussed in text: 5 3G1. Location covering excessive nrea: § 3t)2.

3. Location Certificate, Contents and Record.

The discoverer of a lode shall, within thre( months from the date of discovorv', record his claim in the oflice of the recorder of the county in wliich such lode is situated, by a location certificate, which shall contain: 1st, the name of the lode; 2d, the name

1264 Appendix.

of the locator; 3rd, the date of location; 4th, the number of feet in lengtli claimed on each side of the center of the discovery shaft; 5th, the general course of the lode as near as may be. Mills' Ann. Stats. § 3150; Gen. Stats. 1883, p. 722.

Section referred to in text: § 380.

Purpose of location certificate: § 379.

Rules of construction applied: § 381.

Effect of failure to comply with the law as to contents of certificate: i 384.

Time and place of record, and effect of failure to record witihin time Umited: §§ 389-390.

4. Location Certificate Void Unless Contaiuingr the Proper Elements.

§ 4. Any location certificate of a lode claim which shall not contain the name of the lode, the name of the locator, the date of location, the number of lineal feet claimed on each side of the discovery shaft, the general course of the lode, and such description as shall identify the claim with reasonable certainty, shall be void. Mills' Ann. Stats. § 3151; Gen. Stats. 1883, p. 722.

Effect of failure to comply with the law as to contents of certificate: § 384. See note to next paragraph.

5. liOde Claim; Discovery Shaft; Preliminary Notice.

Before filing such location certificate, the discoverer shall locate his claim by: first sinking a discovery shaft upon the lode, to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper, if necessary to show a well-defined crevice; second, by posting at the point of discovery on the surface a plain sign or notice, containing the name of the lode, the name of the locator, and the date of discovery ;2 third, by marking the surface boundaries of the claim. Mills' Ann. Stats. § 3152; Gen. Stats. 1883, p. 723.

Statute referred to in text: § 348. p. 448. Object of requirement as to development work: § 344. Relationship of discovery shaft to discovery: § 345. Extent of development work: § 346.

Can preliminary development work be credited on first year's work? § 632. 'Preliminary notice and its posting discussed in text: §§ 350-356. Place and manner of posting: § 356. Lil>eral rules of construction applied to notices: § 355.

Mining Laws Of Colorado. 1265

6. Marking: the Boundaries.

Such surface boundaries shall be marked by six substantial posts hewed or marked on the side or sides which are in toward the claim, and -sunk in the ground, to wit: One at each comer and one at the center of each side line. Where it is practically impossible on account of bedrock to sink such posts, they may be placed on a pile of stones, and where, in marking the surface boimdaries of a claim, any one or more of such posts shall fall by right upon precipitous ground, where the proper placing of it is impracticable or dangerous to life or limb, it shall be legal and valid to place any such post at the nearest practicable point, suitably marked to designate the proper place. Mills' Ann. Stats. 3153; Gen. Stats. 1883, p. 723.

Section referred to in text: § 374, p. 485.

Time aUowed for mailcing: § 372.

Necessity for, and object of, marking: $ 371.

Wliat is siiflBcient marking under tbe Federal law: § 373.

Pei-petuation of inonumeuts: § 375.

7. Equivalent of Discovery Shaft.

Any open cut, cross cut, or tunnel, which shall cut a lode at the depth of ten feet below the surface, shall hold such lode, the same as if a discovery shaft were sunk thereon, or an adit of at least ten feet in along the lode, from the point where the lode may be in any manner discovered, shall be equivalent to a discovery shaft. Mills' Ann. Stats. § 3154; Gen. Stats. 1883, p. 723.

Subject of discovery shaift and its equivalent discussed in text: §§

8. Discovery Shaft, Time Within Which it Must bo Sunk.

The discoverer shall have sixty days from the time of uncovering or disclosing a lode to sink a discovery shaft thereon. Mills' Ann. Stats. 3155; Gen. Stats. 1883, p. 723.

See note to preceding section.

9. Extralatcral Rigrhts; Intraliinital Rigrhts.

The location, or location certificate, of any lode claim shall be construed to include all surface ground within the surface lines

Appendix.

thereof, and all lodes and ledges throughout their entire depth, the top or apex of which lies inside of such lines extended downward, vertically, with such parts of all lodes or ledges as continue by dip beyond the side lines of the claim, but shall not include any portion of such lodes or ledges beyond the end lines of the claim or the end lines continued, whether by dip or otherwise, or beyond the side lines in any other manner than by the dip of the lode. Mills' Ann. Stats. 315G; Gen. Stats. 1883, p. 723.

10. Same.

If the top or apex of a lode in its longitudinal course extends beyond the exterior lines of the claim at any point on the surface, or as extended vertically downward, such lode may not be followed in its longitudinal course beyond the point where it is intersected by the exterior lines. Mills' Ann. Stats. § 3157; Gen. Stats. 1883, p. 724.

The above sections conform substantially to the provisions of I 2322 of the U. S. Rev. Stats, as interpreted by the courts: See ante, p. 1165, where the Federal Statute is given with notes referring to discussion in text.

That such legislation by a state is of questionable validity: See text, § 251.

11. Cross and Uiiitingr Lodes.

AVTien it shall appear that one lode crosses, runs into, or unites with any other lode, the priority of record shall determine the rights of claimants; provided, that in no case where it appears that two lodes have crossed one another, shall the priority of record give any person the privilege of turning off from the crevice or lode which continues in the same direction of the main lode upon which he or they may have recorded their claim or claims; but such person or persons shall, at all times, follow the crevice running nearest in the general direction of the main lode upon which lie or they may have recorded their claim or claims. Mills' Ann. Stats. § 3U2; Gen. Stats. 1883, p. 721.

See § 233G of Rev. Statutes of United States. Subjec't discussed in text: §§ 557-560. Validitv of above section questioned: § 251.

Mining Laws Of Colorado. 1267

12. Two Lodes Found to be the Same; Rights of Locators.

Where two crevices are discovered at a distance from each other and known by different names, and it shall appear that the two are one and the same lode, the persons having recorded on the first discovered lode shall be the legal owners. Mills' Ann. Stats. § 3143; Gen. Stats. 1883, p. 721.

Entire width of apex must be included in location: § 583.

13. Amended Location Certificate; Change of Boundaries.

If at any time the locator of any mining claim heretofore or hereafter located, or his assigns, shall apprehend that his original certificate was defective, erroneous, or that the requirements of the law had not been complied with before filing, or shall be desirous of changing his surface boundaries, or of taking in any part of an overlapping claim which has been abandoned; or in case the original certificate was made prior to the passage of this law, and he shall be desirous of securing the benefits of this act, such locator or his assigns may file an additional certificate, subject to the provisions of this act; provided, that such relocation does not interfere with the existing rights of others at the time of such relocation, and no such relocation or other record thereof shall preclude the claimant or claimants from proving any such title or titles as he or they may have held under previous location. Mills' Ann. Stats. § 3160; Gen. Stats. 1883, p. 724.

Objects and functions of amended certificates discussed in text: fi 398.

Circumstances justifying change of boundaries : § 396.

Privilege of clinging boundaries exists in absence of intervening rights, Independent of state legislation: § 397, p. 506.

14. Proof of Labor.

"Within six months after any set time, or annual period allowed for the performance of labor, or making improvements upon any lode claim or placer claim, the person on whose belialf such outlay was made, or some pci*son for liim, may make and record in

Appendix.

the office of the recorder of the county wherein such claim is situate an affidavit, in substance as follows;

State of Colorado, ) County of . j

Before me, the subscriber, personally appeared , who,'

being duly sworn, said that at least dollars' worth of work

or improvements were performed or made upon (here describe

claim or part of claim) situate in mining district, county of

, State of Colorado, between the day of A. D.,

, and the day of A D., . Such expenditure

was made by or at the expense of , owners of said claim, for

the purpose of complying with the law and holding said claim.

(Jurat) (Signature)

And such affidavit when so recorded shall be prima facie evidence of the performance of such labor or the making of such improvements; provided, that all affidavits of labor or improvements upon placer claims heretofore filed and recorded within the period prescribed in this section, or within the period prescribed in section 2410 of the General Statutes, which shall contain in substance the requirements of the affidavit prescribed by this section or said section 2110, shall be prima facie evidence of the performance of such labor or the making of such improvements; and the original thereof, or a certified copy of the record of the same, shall be received as evidence accordingly by the courts of this state, and this class of evidence shall be receivable, where relevant or material, in all cases, whether now pending or hereafter brought. (As amended Sess. L. 18811, p. 261-2.) Mills' Ann. Stats. § 3161.

Proof of annual lal>or (Uscnssod In text: § 636.

15. Relocation of Abandoned Claims.

The relocation of abandoned lode claims shall be by sinking a new discovery shaft and fixing new boundaries in the same manner as if it were the location of a new claim: or the relocator may sink the original discovery shaft ten feet deeper than it was at the time of abandonment, and erect new or adopt the old bound-

Mining Laws Of Colorado. 1269

aries, renewing the paste, if removed or destroyed, in either case a new location stake shall be erected. In any case, whether the whole or pai-t of an abandoned claim is taken, the location certificate may state that the whole or any part of the new location is located as abandoned property. MiUs Ann. Stats. § 3162; Gen. Stats. 1883, p. 725.

Statute referred to in text: § 408.

Gircnmstances under which relocation may be made: § 402, p. 511.

New discoTery not essential as a basis of relocation: § 408, p. 512.

Relocation admits the validity of the original: § 404, p. 512.

Relocation by original locator: § 405, p. 513.

Relocation by one of several original locators in hostility to others: § 406, p. 517.

Relocation by agent or others occupying fiduciary or contrajctoal relationship with original locator: § 407, p. 518.

Right of second locator to improvements made by first: § 409, p.

16. Location Certificate Must Claim but One Location.

Ifo location certificate shall claim more than one location, whether the location be made by one or several locators. And if it purport to claim more than one location, it shall be absolutely void, except as to the first location therein described, and if they are described together, or so that it cannot be told which location is first described, the certificate shall be void as to all. Mills' Ann. Stats. § 3163; Gen. Stats. 1883, p. 725.

Location certificate and its contents discussed in text: §§ 370-385.

II. Legislation Relating to Placers.

1. Placer Claims; Postinsr Notice; Markings Boundaries; Location Certificates.

The discoverer of a placer claim shall, within thirty days from the date of discovery, record his claim in the office of the recorder of the county in which said claim is situated, by a location certificate, which shall contain: First, the name of the claim, designating it as a placer claim. Second, the name of the locator. Third, the date of location. Fourth, the number of acres or feet claimed. And Fifth, a description of the claim by such reference to naturdl objects or permanent monuments as shall identify the claim. Before filing such location certificate, the discoverer shall lo-

1270 Appendix.

(at(i liis claim: First, by posting upon such claim a plain sign or notice, containing the name of the claim, the name of the locator, the date of discovery, and the number of acres or feet claimed.* Second, by marking the surface boundaries with substantial posts, and 8unk in ihe ground, to wit: One at each angle of the claim.' Mills' Ann. Stats. § 3136; Gen. Stats. 1883, p. 718.

What constitutes discovery: See text, § 437, and §§ 335-337.

Character of deposits subject to location under plajcer laws: See text. fi§ 410-428, §§ 85-98.

'Statute referred to in text: § 459.

IMinwse of location certificate: I 379, p. 490.

Uuleo of construction applied: § 381, p. 494.

Kflfeet of failure to comply with the law as to the contents: 384, p. 498.

Posting notices: See § 442.

Statute referred to in text: § 455.

Rule as to marking boundaries in absence of state legislation: I 454.

2. Placer Claims; Annual Labor; Forfeiture to Coowners.

On eacli placer claim of one hundred and sixty acres or more, heretofore or hereafter located, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made by the first day of August, 1819, and bv the first dav of August of each voar thereafter. On Jill placer claims containing less than one Inmdred and sixty acres, the expenditure during each year shall be such ]>roportion of one hundred dollars, as tlie number of acres bears to one hundred and sixty. On all placer claims containing less than twenty acres, the expenditures during each year shall not be less than twelve dollars; but when two or more claims lie contiguous, and are o\me<l by the same person, the expenditure hereby required for each claim may be made on any one claim; and upon a failure to comply with these conditions, the claim or claims upon which such failure occurred shall be open to relocation, in the same manner as if no location of the same had ever been made; provided, that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location; provided, the aforesaid expenditures may be made in building or repairing ditches to conduct water upon such

Mining Laws Of Colorado. 1271

ground or in making other mining improvements necessary for the working of such claim.

Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the co-owners who have performed the labor or made the improvements may at the expiration of the year, to wit: The first of August, 1879, for the locations heretofore made, and one year from the date of locations hereafter made, give such delinquent co-owner personal notice in writing, or if he be a nonresident of the state, a notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and mailing him a copy of such newspaper if his address be known; and if at the expiration of ninety days after such notice in writing, or after the first publication of such notice, such delinquent shall fail or refuse to contribute his proportion of the expenditure required by this action (section), his interest in the claim shall become the property of his co-owners who have made the required expenditures.

(The foregoing was filed in the office of the secretary of state by the governor March 12, 18T0, Anthout his signature, and became a law under section 11, article iv, constitution of Colorado.) Mills' Ann. Stats. § 3137; Gen. Stats. 1883, p. 719.

portion of this section was declared invalid by the Supreme Court of Oolorado because it contravenes the Federal Law: Sweet v. Webber, 7 Colo. 443: See discussion in text: § 626, p. 780.

Annual labor on placers iu absence of state legislation: See text, § 626, p. 778.

"Validity of such legislation questioned: § 646, page 814, and § 261, p. 820.

3. Amended Liocation Certificate.

See same title under "Lode Claims."

4. Proof of Labor.

See same title under *'Lode Claims."

5. Liocatioii Certificate Must Claim but One Location.

See same title under "Lode Claims."

1272 Appendix.

III. Legislation Relating to Tunnels.

A, Tunnel Act of April 17, 1897. [Laws of 1807, pp. 181, 182.]

Owner of Tunnel may Continue it Througrta Claim of Another.

§ 1. Any person or company who has, or hereafter may have, a tunnel or cross cut, the mouth of which is located upon his own ground or upon ground in his lawful occupation, shall have the right to drive and continue the same through and across any located or patented claim in front of the mouth of such tunnel, hut not to follow or drive upon any vein belonging to the owner of such claim.

Discussion of coiiistitutionality of statutes granting rights of way through property of others for mining purposes: §§ 252-264.

Provision of Federal Law on subject of tunnel rights: U. S. Rev. Stats., § 2323; ante p. 1166.

Maamer of perfecting tunnel locations discussed: §§ 472-475.

Length upon the discovered lode awarded to the tunnel discoverer:

To what extent does the inception of a tunnel right and its perpetuation by prosecuting work with reasonable diligence operate aB a w;ithdrawal of the surface from exploration by others? §§ 483-491, pp. 586-609.

For recent decisions in Supreme Court of United States on subject of tunnels, see note to § 2323 of the Revised Statutes, ante p. 1167.

Bi§:ht of Owner of Intersected Vein or Claim Intersected to Enter and Inspect; Forfeiture of Rigrtat to Continue Tunnel.

§ 2. Such tunnel or cross cut may be driven and worked for the purpose of drainage and for the purpose 6i reaching and working mining ground of the tunnel owner beyond the intersected claim. The owner or owners of any vein or any claim or claims so intersected or his duly authorized agent shall have the riglit to enter such tunnel upon application to the owner or owners of said tunnel without resorting to any process of law for the purpose of making a survey and inspecting such vein or veins as may be

Mining Laws Of Colorado. 1273

crossed within the boundary lines of such intersected claim, and if the owner or owners of such tunnel shall, by bulkheading, damming back, or in any manner prevent the inspection or survey herein provided for, or if such owner or owners shall in any manner prevent the inspection or survey herein provided for, or if such owner or oTiers shall in any manner prevent the natural drainage of water from such intersected claim or claims without the consent of the owner or owners thereof, it shall work a forfeiture of all rights granted under section one of this act.

See mote to preceding section.

Validity of statutes authorizing inspection and survey without suit:

Ownership of Ore of Intersected Claim at Point of Intersection; Daniagre.

§ 3. If any ore, the property of the owner of the claim intersected or crossed, be extracted in driving such tunnel, it shall be the property of the owner of the vein from which it was taken and the owner of the tunnel shall be liable for all actual damages or injury done to the owner of the claim crossed by his tunnel.

See note to § 1 of this act.

Ownership of Vein in Tunnel; Burden of Proof.

§ 4. In all actions between the tunnel owner and others involving the right to any vein discovered in such tunnel the burden of proving that the vein so discovered is not the property of the adverse claimant in such action shall be on the tunnel owner.

Tunnel proprietor when not called upon to adverse mineral applicant for patent: § 725.

B. Tunnel Claims,

Tunnel Claim; Record.

If any person or persons shall locate a tunnel claim for the purpose of discovery, he shall record the same, specifying the place of commencement and termination thereof, with the names of the parties interested therein. Mills' Ann. Stats. 3140; Gen. Stats. 1883, p. 720.

Acts to be performed in acquiring tunnel rights: See text, § 472. Regulations of the department concerning tunnel locations: ante p. 1189, pars. 20-26.

1274 Appendix.

Tauuel Claims; Lengrtta.

Any person or persons engaged in working a tunnel, within the provisions of this chapter, shall he entitled to two hundred and fifty feet each way from said tunnel, on each lode so discovered; provided, they do not interfere with any vested rights. If it shall appear that claims have heen staked off and recorded prior to the record of said tunnel, on the line thereof, so that the required number of feet cannot be taken near said tunnel, thev mav be taken upon any part thereof where the same may be found vacant; and persons working said tunnel shall have the right of way through all lodes which may lie in its course. Mills' Ann. Stats. § 3141.

Tho above section is referred to and its provisions discassed in $ 481, p. 57a See, also, note to § 2323: Rev. Stats., ante p. 1167.

IV. Reference to Miscellaneous LEGisLAxroN ox Mining

Subjects.

1. Providing that all mining claims shall he subject to a right of way for ditches or flumes, or tramway or packtrail; and providing means of enforcing the easement. Mills' Ann. Stats. § 3158; Gen. Stats. 1SS3, p. lU.

See text, §§ 53iK>31.

2. Requiring miners to take care of the tailings from their mines. Mills' Ann. Stats. § 3144; Gen. Stats. 1SS3. p. 721.

3. Provisions relating to the right of a party to an action for the recovery of the possession of a mining claim to enter the mine with consent of the court for the purpose of inspection. Mills' Ann. Stats, 3164, 3176; Gen. Stats. 1SS3, pp. 725-726.

4. Reirulatin<r mininsr under buildinsrs belonirinir itheri- Mills' Ann. Stats. § 313l>; Gen. Stats. 1SS3. p. 720.

5. ProvidinfiT for securitv to the owner of the surfac-e wiin the ownership of the surface is separate from the right mine. Mills' Ann. Stats. § 3159; Gen. Stats. 18S3, p. 724.

See similar statute Idaho: post 12S2, S. also. of the text.

6. Governing right of way for water br>ught a mining claim. iQlls' Ann. Stats. § 313S; Gen. Stats. 1SS3. p. 720; Rev. Stat&. p. 465, § 2,

Mining Laws Of Colorado. 1275

7. Governing right of way for hauling quartz. Mills' Ann. Stats. § 3145; Gen. State. 1883, p. 721; l?ev. Stats., p. 4:66, § 9.

8. Providing that claims of enlisted men not to be forfeited for two years. MilJs' Ann. Stats. § 3146; Gen. Stats. 1883, p.

9. Penalty for unlawful entry. Gen. Stats. 1883, pp. 726, 727; Itfillfl' Ann. Stats. §§ 3165, 3166.

10. Eelating to the drainage of mines. Mills' Ann. Stats. §§ 3172-3180; Gen. Stats. 1883, p. 727-729.

11. Eelating to ores, including the requirement that persons engaged in reducing, slipping, or purchasing ores keep records, and providing a punishment for stealing ores or knowingly purchasing stolen ores. Mills' Ann. Stats., §§ 3227-234; Gen. Stats. 1883, pp. 747-749.

12. Defining a minor's inch. Mills' Ann. Stats., § 4643; Gen. Stats. 1883, p. 1015.

13. Punishing the use of false weights for weighing gold or gold dust. Mills' Ann. Stats., § 1380; Gen. Stats. 1883, p. 343.

14. Punishing millowners for failure to turn over the proceeds extracted from ore to the rightful owner. Mills' Ann. Stats. § 1381; Gen. Stats. 1883, p. 343.

16. Passing counterfeit gold dust. Mills' Ann. Stats. §§ 1262, 1263; Gen. Stats. 1883, p. 314.

16. Punishing the salting of ores. Mills' Ann. Stats., § 1391; Gen. Stats. 1883, p. 346.

17. Punishing the destruction or carrying away boundary marks or timber in a mine. Mills' Ann. Stats. § 3171.

18. An act to create a bureau of mines, to define the duties of the commissioner of mines and provide for the government thereof; and to repeal an act entitled "An act dividing the state of Colorado into metalliferous mining districts," approved April

19. Providing that defendants in any successful action to recover possession of any lode, vein, or mining claim shall not be entitled to any offset for any timbering, cribbing, ini])rovoment, or development made upon the same. Part of cbap. r>'-3. Laws of

1895, p. 142.

20. Regulating the working of coal mines. Tiws of 1893, pp. 347-349, amending an act approved Fo])niary t>-l, 1883. Mills' Ann. Stats. [Sup.], p. 871.

1276 Appendix.

21. Providing for recovery of value of ore wrongfully mined, extracted, or taken out from the ground of another. Laws of 1893, p. 349. Mills' Ann. Stats. [Sup.], p. 869.

22. Belating to the duties of county assessors in assessing mining claims entered or patented. Laws of 1891, p. 113. Mills' Ann. Stats. [Sup.], p. 883.

23. Belating to lode mines, lode mining claims, or mining property that cannot he partitioned. Laws of 1893, p. 368. Mills' Ann. Stats. [Sup.], p. 892.

24. Providing that in certain cases verdict shall be entered against both parties to an action. Mills' Ann. Stats. [Supp.], p. 1224 .

See special act of Ckmgress relating to school lands in Colorado: Supp. to Rev. Stats. U. S., chap. 20, p. 424.

Mining Laws Op Idaho. 1277

Idaho.

I. Act op 1895, Relating to the Location and Development of Lodes AND Placers.

n. Act op 1807, Relating to the Location and Development of

Placers. in. Reference to Miscellaneous Legislation on Mining Subjects.

L Act of 1895 Relating to Location and Development of

Lode and Placer Claims.

[Approved March 5, 1895. Session Laws of 1895, pp. 25-31.]

Width of Liode Claims; Line of Vein not to be €hane<1 .

§ 1. Section 3100, Rev. Stats., is amended to read as follows:

Mining claims hereafter located upon veins or lodes of quartz or other rock in place bearing any of the metals or other valuable deposits, mentioned in section 2320 of the Revised Statutes of the United States, mav extend to three hundred feet on each side of the middle of the vein or lode; provided, that when the locators have set stakes, posts, or monuments described in section 2 hereof, to indicate the line of the vein, ledge, or lode, such stakes, posts, or monuments must be taken for the purpose of such location, to mark correctly the line thereof, and such line must not afterward be changed so as to afTect rights acquired or interfere with any locations made subsequent thereto.

Width of lode claims generally: § 361.

Preliminary Notice; Marking: Boundaries; Liocation Monameuts; Second Notice.

§ 2. Section 3101 of the Revised Statutes of Idaho is amended to read as follows:

The locator, at the time of making the discovery of such vein or lode must erect a monument at such place of discovery, upon which he must place his name, the name of the claim, the date of discovery, and the distance claimed along the vein each way from

Appendix.

sucli monument. Within three days from the date of discovery, he must mark the boundaries of his claim by establishing at each corner thereof and at any angle in the side lines, a monument marked with the name of the claim and the comer or angle it represents; also at the time of so marking his boundaries, he must post at his discovery monument his notice of location in which must be stated: First, the name of the locator; second, the name of the claim; third, the date of discovery; fourth, the direction and distance claimed along the ledge from the discovery; fifth, the distance claimed on each side of the middle of the ledge; sixth, the distance and direction from the discovery monument to such natural object or permanent monument, if any such there be, as will fix and describe in the notice itself the location of the claim; and seventh, the name of the mining district, county, and state.i Where, from any cause, a monument cannot be safely planted at the true corner or angle it may be placed as near thereto as practicable, and so marked as to indicate the place of such corner or angle. IIonuments may be made of any such material or form as will readily give notice, and when of posts or trees, they must be hewn and marked upon the side facing toward the discover}', and must be at least four inches square or in diameter. Monuments must be at least four feet high above the ground, _and trees must be so hewn as to readily attract attention. At the time the locator so marks the boundaries of his claim he may do so in any direction that will not interfere with rights or claims which existed prior to his discovery.

'Statute referred to: § 354.

Liberal rules of constiniction applied to notices: § 55.

Place and manner of posting: § 35G.

Object of and necessity for, marking: § 371.

Time allowed for marking: § 372. p. 480, § 339.

What is sufficient marking under Federal law discussed: § 373.

Statute referred to in text: § 374.

Perpetuation of monuments discussed: § 375.

Discovery Shaft and Equivalent Claim not Subject to Reloc*ation, when Discovery Work has been Performed, until Ninety Days after Location.

::j 3. Within sixtv davs after such location, the locator or his assigns must sink a shaft upon the lode to the de]>th of at least

Mining Laws Of Idaho. 1279

ten feet' froin the lowest part of the rim of such shaft at the surface, and of not less than sixteen square feet area. Any excavation which shall cut such vein ten feet from the lowest part of the rim of such shaft and which shall measure one hundred and sixty cubic feet in extent shall be considered a compliance with this provision. Any located claim upon which work has been done in compliance with the above requirements is not, unless abandoned, subject to relocation for a period of ninety days from after the date of location.

Section referred to in text: § 343.

Object of requirement as to development work discussed: § 344.

Relationship of discovery to discovery shaft: § 345.

Extent of development work: § 346.

Copy of Notice of Liocatiou to be Kecordecl.

§ 4. Within ninety days after the location of the claim, the locator or his assigns must file for record in the office of the county recorder of the county or of the deputy recorder of the mining district in which the claim is situated, a substantial copy of his notice of location.

Certificate must be verified, see post, § 13 of this act. Statute referred to in text: § 380. Purpose of location certificate: § 379. Rules of construction of location notices: § 381. Effect of failure to comply with the law as to contents of certificate: § 384. Time and place of record: § 389. Effect of failure to record within time limited: § 390. Proof of record: § 391. Record as evidence: § 392.

Amended Ijocatioii Certificates; Changre of BoundarieH.

§ 5. If at any time the locator of any mining claim heretofore or hereafter located, or his assigns, shall apprehend that his original certificaie was defective, erroneous, or that the requirements of tlie law had not been complied with before filing, or shall be desirous of (hanging the surface boundaries, or of taking any part of an ovorla])])ing claim which has been abandoned, or in case the original certificate was made prior to the passage of this law, and he shall bo desirous of securing the benefits of this act, such loca-

Appendix.

tor or his assigns may file an additional certificate subject to the conditions of this act and to contain all that this act required an original certificate to contain; provided, that such amended location does not interfere with the existing rights of others at the time when such amendment is made. Laws of 1895, p. 27, § 5.

Section referred to in text: § 397.

Objects and functions of amended certificates discosBed: 396.

Proof of Performance of Labor.

§ 6. Within sixty days after any time set or period allowed for the performance of labor, or making improvements upon any lode or placer claim, the person in whose behalf such work or improvement is performed or some person for him must make and record an affidavit in substance as follows:

State of Idaho, 1 County of . j

Before me, the subscribed, personally appeared , who,

being first duly sworn, says that at least dollars woriJi of

work or improvements were performed or made upon

claim, situate in mining district, count} of , state

of Idaho; that such expenditure was made by, for, or at the expense of , owners of said claim, for the purpose of holding

said claim. (Signature )

Subscribed and sworn to before me this day of ,

189—. .

The fee for administering the oath and recording the foregoing affidavit, when taken before the county recorder, shall be fifty cents; the fee for recording the same when the oath is taken before any other officer authorized to administer oaths shall be fifty cents.

Such affidavit, or a certified copy thereof, in case the original is lost, shall be prima facie evidence of the performance of such labor. The failure to file such affidavit shall be considered prima facie evidence that such labor has not been done.

Proof of annual labor discussed: § 636.

Mining Laws Of Idaho. 1281

Abandoned Claims, How Located.

§ 7. The location of abandoned claims shall be done in the same manner as if the location were a new claim; but the locator may, instead of sinking a new discovery shaft, sink the original discovery shaft ten feet deeper than it was at the time of his location, or he may drive the open cut or tunnel ten feet further along the course of the lead, lode, or vein, and must erect new posts or monuments.

Section referred to in text: § 408.

Gircumfftances under which relocations may be made: § 402. New discovery not essential: § 403. Belocation by original locator: § 405.

Relocation by agent or others occupying contractual or fiduciary relations with original locator: § 407. Relocation by one of several co-owners in hostility to others: § 406. Bight of second locator to improvements made by first: § 409.

Liocation Notice Claiming: More than One Location is Void.

§ 8. Xo location notice shall claim more than one location, whether the location is made by one or several locators, and if it purport to claim more than one location it is absolutely void.

Deputy Recorders, When and How Cliosen.

§ 9. Section 3103 of the Revised Statutes of Idaho is amended to read as follows:

For the convenience of prospectors and locators, the county recorders of the several counties must appoint a deputy at anyplace where he may deem it necessary; and at all places more than twenty miles distant from existing office whenever ten or more mining locators interested petition for the appointment of a deputy. Upon failure of recorder to appoint a deputy for ten days after the petition in \mting has been presented to him, the resident miners in such district may appoint temporarily one of their number to act as the recorder for the district, whose record shall be as valid as if made by the deputy, and must be entered by the recorder as hereinafter required; provided, that whenever at any time afterward the recorder has appointed a deputy for such district or place, the authority of the person elected by the resident miners ceases.

Appendix.

Security Must be Given to Surface Owner.

§ 10. When the right to mine is in any ease separate from the ownership or right of occupancy of the surface ground, the owners or rightful occupants of the surface ground may demand satisfactory security from the miners, and if it be refused or not given, may enjoin such miners from working such ground until such security is given. The comt granting the writ of injunction shall fix the amount and nature of the security.

Subjacent sfupport: §§ 818-822.

Legislation of this character discussed: § 822.

Placer Claims May Be Liocated.

§ 11. Placer claims as mentioned in section 2329 of the Eevised Statutes of the United States may be located for the purpose of mining deposits and precious stones after the discovery of such deposits.

What deposits are subject to location under placer laws? See text, §§ 419-428.

Placer Claims, How Located; Location Notices; Recording'.

§ 12. The locator of any placer mining claim, located for the purpose of mining placer deposits or precious stones, must at the time of making the location comply with all the requirements of sections 2 and 3 of this act. lilvery placer claim must be recorded within thirty days from the time of the location thereof, in the district in which the same is situated or in the ofl&ce of the county recorder of the coimty wherein the claim is situated. The location notice must contain the date of the location, the name of the locator, the name and dimensions of the claim, and must also give such a description of the locality thereof by reference to natural landmarks or fixed objects and contiguous claims, if any, as to render the situation of the same reasonably certain from the letter of the notice itself.

The above section is no longer in force, it having been amended by an act approved March 2. 1SI>7: See post, "Act of 1S97." p. 12H4. The above section is inserted for convenience of persons having located claims under it prior to enactment of the statute of 1897.

Minixg Laws Of Idaho. . 1283

Certificate That Claim is Open to Location.

§ 13. Section 3104 of the Kevised Statutes of Idaho is amended to read as follows:

At or before the time of presenting a location notice for record, whether it be for a quartz ox placer claim, one of the locators named in the same must make and subscribe an affidavit in writing on or attached to the notice, substantially as follows, to wit:

State of Idaho, ) County of . )

I, , do solemnly swear that I am a citizen of the United

States of America (or have declared my intentions to become such) and that I am acquainted with the mining ground described

in this notice of location, and herewith called the ledge,

lode, or claim; that the ground and claim therein described, or any part thereof has not, to the best of my knowledge and belief, been located according to the laws of the United States and of this state, or if so located, that the same has been abandoned or forfeited by reason of the failure of such former locators to comply in respect thereto with the requirements of said laws, and (in the case of quartz claims) that I have opened new ground to the extent or depth of ten feet as required by the laws of Idaho.

(Signature.)

Subscribed and sworn to before me this day of ,

A. D. 189—.

Section referred to in text: S§ 251, 385.

liOcation Notice, How Recorded.

§ 14. Section 3105 of the Revised Statutes of Idaho is amended to read as follows:

The location notice herein required to be recorded must be recorded by the deputy appointed for the district, or the person appointed for that purpose as above provided (when the legal fee therefor is tendered) in a book to be ke])t for that purpose. Said book must be indexed, with the names of all the locators arranged in alphabetical order, according to the family or surname of each. The fee to be tendered for making such record, administering the oath to the locator and certifying the same, for indexing

1284 Appendix.

the names appearing on the notice and to include recording the notice by the recorder as hereinafter required, and the indexing by said recorder is two dollars, which fee must be equally di\dded between the recorder and the deputy or the person acting under an election as hereinbefore provided, and no other additional sum of money must be demanded or received by either of them for any services connected with the recording of any location notice made pursuant to the requirements of this chapter.

As to records of running claims generally, see §§ 389-392.

§ 15. [Sections 3102, 3120, 3121, and 3122 of the Revised Statutes repealed.]

II. Act of Maroh 2, 1897, Relating to Location of Placers.

[Amending &ec. 12 of the Act of March 5, 1895. Session Laws of

1897, p. 12.]

This act was passed after the early chapters of this treatise had been printed. This accounts for the absence of any mention of it in the text.

Placer Claims; marking: Boundaries; Preliminary Notice; Development Work; fjocation Certificate.

That section 12 of the Act of March oth, 1895, is amended to read as follows:

§ 12. The locator of any placer mining claim located for the purpose of mining placer deposits or precious stones must, at the time of making the location, place a substantial post or monument as is required in the location of quartz claims at each comer of the location, and must also place on one of the same a notice of location containing the date of the location, the name of the locator, the name and dimensions of the claim, the mining district (if any) and county in which the same is situated; and must also give the distance and direction from said post or monument to such natural object or ])ermanent monument, if any such there be, as will fix and describe in the notice itself, the location of the claim.2

Within fifteen days after making the location, the locator must make an excavation on the claim of not less than one hundred cubic feet, for the purpose of prospecting the same.

Mining Laws Of Idaho. 1285

Within thirty days after the location, the locator must file for record in the office of the county recorder of the county, or of the deputy recorder of the mining district in which the claim is situated, a substantial copy of his copy of notice of location, to which must be attached an affidavit such as is required in the case of quartz claims.

For original section of which this is amendatory, see ante p. 1282.

What deposits erubject to appropriatloa under placer laws: See text, S§ 419-428. Form and extent of placers: §§ 447-448.

Marking location on ground in absence of state legislation: § 454. See text: i 442. 'See text: § 443.

III. Reference to Miscellaneous Legislation on Mining

Subjects.

1. Providing that deputy recorder must transmit records to county recorder. Rev. Stats. 1887, § 3106.

2. Defining powers and duties of deputy recorders. Rev. Stats Idaho, 1887, § 3107.

3. Providing that destruction or defacement of location notice shall be punishable as a misdemeanor. Rev. Stats, of Idaho, 1887, § 7172.

4. Tools of a miner not exceeding in value the sum of $200 are exempt from taxation. Mining claims are also exempt, but property and improvements upon, or appurtenant to mining claims are not exempt. Rev. Stats of 1887, § 1401, subd. 7.

5. An act creating the office of inspector of mines and defining the duties of the inspector. Laws of 1893, pp. 152-155.

Act amended: Laws of 1805, p. 160.

6. Laws relating to mining partnerships. Rev. Stats. 1887, §§ 3300-3309.

7. Rights of way and easements for development of mines. Rev. Stats. 1887, §§ 3130-3142.

See text: § 252.

Appendix.

Montana,

I. Laws Relating to the Location and Development of Mining

Claims. II. Reference to Miscellaneous Legislation on Mining Subjects.

I. Laws Relating to the Location of Mining Claims.

1. Location of Mining: Claims; Notice of Location, What to Contain.

Any person a citizen of the United States or one who has declared his intention to become such, who discovers a vein or lode bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, or who discovers or locates a placer deposit of gold or other deposit of minerals, including building stone, limestone, marble, clay, sand or other mineral substance having a commercial value, may locate a claim upon such vein, lode or deposit by defining the boundaries of the claim in the manner hereinafter described, and by posting a notice of such location at the point of discovery, which notice must contain: First, the name of the lode or claim; second, the name of the locator or locators; third, the date of the location; fourth, if a lode claim, the number of lineal feet claimed in length along the course of the vein, each way from the point of discoverv, with the width on each side of the center of the vein and the general course of the vein or lode as near as may be; fifth, if a placer or millsite claim, the number of acres or superficial feet claimed. Rev. Pol. Code of 1895, § 3610.

Statute referred to: §§ 352, 442.

Purpose of location certificate: § 379.

Rules of eoDBSTtniction applied: § 381. See, also, § 351.

Place and manner of posting: § 356.

2. Discovery Shaft; Boundaries, How Made and of

What to Consist.

Before the expiration of ninety days from the date of posting such notice upon the claim the locator or locators must sink a dis-

Mining Laws Op Montana. 1287

covery shaft upon the lode or claim (millsite claims excepted) to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper, if necessary, to show a welldefined crevice or valuable deposit. Its equivalent in work must be done upon placer claims. A cut, a crosscut, or a tunnel which cuts a lode at the depth of ten feet below the surface, or an open cut of at least ten feet in length along the lode from the point where the lode may be in any manner discovered, is equivalent to a discovery shaft. The locator or locators must define the boundaries of his or their claim by marking a tree or rock in place, or by setting a post or stone at each comer or angle of the claim. When a post is used it must be at least four inches square by four feet six inches in length, set one foot in the ground, with a mound of earth or stone four feet in diameter by two feet in height around the post. When a stone is used, not a rock in place, it must be at least six inches square, and eighteen inches in length, set two-thirds of its length in the ground, which trees, stakes, or monuments must be so marked as to designate the corners. Rev. Pol. Code 1895, §3Gli.

Statute referred to in text: §§ 343, 44:$. Object of requirement as to development work: § 344. Relationship of the discovery to the discovery shaft: § 345. Extent of development work: § 340. Section referred to in text: §§ 374, 455. Time allowed for marking: § 372. Necessity for, and object of, marking: § 371. What is sufficient marking under the Federal law: § 373. What is sufficient marking under the Federal law In case of placers: § 454. Perpetuation of monuments: § 375.

3. Declaratory Statement, When and Where Filed; Contents.

Within ninety days of the date of posting the location notice upon the claim, there must be filed in the office of the county clerk of the county in which the lode or claim is situated, a declaratory statement, which must contain: First, the name of the lode or claim; second, the name of the locator or locators; third, the date of location, and such description of the location of said claim with reference to some natural object or permanent monu-

Appendix.

ment as will identify the claim; fourth, if a lode claim, the number of lineal feet claimed in length along the course of the vein each way from the point of discovery, with the width on each side of the center of the vein, and the general course of the lode or vein as near as may be; fifth, if a placer or millsite claim, the number of acres or superficial feet claimed; sixth, the dimensions and location of the discovery shaft, or its equivalent sunk upon lode or placer claims; seventh, the location and description of each corner, with the markings thereon.

Such declaratory statement must be verified by the oath of the locator, or one of the locators, and in case of a corporation by an officer thereof, duly authorized to act. Eev. Pol. Code 1895, §

Section referred to in text: §§ 380, 459.

Purpose of location certificate: § 379.

Rules of construction: § 381.

Effect of failure to comply with tlie law as to contents of certificate: § 384.

Verification of certificates: § 385, and § 251, where the validity of the requirement is questioned.

Time and place of record and effect of failure to record within time limited: §§ 389-390.

4. Placer Locations Made Prior to 18S>5 and Recorded; Effect of.

All placer mining locations or locations of valuable mineral deposits, which have heretofore been recorded in the office of the county clerk or recorder, have the same force and effect as though such records had been authorized by law, except in cases where the rights of third persons had been acquired before the passage of this code; and such record is entitled to be admitted in evidence in any court. Rev. Pol. Code 1895, § 3613.

The record &s evidence: § 392.

5. Annual Work, Proof of.

The owner of a lode or placer claim who performs or causes to be performed the annual work or makes the improvements required by the laws of the United States in order to prevent the forfeiture of the claim, may, within twenty days after the annual work, file

Mining Laws Of Montana. 1289

in the office of the county clerk of the county in which such claim is situated, an affidavit of his own, or an affidat of the person who performed such work or made the improvements, showing: First, the name of the mining claim and where situated; second, the numher of days work done, and the character and value of the improvements placed thereon; third, the date of performing such work and of making the improvements; fourth, at whose instance the work was done or the improvements made; fifth, the actual amount paid for work and improvements, hy whom paid, when the same was not done by the owner.

Such affidavits, or a certified copy thereof, are prima facie evidence of the facts therein stated. Kev. Pol. Code 1895, § 3614.

Proof of annual labor: § 636.

Can iH:liminary work required by state laws as an act of location be credited on the first year's work? See § 636. Annual labor, generally, discussed in text: §§ 623-638.

6. Relocation of Abaiidoued Lode or Plueer.

The relocation of an abandoned lode or placer claim must he made by sinking a new discovory sbaft, and fixing new boundaries in the same manner as if it were an original location made under this chapter; or the relocator may sink the original discovery shaft ten feet deeper, in which case the declaratory statement must give the depth and dimensions of the original discovery shaft at the date of such relocation. In any case, whether the whole or a part of an abandoned claim is taken, the declaratory statement may state that the whole or any part of the new location is located as abandoned property. If it is not known to the locator that-his location is on an abandoned claim, then the provisions of this section do not apply. Eev. Pol. Code 1895, § 3615.

Section referred to in text: § 408.

Circumstances under wlilch relocation may be made: 9 402, p. 611. New discovery not essential as a basis of r<lo<ration : § 403, p. 512. Relocation admits tlie validity of tlie orljflnal: § 404. Relocation by original locator: $ 405.

Reik)catlon by one of several original locators in lioHtility to others: §406. Relocation by agent of original lo<*jitor: § 407. Right of second locator to Improvements by first: § 409.

1290 Appendix.

7. Official Survey, Field Notes, and Certificate as Part of Declaratory Statement.

Where a locator or owner of a mining claim has the hoimdaries and comers of his claim established by a United States deputy mineral surveyor, and his claim connected with a comer of the public or minor surveys, or an established initial point, and incorporates into the declaratory statement the field notes of such survey, and attaches to and files with such declaratory statement, a certificate by the surveyor setting forth: First, that such survey was actually made by him, giving the date thereof; second, the name of the claim surveyed and the locators thereof; third, that the description incorporated in the declaratory statement is sufficient to identify the claim.

Such survey and certificate becomes a part of the declaratory statement and such declaratory statement is prima facie evidence of the facts therein contained. Rev. Pol. Code 1895, § 3616.

11. Reference to Miscell.\neous Legislation on Mining

Subjects.

1 . Providing that the owner of a mining claim shall have right of way over adjoining property and providing proceedings to obtain right of way; damages to be assessed, appeal, etc. Rev. Pol. Code 1895, §§ 3630-3641.

See text: §§ 530-531.

3. Mining claims properly located not to be aiTected by townsite patents for unincorporated towns. Rev. Pol. Code 1895, §

3. Regulations governing safety apparatus and signals in mines. Rev. Pol. Code 1895, §§ 3650-3654.

4. Regulations governing the taxation of mines and exemptions of property from execution. Rev. Pol. Code 1895, §§ 3672, 3760-3768; Rev. Code Civ. Proc. 1895, § 1222.

5. Provisions regulating mining partnerships. Rev. Civ. Code 1895, §§ 3350-3359.

6. Pro\'isions defining fixtures and determining what things are deemed affixed to mining claims. Rev. Civ. Code 1895, §

Mining Laws Of Montana. 1291

7. Customs and usages of particular districts as evidence in actions to determine conflicting claims to mining property. Rev. Code Civ. Proc 1895, § 1321.

LocfU district regulations as evidence: See text, § 272.

8. Provisions regulating the summary sales of mines and mining interests. Eev. Code Civ. Proc. 1895, §§ 2660-2664.

9. Provisions creating the office of inspector of mines and defining the powers and duties of the inspector. Eev. Pol. Code 1895, §§ 580-590.

As amended by act of March 4, 1897; Laws of 1897.

10. Provisions regulating the working of coal mines. Rev. Pol. Code 1895, §§ 3350-3365.

11. Provisions governing the employment of children in mines. Rev. Pen. Code 1895, § 474.

12. Provisions regulating the storage of explosives in mines. Rev. Pen. Code 1895, § 708.

13. Provisions regulating punishment for malicious mischief in destroying or tearing down notices. Rev. Pen. Code 1895, §

14. An act regulating the hours of labor of hoisting engineers and fixing the penalties for violation thereof. Approved Feb. 19, 1897, Laws 1897, p. 67.

15. An act to further protect underground miners. Approved March 1, 1897. Laws of 1897, p. QG.

16. An act relating to the casing in of cages in mines, amending section 705 of the Revised Penal Code of 1895. Approved March 1, 1897. Laws of 1897, p. 245.

17. Regulating the right of a party to an action concerning a mining claim to an order for ins])ection and survey. Code Civ. Proc, g 376.

1292 Appendix.'

Nevada.

I. Act of 1897 Regulating the Location and Development of Lode,

Placer, Tunnel, and Millsite Claims. IL Act Regulating the Disposition of Certain State Mineral Lands. IIL Reference to Miscellaneous Legislation on Mining Subjects,

L Act of 1897 Regulating Location and Development of

Mineral and Millsite Claims.

[Approved March 1(5, 1897. Statutes of 1897, pp. 103-109.]

This act was passed after the early chapters of the work had been printed. This accounts for the absence of a proper classification In the text of the legislation of this state, e. g. §§ 251, 343, 351, 380, 443, etc.

LfOde Claim; Who may Locate; Postiiigr Notice.

§ 1. Any person, a citizen of the United States, or one who has declared his intention to become such, who discovers a vein or lode may locate a claim upon such vein or lode by defining the boundaries of the claim in the manner hereinafter described and by posting a notice of such location at the point of discovery, which notice must contain: First, the name of the lode or claim; second, the name of the locator or locators; third, the date of the location; fourth, the number of the linear feet claimed in length along the course of the vein, each way from the point of discoverv. with tlic width on each side of the center of the vein, and the general course of the vein or lode as near as may be.

Liberal rules of construction applied to notices: § 355. Place and manner of posting: § 35G. What constitutes discovery: § 33G.

Discovery Sliaft and Kquivaleiit; Marking: BoundarieH.

§ 2. Before the expiration of ninety days from the posting of Buch notice upon the claim the locator must sink a discovery shaft upon the claim located to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper if

Mining Laws Of Nevada. 1293

necessary to show by such work a lode deposit of mineral in place. A cut, or crosscut, or tunnel which cuts the lode at a depth of ten feet, or an open cut of at least ten feet in length along the lode from the point where the lode may be in any manner discovered, is equivalent to a discovery shaft. The locator must define the boundaries of his claim by marking a tree or rock in place, or by setting a post or stone, one at each comer and one at the center of each side line. When a post is used it must be at least four inches square, by four feet six inches in length, set one foot in the ground, with a mound of stone or earth four feet in diameter by two feet in height around the post. "When it is practically impossible on account of bedrock or precipitous ground to sink such posit:, they may be placed in a pile of stones; or where the proper placing of such posts or monuments of stone is impracticable or dangerous to life or limb, it shall be lawful to place such post or monument of stone at the nearest point, properly marked to designate its right place. When a stone is used, not a rock in place, it must be at least six inches square and eighteen inches in length, set two-thirds of its length in the ground, which trees, stakes, or monuments must be so marked as to designate the corners of the claim located.

Object of requirement as to developinent Avork: § 'M4, Relationship of discovery to discovery shaft: § 345. ' Extent of development work : § 340. Form and size of the claim: § 'MM. Necessity for, and object of, marking: § 371. Time allowed for mai-klng: § 372.

What is sufficient marking under tlic Kodcrnl Inw: § 373. Perpetuation of monuments: § 375.

Location Notice; Record; RcconlK miulc Prior to Passagre of Act.

§ 3. Within ninety days of the (hitc of posting the location notice upon the claim, the locator shall record his claim with the mining district recorder and the county recorder of the mining district or county in which such claim is Hituated hy a location certificate which must contain: First, the name of the lode or vein; second, the name of the locator or locators; third, the date of the location and such description of tJio location of the said claim, with reference to some natural object or permanent monument, as will iden-

Appendix.

tify the claim; fourth, the number of linear feet claimed in length along the course of the vein each way from the point of discovery, with a width on each side of the center of the vein, and the general course of the lode or vein as near as may be; fifth, the dimensions and location of the discovery shaft, or its equivalent, sunk upon the claim; sixth, the location and description of each comer, with the markings thereon. Any record of the location of a lode mining claim which shall not contain all the requirements named in this section shall be void. All records of lode or placer Tnim'Tig claims, millsites or tunnel rights heretofore made by any recorder of any mining district or any county recorder are hereby declared to be valid and to have the same force and effect as records made in pursuance of the provisions of this act. And any such record, or a copy thereof, duly verified by a mining recorder or duly certified by a county recorder shall be prima facie evidence of the facts therein stated.

Purpose of location certificate: § 379.

Rules of construction applied: § 381.

Effect of failure to comply with the law as to contents of certificate: § 384.

Time and place of record and failure to record within time Umited: §§ 389-390.

Extralateral Rigrtits; Intralimital Rig-lits.

§ 4. The location or record of any vein or lode claim shall be construed to include all surface ground within the surface lines thereof, and nil lodes and ledges throughout their entire depth, the top or apex of which lies inside of such linos extended downward vertically, with all parts of such lodes or veins as continue to dip beyond the side lines of the daim, but shall not include any portion of such lodes, veins, or ledges, beyond the end lines of the claim, or the end lines continued, whether by dip or otherwise, or beyond the side lines in any other manner than by the dip of the lode.

A'aJidity and effect of such legislation questioned: § 251.

Lode Xot to ho Pursued on Strike Ijeyoiid Knd Lines.

§ 5. If the top or apex of the lode in its longitudinal course extends l)ovond the exterior lines of the claim at anv point on the

Mining Laws Of Nevada. 1295

surface or as extended vertically downward, such lode may not be followed in its longitudinal course where it is intersected by the exterior lines.

See note to preceding section.

Amended Liocatioii Certificate; Changre of BouiidarieN.

§ 6. If at any time the locator of any mining claim heretofore or hereafter located, or his assigns, shall apprehend that his original certificate was defective, erroneous, or that the requirements of the law had not been complied with before filing; or shall be desirous of changing his surface boundaries or of taking in any part of an overly})ping claim which has been abandoned; or in case the original certificate was made prior to the passage of this law, and he shall be desirous of securing the benefits of this act, such locator or his assigns may file an additional certificate, subject to the provisions of this act; provided, that such relocation does not interfere with the existing rights of others at the time of such relocation, and no such relocation or the record thereof shall preclude the claimant or claimants from proving any such titles as he or they may have held under previous location.

Objects and functions of amended location certili(?ateH diHCURSod in text: § 398.

Circumstances Justifying change of boundariee: § 396.

Privilege of changing boundaries exists in al)sence of intervening rights, independent of State legislation: § 307.

Relocation of Abandoned C-laimN.

§ 7. The relocation of abandoned lode claims shall he by sinking a new discovery shaft and fixing new boundaries in the wime manner as if it were the location of a new claim; or the relocator may sink the original fliscovery shaft ion fvot deeper tlian it was at the time of abandonment, in which case the record must give the depth and dimensions of tlio original discovery shaft at the date of such relocation and erect new or adopt the old boundaries, renewing the posts or monuments if removed or destroyed. In either ease a new location stake shall be greeted. In any case, whether the whr)le or ]>art of an abandoned claim is taken the record mav state that the whole or anv T>art of the new location is

1296 ' Appendix.

located as abandoned property. If it is not known to the relocator that his location is on an abandoned claim, then the provisions of this section do not apply.

Circumstances under which relocation may be made: § 402.

Ne' discovery not essential as a basis of relocation: § 403.

Relocation admits the validity of the original: § 404, p. 612. .

Relocation by original locator: § 405.

Relocation by one of several original locators in hostility to others: § 406.

Relocation by agent or others occupying fiduciary or contractual irelationship with original locator: § 407.

Manner of perfecting relocations: § 408.

Right of second locator to improvements made by first: § 409.

liOcation Certificate: Description by Reference to Surveyed Field Notes.

§ 8. Where a locator, or his assigns, has the boundaries and corners of his claim established by a United States deputy mineral surveyor, or a licensed surveyor of this state, and his claim connected with a corner of the public or minor surveys of an established initial point, and incorporates into the record of the claim the field notes of such survey, and attaches to and files with such location certificate a certificate of the surveyor, setting forth: First, that said survey was actually made by him, giving the date thereof; second, the name of the claim surveyed and the location thereof; third, that the description incorporated in the declaratory statement is sufficient to identify. Such survey and certificate beconiis a part of the record, and such record is prima facie evidence of the facts therein contained.

Annual Labor; Amount Required; Value of a Day's Labor.

§ 9. The amount of work done or improvements made during each year to hold possession of a mininir claim sliall be that prescribed by the laws of the United States, to-wit: One hundred dollars annually. In estimating the worth of la])or required to be performed u])on any mining claim, to hold the same under the laws of the Tnited States, the value of a day's labor is hereby fixed at the sum of four dollars; provided, however, that in the

Mining Laws Of Nevada. 1297

sense of this statute eight hours of labor actually performed upon the mining claim shall constitute a days labor.

Far discussion of the subject of annual labor: See §§ 623-638.

Requirement as to annual labor imperative: § 624.

By whom labor must be performed: § 633.

GircumstanceB under which performance of annual labor is excused: § 624.

Value of labor and improvements, how estimated: § 635.

When obligation to perform ammal laibor ceases: § 637.

Validity of legislation fixing the value of a day's labor quefrtloned: § 635.

Proof of Annual Labor.

§ 10. Within sixty days after the performance of labor or making of improvements, required by law to be annually performed or made upon any mining claim, the person in whose behalf such labor was performed, or improvements made, or someone in his behalf shall make and have recorded by the mining district recorder or the county recorder in books kept for that purpose in the mining district or county in which such mining claim is situated, an affidavit setting forth the amount of money expended, or value of labor or improvements made, or both, the character of expenditures or labor, or improvements, a description of th claim or part of the claim affected by such expenditures, or labor or improvements, for what year and the name of the owner or claimant of said claim at whose expense the same was made or performed. Such afli davit or a copy thereof, duly certified by the county recorder, shall be prima facie evidence of the performance of such labor or the making of such improvements, or both.

See note to preceding section.

Proof of annual labor discussed: § 636.

Forfeiture to Co-owners.

§ 11. Whenever a co-owner or co-owners shall give to a delinquent co-owner or co-owners the notice in writing or notice by publication provided for in section 2324, Revised Statutes of the United States, an affidavit of the person giving such notice, stating the time, place, manner of service, and by whom and upon whom such service was made, shall be attached to a true copy of such notice, and such notice and affidavit must' be recorded by

Appendix.

the mining district recorder or the county recorder, in books kept for that purpose, in the mining district or county in which the mining claim is situated; within ninety days after the giving of such notice, or if such notice is given by publication in a newspaper, there shall be attached to a printed copy of such notice an affidavit of the j)winter or his foreman or principal clerk of such paper, stating the date of the first, last and each insertion of such notice therein, and when and where the newspaper was published during that time, and the name of such newspaper. Such affidavit and notice shall be recorded as aforesaid within one hundred and eighty days after the first publication thereof. The original of s\ich notice and affidavits, or a duly certified copy of tlio record thereof, shall be evidence that the delinquent mentioned in section 2324 has failed or refused to contribute his proportion of the expenditure required by that section and of the service or i)ul)lieation of said notice; provided, the writing or affidavit hereinafter provided for is not of record. If such delinquent shall, within the ninety days required by section 2324 aforesaid, contribute to his co-owner or co-owners his proportion of such expenditures, such co-owner or co-owners shall sign and deliver to the delinquent or delinquents a writing, stating that the delinquent or delimiuents by name, has within the time required bv section 2324 of the Eevised Statutes of the TTnited States,

contributed his share for the year , upon the mine, and

further staling therein the district, county and state where the same is situate and the book and page where the location notice is recorded; such writin: shall be recorded in the office of the count V recorder of said countv- If such co-owner or co-owners shall fail to sign and deliver such writing to the delinquent or delin(|uents within twenty days after such contribution, the coowner or co-owners so failing as aforesaid shall ])e liable to a penaltv of one h\indrcd dollars, to be recovered by any person for the use of the delinquent or delinquents in any court of competent juriMliction. If Mich co-owner or co-owners fail to deliver such writing: within said twentv davs, then the delinquent with two disinterested ])ersons having ])personal knowledge of such contrilMition, may make affidavit sotting forth in what manner, the amount of, to whom and u])on what mine, such contribution was made. Such affidavit, or a record thereof in the office of the coun-

Mining Laws Op Nevada. 1299

ty recorder of the county in which said mine is situate, shall be prima facie evidence of such contribution.

Validity of such legislation questioned: §§ 251, 646. Forfeiture to co-owners discussed: § 646.

Notice of Location Claimingr More Than One Location is Void.

§ 12. No notice of location of a lode claim shall claim more than one location, whether the location be made by one or several persons. And if such notice purport to claim more than one location it shall be absolutely void, except as to the first location therein described. And if they are described together, or so that it can not be told which location is first described, the notice of location shall be void as to all.

The location certificate and its contents discussed: §§ 379-385.

Placer Claims, How Located; Posting Notices; Markingr Boundaries.

§ 13. The locator of a placer claim shall locate his claim in the following manner: First, by posting a notice of location thereon containing the name of the claim, the name of the locator or locators, the date of location and the number of feet or acres claimed; second, by marking the boundaries of his claim with a post, tree or rock in place, or by setting a post or stone, one at each angle of the claim located. When a post is used it must be at least four inches square by four feet six inches in length, 86t one foot in the ground, with a mound of stone or earth four foot in diameter, by two feet in height around the ])ost. Where it is ])ractically impossible on account of ])bedrock or ])recipe<oiiH ground to sink such j)osts, they may be placed in a ])ile of stones. When a stone is used not rock in j)lace, it must l)e at least six inches scpiare and eighteen in length, set two-thirds of its length in the ground, which tree, stake or monument must be so marked as to designate the corner of tlie claim located; ])rovid(fd, that if the Ignited States survev has been extended over said land then the claim mav be taken 1)V h'*ral subdivision, and no other monument, ex-

1300 Appendix.

cept that upon which the location notice is posted shall be quired than the United States comers.

Beqnirements for locating placers in abeence of state legfslatkm; §§432,454. Same where state legislation exists: § 433. Liberal rules of construction ailled to notices: § 355. Place and manner of posting: fi 356.

Placers; Ix>catlon Certificate; Record.

§ 14. The locator of any placer claim shall, within sixty days from the date of the location of such claim have the same recorded by the mining district recorder and the county recorder, in books kejit for that purpose, in the mining district or county in which such claim is situated, which record must contain: First, the name of the claim, designating it as a placer claim; second, the name of the locator or locators; third, the date of such location; fourth, the number of feet or acres thus claimed; fifth, a description of the claim, with reference to some natural object or permanent monument as will identify the claim. Any record of the location of a placer mining claim which shall nbt contain all the requirements of this section shall be void.

Purpose of location certificate: § 379. HiUes of construction applied: § 381.

Effect of failure to comply with law as to contents of certificate: fi 384.

MillHitc may Be Located.

§ 15. 'J'lie proprietor of a vein or lode claim or mine, or the owner of a quartz mill or reduction works, may locate five acres of non-mineral land as a millsite.

I>aw relating to miUsites generaUy: § 519. Different classes of millsites: § 520. Location of miUsite wltli reference to lode: fi 522. Nature of use reciuired in case of location by lode proprietor: fi 623. Millsites used for ciuartz mill or reduction works disconnected with lode ownersliip: fi 524. Kipht to millsite, how initiated: § 521. Manner of acquiring patent to: § 708.

Mining Laws Of Nevada. 1301

Millsite, How Located; Pontingr Notice; Markingr Boundaries.

§ 16. The locator of a millsite location shall locate his claim by posting a notice of location thereon, which mnst contain: First, the name of the locator or locators; second, the name of the vein or lode claim, or mine, of which hf is the proprietor, or the name of the quartz mill or reduction works of which he is the owner; third, the date of the location; fourth, the number of feet or acres claimed; fifth, a description of the claim by such reference to a natural object or permanent monument as shall identify the claim or millsite. And by marking the boundaries of his claim in the same manner as provided in this act for the marking of the boundaries of a placer mining claim, so far as the same may be applicable thereto.

See note to preceding section.

Millsite; Location Notice and Reconl.

§ 17. The locator of a millsite claim or location shall within thirty days from the date of his location record his location with the mining district recorder and the county recorder of the district or county in which such location is situated, by a location certificate which must be similar in all respects to the one posted on the location.

See notes to § 15 of this act.

Millsite; Notice of Location, Wlien Void.

§ 18. Any record of a millsite location which shall not contain the name of the locator or locators, the name of the vein or lode claim or mine of which the locator is the proprietor, or the name of the quartz mill or reduction works of which the locator is the owner, the number of feet or acres claimed, and such description as shall identify the claim with reasonable certainty, shall be void.

See notes to § 15 of this act.

Tunnel Riht or Location, How Located; Postingr*

§ 19. The locator of a tunnel right or location shall locate his tunnel right or location by posting a notice of location at the face

1302 Appendix.

or point of commencement of the tunnel which must contain: First, the name of the locator or locators; second, the date of the location; third, the proposed course or direction of the tunnel; fourth, the height and width thereof; fifth, the position and character of the boundary monuments; sixth, a description of the tunnel by such reference to a patural object or permanent monument as shall identify the claim or tunnel right.

See Regulations of land department concerning tunnel locations: ante, p. 1189, pars. 20-26.

Acts to be performed in acquiring tunnel rights: § 472, p. 573.

"Line'* of tunnel defined: § 473.

"Pace" of tunnel defined: § 474.

For reference to recent decisions of tlie Supreme Court of the United States, see note to § 2323, Rev. Stats., ante, p. 1067.

Tunnel, Boundary Lines, How Established.

§ 20. Tlie boundary lines of the tunnel shall he established by stakes or monuments placed along sucli lines at an interval of not more than tbree liundred feet from the face or point of commencement of the tunnel to the terminus of three thousand feet therefrom. The stakes or monuments shall be of the same size and character as those ])rovided for lode or placer claims in this act.

See note to preceding section.

Marking of the tunnel location on the ground: § 475. p. 576.

Tunnel Location; Record.

jj 21, Tlie locator of a tunnel right or location shall within sixty days from the date of the location record his location with the mining district recorder and the county recorder of the county or district in which such location is situated, which must be similar in all respects to the one posted on the location. Any record of a tunnel right or location which shall not contain all the requircmoiits named in this section shall be void.

See noU*s to two i)reoecling sections.

Acts to be performed in ae<iuiring tunnel rights: §§ 472. 475.

Blind Lodes, Discovered in Tunnel, How Located.

S 22. All blind lodes, or veins or lodes not previously known to exist, discovered in a tunnel run for the development of a vein or

Mining Laws Of Nkvada. 1303

lode, or for the discovery of mines, and within three thousand feet from the face of such tunnel, shall be located upon the surface and held in like manner as other lode claims. under the provisions of this act.

Necessity for appropriation of discovered lod by surface location: § 482, p. 580.

Acts to be performed in acquiring tunnel rights: §§ 472, 475.

To what extent does the inception of a tunnel right and ita perpetuation by prosecuting work with reasonable diligence, operate afe a withdrawal of the surface from exploration by others: § 483, p. 586.

See generally upon the subject of tunnels: §§ 472, 491 of text.

For recent decisions of Supreme Court of United States on subject of tunnel rights, see note to § 2323 Rev. Stats., p. 1167, ante.

Provisions of Act, to Wliat Claims Applicable.

§ 23. The provisions of this act shall be construed as equally applicable to all classes of locations except where the requirement as to any one class is manifestly inapplicable to any other class or classes.

Repealing Clause.

§ 24. All acts or parts of acts in conflict with this act are hereby repealed.

II. Regulating the Disposition of State Lands Containing Mineral.

State Disclaims All Title to Lands Containing: Mineral; How Such Lands are to be Located; Mining* a Public Use.

§ 1. Tlie several trpants nuulo by the United States to the state of Nevada reserved tlie mineral hinds. Sales of such lands made by the state were made subject to such reservations. Any citizen of the United States or jerson having declared his intention to become sucli, may enter upon any mineral lands in this state, notwithstanding the state's selection, and explore for gold, sflver, copper, lead, cinnabar, or otlier valuable mineral, and upon the discovery of such valuable mineral may work and mine the same

1304 Appendix.

in pursuance of the local rules and regulations of the miners and the laws of the United States; provided, that after a person who has purchased land from the state has made valuable improvements thereon, such improvements shall not be taken or injured vithout full compensation. But such improvement may be condemned for the uses and purposes of mining in like manner as private property is by law condemned and taken for public use. Mining for gold, silver, copper, lead, cinnabar, and other valuable mineral, is the paramount interest of this state, and is hereby declared to be a public use. Stats. 1887, pp. 102-3, sec. 1.

See simUar act in California and note thereto: ante p. 1251. Mining as a public use In Nevada: § 256.

Deeds from State to Contaiu Clause Reserving: Minerals.

§ 2. Ever}' contract, patent or deed hereafter made by this state, or the authorized agents thereof, shall contain a provision expressly reserving all mines of gold, silver, copper, lead, cinna bar and other valuable minerals that may exist in such land, and the state, for itself and its grantees, hereby disclaims any interest in mineral lands heretofore or hereafter selected by the state on account of any grant from the United States. All persons desiring titles to mines upon lands which have been selected by the state, must obtain such title from the United States under the laws of Congress, notwithstanding such selection. Stats. 1887, p. 103, § 2, as amended in 1897, Stats, of 1897, p. 36.

III. Reference to Miscellaneous Legislation on Mining

Subjects.

1. Providing that the county recorder of each county shall be ex-officio district mining recorder and poiding that he be responsible for the safekeeping of all mining records. Gen. Stats. 1885, § 300.

2. Providing that duplicate copies of mining records be transmitted by local mining recorder to the county recorder, and providing for fees of recorders. Stats. 1885, p. 27, § 1; as amended in 1897, Stats, of 1897, p. 77.

Mining Laws Of Nevada. 1305

3. Begulating the sale by the state of timber and mountainous grazing lands selected by the state under any grant bj the United States, and providing that the deeds contain clauses reserving all mineral. Stats. 1883, p. 103-4.

4. An act for the better preservation of titles to mining claims, dealing with delinquent co-owners and method of selling their interests: Stats. 1887, p. 136.

5. Providing for damages for unlawful encroachment pf one mining company upon the property of another. Stats, of 1891, p. 37.

6. An act to encourage the development of mineral resources of the state of Kevada, providing for a laboratory to be used for the free analysis of ore. Laws of 1891, p. 47.

7. An act to provide for the storage of water to encourage mining, milling, and internal improvements, etc. Laws of 1889, p. 102.

8. An act to encourage mining, providing for the condemnation of private property for mining purposes. Laws of 1887, p.

9. Providing that the proceeds alone of mines shall be taxed. Const., art. X, sec. 1; see Laws of 1893, p. 194.

10. Regulating the manner of assessing the proceeds of mines, and providing that an uncollected tax on the proceeds of a mine shall constitute a lien on the mine. Ijaws of 1891, p. 162.

11. Providing for an order of inspection in an action concerning a mining claim. Comp. Laws of 1873, §§ 119, 1321.

1308 Appendix.

character of work necessary to be done and performed thereon as required by section 1 of chapter 25 of the acts of the 28th session of the legislative assembly of the territory of Xew Mexico, within the ninety days from the date of such location as proTided* in said section, such locator, or locators, and his or their assigns, shall forfeit all right to such mining claim, and shall henceforth for the period of ninety days from and after the expiration of such ninety days be debarred and prohibited from relocating, or procuring, or becoming interested, direttly or indirectly, except as a bona tide purchaser for value, in the relocation of such claim, or the location of any other claim which will include any portion of the ground which was included in such forfeited claim. of ISJC. p. 124, sec. 1.

This soi'tion was passed since the early chapters of the text of this treatise were printed.

Kelooatlons by original locator: § 405. See post, par. 9.

Amended Loiation Certifieaite and Cliangre of Boundaries.

If at anv time the owner of anv niinini: claim heretofore or heivafter kxattni, or his assigns, shall apprehend that the original notice of \vation is defective, erroneous or the reiuirement of the law has no: b<vn \:-implied with Iviore dling: or shall be desinus of ohar.cir.g his siirfat:-e I'Oimo.arii'S or :o rake in any jxan of an ovrrlappinc claim which has l-en atandoned: or in c;is< tht original r.oiiv of ihe \va::on was made irlor to the pasagv o: :i::s avi ar.d :he owner shall l-e desir:*ns of obtaining the Ivnents of :h:s ac:, such owner may nie in the o.oes where noticx-s of Ixit: nsart Iv law r>:-onir>?c to Iv nle*i. an amended or advlitiomV. n.ti-e of lxati:n. sn:;t%:t to tht tr: visions of this act: r.vii-.-d. that such ;:dli:i:ndl or amrndel noti.ic of lo

Privifce o-f c-iaiixtiix SxiEhiart'es :r>JprrhiT o-f State

Mining Laws Op New Mexico. 1309

6. Relocation of Mining: Claims.

The relocation of any mining ground, which is subject to relocation, shall be made in the same way as an original location is required by law to be made, except the relocator may either sink a new shaft upon the ground relocated to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, exposing mineral in place, or drive a new tunnel, adit, or open cut upon such ground at least ten feet below the surface, exposing mineral in place, or the relocator may sink the original discovery shaft ten feet deeper than it is at the time of relocation, or drive the original tunnel, adit, or open cut upon such claim ten feet further. Laws of 1889, p. 42 et seq., sec. 3.

When relocation may be made: § 402, p. 511.

New dlscoTeiy uot essential as a basis of relocation: 8 403, p. 612.

Belocation admits the validity of the original: 8 404, p. 612.

Belocation by original locator: § 405, p. 513. See post, per. 0.

Belocation by one of several original locators, in hostility to others: ( 406, p. 517.

Relocation by agent or others occupying fiduciary or contractual velatlonBhip with original locator: § 407, p. 518.

Right of second locator to improvements made by first: ( 409, p.

Proof of Annual LalM>r.

The owner or owners of any unpatented mining claim in this territory, located under the laws of the ITnited States and of this territory, shall within sixty days from and after the time within which the assessment work recjiiired by law to be done upon such claim should have been done and performed, cause to be filed with the recorder of the county in which such mining claim is situated, an affidavit setting forth the time when such work was done, and the amount, character, and actual cost thereof , together with the name or names of the person or persons who performed such work; and such afli davit, wlien made and filed as herein provided, shall be j)rinia facie evidence of the facts therein stated. The failure to make and file such affidavit as herein provided shall in any contest, suit or proceedings touching the title to such claim, throw tlie burden of jroof upon the owner or owners of such claim to show that such work has been done according to law. Tws of 1897, p. 127, sec. 8.

Proof of annual labor discussed in text: S 63( Annual labor dificuM

1310 Appendix.

8. Value of Day's Labor.

In estimatiug the worth of labor required to be performed upon any mining claims, to hold the same by the laws of the United States, in. the regulation of mines, the value of a day's labor is hereby lixed at the sum of four dollars; provided, however, that in the sense of this statute, eight hours of labor actually performed upon the mining claim shall constitute a day's labor. Comp. Laws, 1884, p. 754, sec. 1568.

The above section is referred to in the text and its validity questioned: § 635, p. 799.

O, Forfeiture of Claims by Failure to Perforin Work; OrigriHal L.oeators Debarred from Relooatingr Within Ninety Days.

Whenever the locator or locators, or his or their assigns, of any lode or placer mining claim in this territory, located under the laws of the United States and of this territory, shall fail to do or cause to be done, the amount of the assessment work required by law to be done thereon, within the time prescribed by law, such (laim shall be considered forfeited and abandoned, and such locator or locators, and his or their assigns, shall thenceforth for the period of ninety days from and after tlie expiration of the time within which such work should have been done, be debarred and prohibited from relocating such claim, or becoming interested directly or indirectly, except as a bona fide purchaser for value in the location or relocation of any claim, which shall include the land covered by such forfeited claim, or any part thereof. And the subsequent locator of such claim, or of any claim including the whole or any part of the land covered by such forfeited claim, shall not be entitled to credit for any work that may have been done thereon before the time of such forfeiture, nor shall the former owner of any such forfeited claim have any right to compensation therefor. Laws of 1897, p. 127, sec. 2.

Kequirements as to annual lalK>r imperative: § <'24. Forfeiture discussed: § G45.

Distinction between al)aiidonmont and forfoiture: § CAu. llosumption of worlv prevents forfoitun*: §S Gr>l-fr)3. Relocation by original locator: § 40r.

Mining Laws Of New Mexico. 1311

lO. LfOcal Rules, to be Made by Certain Land Owners;

Recording:*

The owner or owners of lands within this territory, the title to which has been vested by letters patent from the United States government, may make and file in the office of the county clerk of the county in which such lands are situated, such rules and regulations, not inconsistent with the laws of the United States, and of this territory, as they may see fit, governing the location and acquisition of mining claims thereon, which rules and regulations when so filed, shall be binding upon all parties, and a copy thereof duly certified by the county recorder shall be received and admitted as evidence in any suit or proceedings relating to such mining claims; such rules and regulations may be changed and supplemented from time to time by other ruls and regulations filed in like manner, providing that such change shall not affect rights acquired thereto.

II. Reference to MrscELLAXEors Legislation on Mining

Subjects.

1. Providing that the probate clerk shall provide books of record in which to record mining claims, and regulating fees to be paid such clerks for recording claims. Comp. Ijaws of 1884, p. 754, § 1567.

2. Providing when an action of ejectment will lie for the recovery of a mining claim. Comp. Laws, 1884, p. 756, § 1570.

3. Force and elToct of local customs and regulations as evidence in actions concerning mining claims. Laws of 1882, p. 95, § 1.

4. Providing a penalty for locating, claiming, or staking upon, the surface ground of the mining claim of another who has complied with the law and local regulations. Laws of 1882, p. 95, §§ 2 and 3.

5. An net relating to the termination of leases upon mines. Laws of 1801, p. J 32.

6. ProvidiniT a poiially for the larceny of ores and for the purchase of stolen ores In' ])ersons having a knowledge of the theft. Laws of 1891, p. 133.

lu

an; St hi in

lV*- Ze NJoiTi riLTTv "-?.!-?

North Dakota.

of Lode CUdms.

ij eqosl but ehall noi exce 1500 lee; ihe ven v\r KvU\ . Code 1895 sec. 1426.

text: ii 250 \1), 3dL

2. I4>de Claims, Width.

he widtli of lode claims sliall W 150 ftx't on each sido of tlio con* "ter of the Tein or creviee; provided, that aj\y ivuntv nwv at ai\j general election determine upon a greater width not oxiHHHliug 300 feet on each side of the center of the vein or Knle, by a majority of the legal votes cast at such election, and any county by aueh TQje at such election may determine a less width than aUno specified; provided, that not less thaj\ t?5 fiHt on each side of the Tein or lode shall be prohibited. Kev. Code 18J>r>, see. MV7.

Statute referreil to in text: 3(U, p. -KW. Location covering excessive area: $ 3tU2, p. 4tVl. Provision of Federal law: Kev. Stats. S.. ft 'jaiHK .VimhmuUx. p. 1161. Bee note to preceding section.

3. Liocation Cortificatv; Con tent h and IttuMird.

The discoverer of a lode shall within sixty days from llu dali of diBCOvery record his claim in the olllci* of the ngintiT of deodn of the county in which such lode is situated i)y ii locatitni enrlilleate, which shall contain:

1312 Appendix.

7.. Providing penalty for slander of title of mine. Laws of 1889, p. 23.

8. Providing penalty for removing boundary objects, and notices. Laws of 1889, p. 43, § V.

a. Providing the manner in which mining claims shall be abandoned. Laws of 1889, p. 43, § VI.

10. Providing that mortgagee or lienholder may perform annual labor where the owner neglects to do so, and providing a penalty for obstructing lienholder in his work. Laws of 1889, p. 44, § VII.

11. An act to facilitate the recovery of ore taken by theft or trespass. Laws of 1889, p. 244.

IXJ. Regulating damages for injury to mine by livestock. Laws of 1889, p. 248.

13. An act in relation to bringing suits where mining claims are contested before the U. S. Land office, and acts amendatory thereto. Laws of 1887, p. 205; Laws of 1889, p. 276.

14. An act providing for the weighing of coal at mines. Laws of 1889, p. 299.

15. Providing for the establishment of a school of mines. Laws of 1889, p. 324, § 3.

IG. An act to provide for the condemnation of rights of way for tramways over any lands. Laws of 1889, p. 347.

17. Relating to certain evidence in mining suits. Laws of 1887, p. 206.

18. Relating to the right to survey and inspect mines. Laws of 1887, p. 206.

19. Providing a penalty for altering, defacing, or changing the location notice of any mining claim. Iaws of 1897, p. 125,

§3.

20. Providing a penalty for relocating, or attempting or assisting to relocate, or attempting to hold possession of any forfeited mining claim, except as provided for. Laws of 1897, p. 126, § 4.

21. Providing a penalty for unlawfully entering with intent to hold possession of a mining claim against one lawfully in possession. Laws of 1897, p. 126, § 5.

22. Providing that a failure to perform development work within ninety days shall work a forfeiture of the claim. Laws of 1897, p. 124, § 1.

Mining Laws Of North Dakota. 1313

North Dakota,

I. Lboislation Relating to Ac!Quisition of Titlb to Lode Claims. II. Refehbncb to Miscellaneous Legislation on Mining Subjects.

I. Legislation Relating to Acquisition uf Title to Lode

Claims.

1. Lengrth of Ltode Claims. '

The length of any lode claim hereafter located within the state may equal but shall not exceed 1500 feet along the vein or lode. Bev. Code 1895, sec. 1426.

See text: §§ 250 (1), 361.

2. iHMle Claims, Width.

The width of lode claims shall be 150 feet on each side of the center of the vein or crevice; provided, that any county may at any general election determine upon a greater width not exceeding 300 feet on each side of the center of the vein or lode, by a majority of the legal votes cast at such election, and any county by such vote at such election may determine upon a less width than above specified; provided, that not less than 25 feet on each side of the vein or lode shall be prohibited. Rev. Code 1895, sec. 1427.

Statute referred to in text: § 361, p. 465. Location covering excessive area: § 362, p. 466. Provision of Federal law: Rev. Stats. U. S., § 2320, Appendix, p. 116i.

See note to preceding section.

3. Liocatioii Certificate; Contents and Record.

The discoverer of a lode shall within sixty days from the date of discovery record his claim in the office of the register of deeds of the county in which such lode is situated by a location certificate, which shall contain:

1314 Appendix.

1. The name of the lode;

2. The name of the locator;

3. The date of the location;

4. The number of feet in length claimed on each side of the discovery shaft;

5. The number of feet in width claimed on each side of the vein or lode;

6. The general course of the lode as near as may be. Rev. Code 1895, sec. 1428.

Section referred to in text: § 380, p. 494.

Purpose of location certificate: § 379, p. 490.

Rules of construction applied: $ 381, p. 494.

Effect of failure to comply with the law as to contents of certificate: § 384, p. 498.

Time and place of record and effect of failure to record within time limited: §§ 389, 390, pp. 499, 501.

4. Liocatiou Certificate Void, When.

Any location certificate of a lode claim which shall not contain the name of the lode, the name of the locator, the date of location, the number of lineal feet claimed on each side of the discovery shaft, the number of feet in width claimed, the general course of the lode and such description as shall identify the claim with reasonable certainty, shall be void. Rev. Code 1895, sec. 1429.

Effect of failure to comply with law as to contents of certificate: § 384, p. 498.

6, Discovery Sliaft, Posting- Notice; Manner of Locating Claim.

Before filing such location certificate the discoverer shall:

1. Locate his claim by first sinking a discovery shaft thereon sufficient to show a well-defined mineral vein or lode;

2. By posting at the point of discovery on the surface, a plain sign or notice containing the name of the lode, the name of the locator and the date of discovery, the number of feet claimed in length on either side of the discovery and the number of feet in width aimed on each side of the lode;

Mining Laws Of North Dakota. 1315

o. By marking the surface boundaries of the same. Rev. Code 1895, see. 1430.

' SecUon referred to in text: § 343, p. 450; § 352, p. 458. Object of requirement as to development work: S 344. Relationsliip of discovery sthaft to discovery: § 345. Extent of development work: § 346, p. 454.

Can preliminary work required by state laws as an act of location be credited on first year's work? § 632. Place and manner of posting: § 356. Liberal rules of construction applied to notices: $ 355.

6. Mark lug: Boundaries.

Such surface boundaries shall be marked by eight substantial posts hewed or blazed on the side facing the claim and plainly marked with the name of the lode and the comer, end or side of the claim that they respectively represent and sunk in the ground as follows: One at the comer and one at the center of each side line and one at each end of the lode. When it is impracticable on account of rock or precipitous ground to sink such posts, they may be placed in a monument of stone. Eev. Code 1895, sec.

Section referred to in text: § 374, p. 487.

Time aUowed for marking: § 372.

Necessity for, and object of, marking: § 371.

Wliat is sufficient marking under the Federal law? § 373.

I'erpetuation of monuments: § 375.

7. Equivaleut of Discovery Shaft.

Any open cut, cross cut or tunnel at a depth sufficient to disclose the mineral vein or lode, or an adit of at least ten feet in length along the lode from the point where the lode may be in any manner discovered, shall be equivalent to a discovery shaft. Rev. Code 1895, sec. 1432.

Subject discussed in text: §§ 343-34G.

8. Time Within which Discovery Shaft Must be Completed.

The discoverer shall have sixty days from the time of uncovering or disclosing a lode in which to sink a discovery shaft thereon. Rev. Code 1895, sec. 1433. See note to par. 6, ante.

1316 Appendix.

9. Intraliinital and Extralateral Bigrhts.

ITie location or location certificate of any lode claim shall be so construed as to include all surface ground within the surface lines thereof, and all lodes and ledges throughout their entire depth, the top or apex of which lies inside of such lines extended vertically, with such parts of all lodes or ledges as continue by dip beyond the side lines of the claim, but shfdl not include any portion of such lodes or ledges beyond the end lines of the claim or the end lines continued, whether by dip or otherwise, or beyond the side lines in any other manner than by the dip of the lode. Rev. Code 1895, sec. 1434.

Validity of legislation questioned: $ 251, pp. 318, 319.

10. liOde Not to be Pursued on Strike beyond End Une.

If the top or apex of the lode in its longitudinal course extends beyond the exterior lines of the claim at any point on the surface, or as extended vertically downward, such lode may not be followed in its longitudinal course beyond the point where it is intersected by the exterior. Kev. Code 1895, sec. 1435.

Validity' of such legislation questioned*: § 251, p. 319.

11. Amended Liocation Certificate; Changre of Boundaries.

If at any time the locator of any mining claim heretofore or hereafter located, or his assigns, shall apprehend that his original certificate was defective, erroneous, or that the requirements of the law had not been complied with before filing, or shall be desirous of changing his surface boundaries, or of taking in any part of an overlapping claim which has been abandoned, or in case the original certificate was made prior to the passage of this law, and he shall be desirous of securing the benefit of this chapter, such locator or his assigns may file an additional certificate subject to the provisions of this chapter; provided, that such relocation does not interfere with the existing rights of others at the time of such relocation; and no such relocation or the record thereof shall pre-

Mining Laws Of North Dakota. 1317

elude the claimant from proving any such title as may have held under previous locations. Eev. Code, 1895, sec. 1437.

Objects and functions of amended certificates discussed In text: § 398, p. 507.

Circumstances Justifying cliange of boundaries: § 396.

Privilege of changing boundaries exists in absence of intervening rights Independent of state legislation: § 397, p. 506.

12. Relocation of Abandoned Lode Claims.

The relocating of abandoned lode claims shall be made by sinking a new discovery shaft and fixing new boundaries in the same manner as if it were the location of a new claim, or the reloeator may sink the original shaft, cut, or adit to a sufficient depth to comply with sections 1430 and 1434, and erect new or adopt the old boundaries, renewing the posts if removed or destroyed. In either case a new location stake shall be erected. In any case whether the whole or part of an abandoned claim is taken, the location certificate must state that the whole or any part of the new location is located as abandoned property. Kev. Code, 1895, sec.

Statute referred to in text: § 408, p. 520.

Circumstances under which relocations may be made: § 402, p. 51t.

New discovery not essential as a basis of relocation: § 403, p. 512.

Relocation admits the validity of the original: § 404, p. 512.

Relocation by original locator: § 405, p. 513.

Relocation by one of several original locators in hostlUty to others: § 406, p. 517.

Relocation by agent or others occupying flduciary or contractual relationship with original locator: § 407.

Right of second locator to improvements made by first: § 409, p. 522,

13. Location Certificate MuNt Contain DeHcription of but One I>eation.

No location certificate shall contain more tlian one location, whether the location is made bv one or several locators; and if it purports to claim more than one location it shall be absolutely void, except as to the first location therein described; and if they are described tofrether, or so that it can not be told which location is first described, the certificate shall be void as to all. Rev. Code 1895, sec. 1440. Location certificate and its contents discussed: f "

1318 Appendix.

14. liocal Customs and Kegrulations, How far Binding'.

In actions respecting mining claims proof must be admitted of the customs usages or regulations established and in force at the bar or diggings embracing such claim; and such customs, usages, or regulations, when not in conflict with the laws of this state and the "United States must govern the decision of the action. Rev. Code 1895, sec. 5918.

Subject discussed in text: §§ 268-275. Permissive scope of local regulations: § 270. Acquiescence and observance, not noere adoption, the test: § 271. Regulations, how proved; their existence a question of fact for the Jury; their construction a question of law for the court: § 272, p. 347.

II. Reference to Miscellaneous Legislation on Mining

Subjects.

1. relating to the duty of officials and mine owners to furnish information and statistics to commissioner of agriculture and providing punishment for failure so to do. Eev. Code, 1895, § 124.

2. Providing that when the right to mine is separate from the ownership of the surface ground, the owner of surface is entitled to security. Eev. Code, 1895, § 1436.

3. Conferring authority on the district judges to order surveys in cases of disputed mining property. Eev. Code, 1895, §

4. Providing that writs of injunction for affirmative relief having the force and effect of writs of restitution, restoring to possession person improperly ousted from mining property. Eev. Code, 1895, § 1443.

6. Eegulating the organization of mining corporations. Eev. Code 1895, §§ 3154-3161.

Mining Laws Of Oregon. 1319

Oregon.

I. Laws Relating to Location and Recording of Mining Claims. IL Reference to Miscellaneous Legislation on Mining Subjects.

I. Laws Relating to the Location and Recording of Mining Claims.

(These laws were all passed prior to 1884 and therefore likewise apply to Alaska.)

1. Lengrth aud Width of Lode Claims.

Any person or company of persons, establishing a claim on any quartz lead containing gold, silver, copper, tin, or lead, or a claim on a vein of cinnabar, for the purpose of mining the same, shall be allowed to have, hold, and possess the lead or vein with all ita dips, spurs, and angles, for the distance of fifteen hundred feet in length, and three hundred feet in width on each side of such lead or vein. Hill's Annotated Statutes of Oregon (1892), sec.

Section noted In text: § 250 (2).

2. liocation; Posting: Notice; Recording; Forfeiture for Failure to Perform Worlc.

To establish a valid claim, the discoverer or person wishing to establish a claim shall post a notice on the lead or vein, with name or names attached, which shall protect the claim or claims for thirty days: and before the expiration of said thirty days, he or they shall cause the claim or claims to be recorded as hereinafter provided, and describing as near as may be the claim or claims, and their location ;2 but continuous working of said claim or claims shall obviate the necessity of such record. If any claim shall not be worked for twelve consecutive months, it shall be forfeited, and considered liable to location by any person or persons, unless the owner or owners be absent on account of sickness or in

1320 Appendix.

the service of their country in time of war. Hill's Annotated Laws of Oregon (1892), sec. 3828.

Liberal rules of conetruction applied' to notices: § 355. Place and manner of posting: § 356.

Time and place of record and effect of failure to record wlttiin time limited: §§ 389, 390.

Purpose of k>cation certificate: § 379. Rules of construction applicable: § 381.

Bequiremenits of Federal law as to contente of recorded noticei: Hey. Stats., § 2324, ante p. 1168. ,

3. Number of ClainiH That May be liOcated bj' One Pepsou.

Any person may hold one claim by location, as hereinafter provided, upon each lead or vein, and as many by purchase as the local laws of the miners in the district where such claims are located may allow; and the discoverer of any new lead or vein, not previously located upon, shall be allowed one additional claim for. the discovery thereof. Nothing in this section shall be so construed as to allow any person, not the discoverer, to locate more than one claim upon any one lead or vein. Hill's Annotated Laws of Oregon (1892), sec. 3829.

4. Development; Labor to be Performed Within One

Year; Taxation.

Every person or company of persons, after esta])lishing such claim or claims, shall, within one year after recording or taking such claim or claims, work or cause to be worked the said claim to the amount of fifty dollars for each and every claim; provided, that any person or company, either joint or incorporate, owning claims on any lead or vein shall be allowed to work upon any one claim the whole amount required as above for all the claims, and thereby be exempted from working on the rest of his or their claims in said lead or vein; provided, further, that when the individual, company, or corporation owning, any quartz claim or claims shall file the affidavit of said owner or one of the members of the company or corporation with the county clerk of the county in which said claims are situated, to the effect that the amount of work

Mining Laws Of Oregon. 1321

required by tliis act has been performed on such claim (or if there be more than one claim, then on each of them), together with the affidavit of two disinterested persons to the same effect, with the addition, *'that they are not interested directly or indirectly in said claim or claims," and such claims shall thereafter be considered as real estate, and the title therein shall vest in such persons, company, or corporation against all others, save the government of the United States; and the improvements, machinery and buildings thereon only shall be taxed as other property. .Hill's Ann. Statutes of Oregon (1892), sec. 3830.

Cetrtain imrts of this section obnoxious to federal law: §§ 626, 250 Object of requirement as to development work: § 344. Extent of development work: § 346.

5. Records of Miner's Meetiiigrs, and Records of liOcations; Transmission of Records.

It shall be the duty of the county clerk of any county, upon the receipt of notice of a miners' meeting organizing a miners' district in said county, with a description of the boundaries thereof, to record the same in a book, to be kept in his office as other county records, to ])e called a *'Hook of Kecord of Mining Claims"; and upon the ])etition of parties interested, he may appoint a deputy for such district, who shall reside in said district or its vicinity, and shall record all mining claims and water rights in the order in which they are ]>resented for record, and shall transmit a copy of such record at the end of each month to the county clerk, who shall record the same in the above mentioned book of record, for which ho shall receive one dollar for each and every claim. It shall further be the duty of said county clerk to furnish a copy of this law to his said deputy, wlio shall keep the same in his ofiice, open at all reasonable times for the inspection of all persons interested therein. Ifiirs Annotated Tws of Oregon (1892), sec.

1322 Appendix.

II. Reference to Miscellaneous Legislation on Mining

Subjects.

1. Empowering miners to make local laws regarding water rights, placer claims, and town lots in mining camps. HilFs Ann. Laws of Oregon (1892), § 3832.

2. Providing that ditches used for mining purposes shall be real estate, and determining what shall constitute abandonment of such ditches. Hill's Ann. Laws of Oregon (1892), § 3833.

3. Providing that laws regulating the sale and transfer of real estate shall apply to mines, but placers may be transferred by bill of sale, recorded within thirty days. HiU's Ann. Laws of Oregon (1892), § 3834.

4. Providing that mortgages of interests in placers shall be foreclosed as mortgages of chattels. Hill's Ann. Laws of Oregon (1892), § 3835.

5. Begulating fee of county clerk for recording transfers. Hill's Ann. Laws of Oregon (1892), § 3836.

Mining Laws Op South Dakota. 1323

South Dakota.

A. Mining Laws Enacted by the Legislature op South Dakota.

B. Mining Laws op Dakota Territory Adopted by South Dakota.

L Relating to the Size, Location and Development op Mining Clams. IL Reference to Miscellaneous Legislation on Mining Subjects.

A. Mining Laws Exacted by thk Legislature ow South

Dakota.

1. An act providing for the removal of unnecessary gases, fumes and dust from smelters and dry crushing works. Approved March 3, 1897. Laws of 1897, p. 248.

2. An act requiring mine owners to provide safety cages to be used in hoisting and lowering employees and other persons, from or into the shaft. Laws of 1897, p. 247.

3. An act creating the office of inspector of mines, and regulating the duties of the inspector. Laws of 1890, p. 263.

B. Laws of Dakota Territory Relating to Mixes Adopted

BY South Dakota.

After the division of Dakota territory into North and South Dakota and the admission of those states into the Union, the legislature of South Dakota enacted that: "All laws, in torce in the territory of Dakota at the date of admission of the state of South Dakota into the Union and not repugnant to or inconsistent with the constitution of said state shall continue and be in full force and effect until altered, amended, or repealed.* Laws of 1890, chap. 105, § 1.

The state legislature has not amended the laws of Dakota relating to mines and they are consequently in force, as hereafter outlined.

1324 Appendix,

I. Laws Relating to the Size, Location, and Development

OF Mining Claims.

1. Lengrth of liOde Claim.

The length of any lode claim hereafter located within this territory may equal, but shall not exceed fifteen hundred feet along the vein or lode. Comp. Laws of Dakota Ty. (1887), sec. 1997.

The above section Is but a re-enactment of the Federal law. Surface area, lenh and width of lode claims discussed in text: § 361, p. 464. Location covering excessive area: § 362, p. 466.

2. Width of Lode.

The width of lode claims shall be one hundred and fifty feet on each side of the center of the vein or crevice: provided, that any county may, at any general election, determine upon a greater width not exceeding three hundred feet on each side of the center of the vein or lode, by a majority of the legal votes cast at said election, and any county, by such vote at such election, may determine upon a less width than above specified; provided, that not less than twenty-five feet on each side of the vein or lode shall be prohibited. Comp. Laws of Dak. Ty. (1887), sec. 1998.

Section referred to and discussed in text: § 361, p. 465.

3. liocation Certificate and Record.

The discoverer of a lode shall, within sixtv davs from the date of discovery, record his claim in the office of the register of deeds of the county in which such lode is situated, by a location certificate, which shall contain:

First, the name of the lode; second, the name of the locator or locators: third, the date of location: fourth, the number of feet in length claimed on each side of the discovery shaft: fifth, the number of feet in width claimed on each side of the vein or lode;

Mining Laws Op South Dakota. 1325

sixths the general course of the lode, as near as may be. Comp. Laws of Dak. (1887), see. 1999.

Section referred' to in text: § 380, p. 494.

Purpose of location certificate: § 879, p. 490.

llules of construction applied: § 381, p. 404.

Effect of failure to comply with the law &s to contents of certificates: § 385, p. 499.

Time and place of record and effect of failure to record within time limited: §§ 389, 390.

4. liocation Certificate; Effect of Failare to Comply with liaw as to Contents.

Any location certificate of a lode claim which shall not contain the name of the lode, the name of the locator, the date of location, the number of lineal feet claimed on each side of the discovery shaft, the number of feet in width claimed, the general course of the lode, and such description as shall identify the claim with reasonable certainty, shall be void. Comp. Laws of Dak. (1887), sec. 2000.

Effect of failure to comply with law as to contents discussed: § 384, p. 498.

5. Discovery Shaft; Postingr Notice.

Before filing such location certificate, the discoverer shall locate his claim by first sinking a discovery shaft thereon sufficient to show a well-defined mineral vein or lode; second, by posting at the point of discovery, on the surface, a plain sign or notice containing the name of the lode, the name of the locator or locators, and the date of discovery, the number of feet claimed in length on either side of the discoverv, and tlie number of feet in width claimed on each side of the lode: third, by marking the surface boundaries of the claim. Comp. Laws of Dak. (1887), sec. 2001.

Section referred to in text: § 343, p. 450; § 352, p. 458. Object of reciulrement as to development work: § 344. Relationship of discovery shaft to discovery: § 345. Extent of development work: § 340, p. 454. Place and manner of posting: § 350. Liberal rules of construction applied to notices: § 355. Can preliminary work required by state laws as an act of location be credited on first year's work? § 632.

1326 Appendix.

6. Marking: Surface Boundaries.

Such surface boundaries shall be marked by eight (8) substantial posts hewed or blazed on the side or sides facing the claim and plainly marked with the name of the lode and the corner end or side of the claim that they respectively represent, and sunk in the ground, to- wit: one at each comer, and one at the center of each side line, and one at each end of the lode. When it is impracticable on account of rocks or precipitous ground, to sink such posts, they may be placed in a monument of stone. Comp. Iaws of Dak. (is8?), sec. 2002.

SectioQ referred to In text: § 374, p. 487.

Time allowed for marking: S 372.

Necessity for, and object of. marking: S 371.

Wbat is sofdcient marking under the Federal law? § 373.

Perpetuation of monuments: $ 375.

7. Equivalent of Discovery ,Shaft.

Any open cut, cross cut, or tunnel, at a depth sufficient to disclose the mineral vein or lode, or an adit, of at least ten (10) feet in along the lode, from a point where the lode may be in any manner discovered, shall be equivalent to a discovery shaft. Comp. Laws of Dak. (ISST). sec. -2003.

DiAcoverr shaft and equivalent discussed In text: §§ 313-346

8. nine Within Which DiscHivery Shaft Must be Completed.

The discoverer shall have sixty days from the time of uncovering or disclosing a Ko, to sink a discovery shaft thereon. C<Mnp. Laws of Dak, iIS>T, soo. :?ChM.

See noe :o pre<>edln seotioDs.

9. In trallmital and Kxtralateral Riht.

The Ic<ai:':>n or kxaiion eenif-cio, v>: anv lode claim shall be constr::ec lo iiicluCe ill s;jr:aoe nvv*r.d withiiL :he surface lines :h<:v*:f, ikr.c l.v.tts ,r;a Thronrho::: :hrir entire deT>t3i, \!Lxr iOT :r STx "f \*h:ch lie ir.siv'.e of s-ch lines rXTcnced vertically. -eiil: snob rr:s o: ,11 liv,t>> or lt:v:i:€< ss c-.nrlnnr rv d5T> lvyc*i5c "it si.3e lines of :he cUini, hut shjul s?: inclnfr any par-

Mixing Laws Of South Dakota. 1327

tion of such lodes or ledges beyond the end lines of the claim, or the end lines continued, whether by dip or otherwise, or beyond the side lines in any other manner than by the dip of the lode. Comp. Laws of Dak. (1887), sec. 2005.

Validity of legislation questioned: § 251, pp. 318, 319.

10. liOcle Not to be Pursued on Strike Beyond End liines.

If the top or apex of the lode in its longitudinal course extends beyond the exterior lines of the claim at any point on the surface, or as extended vertically downward, such lode may not be followed in its longitudinal course beyond the point where it is intersected by the exterior. Comp. Laws of Dak. (1887), sec. 2006.

Validity of state legislation of the character of above questioned: 251, p. 319.

11. Aniende<l Location Certificate; Cliangre of Boundaries.

If at any time the locator of any mining claim heretofore or hereafter located, or his assigns, shall apprehend that his original certiiicate was defective, erroneous, or that the requirements of the law had not been complied with before filing, or shall be desirous of changing his surface boundaries, or of taking in any part of an overlapping claim which has been abandoned, or in case the original certificate was made prior to the passage of this law, and he shall be desirous of securing the benefit of this act, such locator or his assigns may file an additional certificate subject to the provisions of this act; provided, that such relocation does not interfere with the existing rights of others at the time of such relocation; and no such relocation or the record thereof shall preclude the claimant or claimants from proving any such title or titles as he or they may have held under previous locations. Comp. Laws Dak. (1887), sec. 2008.

Objects and functions of amended certificates discussed: § 398, p.

Circumstances justifying: cliange of boundaries: § 39G, p. 504.

Privilege of clinging boundaries exists in the absence of intervening rights independent of state legislation: § 397, p. 506.

1328 Appendix.

12. Relocation of Abandoned liOde Claims.

The relocation of abandoned lode claims shall be by sinking a new discovery shaft, and fixing new boundaries in the same manner as if it were the location of a new claim, or the relocator may sink the original shaft, cut, or adit to a sufficient depth to comply with sections 2001 and 2003, and erect new or adopt the old boundaries, renewing the posts if removed or destroyed. In either case, a new location stake shall be erected. In any case, whether the whole or part of an abandoned claim is taken, the location certificate must state that the whole or any part of the new location is located as abandoned property. Comp. Laws Dak. (1887), sec.

Section referred to in text: § 408, p. 520.

Circumstances under which relocations may be made: § 402, p. 511.

New discovery not essential as a basis of relocation: § 403, p. 512.

Relocation admits the validity of the original: § 404, p. 512.

Relocation by original locator: § 405, p. 513.

Relocation by one of several original locators in hostility to others: § 406, p. 517.

Relocation by agent or others occupying fiduciary or contractual relationship with original locator: § 407, p. 518.

Right of second locator to improvements made by first: § 409, p. 52£.

13. Annual Labor.

The amount of work to be done or improvements made during each year, to hold possession of a mining claim, shall be that prescribed by the laws of the United States, to wit: one hundred dollars annually, provided, that the period within which the work required to be done annually on all unpatented claims so located, shall commence on the first day of January succeeding the date of location of such claim. Comp. Laws of Dak. (1887), sec. 2009.

Requirement of above section the same as the Federal law : § 623. Subject of annual labor discussed: §§ 623-H38.

14. Location Certificate Must Contain l>eseription of but One L<ocatiou.

Xo location certificate shall claim more than oue location, whether the location be made by one or several locators; and if it purport to claim more than one location, it shall be absolutely void, ex-

Mining Laws Of South Dakota. 1329

cept as to the first location therein described; and if they are described together, or so that it can not be told which location is first described, the certificate shall be void as to all. Comp. Laws Dak. (1887), sec. 2011.

liOcatlOQ certificate discussed: §§ 379-385.

Effect of failure to comply with law as to contents of certlflcate: S 884.

11. Reference to Miscellaneous Legislation on Mining

Subjects.

1. Providing that the owner of the surface of any mining claim or the rightful occupant may demand security from the miner when the right to mine is separate from the right of occupancy of the surface. Comp. Laws Dak. (1887), § 2007.

2. Begulating the fees of the recorder for recording mining claims (one dollar) and for certificates. Comp. Laws Dak. (1887), § 2012.

3. Providing that a miner shall have a lien on mines for work and labor done, or for material furnished, and providing for the collection of miners* wages when employed by other than the owner. Comp. Laws. 1887, §§ 2039-2040.

g'

1330 Appendix.

Utah.

I. Act of 1897 Providing the Man'neb in which Lode and Placer

Claims may be Located and Recorded. n. Reference to Miscellaneous Legislation on Mining Subjbcih.

L Act of 1897 Providing fok the Location and Recokding

OF Quartz and Plac kr Mines. [Laws 1897, p. 57 et seq.] (This act was passed after the early chapters of this work had been printed. This accounts for the absence of a proper classification in the text of the legislation of this state.)

Leng-th; Discovery; Width; Parallelism of £nd Lines.

§ 1. A mining claim, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. Any lode mining claim may extend three hundred feet on each side of the middle of the vein at the surface, except where adverse rights render a lesser width neeessar}-. The end lines of each claim must be parallel.

Surface area, discussed in text: § 361. Location covering exceesive area: § 362. Surface conflicts with prior locations: § 363. Surface must include apex: § 364. End lines discussed: § 365. Side-end lines: § 367.

What constitutes a valid discovery? § 336. Where discovery must be made: § 337. Effect of loss of discovery upon remainder of location: § 338. Extent of locator s rights after discovery and prior to completion of location: § 339.

The locator, at the time of making the discovery of such

Preliminary Notice and Its Posting".

vein or lode, must erect a monument at the place of discovery, and must post thereon his notice of location, which notice shall contain:

Mining Laws Of Utah. 1331

Ist. The name of the lode or claim;

2nd. The name of the locator or locators;

3rd. The date of the location.

4th. If a lode claim, the number of linear feet claimed in length along the course of the vein each way from the point of discover}', with the width on each side of the center of the vein, and the general course of the vein or lode, as near as may be, and such a description of the claim, located by reference to some natural object or permanent monument as will identify the claim.

5th. If a placer or mill-site claim, the number of acres or superficial feet claimed, and such a description of the claim or millsite located by reference to some natural object or permanent monument as will identify the claim or mill-site.

Local customs as to preUmlnary notice prior to enactment of Federal Inrws: § 350. Liberal rules of constiiictlon applied to notices: § 355. Place and manner of posting: § 35C.

Marking: BoiiiidarioH.

§ 3. Within thirty days from the date of discovery or establishment, the locator must mark the boundaries of his lode, or placer, or millsite claim by establishing in each comer thereof, and at any angle in the side lines, a monument marked with the name of the claim and the corner or angle it represents. When from any cause a monument cannot be safely planted at the true comer or angle, it must be placed as near thereto as practicable and so marked as to indicate the place of such comer or angle. Monuments may be made of any such material and in such form as will readily give notice; and when of posts or trees, they must be hewn and marked upon the side facing toward the discovery, and must be at least four inches in diameter. Monuments must be at least four feet high above the ground, and trees must be so hewn as to readily attract attention. Monuments and stakes must be kept in such state of preservation as to notify persons of the boundaries of the mining claim.

Necessity for and object of maricing: § 371.

Time allowed for marlting: § 372.

What is sufficient marliing under the Federal law: § 372.

Perpetuation of monuments: i 375.

1 332 Appendix.

riocation Certificate and Record.

§ 4. Within thirty days from the date of posting the location notice upon the claim, the locator or locators, or his or their assigns, must file for record in the office of the county recorder of the county in which such claim is situated, a substantial copy of such notice of location. Said county recorder shall charge and collect a fee of one dollar for filing and recording such notice; provided, that such notice of location shall not be abstracted unless a subsequent conveyance affecting the same property be filed for record, when said notice shall be abstracted.

xurpose of location certificate discussed: § 379.

fiules Off construction of location certificate: § 381.

Variation between descriptive caUs in certificate and monuments on the ground: § 382.

"Natural objects" and "permanent monuments*: § 383.

Effect of failure to comply with the law as to contents of certificate: § 384.

Time and place of record: § 389.

Eflleet of failure to record within time limited: § 390.

Proof of record: § 391.

The record as evidence: § 392.

Discovery Work; Notice in Case of Group Claims.

§ 5. Within ninety days from the date of posting the location notice npon the claim, the locator or locators, or his or their assigns, shall do at least fifty dollars' worth of work upon said claim. Every person or company owning a group of claims and doing the development work for said group at one point, shall post a notice upon each claim (at the discovery monument) stat* ing where such work is being done.

Object of requirement as to development work: § 344. Extent of development work: § 346.

Can discovery work be credited on first year's work? See S 632. text

Proof of Annual L*abor.

§ 6. The owner of any quartz lode or placer mining claim who shall do or perform or cause to be done or performed the annual labor or improvement required by the laws of the United States in order to prevent a forfeiture of the claim, must, either during

Mining Laws Of Utah. 1333

the year or within thirty days after the completion of such work or improvements, if completed after the termination of said year in or for which said work wks done or improvements made, file in the office of the county recorder of the county in which such claim is situated, an affidavit or aflSdavits of the person or persons who performed such labor or made such improvements, showing:

1st. The name of the claim and where situated.

2nd. The number of days' work done and the character and value of the improvements placed thereon.

3rd. The date or dates of performing said labor and making said improvements and number of cubic feet of earth or rock removed.

4th. At whose instance or request said work was done or improvements made.

5th. The actual amount paid for said labor and impi;movements, and by whom paid, when the same was not done by the owner or owners of said claim.

Such affidavits or duly certified copies thereof shall be prima facie evidence of the facts therein stated.

"Anniual labor" discussed in text: §§ 623-638. Requirement as to annual labor imperative: § 624. Value of labor and improvements, how estimated: § 635. Circumstances under which annual labor is excused': § 634. Proof of annual labor: § 636.

Local Miiiiugr Rules be Recorded Free.

§ 7. It shall be the duty of each county recorder to record the mining rules and regulations of the several mining districts in his county without fee, and certified copies of such record shall be received in all tribunals and before all officers of this state as prima facie evidence of such rules and regulations.

Local district regulations discussed: §§ 2t]8-275.

County Recorder to be Official Miningr Recorder; Transfer of Records.

§ 8. The county recorders of the respective counties shall perform the duties heretofore performed by the district mining recorders in such counties, respectively; and the district mining re-

1334 Appendix.

orders of each county shall, within thirty days after this act shall take effect, deposit the books and records pertaining to their offices with the county recorder of the county in which the district or the greater part thereof is situated. Provided; that said books and records shall not be required to be abstracted, by the county recorder. Any district mining recorder who shall fail to deposit as aforesaid the books and records pertaining to his office, shall be deemed guilty of a misdemeanor.

Records as Kvidence.

§ 9. Copies of notices of location of mining claims, mill sites, and tunnel sites, heretofore recorded in the records of the several mining districts, and of the mining rules and regulations in force in the several mining districts, in like manner recorded, heretofore duly certified by the mining recorder, shall be receivable in all tribunals and before all officers of this state, as prima facie evidence.

The record as evidence: § 392.

Copies of Record as Kvidence.

§ 10. AVliere books, records, and documents pertaining to the office of district mining recorder have been or shall hereafter be deposited in the office of any county recorder of this state, such county recorder is authorized to make and certify copies therefrom, and such certified copies shall be receivable in all tribunals and before all officers of this state in the same manner and to the same effect as if such records had been originally filed or made in the office of the county recorder.

Transmission of Records.

§ 11. The board of commissioners of each county shall provide ways and means for the transportation of all books ani records pertaining to the office of the respective mining recorders, to the offices of its respective county recorders.

Return of District Records.

§ 12. Upon receipt of a petition signed by not less than one iiundred bona fide miners residing in any mining district, petition-

Mixing Laws Of Utah. 1335

ing for the return of the records of such mining district, the board of county commissioners shall cause the records of such district to be copied by the county recorder with tlie joint assistance of the district recorder of such mining district, if the said district recorder wishes to render such assistance, and shall cause the original records to be sent to such mining district recorder, the copy so made shall remain in the office of the county recorder, and shall be considered the original record. One-half of the expenses of copying the said records shall be j)aid out of the county treasury and one-half shall be paid out of the state treasury.

11. Reference to Misckllankous Legislation on Mining

SrB.Tp:('Ts:

1. Providing that the width of lode claims may be three hundred feet on each side of the middle of the vein or lode. Comp. Laws of 1888, vol. II, § 2790.

2. Providing a penalty for defacing notices, or destroying monuments. Comp. Laws of 1888, vol. II, § 2791.

3. Providing penalty and measure of damages for extracting ores. Comp. Laws of 1888, Vol. II, § 2792.

4. Providing that a miner shall have a lien, for labor performed, upon the interest, right and property in such mine. Comp. Laws of 1888, Vol. II. § 2793.

5. Providing that copies of location notices properly certified as well as copies of district rules shall bo admitted in evidence in suits involving mining claims. Comp. Iaws of 1888, Vol. 11, § 2794.

6. Requiring county recorders to record rules and regulations of mining districts, to make copies of same for persons requesting them, and living foes of the recording, and providing punishment for receiving excessive fees or failing to make copies of records. Comp. Laws of 1888, Vol. II, §§ 2795-2796.

7. Relating to district recorders, providing for their election, etc. Comp. Laws of 1888, Vol. II, g§ 2797-2800.

8. Providing for oscajx'mont shafts in coal mines. Laws of 1892, chap. 38, p. 40.

9. Providing for the safety of workmen employed in coal mines. I-aws of 1892, chap. 41, p. 44.

1336 Appendix.

10. Providing for the protection of the lives of miners in coal mines and providing for an inspector. Laws of 1896, p. 346.

11. Prohibiting the employment of women and children in mines. Laws of 1896, p. 106.

12. Forbidding the posting of notices to inflnence voters. Laws of 1896, p. 154.

13. Kegulating the hours of employment in smelters. Laws of 1896, p. 219.

14. Declaring mining to be a public use and providing that the right of eminent domain may be exercised in behalf thereof. Laws of 1896, p. 316.

Mining Laws Op Washington. 1337

Washington.

I. Laws Relating to Location of Mixing Claims and Lefining Locator's Rights and Duties.

II. Reference to Miscellaneous Legislation on Mining Subjects.

I. Laws Relating to Location of Claims and Defining

Locator's Rights and Duties.

1. liengrth of Lode Claims Governed by Law in Force at Date of Location.

All mining claims upon veins or lodes of quartz or other rock in place, bearing gold, silver or other valuable mineral deposits heretofore located, shall be governed as to length along the vein or lode by the customs, regulations and laws in force at the date of such location. IlilFs Ann. Stats, and Codes of Wash., vol. I, sec. 2210.

See note to next paragraph.

2. Lengrth and Widtli of Lode ClainiH; DiHCovery; End Lines.

A mining claim located upon any vein or lode of quartz or other rock in })lace, ])earing gold, silver or other valuable mineral deposits, after the ai)proval of this act by the governor, whether located by one or more i)crs()ns, may eijual, but shall not exceed fifteen hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claims located. Xo claims shall extend more than 300 feet on each side of the middle of the vein at the surface, nor shall any claims be limited by any mining regulation to less than fifty feet of surface on each side of the middle of such vein or lode, at the surface, excepting where adverse rights, c?xisting at the date of the approval of this act, shall make such limitation ncHCssary. The end lines of such

Appendix.

claim shall be parallel to each other.* Hill's Ann. Stats, and Codes of Wash., vol. I, sec. 2211.

' Surface area, lenh of location: § 361. ' Discovery the source of miner's title: § aSS. What constltutec valid discovery: § 336. Where such discovery must be made: § 337. Eflfect of loss of discovery upon remainder of location: § 338. Extent of locator's rights after discovery and prior to completion of location: § 339. Surface must include apex: § 364.

Width of lode claims: § 361.

End lines: §§ 365, 582.

3. Extent of Locators' Rigrlits; Iiitralimital; Extralateral.

The locators of all mining locations heretofore made or hereafter made under the provisions of this chapter, on any mineral vein, lode, or ledge on the public domain, and their heirs and assigns, so long as they comply with the laws of the United States and the state and local laws relating thereto, shall have the exclusive right to the possession and enjoyment of all surface included within the lines of their location, and of all veins, lodes, and ledges, throughout their entire depth, the top or apex of which lies within the surface lines of such location, extending downward vertically, although such veins, lodes, or ledges may so far depart froBfi the perpendicular in their course downward as to extend outside of the vertical side line of said surface location. Iliirs Ann. Codes and Stats, of Wash., vol. T, sec. 2212.

This subject is not within the permissive; scope of state legislation: § 251.

4. Annual Work, Amount and Time of Performance.

The miners of each mining district may make any rules and regulations governing the location and amount of work necessary to hold possession of a mining claim, not in conflict with the laws of the United States or of this state: but on each claim it shall be necessary to do at least one hundred dollars' worth of work each year, and the first year shall date from the date of location of such claim. A failure to comply with this requirement shall work a forfeiture of the claimant's rights to such claim and

Mining Laws Of Washington. 1339

the same shall become subject to relocation. Hill's Ann. Codes and Stats, of Wash., vol. I, sec. 2213.

This statute commented on In text: § 626, p. 781. Annnal labor discussed: §§ 623-637.

ProYisione of Federal law as to amount of annual work and time within which first year's work must be done: § 623. Relocation discussed: §§ 402-409.

5. I>i8trict Recorder and I>istrict Records.

The miners of each mining district may elect a recorder of said district. When so elected such recorder shall provide books of record, in which it shall be his duty to record all notices of locations or transfers, bonds, conveyances, or assignments of mining claims within Ids district when the same shall be presented to him for record. Such records are hereby declared to be public records, open to inspection and shall have the same force and effect, as far as notice is concerned, as the records of deeds and mortgages in this state. Hill's Ann. Codes and Stats, of Wash., vol. I, sec. 2214.

Local regulations concerning records of mining claims: § 273. See next paragraph and note.

6. Records of Locations, I>eeds and Transfers.

Inasmuch as the two preceding sections of this chapter leave the election of a recorder for a mining district optional with the miners thereof, all location notices, bonds, assignments and transfers of mining claims shall be recorded in the office of the county auditor of the county where the same is situated, within tliirty days alter the execution thereof; provided, that all records of mining claims and of assignments, deeds, bonds, and transfers heretofore made by any recorder of any mining district, or by any county auditor, are hereby declared to be valid and to have the same force and effect as records made in pursuance of the provisions of this chapter. HilFs Ann. Stats, and Codes of .Wash., vol. I, sec. 2216.

Time and place of record: § 389.

EflTect of failure to record within the limited time: § 390.

Proof of record: § 391.

The record as evidence: § 392.

1340 Appendix.

II. Reference to Miscellaneous Legislation on Mining

Subjects.

1. Providing for the creation of a mining bureau, and regulating the duties of its officers. Hill's Ann. Stats, and Codes of Wash., §§ 2204-2209.

2. Defining the duties of the district recorder, and regulating his fees. Hill's Ann. Stats, and Codes of Wash., Vol I, § 2215.

3. Providing for the protection of persons working in coal mines. Hill's Ann. Codes and Stats, of Wash., Vol. I, §§ 2217, 2244; liaws of 1897, pp. 58-62.

4. Keiating to oil wells, salt wells, etc. Hill's Ann. Stats., Vol. I, §§ 2246-2262.

5. Providing protection against accidents from open shafts. Hill's Ann. Codes and Stats., Vol. I, §§ 2263-2271.

6. Extending the right of eminent domain to mining, milling and reduction works companies. Laws of 1897, p. 95.

7. Eegulating the method of assessing mining property. Laws of 1897, p. 155.

8. Providing a punishment for destroying, defacing, or mutilating notices and monuments upon mining claims. Laws of 1897, p. 221.

9. Eegulating the leasing of mineral lands belonging to the state. Laws of 1897, p. 293.

Mining Laws Of Wyoming. 1341

Wyoming.

I. Laws Relating to the Location of Lode Claims and the Extent OP Locator's Rights Therein. II. Laws Relating to the Location and Annual Development op Places Claims. m. Reference to Miscellaneous Legislation on Mining Subjects.

I. Laws Relating to the Location of Lode Claims, and Extent OF Locator's Rights Therein.

iThe territorial laws of Wyoming were adopted by the state on Its admission into the Union: Const, Art. XXI., sec. 3.)

1. Lengrth of Liode Claim.

The length of any lode mining claim located within Wyoming territory shall not exceed fifteen hundred feet measured horizontally along such lode or vein. Nor can the regulations of any mining district limit a locator to less than this length. Laws 1888, p. 87, sec. 13.

Length of lode claims discussed in text: § 361.

2. Width of liOdo Claim.

The width of any lode claim located within Wyoming territory shall not exceed three hundred feet on each side of the discovery shaft. The discovery shaft being always equally distant from the side lines of the claims. Nor can any mining district limit the locator to a width of less than one hundred and fifty feet on either side of the discover} shaft. Laws 1888, p. 87, sec. 14.

Width discussed in text: § 361.

3. Extent of Locators' Rigrhts; Extralateral ; Intra-

Umital.

The locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode or ledge, situ-

Appendix.

ated on the public domain, their heirs or assigns, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface location. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize a locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another. Laws 1888, p. 89, sec. 20.

Validity of legislation of character of above questioned: f 251.

4. Discovery Shaft; Postiiigr Notice; Marking- Boundaries.

Before the filing of a location certiiicate in the oflBce of the county clerk and ex-officio register of deeds, the discoverer of any lode, vein, or fissure, shall designate the location thereof, as follows:

First, by sinking a shaft upon the discovered lode or fissure to the depth of ten feet from the lowest part of the rim of such shaft at the surface; second, by posting at the point of discovery, on the surface, a plain sign or notice, containing the name of the lode or claim, the name of the discoverer, and locator, and date of such discovery; third, by marking the surface boundaries of the claim, which shall be marked by six substantial monuments of stone or posts hewed or marked on the side or sides which face is toward the claim and sunk in the sround, one at each comer, and one at the center of each side line, and when thus marking the boundaries of a claim, if any one or more of such posts or monuments of stone shall fall, by necessity, upon precipitous ground, when the proper placing of it is impracticable or dangerous to life or limb, it shall be lawful to place any such post or

Mining Laws Of Wyoming. 1343

monument of stone at the nearest point, properly marked to designate its riglit place; provided, that no right to such lode or claim, or its possession or enjoyment, shall be given to any person or persons unless such person or persons shall discover in said claim mineral bearing rock in place. Laws 1888, p. 88, sec. 17.

Object of requirement as to development work: § 344. Kelationship of discovery shaft to discovery: § 345. Extent of development work: § 346.

Can preliminary development work be credited on first year's labor? § 632. Liberal rules of construction applied to notices: § 355. Place and manner of posting: § 356. Time aUowed for marking: § 372. Necessity for and object of ntarking: § 371. Perpetuation of monuments: § 375.

5. Cquivaleut of Discovery Shaft.

Any open cut which shall cut the vein ten feet in length and with face ten feet in height, or any cross cut tunnel, or tunnel on the vein ten feet in length which shall cut the vein ten feet below the surface, measured from the bottom of such tunnel, shall hold such lode the same as if a discovery shaft were sunk thereon. Laws of 1888, p. 88, sec. 18.

Discovery shaft and its equivalent discussed: §§ 343-346.

6. Time Within Which Discovery Shaft Must lie Sunk.

The discoverer of any mineral lode, or vein in this state shall have the period of one liundrcd and twenty days from the date of discovering such lode or vein in which to sink a discovery shaft thereon. Laws 1888, p. 88, sec. 19, as amended in 1890; JjSlws 1890-1, p. 180, sec. 12.

See text: §§ 343-346.

7. Location Certiiicate; C/Outeuts and Record.

A discoverer of any mineral lead, lode, ledge or vein shall within ninety days of the date of the discovery record such claim with the recorder of the mining district in which it is situated, if such district be organized, and shall within one hundred and twenty davs from date of discoverv cause such claim to be recorded

1344 Appendix.

within the office of the county clerk and ex-oflficio register of deeds of the county within which such claim may exist, by a location certificate which shall contain the following facts:

First, the name of the lode claim; second, the name or names of the locator or locators; third, the date of location; fourth, the length of the claim along the vein measured each from the center of the discovery shaft and the general course of the vein, as far as it is Ivnown; fifth, the amount of surface ground claimed on either side of the center of the discovery shaft or discovery workings; sixth, a description of the claim by such designation of natural or fixed objects, or if, upon ground surveyed by the United States system of land survey, by reference to section or quarter section corners, as shall identify the claim beyond question. Laws of 1888, p. 87, sec. 15, as amended in 1890; Lavrs of 1890-91, p. 179, sec. 1.

Purpose of location certificate: § 380. Rules of construction applied: § 381.

Requlremenits of Fedtil law as to contents of certificate: § 385. Time and place of record and effect of failure to record within time Umlted: §§ 389-390.

8. liOcation Certificate, Void unless Coutaiuiu Proper iElemeuts.

Any certificate of the location of a lode claim which shall not fully contain all the requirements named in the preceding section, together with such other description as shall identify the lode or claim with reasonable certainty, shall be void. Laws 1888, p. 88, sec. 16.

Effect of failure to comply with the law as to contents of certificate: § 384.

9. Location Certificate Must Coiitaiu One Lioeation or Claim.

No location certificate shall contain more than one claim or location, whether the location be made bv one or more locators: and any location certificate that contains upon its face more than one location claim, shall be absolutely void, except as to the first location named and described therein; and in case more than one claim or location is described together so that the first one can

Mining Laws Of Wyoming. 1345

not be distingiiished from the others, the certificate of location shall he void as an entirety. Laws 1888, p. 85, sec. 8.

10. Amended Liocation Certificate; Changre of Surface Hoiindaries.

Whenever it shall be apprehended by the locator, or his assigns, of any mining claim or i)roperty heretofore or hereafter located, that his or their original location certificate was defective, erroneous, or that the requirements of the law had not been complied with before the filing thereof, or shall be desirous of changing the surface boundaries of his or their original claim or location, or of taking in any part of an overlapping claim or location which has been abandoned, or in case the original certificate was made prior to the aj)proval of this act, and he or they shall be desirous of securing the benefit of this law, such locator or locators, or his or their assigns, may file an additional location certificate in compliance with and subject to this act; provided, however, that such relocation shall not infringe upon the rights of others existing at the time of such relocation, and that no such relocation, or other record thereof, shall preclude the claimant or clafmants from proving any such title or titles as he or they may have held under any i)revious location. Laws of 1888, p. 85, sec. 7.

Objects and functions of amended certificates: § 398. Circumstances justifying cliange of boundariee: § 396. Privilege of changing boundaries exists in absence of intervening rights independent of state legislation: § 397.

11. Relocation of Abandoned Claim.

§ 21. Any abandoned h)de, vein or strata claim may be relocated, and such rolucation shall be perfected by sinking a new discovery shaft and bv fixin* now boundaries in the same manner as provided for the location of a new claim; or the relocator may sink the original discovery shaft ten feet deeper than it was at the time of its abandonment, and erect a new or adopt the old boundaries, renewing the posts or monuments of stone if removed or destroyed. In either ev(nt. a new location stake shall be fixed. The location certificate of an abandoned claim may state that the whole or any

1'W8 Appkndix.

trii'l la>\s. whoilior tlu' anumnt of work required annually be ,:;naUT or loss tlum the amount hereinbefore set forth as requirod of placer I'lainis not located in such districts.

(o) failun' of the owners to do or have done the assessuient work r\H|uirod within the time above stated, such claim or elaims upon whioh such work has not been completed shall thereafter ho opi u to nliHaiion on or after the first day of January of anv >oar after suoh lalnr or improvements should have been doiu\ in the same manner and on the same tonus as if no location thorivf had over Uvn made; provided, that the original locators, ihvir hours. aisrus or locil rtMn.sorta:ivos have not resumed work sr.i h ila.ir. tr olaims af:or failure, and before anv sub- sHpur.: !'H;5::ov. has Ivon made.

r-.vr. v\v..:!o:.ov. of :he n>r/.-.re-i sssessr/.en: w-rk for anv

Mining Laws Of Wyoming. 1349

successive years after the first (Jay of January succeeding the date of location, then such person, persons or association, they and their grantors, shall be entitled to proceed to obtain a patent for their claims from the United States without performing further work; but where such person, persons, or association, they or their grantors, desire to obtain a United States patent before the expiration of five years from the date hereinbefore mentioned, they shall be required to expend at least five hundred dollars' worth of work upon a placer claim. Laws 1888, p. 91, sec.

Btates and territories may not dictate terms upon which patent may be obtained: See § 249, nor suspend the requirement or federal law as to performance of annual labor: § 637.

That obligatioD to perform asmual labor ceases with final entry at the land office, see § 637.

Proof of annual labor before land office: § 686.

III. Reference to Miscellaneous Legislation on Mining

Subjects.

1. Providing that a miner who, at the request of the owner has performed work upon a mine, or a person who has furnished material for the mine shall have a lien upon the same. Rev. Laws 1887, §§ 1486-1493.

2. Providing for the organization of mining districts, the election of a recorder, the passing of resolutions and the transfer of a copy of all papers to the office of the recorder of deeds of the county. Laws of 1888, p. 83, § 1.

3. Providing for the drainage of mines already opened. Laws of 1888, p. 84, § 4.

4. Providing for rights of way for ditches, flumes, and tramways. Laws of 1888, p. 84, § 5.

0. Providing that the surface owner or occupant of land containing mineral shall have the right to exact security from the. mine owner or operator, extracting ore from beneath the surface. Iws of 1888, p. 85, § 6.

6. Providing punishment for conspiring to obtain possession of mining property. Laws of 1886, p. 85, § 9.

7. Providing punishment for mutilating or destroying notices or monuments upon mines. Laws of 1888, p. 86, § 10.

1850 Appendix.

8. Providing punishment for ''salting*' ores. Laws of 1888 p. 86, § 11.

9. Protecting livestock by requiring openings to be coyeied. Laws of 1888, p. 87, § 12.

10. Providing for the payment of coal miners and Biine laborers semi-monthly, and in lawful money. Laws of 1890-91 p. 366.

11. Providing that eight hours' actual work shall constitute a lawful day's work in mines. Const, art. 19, § 1; Laws of 1890- 91, p. 367.

12. Creating the office of inspector of mines, fixing the inspector's salary, and prescribing his duties. Also providing for the proper ventilation of coal mines. Laws of 1890-91, p. 340.

Mining Laws Of Alaska. 1351

District Of Alaska.

Fbobral Laws and Regulations Concerning Mines in Alaska.

I. Statutes. IL Land Department Regulations.

I. Statutes Relating to Alaska.

On May 17 y 1884, Congress passed an act providing for tlie civil government of Alaska. The act contained the follow ing provisions:

"§ 8. That the said district of Alaska is hereby created a land district, and a United States land office for said district is hereby located at Sitka. [The commissioner provided for by this act to reside at Sitka shall be ex-olficio register of said land office, and the clerk provided for by this act shall be ex-officio receiver of public moneys and the marshal provided for by this act shall be ex-officio surveyor-general of said district], and the laws of the United States relating to mining claims and the rights incident thereto, shall, from and after the passage of this act, be in full force and effect in said district, under the administration thereof herein provided for, subject to such regulations as may be made by the secretary of the interior, approved by the President; provided, that tlie Indians or other persons in said district shall not be disturbed in the i)08se8sion of any lands actually in their use or occupation or now claimed by them, but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress; and provided further, that parties who have located mines or mineral privileges therein under the laws of the LTnited States applicable to the public domain, or who have occupied and improved or exercised acts of ownership over such claims, shall not be disturbed therein, but shall be allowed to perfect their title to such claims by payment as aforesaid; and, provided also, that the land not exceeding six hundred and forty acres at any station now occupied as missionary stations among the Indian tribes in said section, with the im-

1352 Appendix.

provenients thereon erected by or for such societies, shall be continued in the occupancy of the several religious societies to which said missionary stations respectively belong until action by Congress. But nothing contained in this act shall be construed to put in force in said district the general land laws of the United Statf'S." "3 Stats, at Large, p. 24, sec. 8.

The atK>ye act protects possessory claims to mines in Alastut theretofore initiated tliough not based upon a compUanoe with all the piorlJ9ioD of tiie United States laws relative to the location of a min- Um cljilni: liennett v. Harltrader, 158 U. S. 441, § 64.

lunm alien act of March 3, 1887, apply to Alaska? 9 243.

iUmfpTi'HH [>a8sed an act in 1897 (approved July 24th) amending section H al>ove by striking out the words: commissioner provided for by tills act to reside in Sitka shaU be ex-officio register of said land (fff\(:i\ and the clerk provided for by this act shall be ex-o>fficio nH-clvT of public moneys, and the maral provided for by this act Mlinll 1m* -officio surveyor-general of said district." The ameodriMMit iiImo pnivid<8 for the appointment of a register and receiver of the land office and surveyor-general.

"S5 7. The general laws of the state of Oregon now in force [May 17, 1884,] are hereby declared to be the law in said district [Alaska] so far as the same may be applicable and not in conflict with the provisions of this act or the laws of the United States*: 23 Stats, at Jrge, p. 24, § 7.

It should be noted that changes made by the legislature of Oregon since May 17, 1884, do not apply to Alaska.

The laws of Oregon relating to mines are found in another part of the Appendix, p. 1319. These were all passed prior to 1884, although cited as appearing in HiU's Codes and Statutes of 1802. As no changes have been made by the legislature of Oregon upon this subject since 1884, the laws as given on page 1319 are now in force in Alaska.

Coal land laws do not apply to Alaska : § 497.

II. Land Dkpaktment Regulations Governing Alaska.

1. In pursuance of the ei<rhth section of the act of Congress, approved May 17, 1884, entitled act to provide a civil government for Alaska" (-33 Stat. 24), it is hereby ])roscril)cd that

Mining Regulations For Alaska. 1353

the rules and regulations of the general land oflBce and department of the interior governing the administration of the mining laws of the United States, be adopted for and extended to the district of Alaska, so far as the same may be applicable.

2. Notices required by mining laws and regulations to be published in a newspaper nearest the claim, may, imtil newspapers are established in Alaska, be published in some suitable newspaper or newspapers printed in Washington territory, to be designated by the ex-officio register of the land district of Alaska.

3. No public lands other than specific mineral claims are subject to survey or disposal in said district.

4. The ex-oflicio register, receiver, and surveyor-general, while acting as such, and their clerks and deputy surveyors, will be deemed subject to the laws and regulations governing the official conduct and responsibilities of similar officers and persons under general statutes of the United States.

5. The commissioner of the general land office will from time to time direct the ex-officio land officers in the proper discharge of their official duties, and will exercise the same general supervision over the execution of the laws as are, or may be, exercised by him in other mineral districts. 4 L. 1). 128. Issued July 28,

Title Xiv

Forms And Precedents.

'It

'I

11*

'It

i!-

Notices And Certificates Of

Location.

be notice or certificate of a mininir location is the basis of tbe miner's title— a statutory writing affecting realty, tbe first maniment of bis paper title, upon tbe record of wbicb patent proceedings are based {ante, i 379). Tbe suggested forms bere given bave been prepared witb a view to exhibiting tbe difiference in tbe statutory requirements in tbe different states and territories, and to invite attention to tbe controlling importance of properly describing tbe claim witb reference to natural objects and permanent monuments, and to tbe proper marking of tbe location on the ground. These forms are all necessarily based upon fictitious descriptions, and are offered merely as suggestions.

ARIZONA. Certificate of Lode Location.

[Act of July 1, 1895. Ante, p. 1235.]

Notice is hereby given, that I, Peter Smith, a citizen of the United States, have discovered within the limits of the claim hereinafter described a vein of rock in place carrying gold, silver, and other valuable deposits. I have located a claim embracing fifteen hundred feet of said vein. Said claim is named the "Josephine." It is situated upon public unsurveyed lands in Ellsworth mining district, Yuma county, Arizona. It adjoins on the south the Golden Eagle mine (patented), belonging to the Harqua Hala Gold Mining Company. The discovery shaft and monument on said vein is distant three hundred feet southerly from the point where the Harqua Hala and the Harrisburg trail crosses the south boundary of said Golden Eagle mine. The general course of said vein is east and west. I claim in length on said vein seven hundred and fifty feet east and seven hundred and fifty feet west from the center of the discovery shaft. I also claim three hundred feet on each side of the center of the discovery shaft, lengthwise of the claim.

Said claim was located January 1, 1897, by the under-

1358 Notices And Certificates Of Location.

signed. I further certify that prior to filing this notice for record I sunk a discovery shaft upon said premises, at the point of discovery, to a depth of twelve feet from the lowest part of the rim of said shaft at the surface, showing in said shaft the vein in place. I also posted at the point of discovery on the surface, upon a substantial monument of rocks, a plain notice, conforming in all respects to this certificate, and marked such claim on the ground so that its boundaries can be readily traced.

The following is a description of said claim and the manner in which the same is marked upon the ground: —

Commencing at the discovery shaft and monument heretofore described; thence east seven hundred and fifty feet to a post in mound of rocks, said post being marked J. 1 E. L. P.," as and for the east lode post, from which post a mesquite tree, seven inches in diameter, blazed and marked J. 1 B. " T.," bears northwest thirty feet distant; thence at right angles north three hundred feet to stone monument at the northeast corner of the claim; thence at right angles west seven hundred and fifty feet to a stone monument, the center of the north side line of said claim; thence continuing on said course west seven hundred and fifth feet to a stone monument, the northwest corner of the claim; thence south three hundred feet to a post in mound of rocks, said post being marked J. 2 W. L. P." as and for the west lode post, from which post &palo verde, one foot in diameter, blazed and marked " J. 2 B. T.," bears southwest seventeen feet distant; thence continuing south three hundred feet to a stone monument at the southwest corner of the claim; thence east seven hundred and fifty feet to a stone monument, the center of the south side line of said clim; thence continuing east seven hundred and fifty feet to a stone monument at the southeast corner of the claim; thence at right angles north three hundred feet to the east lode post, marked " J. 1 E. L. P." Said posts project at least three feet above the surface of the ground, and said monuments are at least three feet high.

Dated January 20, 1897. PETER SMITH, Locator.

Note.— A notice conforming to this must be posted, and this must be recorded with the county recorder within ninety days from discovery, which period la allowed for sinking discovery shaft. The Arizona law allows marking by either poiti or stone monuments.

California. 1359

CALIFORNIA. Preliminary Notice of Lode Location.

[Under Act of March 27, 1897. Stats. 1897, p. 214. Ante, p. 1243.]

Notice is hereby given, that I, John Williams, a citizen of the United States, h:ave discovered a vein of rock in place carrying gold, silver, and other valuable deposits, upon which

I have erected a discovery monument and posted this notice, as hereinafter set forth;

That in accordance with the provisions of title thirty-two, chapter six, of the Revised Statutes of the United States, and the laws of the state of California, I hereby claim fifteen hundred linear feet of said vein, measured thereon as hereinafter set forth.

Said discovery was made on the 29th day of May, 1897. Immediately upon making the same, and on said May 29, 1897, 1 erected at the point of discovery a substantial monument and mound of rocks, and posted thereon this notice.

The general course of said vein is north and south. I claim in length thereon five hundred feet northerly and one thousand feet southerly from said discovery monument. I also claim three hundred feet on each side of the center of the vein.

This vein or claim shall be known as and called the Eliza- "beth." It is situated in Jackson mining district, Amador county, California, in section 20, township 6 north, range

II east. Mount Diablo meridian, the discovery monument being placed four hundred feet westerly from the point where the Jackson and Volcano road crosses the west bank of Dry creek.

This notice is the first, or preliminary, notice required by the provisions of section two of the act of the legislature of California, approved March 27, 1897, entitled, "An act pre- " scribing the manner of locating mining claims upon the public domain of the United States, recording notices of " location thereof, amending defective locations, and provid- " ing for the dep)osit of district records with county recorders, and prescribing the effect to be given to recordation of , " notices of location and affidavits."

1360 Notices And Certificates Of Location.

In accordance with the provisions of said act, I claim sixty days from the date of said discovery to enable me to perfect the location of said claim.

Dated and posted on the ground, May 29, 1897.

(Signed.) JOHN WILLIAMS, Locator.

NoTK.— A dapli3ate of this notice is required to be recorded in the county recorder's office of the county wherein the claim it situated, within twenty days from the date of discovery. As to the object and purpose ox this notice, and the effect of its record, see note to $ 2 of the act, ante, p. 1244.

Final Certificate of Lode Location.

[Under Act of March 27, 1897. Ante, p. 1243.]

I, John Williams, a citizen of the United States, hereby certify, that on the 29th day of May, 1897, 1 discovered a vein of rock in place bearing gold, silver, and other valuable deposits, in section 20, township 6 north, range 11 east, Mount Diablo meridian, Jackson mining district, Amador county, California. On said day I erected at the point of discovery a substantial monument and mound of rocks, and placed thereon a preliminary notice, as required by the provisions of section two of an act of the legislature of the state of California, entitled, " An act prescribing the manner "of locating mining claims upon the public domain of the "United States," etc., approved March 27, 1897;

That on June 10, 1897, I caused said preliminary notice to be recorded in the county recorder's office of Amador county, and the same is now of record therein in book B of quartz mining claims, page 50, to which record reference is hereby made for all the particulars therein contained;

That within sixty days from the date of said discovery I performed labor in the development of said discovery, which labor was, and is, reasonably worth the sum of sixty dollars, and consisted of sinking a shaft of ordinary dimensions on said vein to the depth of ten feet, said shaft having been sunk at the place of discovery;

That within said period I distinctly marked the location of said claim on the ground, so that the boundaries can be readily traced, and perfected said location;

California. 1361

That the following is a description of said location as finally marked on the ground: —

Commencing at the discovery monument in said section 20, township 6 north, range 11 east, Mount Diablo base and meridian, which said monument is four hundred feet westerly from the point where the Jackson and Volcano road crosses the west bank of Dry creek; thence north five hundred feet to a stake in* mound of rocks, said stake being marked *'E. 1 N. L. " P.," as and for the north lode post, from which post a pine tree, three feet in diameter, blazed and marked 1 B. T.," bears northeast sixty feet distant; thence at right angles west three hundred feet to a stake in mound of rocks at the northwest corner of claim, stake marked "E. 2"; thence at right angles south fifteen hundred feet to a stake in mound of rocks, stake marked "E. 3," the southwest corner of claim; thence at right angles east three hundred feet to stake in mound of rocks, stake marked "E. 4 S. L. P.," as and for the south lode post; thence continuing east three hundred feet to stake in mound of rocks, stake marked "E. 5," the southeast corner of the claim; thence at right angles north fifteen hundred feet to a stake in mound of rocks at the northeast corner of the claim, stake marked 6," from which an oak tree three feet in diameter, marked "E. 6. B. T.," bears northeast, distant ninety feet; thence at right angles west three hundred feet to stake in mound of rocks marked "E. 1 L. P.," embracing fifteen hundred linear feet of said lode. All of said stakes are four feet long, four inches square, and set one foot in the ground.

The claim is known and called the " Elizabeth.'* This certificate is the final notice of location required by section three of the act of the legislature of the state of California, hereinbefore referred to.

Dated July 6, 1897.

JOHN WILLIAMS, Locator.

State of California, ,

A,)

County of Amador, j John Williams, being first duly sworU; deposes and says: I

1362 Notices And Certificates Of Location.

am the locator named in the foregoing final certificate of location. The facts stated in said certificate are true.

John Williams.

Subscribed and sworn to before me this 7th day of July, 1897. (Notarial seal.) DB. Spagnoli,

Notary Public, Amador county, California.

NoTB.— No posting of the certificate is required. It must be recorded in the county recorder's oflSce within sixty days from the date of discovery.

Notice of Location of Placer Claim for Posting.

Notice is hereby given, that I, Fred Zeitler, a citizen of the United States, have, this 1st day of August, 1897, discovered a valuable placer deposit within the limits of the north half of the northeast quarter of the northeast quarter of section 12, in township 16 north, range 8 east. Mount Diablo meridian, Washington mining district, Nevada county, California.

By virtue of such discovery, I have located, and hereby claim, said north half of the northeast quarter of the northeast quarter of section 12, in township 16 north, range 8 east. Mount Diablo meridian, containing twenty acres.

Said claim is hereby named the Searls placer claim.

The said claim is marked upon the ground as follows: At the northeast corner of said tract I have placed a stake in mound of rocks, stake marked " S. P. N. E. Cor.," from which a nut pine, one foot in diameter, blazed and marked B. T. " S. P. N. E. Cor.," bears south twenty feet distant; at the northwest corner of said tract a stake in mound of rocks, stake marked " S. P. N. W. Cor.*' ; at the southwest corner of said tract a stake in mound of rocks, stake marked " S. P. S. W. "Cor."; at the southeast corner of said tract stake marked " S. P. S. E. Cor."

This notice is posted on mound of rocks at point of discovery, sixty feet southwest from the stake and mound marking the northeast corner of the claim.

Dated and posted on the ground August 1, 1897.

FRED ZEITLER, Locator.

Note.— If location is upon unsurveyed lands, description sbonld follow suggestion contained in final certificate of lode location. See text, $ 461. A duplicate of this notice must be filed for record witli the county recorder within thirty days from the discovery.

Colorado. 13G3

AfBdavit of Performance of Discovery Work upon

Placer Claim.

State OF California,) County of Nevada. )

Fred Zeitler, being first duly sworn, deposes and says: I am the locator of that certain placer claim known as and called the Searls placer, notice of the location of which is of record in the oflSce of the county recorder of Nevada county, in book 8 of mining records, page 9, to which record reference is hereby made for all the particulars therein contained; that within sixty days from the date of discovery of said claim I performed labor upon the same, which labor was, and is, of the reasonable value of twelve dollars. Such labor consisted of sinking a shaft ten feet deep to the bedrock, and removing and washing the gravel therefrom. FRED ZEITLER.

Subscribed and sworn to before me, this 5th day of September, 1897.

(Seal.) F. H. Power, Notary Public.

Note.— To be recorded within sixty days after dIscoTery.

Colorado.

Preliminary Lode Notice for Posting.

Notice is hereby given, that I, John Jones, a citizen of the United States, have discovered a lode of rock in place carrying gold, silver, and other valuable deposits, upon which I have erected a discovery monument and posted this notice.

In accordance with the provisions of title thirty-two, chapter six, of the Revised Statutes of the United States, and the laws of the state of Colorado, I hereby claim fifteen hundred linear feet of said vein, measured thereon as hereinafter set forth.

The general course of this vein is north and south. I claim in length thereon eight hundred feet northerly and seven hundred feet southerly from said discovery monument. I also

1364 NOTICES AND gERTIFICATES OF LOCATION.

claim one hundred and fifty feet on each side of the center of said vein.

Note.— In Gilpin, Clear Creek, Boulder, and Snmmit eouaties, width ia limited to seventy-five feet on each side of the center of the vein. In other connties, one hundred and fifty feet on each side of such center.

Said lode is situated in Cripple Creek mining district, EI Paso county, Colorado. It shall be known as the Mountain Maid lode. Said discovery was made January 1, 1897.

In accordance with the laws of the state of Colorado, I claim sixty days from date of such discovery, to enable me to sink a discovery shaft thereon, and three months from such discovery to otherwise perfect and record the location of said claim.

Dated and posted on the ground, January 1, 1897.

JOHN JONES, Locator.

NoTK.— This is not to be recorded. . See text, $ 351.

Oertiflcate of Lode Location for Recording.

I, John Jones, a citizen of the United States, hereby certify: That on January 1, 1897, I discovered within the limits of the claim hereinafter described, a lode of rock in place bearing gold, silver, and other valuable deposits; that thereafter, and prior to recording this certificate, I located said claim in the following manner: On January 1, 1897, I posted at the point of discovery a plain notice, containing the name of the lode (the " Mountain Maid the name of the locator (John Jones), and date of discovery (January 1, 1897). On January 30, 1897, I completed sinking a shaft on said lode at the point of discovery, to a depth of twelve feet, showing therein a welldefined crevice. On February 1. 1897, I marked the location upon the ground so that its boundaries can be readily traced.

The general course of said lode is north and south. I claim in length on said lode eight hundred feet northerly and seven hundred feet southerly from the center of the discovery shaft, and in width one hundred and fifty feet on each side of the center of said vein.

Said claim is known as the Mountain Maid lode claim, is situated on the southern slope of Tenderfoot hill in Cripple

Colorado. 1365

Creek mining district, El Paso county, Colorado, and as marked on the ground is bounded and described as follows: —

Commencing at the discovery monument, which is situated six hundred feet easterly from a large fir tree standing on the north bank of Poverty gulch; thence north eight hundred feet to a post, marked M. M. 1 N. L. P.," as and for the north lode post, from which stake a pine tree, eight inches in diameter, blazed and marked " M. M. 1 B. T.," bears north sixty feet distant; thence at right angles west one hundred and fifty feet to a post in mound of rocks, the northwest corner of the claim, post marked M. M. N. W. Cor."; thence at right angles south seven hundred and fifty feet to post in mound of rocks, as and for the center west side line post, post marked M. W. S. L."; thence continuing on said course south seven hundred and fifty feet to a stake and mound of rocks, the southwest corner of the claim, stake marked " M. M. S. W. Cor."; thence at right angles east one hundred and fifty feet to a post marked " M. M. S. L. P.," as and for south lode post; thence continuing east one hundred and fifty feet to a post in mound of rocks, the southeast corner of the claim, post marked M. S. E. Cor."; thence north seven hundred and fifty feet to post in mound of rocks, as and for the center east side line post, post marked M. E. S. L.,"; thence continuing north seven hundred and fifty feet to a post in mound of rocks, the northeast corner of the claim, post marked M. M. N. E. Cor."; thence at right angles west one hundred and fifty feet to the north lode post, marked M. M. N. L. P." All of said posts are marked upon the sides which are in towards the claim, and are sunk in the ground one foot, and project above ground four feet. The rock mounds are four feet in diameter and two feet in height.

Dated February 3, 1897. JOHN JONES, Locator.

Note.— This mast be recorded within three monthii from date of discovery. The Colorado law does not require center end line posts. They are used in the description for the purpose of "tielng" the claim to the discovery monument. Some of the states and territories require them.

1366 Notices And Certificates Of Location.

Idaho.

Discovery Notice for Posting on Lode Claim.

Notice is hereby given, that I, Henry Harris, a citizen of the United States, have, this 5th day of July, 1897, discovered a lode bearing gold, silver, and other valuable deposits, and have erected at the place of discovery a monument, upon which this notice is posted. The name of the claim is the Bell lode. I claim seven hundred and fifty feet of the vein east from the discovery monument, and seven hundred and fifty feet west from said monument.

Dated July 5, 1897. HENRY HARRIS.

Notice of Lode Location.

[To be posted and recorded.]

By following the suggestion contained in the Colorado certificate of location, the law of Idaho will be fully satisfied.

Note.— This notice must be posted on the discovery monument within three days after date of discovery, and a daplicate of the same, with the following certificate attached, must be recorded within ninety days after the location, either in the office of the county recorder or of the deputy recorder of the mining dlBtrict.

State of Idaho, )

I, Henry Harris, do solemnly swear, that I am a citizen of the United States, and that I am acquainted with the mining ground described in this notice of location and herewith called the Bell lode; that the ground and claim therein described, or any part thereof, has not, to the best of my knowledge and belief, been located according to the laws of the United States and of this state, and that I have opened new ground to the depth of ten feet, as required by the laws of Idaho.

HENRY HARRIS, Locator.

Subscribed and sworn to before me this 1st day of September, A.D. 1897. William Johnson, (Seal.) Notary Public.

Note.— If the claim is a relocation, the affidavit should state the fact, and that the prior location " has been forfeited by reason of the failure of the former locators to comply in respect thereto with the requirments of said laws."

Montana. 1367

Montana.

Preliminary Notice for Posting.

Notice is hereby given, that I, John Peckham, a citizen of the United States, have, this 10th day of June, 1896, discovered a lode bearing gold, silver, and other valuable deposits, and have named the same the Dobson lode. The course of the lode ife east and west, and I claim four hundred feet on the vein east of the point where the discovery was made, and upon which this notice is posted, and eleven hundred feet west from the said place of discovery; and I claim three hun-' dred feet on each side of the center of the vein.

Dated and posted on the ground June 10, 1896.

JOHN PECKHAM, Locator.

Declaratory Statement.

I, John Peckham, a citizen of the United States, hereby declare: —

That on the 10th day of June, 1896, 1 discovered and located a lode bearing gold, silver, and other valuable deposits, and on the same day posted my notice of location at the place of discovery, and named the lode the Dobson lode;

That the general course of the vein is east and west, and I claim four hundred feet on the vein east, and eleven hundred feet west, from the point of discovery, and three hundred feet on each side of the center of the vein;

That the discovery shaft is located at the point of discovery, and is twelve feet deep and eight feet square, and discloses a well-defined crevice;

That the claim is located in the Hamilton mining district, Deer Lodge county, Montana.

Note.— The deBcription Huggested for the Colorado c(>rti(l('ate of location will fulfill the requirements of the Montana law. An c)iara<'ter of marking, see ante, p. 1286, $2.

Dated August 3, 1890.

JOHN IMOCKHAM, Locator.

1368 Notices And Certificates Of Location.

State of Montana, ) County of Deer Lodge. S

John Peckham, being first duly sworn, deposes and says: I am the locator named in the foregoing declaratory statement. The facts stated in said declaratory statement are true.

John Peckham.

Subscribed and sworn to before me, this 3d day of August,

(Notarial seal.) George Hudson,

Notary Public, Deer Lodge county, Montana.

Note.— To be recorded in the office of the county clerk within ninety days from posting the notice of discovery.

Nevada.

The requirements in this state for the preliminary notice for posting on lode claims are the same as the requirements for the preliminary notice in Montana, and the foVm iven on a preceding page for that state is applicable, therefore, to Nevada.

The certificate of location for lode claims required by the laws of Nevada corresponds with the declaratory statement required by the laws of Montana, and the form given for Montana may be used in Nevada. In the latter state the certificate must be recorded in the oflflce of the mining district recorder, as well as in the county recorder's office, within ninety days from the date of posting.

No verification of the certificate is required by the laws of Nevada.

NP:W MEXICO. Notice of Location for Lode Claim.

Notice is hereby given, that I, Mark Porter, have declared my intention to become a citizen of the United States; that I have, this 10th day of August, 1897, distinctly marked the boundaries of a mining claim upon a lode bearing gold, silver, and other valuable deposits, which claim I have named the Amy lode; that it is my intention to locate the same according to the laws of the territory of New Mexico.

The said claim is located in the Steeple Rock mining district, in Grant county, territory of New Mexico, and is bounded and described as follows: —

Beginning at a post eight hundred feet east and one

North Dakota. 1369

hundred and nine feet south of the point where the Santa Rosa trail crosses the south hank of Vegas creek, the said post heing marked A. L. S. W. Cor."; thence easterly seven hundred and fifty feet to the south center side line post, marked A. L. S. S. L."; thence continuing in the same direction seven hundred and fifty feet to a post at the southeast corner, marked "A. L. S. E. Cor."; thence at right angles northerly three hundred feet to a post at the center of the east end line, marked "A. L. E. L. P."; thence continuing in the same direction three hundred feet to a post at the northeast corner of the claim, said post being marked "A. L. N. E. Cor.," from which post a pine tree, two feet in diameter, marked B. T. A. " L. N. E. Cor.," bears north ten feet; thence at right angles westerly seven hundred and fifty feet, to the north center side line post, marked '*A. L. N. S. L."; thence continuing westerly seven hundred and fifty feet to a post at the northwest corner of the claim, marked L. N. W. Cor."; thence at right angles southerly three hundred feet to a post at the center of the west end line, marked '*A. L. W. L. P."; thence continuing in the same direction three hundred feet to the point of commencement. MARK PORTER, Locator.

Note.— A copy of the posted notice must be recorded in the office of the county recorder within three months after the date of posting.

NORTH DAKOTA. Preliminary Notice for Posting.

Take notice, that I, Joseph Bates, a citizen of the United States, discovered, on the 3d day of March, 1894, a mineral lode bearing gold, silver, and other valuable deposits, which lode I have named the Mascot lode.

That I claim eight hundred feet on the lode east of the point of discovery, the place where this notice is posted, and seven hundred feet west of the said point of discovery.

That I claim one hundred and fifty feet on each side of the middle of said lode.

That the said lode is located in the Hard Rock mining district, Bryant county. North Dakota.

Date of posting, MarftH 27. 1894. JOSEPH BATES.

1370 Notices And Certificates Op Location.

Location Oertiflcate.

I HEREBY CERTIFY, that on March 3, 1894, I, Joseph Bates, a citizen of the United States, discovered in Hard Rock mining district, Bryant county, North Dakota, a mineral lode, bearing gold, silver, and other valuable deposits, which lode I named the Mascot lode.

That thereafter I located a claim thereon by sinking a discovery shaft ten feet deep, disclosing a well-defined mineral lode, and posted at the point of discovery on the surface a notice of location, as required by section fourteen hundred and twenty-nine of the revised code of North Dakota, and by marking the boundaries of said claim, as required by section fourteen hundred and thirty -one of said code;

That I claim seven hundred feet on the lode east of the center of said discovery shaft, and eight hundred feet on the lode west therefrom; that I claim one hundred and fifty feet on each side of the middle of said lode;

That the course of said vein is east and west;

That the said claim is baunded and described as follows: Beginning at a post two hundred feet northwest of the junction of Indian gulch with White Cloud creek, which post is hewn on the side facing the claim and marked " Mascot lode, "S. E. Cor."; thence northerly one hundred and fifty feet to the east lode post, hewn and marked " Mascot lode, east lode "post"; thence continuing in the same direction one hundred and fifty feet to a post hewn and marked "Mascot lode, N. E. "Cor."; thence at right angles westerly seven hundred and fifty feet to a post hewn and marked " Mascot lode, center "north side line"; thence continuing in the same course westerly seven hundred and fifty feet to a post hewn and marked " Mascot lode, N. W. Cor."; thence at right angles southerly one hundred and fifty feet to the west lode post, hewn and marked " Mascot lode, west lode post "; thence continuing southerly in the same direction one hundred and fifty feet to a post hewn and marked Mascot lode, S. W. Cor.," from which post an oak tree, three feet in diameter, bears southeasterly twenty feet; thence at right angles easterly seven hundred and fifty feet to a post hewn and marked " Mascot lode, center

Oregon — South Dakota — Utah. 1371

south side line "; thence continuing in the same course seven hundred and fifty feet to the point of beginning.

Dated April 6, 1894. JOSEPH BATES, Locator.

Oregon.

In Oregon the requirements for preliminary notice of location are simple. The forms given for any of the other states may be used in this state. The certificate of location must be recorded in the office of the district deputy mining recorder within thirty days after posting; bat continuous working will obviate the necessity for recording. The district deputy recorder must transmit a copy of his records at the end of each month to the county clerk, who must record the claims in a book provided for that purpose.

South Dakota.

The requirements in this state regarding preliminary notices and location certificates for lode mining claims are the same as the requirements in North Dakota, and the forms suggested for the latter state, given on a preceding page, may be used in South Dakota.

UTAH. Notice of Location for Lode Claim.

Notice is hereby given, thai, George Kiter, a citizen of the United States, have, on this 10th day of Jnly, 1897, discovered and located a Icxle bearing gold, silver, and other valuable deposits, which lode 1 have nanind the Omega lode;

That the course of the vein is north and south, and that I claim seven hundred and fifty feet north and seven hundred and fifty feet south of the discovery ujonunient on which this notice is posted; and tlial I claim three hundred feet on each side of the center of the vein;

That the said cl.iim is l(K!aU;d in the JunifMr mining district, county of Kern, state of Utah, and is bounded and described as follows, to wit: —

Beginning at a hirge pine trw; twenty feet south of the point where the Summit trail crosses the south bank of Rapid river, which tree is hewn and marked, "Omega, N. E. Cor.";

1372 Notices And Certificates Op Location.

thence southerly fifteen hundred feet to a post set in the ground, hewn and marked, 'Omega, S. E. Cor."; thence at right angles westerly six hundred feet to a tree blazed and marked Omega, " S. W. Cor.," from which tree, shaft No. 1 of the Sensation mine bears southwesterly one hundred feet; thence at right angles northerly to a post set in the ground, hewn and marked **Omega, N. W. Cor."; thence at right angles easterly six hundred feet to the point of beginning. Dated July 26, 1897.

GEORGE RITER, Locator.

NOTB.— The notice must be posted at the time of discovery, and a substantial copy thereof muiit be recorded in the office of the county auditor within thirty days after the date of posting.

Washington.

No particular form of notice is req aired to be posted or recorded on lode claims in this state. Any of the forms given on the preceding pages for other states may be used in Washington. Location notices in this state should be recorded in the office of the county auditor within thirty days after posting.

Wyoming.

The forms given for the location and recording of lo<1e claims in Colorado fulfill the requirements of the laws of Wyoming; but if the claim is upon ground surveyed by the United States system of land survey* the laws of Wyoming require the description to be made with reference to section or quarter section corners.

The certificate must be recorded in the office of the district recorder within ninety days after the date of discovery, and in the office of the county clerk within one hundred and twenty days of the discovery.

Alaska.

The laws of Oregon as they existed in 1884 are applicable to Alaska. The district has no legislative powers, and the manner of locating and recording claims is governed by local regulations. Any of the forms heretofore given will fulfill the requirements of the federal law, and may be used in Alaska.

Patent Proceedings.

Lodes.

PRECEDENTS SELECTED FROM A CASE WHICH HAS PASSED THE SCRUTINY OF THE LAND DEPARTMENT, AND PATENT ISSUED THEREIN.

Application for Survey.

San Francisco, Cal., September 13, 1894.

United States Surveyor-General, San Francisco: —

Sir: As attorneys for James N. Cathey, Andrew McC. Cathey, and William King, claimants, we hereby make application for an official survey, under the provitions of chapter six, title thirty-two, of the Revised Statutes of the United States, and regulations and instructions thereunder, of the mining claim known as the Daisy quartz mine, situate in Coulterville mining district, Mariposa county, California, in section 36, township No. 3 south, range No. 16 east, Mount Diablo meridian. Said claim is based upon a valid location made on June 25, 1890, and duly recorded on July 7, 1890, and is fully described in the duly certified copy of the record of the location certificate, filed herewith. Said certificate contains the name of the locator, the date of location, and such a definite description of the claim by reference to natural objects or permanent monuments as will identify the claim, and said location has l>een distinctly marked by monuments on the ground, so that its boundaries can be readily traced.

We request that you will send us an estimate of the amount required to defray the expenses of platting and other work in your office, recjuired under the regulations, that we may make proper de{>osit therefor, and that thereupon you will cause the survey to be made by Charles E. Uren, United States Deputy

1374 Patent Proceedings — Lodes.

Mineral Surveyor, and proper action to be taken thereon by your office, as required by the United States mining laws and regulations thereunder. LINDLEY & EICKHOFP,

Attorneys for Claimants. Post office address, 530 California Street, San Francisco, Cal.

NoT£.— Consult $670. As to manner of conducting survey, see $ 671. Surreyorgeneral's certificate as to expenditures, $ 673.

Instruments Required to Accompany tbe Application (§ 678).

I. The Application for Patent, with Approved Fibid Notes Attached. %

II. Copy of the Plat.

III. Certified Copy of Location Notice.

IV. Proof of Posting on Claim the Notice of Intention to

Apply for Patent, and Copy of Plat. V. Proof of Citizenship.

VI. Agreement of Publisher of Newspaper. VII. Proof that Annual Labor has been Performed. VIIL Abstract of Title. IX. Proof of Mineral Character of Land.

In the United States Land Office, at Stockton, California.

In the Matter of the Application for Patent for the Daisy Quartz Mine, Coulterville I Mining District, Mariposa County, Cali- j fornia. J

Application for Patent.

[To be attached to approved field notes.]

To the Register and Receiver United States Land Office, Stockton, California: —

State of California, J County of Mariposa. )

James N. Cathey, being first duly sworn, deposes and says: That by virtue of a compliance with the provisions of the laws of the United States and the rules and regulations thereunder

Application For Patent. 1375

prescribed by the land department of the United States, governing the acquisition of title to mineral lands on the public domain, this affiant, James N. Cathey, together with Andrew McC. Cathey and William King, have become, and are now, the owners as tenants in common, and are now in the actual, quiet, and undisturbed possession of tbkt certain lode mining claim, containing gold and silver, situate in section thirty-six (36),* township three (3) south, range sixteen (16) east, Mount Diablo base and meridian, in the Coulterville mining district, Mariposa county, state of California, known as and called the Daisy quartz mine.

This affiant, for and on behalf of himself and his cotenants above named, hereby applies for a patent for said Daisy quartz mine.

The area and extent of said mining claim for which patent is applied for is particularly set forth and described in the official field notes of survey thereof hereto attached and made a part hereof, dated October 19, 1894, and in the official plat of said survey now posted conspicuously upon said mining claim, a copy of which is filed herewith, to which reference is hereby made.

Affiant further states that the facts relative to the ownership and right of possession of himself and his said cotenants, are substantially as follows: —

This affiant and the said Andrew McC. Cathey, having theretofore discovered within the boundaries of said claim a ledge of rock in place carrying gold, on June 25, 1890, duly located said mining claim, by posting upon said claim a proper notice of location, and marking the boundaries of said claim 80 they could be readily traced. Thereafter, and on July 7, 1890, they caused notice of such location to be recorded in the office of the county recorder of Mariposa county, where the same is now of record in book G of quartz records, at page 209.

A certified copy of said notice of location accompanies this application, and is hereby referred to for all the particulars therein contained.

Thereafter, and on September 4, 1893, the said Andrew McC.

This section had bc'en returned as mineral, and the state had selected other lands in lieu thereof.

1376 Patent Proceedings — Lodes.

Cathey sold and conveyed by deed to William King an undivided one- fourth interest in said mining claim, which said deed is recorded in the office of the county recorder of Mariposa county, in book 14 of deeds, page 189.

That ever since said date affiant and the said Andrew McC. Cathey and William King have been the owners of said mining claim as tenants in common, holding and owning interests in the same, as follows, to wit: —

James N. Cathey, an undivided one half thereof;

Andrew McC. Cathey, an undivided one fourth thereof;

William King, an undivided one fourth thereof.

That at the time of making said location the said James N. Cathey and Andrew McC. Cathey, locators, were, and are now, citizens of the United States, and said William King is a citizen of the United States, all of which will more fully appear from their several affidavits which accompany, and are filed with, this application, reference being made to said affidavits for all the particulars therein contained.

That at the time of making said location said locators entered into the possession of said mining claim, and ever since have been, and with their said cotenant, the said William King, are now in the exclusive possession of the same.

There are no miners' rules or regulations now in force in the Coulterville mining district. Those in existence prior to the passage of the act of congress of May 10, 1872, became obsolete, and have not been observed or in force since the passage of said act.

The value of the labor done and improvements made upon said mining claim by affiant and his cotenants exceeds the sum of four thousand dollars ($4000).

Said improvements consist of the following: —

A main working tunnel four feet by six feet, two hundred and forty-five feet long, where it intersects the ledge; timbered when necessary. From the face of the tunnel where the ledge is intersected, lateral drifts are extended on the ledge northeast and southwest, aggregating one hundred and thirty feet in length, averaging in width six feet.

The actual expense of running said tunnel and drifts exceeds the sum of twenty-five hundred dollars.

Certified Copy Of Notice Of Location. 1377

Forty feet of tunnel, forty feet of drifts, and thirty feet of incline on such vein, all of customary size for practical mining operations, the expense and cost of running which exceeded the sum of six hundred dollars.

Othe open cuts, exposing the vein, the aggregate cost of which will approximate two hundred dollars.

In consideration of said facts, and in conformity with the provisions of chapter six of title thirty-two of the Revised Statutes of the United States, application is hereby made by affiant in behalf of himself and Andrew McC. Cathey and William King, his cotenants, for a patent from the government of the United States for the said Daisy quartz mine, as so officially surveyed and platted. JAMES N. CATHEY.

Subscribed and sworn to before me, this 10th day of January, 1895; and I hereby certify that I consider the above deponent a credible and reliable person, and that the foregoing affidavit, to which was attached the field notes of survey of the Daisy quartz mine, was read and examined by him before his signature was affixed thereto and the oath made by him.

F. E. Hall, Justice of the Peace in and for No. 3 township, Mariposa county, California.

NoTK.— The certificate of the county cleric of Mariposa county as to the official eharacter and genuineness of the signature ol the justice of the peace is attached. Thif would be unnecessary if the oath had been administered before a notary or clerk of a court of record having a seal.

n.

Copy of Plat Furnished by Surveyor-Oeneral.

Certified Copy of Notice of Location.

Notice is hereby given, that the undersigned, in compliance with the requirements of the Revised Statutes of the United States and the local customs, laws, and regulations, have this day located, and claim fifteen hundred linear feet along the course of this lead, lode, or vein, of mineral-bearing quartz, and three hundred feet in width on each side of the middle of said lead, lode, or vein, together with all mineral

1378 Patent Proceedings — Lodes.

deposits contained therein, and all timber growing within the limits of said claim, and all water and water privileges thereon or appurtenant thereto, situate in the Coulterville mining district, in the county of Mariposa, state of California, and more particularly described as follows, to- wit: —

Commencing at an open cut on the lead, lode, or vein, at an oak stake with stone monument around it, on the north side of Merced river, between the Old Red Banks and Crown Peak; thence running in a northwesterly direction a distance of eight hundred and seventy feet, and in a southeasterly direction a distance of six hundred and thirty feet, to a small pine tree and a small oak tree, groi\ring in close proximity to each other, with stone monument around them; the other corner and center monuments are marked by stakes with rock mounds around them.

The claim shall be known as the Daisy mine.

Located June 25, 1890. JAMES N. CATHEY,

ANDREW McC. CATHEY,

Locators. State of California, ) „ County of Mariposa. )

I, Maurice Newman, county recorder in and for said county, do hereby certify the foregoing to be a full, true, and correct copy of the notice of location of the Daisy mine, as the same appears of record in my office, in book G, page 209, of quartz records of Mariposa county.

Witness my hand and official seal, this 2d day of October, A. D. 1894. Maurice Newman,

(Seal.) County Recorder.

[Title same as in I.]

Proof of Posting Notice and Diagram on Claim.

State of California, f County of Mariposa. S

W. A. Jones and William Doidge, each for himself, and not one for the other, being first duly sworn according to law,

Proof Of Posting Notice And Diagram. 1379

deposes and says: That he is a citizen of the United States, over the age of twenty-one years, and was present on the 9th day of January, 1895, when a plat representing the Daisy quartz mine, situated in Coulierville mining district, Mariposa county, California, and certified to as correct by the United States surveyor-general of California, and designated by him as lot No. 61, in township 3 south, range 16 east. Mount Diablo meridian, together with a notice of the intention of James N. Cathey, in behalf of himself and Andrew McC. Cathey and William King, his co-owners, to apply for a patent for the mining claim and premises so platted, was posted in a conspicuous place upon said mining claim, to-wit: at the mouth of the main working tunnel upon said claim, marked tun- "nel" on the official plat, facing the traveled trail which passes said tunnel, where the same can be easily seen and examined.

A full and true copy of the notice, so conspicuously posted upon said claim, is annexed hereto, marked Exhibit A," and made a part of this affidavit. W. A. JONES,

Wm. Doidge.

Subscribed and sworn to before me, this 9th day of January, 1895; and I hereby certify that I consider the above deponents credible and reliable witnesses, and that the foregoing affidavit was read by each of them before their signatures were affixed thereto and the oath made by them.

F. E. Hall, Justice of the Peace, No. 3 township, Mariposa county, California.

Exhibit A.

Notice of Application of James N. Cathey in Behalf of Himself and his Co-owners, Andrew McC. Cathey AND William King, for a United States Patent to THE Daisy Quartz Mine.

Notice is hereby given, that in pursuance of chapter six of title thirty-two of the Revised Statutes of the United States, the undersigned, James N. Cathey, whose post office address is

13S0 Patent Pr<X*Eedings — Lodes.

Bear Valley, Mariposa coanty. California, in bebalf of himself and Andrew McC. Cathey and William King, co-owners with him. claiming thirteen hundred and seventy and eight-tenths linear feet of the Daisy quartz mine vein. lode, or mineral deposit, bearing gold, with surface ground three hundred feet in width on the southwest side of the lode and on the northeast side, width varying from fifty-nine feet on the northwest end line to two hundred and fifteen feet, or thereabouts, at the southeastern portion of the claim, lying and being situated within the Coulterville mining district, county of Mariposa and state of California, is about to make application to the United States for a patent for the said minine claim, which is more fully described as to metes and bounds by the official plat herewith posted, and by the field notes of survey thereof, now filed in the office of the register of the district of lands, subject to sale at Stockton, California, which field notes of survev describe the boundaries and extent of said claim on the surface, with magnetic variation at eighteen degrees east, ' as follows, to- wit: —

[Here (ollove description c ndensed from field notes. See sngrgestlona in $ 677.]

The notice of location of said Daisy quartz mine is of record in the office of the recorder of Mariposa county at Mariposa, in the county and state aforesaid, in book G of quartz records, at page 209.

The presumed general course or direction of the said Daisy quartz mine, vein, lode, or mineral deposit, is shown upon the plat posted herewith, as near as can be determined from present developments, this* claim beins: for thirteen hundred and seventy and eight- tenths linear feel thereof, together with the surface ground shown upon the official plit posted herewith. The said mining premises hereby sought to be patented is bounded a-? follows, to wit: —

On the northeast by the Crown Lead quartz mine (lot No. 48-A), the Crown Peak quartz mine (lot Xo. 40-a) and the Jubilee quartz mine. On all other side? by vacant land and unoccupied land, the said claim btrinii desiiinated as lot Xo. 61 in the official plat posted herewith.

Any and all persons claiming adversely the mining ground, vein, lode, premises, or any portion thereof so described,

Affidavit Of Citizenship. 1381

surveyed, platted, and applied for, are hereby notified that, unless their adverse claims are duly filed as according to law, and the regulations thereunder, within the time prescribed by law, with the register of the United States land office at Stockton, in the county of San Joaquin, state of California, they will be barred in virtue of the provisions of said statute.

JAMES N. CATHEY, In behalf of himself and Andrew McC. Cathey and William King, his co-owners.

Dated and posted on the ground this 9th day of January,

Wm. Doidge.

[Title same as in I.]

Affidavit of Citizenship of James N. Oathey.

State of California, y

Sb

County of Mariposa. )

James N. Cathey, being first duly sworn according to law, deposes and says: —

I am the owner of an undivided one-half part of the Daisy quartz mine, situated in Coulterville mining district, Mariposa county, state of California, designated upon the official plat thereof as lot No. 61, in township 3 south, range 16 east. Mount Diablo base and meridian.

In behalf of myself and my co-owners, William King and Andrew McC. Cathey, I am about to make application for a United States patent for said Daisy quartz mine.

I am a native-born citizen of the United States. I was born in Saline county, state of Arkansas in the year 1847, and am now a resident of Mariposa county, California.

James N. Cathey.

Subscribed and sworn to before me, this 9th day of January, A. D. 1895. F. E. Hall,

Justice of the Peace, No. 3 township, Mariposa county, California.

Note.— Similar affidavits were mad by Andrew McC. Cat)iey and WiUiam King.

t

13S2 PATENT PRiCEEDIXGS — LODES.

Tntle mme M in I.I

Agreement of PnbUilier.

State of Califorxia.* CoDDty of Maripi>sa. )

The andersigced. pa blither and proprietor of the " Marlposa Gaxette/' a weekly newspaper pablkbed at Mariposa. coQQtv of Mariposa, and 5ta:e of Californii. hereby agree to publish a notice, reqi:irei by chapter *ix of title thirty-two. Revi<el Statutes oi the Ur.itfrd rotate*, oi the intention of James N. Cathey to apply for a piten; for the Daisy quartz mine, situated in Couherville mining district. (un:y of Mariposa, star o: Cal:forr.ia, arid to hold the said Jaaie< N. C a they alone region :blr for the imount due f.r publish inz the same.

And it is herebv exoresslv stipulate*! and azreed that no claim shall be made agiinst the govern aient oz the l" cited Slates, or it- oiers or ;ir.t.s. I'-r sjoh publi.tion.

Witness my haci and seal, this '.*th day of January. 1S9..

JOHN JONES. Publisher.

T::le saxnr I. '

Proof of Labor (Claimant).

State of Calif- em a. Counts o: Mir:i-.sj.

Jan.-rs N. *a:hrv. r-r:r-£ ::rst dulv srrrr.. .:ri::-se? l-.zA savs :

dvllir--' wrti :: wj* i r.r rv r.:vfr':" r. i tt . :~owners

*M>Idicz and developing said claim.

Proof Of Labor. 1383

During the year 1894 over one thousand dollars have been expended in running one hundred and thirty feet of lateral drifts along the vein, from the face of the main working tunnel, and at the present time the work of extending said drifts is being actively prosecuted. JAMES N. CATHEY.

Subscribed and sworn to before me this 9th day of .Tanuary, 1895; and* I hereby certify that I consider the above deponent a credible and reliable witness, and that the foregoing affidavit was read by him before his signature was affixed thereto and the oath made by him. F. E. Hall,

Justice of the Peace, No. 3 township, Mariposa county, California.

[Title same as in L]

Proof of Labor (Witnesses).

State of California, ) County of Mariposa. )

W. A. Jones and William Doidge, being duly sworn, each for himself and not one for the other, deposes and says : —

That he is a citizen of the United States, over twenty-one years of age, is a miner by occupation, and resides in Mariposa county, California;

That he is well acquainted with the Daisy quartz mine, situated in section 36, township 3 south, range 16 east, Mount Diablo meridian, Coulterville mining district, Mariposa county, California;

That he knows of his own knowledge that labor to the value of more than one thousand dollars was actually performed upon and within the boundaries of said Daisy quartz mine during the year 1894, for the purpose of developing said claim; said labor was done for the owners of said mine, James N. Cathey, Andrew McC. Cathey, and William King, and consisted of lateral drifts along the vein, extended from the face of the main working tunnel. Work is at the present time being actually prosecuted in said tunnel and drifts.

W. A. Jones, Wm. Doidge.

Subscribed and sworn to before me, this 9th day of January, 1895; and I hereby certify that I consider the above deponents

1384 Patent Proceedings — Lodes.

Credible and reliable witnesses, and that the foregoing affidavit was read by eaci of them before their signatures were affixed thereto and the oath made by them. F. E. Hall, (Justice of the Peace, No. 3 township, Mariposa county, California.

The abstract of title exhibits the record history of the claim as set forth in the patent application (I).

Note.— F6r saggestions as to abstracts, see $ 687.

[Title same as in I.]

Proof of Mineral Character of Land and Improvements

(by Witnesses).

State of California, ) County of Mariposa. )

JV. A. Jones and William Doidge, being first duly sworn, each for himself and not one for the other, deposes and says: —

That he is a citizen of the United States, over the age of twenty-one years, and resides in Mariposa county, California;

That he is by occupation a practical miner, and has followed that occupation for many years;

That he is well acquainted with the Daisy quartz mine, situated in the southern portion of section 36, township 3 south, range 16 east, Mount Diablo base and meridian, in the Coulterville mining district, Mariposa county, state of California.

Said Daisy quartz mine is situated about six miles southeast of the town of Coulterville, and about five and one half miles northwest of the town of Bear Valley, in said Mariposa county, on the west slope of the Sierra Nevada mountains;

Traversing said mining claim in a general northwesterly and southeasterly direction is a ledge of rock in place, carrying gold and silver. The ledge crops out at intervals within the claim, and the vein is exposed in several places where it is crossed by small ravines and gulches, and in open cuts, made for the purpose of prospecting the vein. This ledge is considered to be a fork of the Mother Lode," which traverses

Proof Of Mineral Character Of Land. 1385

the Crown Peak and Crown Lead mines, adjoinihg the Daisy quartz mine on the northeast.

The ledge in the Daisy quartz mine is enclosed on the foot wall by back slate, and on the hanging by diabase. It descends into the earth in a northeasterly direction, at an average angle from the horizon of forty-five degrees* Its width ranges from two feet to eight feet. The quartz is of the character familiarly known as "ribbon rock." It carries some free gold and auriferous sulphurets. It can be worked by the ordinary mill process.

The improvements which have been made upon said property by the present owners, James N. Cathey, Andrew McC. Cathey, and William King, are as follows: —

A main working tunnel four by six feet, two hundred and forty-five feet long, where it intersects the ledge. It is timbered where necessary. From the face of the tunnel where the ledge is intersected, lateral drifts are extended on the led'ge northeast and southwest, aggregating one hundred and thirty feet in length, and averaging six feet in width. The amount expended for such work exceeds the sum of twentyfive hundred dollars.

In addition thereto, there are forty feet of drifts, an upper incline shaft sunk thirty feet on the vein, all of customary size for practical mining operations, the expense and cost of running and the reasonable value of which exceeded the sum of six hundred dollars; also other open cuts exposing the vein, the aggregate cost of which will approximate two hundred dollars. W. A. JONES,

Wm. Doidge.

Subscribed and sworn to before me, this 9th day of January, 1895; and I hereby certify that I consider the above deponents credible and reliable witnesses, and that the foregoing affidavit was read by each of them before their signatures were affixed thereto and the oath made by them. F. E. Hall,

Justice of the Peace, No. 3 township, Mariposa county, California.

Note.— Ai the section within which this mine is situated was returned as mineral, this proof may have been unnecessary. But we have advised the practice of submitting full proofs on subject of mineral character, % 689.

A similar affidavit by claimant accompanied this.

1386 Patent Proceedings — Lodes.

[Notice to be published and posted in resristers office.]

Notice of Application for Patent.

U. S. Land Office, )

Stockton, California, Jaouary 12, 1895. S

Notice is hereby given, that James N. Cathey, whose post office address is Bear Valley, Mariposa county, California, in behalf of himself and his co-owners, Andrew McC. Cathey and William King, has filed an application for patent for the lode mining claim called the Daisy quartz mine, situated in Coulterville mining district, Mariposa county, California, and designated by the field notes and official plat on file in this office as lot No. 61, in township 3 south, range 16 east. Mount Diablo base and meridian, said lot No. 61 being described as follows (magnetic variation )3eing eighteen degrees east): —

[Here follows description condensed from field notes, same as in Exhibit A. attached to instrament IV. posted on claim.]

The presumed course of the lode is northwest and southeast. The number of feet claimed on the lode is thirteen hundred and seventy and eight tenths, extending from the northwest lode post to the southeast lode post of said claim, as described in the foregoing field notes. The surface ground claimed is three hundred feet in width on the southwest side of the center of the lode, and on the northeast side varying from fifty- nine feet to two hundred and fifteen feet, or thereabouts, to conform to the lines of adjoining claims.

The notice of location of said Daisy quartz mine is of record in the office of the county recorder of Mariposa county, at Mariposa, in book G of quartz records, at page 209.

Adjoining claims: On the northeast the Crown Lead quartz mine (lot No. 48-a); the Crown Peak quartz mine (lot No. 49-a), and the Jubilee quartz mine (lot No. 60). On all other sides the claim is surrounded by unoccupied public land.

Any and all persons claiming adversely the mining ground, vein, lode, premises, or any portion thereof so described, surveyed, platted, and applied for, are hereby notified that unless their adverse claims are duly filed according to law, and the

Proof That Plat And Notice Remained Posted. 1387

reguUtions thereunder, within the time prescribed by law, with the register of the United States land office at Stockton, in the state of California, they will be barred by the provisions of the law in such cases made and provided.

J. WALTER SMITH, Register.

NoTi.— For direction! as to publication, lee $$ 685, 689. For directions as to posting in register's office, see $ 691.

Upon completion of period of publication, the claimant filed the following instruments: —

XI. Proof That Plat and Notice Remained Posted on Claim. XII. Statement of Fees and Charges.

XIII. Affidavit of Publication.

XIV. Certificate op Clerk That No Suit is Pending. XV. Application to Purchase.

[Title same as in 1. 1

Proof That Plat and Notice Remained Posted on Claim

Daring Time of Publication.

State of California, )

y Qfi

County of Mariposa, j

James N. Cathey, being first duly sworn according to law, deposes and says, that he is claimant and co-owner with Andrew McC. Cathey and William King in the Daisy quartz mining claim, situated in Coulterville mining district, county of Mariposa, and state of California, the official plat of which premises, together with a notice of intention to apply for a patent therefor, was posted thereon, on the 9th day of January, 1895, as fully set forth and described in the affidavit of W. A. Jones and Wm. Doidge, dated the 9th day of January, 1895, which affidavit was duly filed in the office of the register, at Stockton, California, in this case; and that the plat and notice so mentioned and described remained continuously and conspicuously posted upon said mining claim from the 9th day of January, 1805, until, and including, the 20th day of April, 1895, including the sixty days* period during which notice of said apj)licatlon for patent was published in the new8par>er. JAMES N. CATHEY.

1388 Patent Proceedings — Lodes.

Subscribed and sworn to before me this 25th day of April, 1895; and I hereby certify that the foregoing affidavit was read to the said James N. Cathey previous to his name being subscribed thereto, and that deponent is a respectable person, to whose affidavit full faith and credit should be given.

F. E. Hall, Justice of the Peace in and for No. 3 township, Mariposa county, California.

[Title same as in I.]

Statement of Fees and Charges.

State of California,) County of Mariposa.

James N. Cathey, being first duly sworn, deposes and says, that he is one of the applicants for patent for the Daisy quartz mine, lot No. 61, section 36, township 3 south, range 16 east, Mount Diablo meridian, situate in Coulterville mining district, Mariposa county, California; that he has conducted said application on behalf of himself and his co-owners, and is familiar with the sums of money paid and expended in that behalf; that in the prosecution of said application he has paid out, in the manner below indicated, the following named sums, and no more: —

To the United States surveyor-general, for fees, office

work, and stationery, $35.00

To the United States deputy mineral surveyor, . . . 75.00 Fee to the register, for filing application for patent, . 10.00 For publication of notice of application for patent, . 60.00 Purchase price of land entered, 70.00

Total, $250.00

James N. Cathey.

Subscribed and sworn to before me, this 25th day of April, 1895. J. H. Corcoran,

(Seal.) Notary Public, Mariposa county, California.

Application To Purchase. 1389

Affidavit of Publication.

[This is applied by the publisher, and its form is stereotyped.]

Certificate That No Suit is Pending.

State of California, County of Mariposa.

I, Maurice Newman, county clerk of the county of Mariposa, and ex officio clerk of the superior court thereof, do hereby certify, that there is no suit or action of any character pending in said court involving the riht of possession to any portion of the Daisy mine, situated in Coulterville mining district, Mariposa county, California, of which mine James N. Oathey, Andrew McC. Cathey, and William King claim the ownership, and for which patent has been applied for, and that there has been no litigation before said court affecting the title to said claim, or any part thereof.

In witness whereof, I have hereunto set my hand and affixed the seal of said court at my office in Mariposa, Mariposa county, California, this 25th day of April, 1895.

Maurice Newman,

County Clerk of the county of Mariposa, and ex officio

clerk of the superior court thereof.

J Seal of the superior court, / Mariposa county.

NOTB.— As there was no adverse proceeding in thiH caMv, we do not see the necesflty of reqairing thin certificate. See $ 759, p. m2. note

[Title same as in I.]

Application to Purchase.

To the Register and Receiver of the United States Land Office, Stockton, Cal.: — Oentlemen: The undersigned claimants, under the provisions of the Revised Statues of the United States, chapter six.

1390 Patent Proceedings — Lodes.

title thirty-two, and legislation supplemental thereto, hereby apply to purchase that mining claim known as the Daisy quartz mine, situate in section 36, township 3 south, range 16 east, Mount Diablo meridian, designated as lot No. 61. Said mining claim embraces thirteen and ninety-one one hundredths " acres in the Coulterville mining district, in the county of Mariposa, state of California, as shown by survey thereof, and we hereby agree to pay therefor seventy .dollars, being the legal price thereof. Dated April 25, 1895.

(Signed.) JAMES N. CATHEY,

ANDREW McC. CATHEY, WM. KING.

[Upon which the register endorsed the following]: —

I, J. Walter Smith, register of the land office at Stockton, California, do hereby certify that the aforesaid quartz mining claim, or lot No. 61, in section 36, township 3 south, range 16 east, Mount Diablo meridian, as applied for above, is subject to entry by the above-named applicants. The area of said quartz mining claim being thirteen and ninety-one one hundredths acres; the price thereof is seventy dollars.

(Signed.) J. WALTER SMITH,

Register.

Placer Claims— Unsurveyed Lands.

Where a placer claim sought to be patented is situated upon unsurveyed lands, the proceedingrs are similar to those in cases of lodes, proper allowance being made for the difference in the nature of the deposits (2 099), a descripti-ve report being also required from the deputy surveyor, establishing the character of the land 672); but the department require, in all cases of placers, an atfirmative showing that no known lodes exist within the limits of the placer {'i 703). i

We select the following illustration as conforming to the regulations of the department in this behalf:—

Proof That No Known Lodes Exist on Placer Claim.

In the United States Land Office, at Stockton, California.

In the Matter of the Application for Patent\ for the Coolgaudie Placer Mine, Coulter- I ville Miniug District, Mariposa County, /" California. J

State of California, County of Mariposa. )

A. M. (la Silva and Win. Doidge, each of lawful age and resident in the county of Mariposa, state of California, being first duly sworn, each for himself, and not one for the other, saith: That he is a miner by profession; that he is well acquainted with the Coolgardie placer mine, situate in Coulterville mining district, county of Mariposa, state of California, claimed by A. Wartenweiler, applicant for United States patent therefor; that for several years he has resided near said land, and has been, and now is, well acquainted with the character of said land, having frequently passed over the same; that his knowledge of said land is such as to enable him to testify understandingly in regard thereto; that there is not, to his knowledge, within the limits of said placer claim any vein, or lode, of quartz or

1392 Patent Proceedings — Placer Claims.

other rock in place bearing gold, silver, cinnabar, lead, tin, or copper, or any other valuable deposit in place, upon said claim or any part thereof; that he has no interest whatever in the said placer claim. ' A. M. DA SILVA,

Wm. Doidge.

Subscribed and sworn to before me this 19th day of March, 1897; and I hereby certify that the foregoing affidavit was read to the above-named A. M. da Silva and Wm. Doidge previous to their names being subscribed thereto, and that deponents are reputable persons, to whom full faith and credit should be given. F. £. Hall,

Justice of the Peace in and for No. 3 township, Mariposa county, California.

NoTB.— An aflldaTit of similar import, made by elaimani, ii also filed.

Same — Surveyed Lands.

Where the placer claim is located by government subdivisions, no survey is necessary ($ 672K A descriptive report by a deputy mineral surveyor may be obtained 701), but is not required. Proof of the mineral character of the land must be supplied by affidavits i $ 702).

As the surveyor-general has no office to perform in this class of cases, proof of the tive hundred dollars* expenditure for patent purposes must be supplied by claimant. For nature and character of such proofo, con> suit i 701.

Ixde

K'

Index.

by senior of area conflicting with junior locator will not inure to

benefit of latter, $ 363. abandoned conflict area can only be appropriated by junior locator

by amended location, $ 363. of portion of claim for purpose of paralleling end lines does not

affect remainder, $ 365. amended certificate of location not necessarily abandonment of

first, $ 398. may title to mining claim be lost by ? 642. distinction between forfeiture and, $ 6i3. a question of intention, $ 643. operates instantei\ $ 643. may occur at any time, $ 643. evidence establishing, $ 644. evidence negativing, $ 644. a question for the jury, 644. need not be specially pleaded, $ 643. may be proved under general issue, $ 643. burden of establishing rests upon party asserting, $ 643. failure of one co-owner to contribute proportion of assessment

work not evidence of, $ 644. Abstract of Xltle.

to be furnished in patent proceedings, $ 687.

regulations of land department concerning, p. 1192-1193, par. 32.

right of surface owner to strata underlying granted stratum, $ 827. reciprocal rights of owners of difiTerent strata, $ 827. See Inspkction and Survby. Accomit.

between tenants in common of a mine, $ 790. between mining partners on dissolution, $ 803. Actions. Ejectment.

mining claims are subjects of, 536, 538, 773.

may be maintained on certificate of purchase, $ 773. Injunction.

will not issue, restraining land department from discharging its

duties, $ 438. when lies at suit of one cotenant against another, $ 790. to prevent pollution of water, $ 842. deposit of tailings, 842. injuries from hydraulio mining, $$ 848-853. as an auxiliary remedy in S $$ 872.

1396 Index.

JLcUonB— Continued. Partition of Mining Property.

mininsf claims are subject of, $$ 535, 792.

usually require sale, $ 792. owner of incorporeal hereditament cannot maintain, $ 792. PoRsessory.

for mininfif claims not affected by fact that fee is in the United

States, $ 773. pleadings in ordinary, $$ 233, 754. Trespass.

pleadings in, $$ 233, 754.

scope of, in mining states, $ 885.

within what time action must be brought in case of underground,

$867. burden of proof in cases of underground, $ 806. presumptions in favor of surface proprietor, $ 866.

apex proprietor, $ 866. measure of damages, $ 868. Actions upon AdTerse Claims.

provisions of the federal law concerning. Revised Statutes, $ 2326,

p. 1172. no presumptions of fact indulged in, $ 227.

pendency of, does not excuse performance of annual labor, $ 632. tribunals having jurisdiction, 746-750. federal courts, $$ 747-749.

jurisdiction, to what referable, $ 749. questions involved are federal, $ 748. removal from state courts to, $ 750. pleadings in, $ 754. state courts, $ 750.

jurisdiction, to what referable, $ 750. removal from, to federal court, $ 750. pleadings in, $$ 754, 755. character of the action at law or in equity, $ 754. how considered in federal courts, 754.

California, $ 754. Idaho, $ 754. Montana, $ 754. Nevada, $ 754. South Dakota, $ 754. Wyoming, $ 754. time within which, must be commenced, 756. appeal from order of register declining: to receive adverse claim

does not excuse commencement, $ 737. when deemed commenced, $ 757. parties to, $ 758.

functions of land department pending, 759. must be prosecuted with due diligence, $ 759.

question of diligence to be determined by the courts, $ 759. the judgment, its form, $ 763.

when becomes available in the land office, $ 764. effect of, $ 765.

Index. 1397

Actions upon AdTerse ClalmB -Continued, the judgment, effect of appeal from, $ 764.

certified copy to be filed with register, p. 1203, par. 89. dismissal of, eqaivalent to waiver, $ 766. evidence of, required by land department, p. 1208, par. 90. Act of July a6, i866 (Iode and later text of the act, p. 1141.

generally known as the lode and water law," $ 49. title of the act; history of its passage, $ 53. essential features, $ 54. lmpK>rtant principles established by, $ 54. declaration of governmental policy, $ 55. recognition of local customs and possessory rights, ( 56. a crystallization of local rules and customs, $$56, 306. title to lode claims, how acquired, .$ 57. relationship of surface to lode, $ 58. construction of the act by the land department, § 59.

by the courts, $ 60. end lines, $ 60.

Idaho-Maryland case, $ 59. vein crossing side lines, 60

the Flagstaff case, $ 60, local rules and customs after passage of the act, $ 61. dips, angles, and variations," $ 61. a muniment of existing titles, $ oS. only lode claims patentable under, $ 57. only one lode could be held under one location, $ 58.

or patent, $ 572. owner of lode locate<l under, need not adverse patent application

made under act of 1872, $ 727. extralateral or dip right under, $$ 60, 567-577. end lines implied, 58.

not required to be parallel, $$ 58, 576. where end lines converge, 574.

diverge, $ 575. function of diagram and surface lines, conclusions of author,

$577. on lodes other than original, conferred by act of 1872, $ 598. where end lines are parallel, $ 599.

not parallel, $ 600. . construction of patents applied for under, but issued subsequent U) art of 1872, $ 604. distinction between hvXh of lH>6and 1872, $ 71. Act Of July 9, 1870 (Placer Iayv). text of the act, p. 114>. an amendment to lodt; law of 186<), $ 62. first legislation on subject of placers, 419. opened pla<*erM and all forins of deposit not in place to exploration

and piirchfise, $ 62. essential features of the act, $ 62. limit of area subject to location, $$ 62. 448. form and extent of location under, $ 448.

1398 Index.

Act Of July 9, 1870 (Placer law)— Continued.

recognized title by adverse possession, $ 62.

superseded by act of May 10, 1872, $ 62. Act Of May lo, 187 j ((veneral niliiliis: Iw).

text of the act, p. 1149.

passafife of the act, $ 68.

basis of the existinsr system, $$ 68, 75.

declaration of iovernmental policy, ( 69.

changes made by, $ 70.

with regard to lodes, $ 71.

other claims, $$ 72, 448. new provisions affecting all classes of claims, $ 73. local rales and customs subsequent to, $76. embodied in the Revised Statutes, $ 75. Acts Of Congrress* Miscellaneous Acts Referred to In Text.

May 20, 1785, ordinance for disposing of lands in western territory, $ 30. first on subject of mineral lands, $ 30. March 3, 1807, reserving lead mines from sale, and providing for

leasing, $ 33. March 3, 1829, for sale of reserved lead mines in Missouri, $ 35. September 4, 1841, pre-emption act reserving mines, $ 36. July 11, 1846, for sale of reserved lead mines in other states, $ 35. March 1, 1847, for sale of copper and lead mines in fIchigan, $ 35. March 3, 1847, for sale of mineral land in Chippewa district, $ 35. March 3, 1849, creating department of interior, $ 47. September 26, 1850, ordering sale of mineral lands in Michigan, $ 47. July 1, 1862, Pacific railroad act, 149, 150, 151. July 1, 1864, regulating sales of coal lands, $ 49. July 2, 1864, Pacific railroad act, $$ 150, 151. February 27, 1865, recognizing possessory rights in mineral lands,

$47.

March 3, 1865, regulating sale of coal lands, $ 49.

May 5, 1866, concerning mining claims in Nevada, $ 49.

July 25, 1866, Sutro tunnel act, $ 49.

February 18, 1873, excepting Michigan, Wisconsin, and Minnesota

from operation of mining laws, $ 75. embodied in $ 2;M5, Revised Statutes, p. 1182.

March 1, 1873, extending time for performance of annual labor, $ 75.

June 6, 1874, extending time for performance of annual labor, $ 75.

February 11, 1875, tunnel amendment to $ 2324, Revised Statutes, p.

May 5, 1876, excepting Missouri and Kansas from operation of mining laws, $ 75.

January 12, 1877, relating to saline lands, $ 514.

territorial limit of its operation, 514.

March 3, 1877, relating to desert lands, 212.

June 3, 1878, (a) timber cutting, 75.

June 3, 1878, (6) stone and timber act, 75, 210, 421.

Index. 1399

Acts of Canuprem— Continued.

January 22, 1880, fixinfif uniform time for annual labor, $ 75.

text of law, p. 1169. March 3, 1881, judgments in suits upon adverse claims, p. 1173.

object of the act, 749, 763. April 26, 1882, verification of adverse claims, p. 1173. March 3, 1883, exempting Alabama from operation of mining laws,

$75. May 17, 1884, providing a civil government for Alaska, $ 172.

extract from the act, p. 1351. March 3, 1887, alien act, $ 243.

amended by act of March 2, 1897, p. 863, note 1. March 3, 1891, afifecting townsites, $ 166.

limited to incorporated cities, $ 172. object and intent, (173. not retroactive, $ 174. March 3, 1891, relating to desert lands, $ 212. August 4, 1892, stone lands subject to entry under mining laws,

$210. March 1, 1893, creating California debris commission, p. 1271.

causes leading up to its passage, $ 848. essential features of the act, $ 850. February 26, 1895, classification of railroad lands in Idaho and

Montana, $ 160. February 11, 1897, petroleum act, $ 422.

text of act, p. 1228. circular instructions, p. 1228. March 2, 1897, alien law, text of act, p. 1229.

commented on, p. 863, note 1. June 4, 1897, mining claims in forest reservations, p. 1222. Adjacent Support* See Support. Adjolnlns: Claims.

lines of, are permanent monuments,'' $ 373.

must be specified in notices of patent applications, p. 1192, par. 29 . junior locator must conform to lines of senior, $ 365. AdTerse Claim*

distinction between protest and, $ 712.

patent proceedings are in rem, 713.

must be filed, or rights are lost, $ 713.

what is and what is not subject of, $$ 717-730.

contemplates controversies between rival mineral claimants, $ 717.

character of land is not subject of, $ 717.

controversies between agricultural and mineral claimants, (717.

prior patentees, $ 718.

prior patent applicants, $ 718.

mortgages, ( 719.

lien holders, $ 719.

owners of equitable interests, ( 719.

lode claimant against placer applicant, $ 720.

placer claimant against lode applicant, $ 721.

mineral claimant against townsite applicant, $ 722.

1400 Ixdex.

AdTerse daktatt— Continued,

townsite cUinuuit mgainst mineral applicant, $ 723.

millsite claimant against mineral applicant, $ 724.

tunnel proprietor against lode applicant, § 725.

owners of lodes located prior to act of 1872. 726.

cross lodes, § 727.

co-owners as adverse claimants, $ 728.

easements, $ 729.

nndergroand conflicts, $$ 583, 730.

presupposes existence of surface conflict, $ 730.

how asserted, $ 734.

contents of, § 734.

§ 2326, Revised Statutes, prescribing, p. 1172. regulations of the land department concerning, p. 1206, par. 81. amendments to, $ 734. i survey of, when required, $ 735. by whom made, $ 735.

regulation of the department, p. 1207, par. 86. when excused, $ 735. verification, $ 736.

by whom made, $ 736. before whom made, $ 736.

provisions of federal statute, pp. 1172-1173. regulations of land department, p. 1206, pars. 82-84. suCaciency of, to be determined by the land department, $ 737. objections to, how raised, $ 737. right of appeal to commissioner when objection overruled or

sustained, $ 737. appeal from order of register dismissing, does not excuse commencement of suit, $ 737. when must be filed, $ 738.

time, how computed, $ 738. where must be filed, $ 739. but one need be filed, $ 740.

proceedings before the register when filed, p. 1207, pars. 87, 88. filing of, suspends functions of land department, $ 741.

exceptions to this rule, $$ 632, 758. effect of failure to file, $ 742. how waived, $ 766.

right of successful adverse claimant to proceed to patent, $ 765. Actions to Determine.

provisions of the federal law concer ning Revised Statutes, $ 2326, p.

no presumptions of fact indulged in, $ 227.

pendency of, does not excuse performance of annual labor, $ 632. tribunals having jurisdiction, $$ 746-750. federal courts, 747, 749.

jurisdiction, to what referable, $749. questions involved are federal, 748. removal from state courts to, 750. pleadings in, $ 754.

Index. 1401

AdTerse Claink—Contmued. state courts, $ 750.

jurisdiction, to what referable, $ 7.50. removal from, to federal court, $ 750. pleadings in, $$ 74, 755. character of the action at law or in equity, $ 754. how considered in federal courts, $ 754.

California, 754. Idaho, $ 754. Montana, 754. Nevada," $ 754. South Dakota, $ 754. Wyoming, $ 754. time within which must be commenced, $ 756. appeal from order of register declining to receive adverse

claim does not excuse commencement, $ 737. when deemed commenced, $ 757. parties to, 758.

functions of land department pending, $ 759. must be prosecuted with due diligence, $ 759.

question of diligence to be determined by the courts, 759. the judgment, its form, $ 763.

when becomes available in the land office, $ 764. effect of appeal from, 764.

certified copy to be filed with register, p. 1208, par. 89. dismissal of, equivalent to waiver, $ 766.

evidence of, required by land office, p. 1208, pars. iK). 91. AdTerse Possession*

title to unpatented mining claim may be acquired by, 62, (i88. provisions of federal law. Revised Statutes, $ 2332, p. 1176. proof of title by, in patent proceedings, $ 688.

regulations of department, p. 1204, pars. 69-75.

of performance of annual labor under state laws, $ 636. as evidence, $ 636. effect of failure to file, 636. in patent proceedings, by whom to be made, $ 682.

before whom to be made, $ 682. See Proofs; Vkrification. Agrent.

location may be made by, 331.

principal presumed to assent to, 331. one colocator may act for others, $ 'HSl.

having made location cannot deprive principal of his rights, when may verify proofs in patent proceedings, 682.

federal statute on the subject, p. 1171. when may verify adverse claims, 736. federal statute on the subject, p. 117."l. department regulations, p. 1206, pars. 82, 84. making proof in patent proceedings nuist show authority, $ (>84. departmental regulation, p. 1206, par. 8.'J.

SceMixcw P.

pblisher in potest proeeediacB, f

neemiatioB. pc USa. pw. form oC p. USSL See CrjrsrrmACX

which vill pirfent fiiins conflietiBc apptacBtioa lor

rictA of dsmofs conllietiiis vitii nunerml mpplieant aot svbiect

of adTerve eijum, f 717. eoDtroTersifls betweeo miiierml aod. decennined bj laad depart-

meot, i 717.

AOKICULTtTBAL LaXDS; CHABACTCm OF LaXD; UoX S29TSJLD ;

Pe-E3fFno3f.

laws iTemins acqaisiUon of title to, 4 3J6w onl J, sobjeet to entry under bomestead laws. 4 01. eatatea in mining; claims compared with estates in, f sarrejor-eneral's reCam as eridenoe of character of land, if UK.

maj be overcome 4 lOd. anreliabilit J of. 4 106 bearings to establish character of, fi 1(77, 717. in case of school grants, f§ 143. 144. railroad grants, f 157. regulations of the department concerning, p. 1:111, parsw 10118. teat of character, in controversies between mineral and aricoltural

claimants, 4 right of apex locator to pursue vein in depth underneath prior

grant of, 4 612. reseri-ation of known mines in patents for, 4 8ee Characteb of Land; Homestead; Pre-emption. AlabaniA*

partially acquired by Louisiana purchase, 4 excepted from operation of federal mining laws, 20, 95. methoil of acquiring coal lands in, p. 614, note 2.

purchase of, from Russia, 4 mining laws extended to, 4

extract from act providing civil government for,

p. 1351. general mining regulations extended to, p. 1209, par.

&6; p. 1352. governed by Oregon laws of 1884, 4 172. townsite laws extended to, 4 172.

rules of construction of mining and townsite laws apply to, 4 172. forest reservation in, 4 197. a separate land district, 4 172.

Index. 1403

i — Continued. act of July 24, 1897, providing for appointment of land officers and

surveyor-general, p. 1352, note, not a territory, ( 243.

alien laws of congress not applicable to, $ 243. federal coal land laws not operative in, $ 407. no lands, other than specific mineral, subject to disposal, p. 1353,

par. 3. dower right exists in (under Oregon laws), ( 543.

does not attach to unpatented claims, $ 543. publication of notices of patent applications, where made, p. 1353,

par. 2. suggested form for lode location, p. 1372.

recording of mining location regulated by local rules, p. 1372, note. Ck>nBult Oregon. Allen.

alienage not an issuable fact in ordinary actions concerning mining claims, $ 227. cannot lawfully locate mining claim, $ 223. having declared his intention to become a citizen, has the status

of citizen, $224. marriage of citizen woman with an, $ 224. alienage of stockholders of domestic corporation, 226. acquisition of title to unpatented mining claim by, $ 231. effect of alienage when claim is located or purchased by, $ 231. diversity of decision on subject of alienage, § effect of subsequent naturalization when claim located by, $$

232,234. relocation by citizen of mining claim in possession of, $$233, 234. may acquire lands by purchase, $ 233. location of mining claim creates estate by purchase, $ 233. locator may convey good title to citizen, $ 233. status of title to mining claims located by, $ 233. locator will hold until " office found," $ 233.

government alone concerned with question of alienage, $$ 233, 234. principles governing subject of alienage with reference to mining

claims, $ 234. rights of, in patented mines governed by state laws, $ 237. property rights of, in the precious-metal-bearing states, $ 238. property rights of, in territories, under act of 1887, $$ 243, 244. general scope of alien act of 1887, $ 244.

tribute or beneficiating contracts not within inhibition, $ 244.

not applicable to Alaska, $ 243.

amendment of, by act of March 3, 1897, p. 1249. effect of amendment, p. 863, note. Aluiii.

claim of the crown of England to mines of, $ 3. classified as mineral under French law, $ 12.

by land department, $ 97. lands containing, subject to entry under placer law, $ 420. Amendmeiit of AdTerse Claim*

under what circumstances permitted, $ 734.

1404 Index.

Amendment of Iocatlon and Iocatlon Certificates.

state leirislation concerning:, ( 397.

Arizona, p. 1237, $ 7.

Colorado, p. 1267, par. 13.

Idaho, p. 1279, $ 5.

Nevada, p. 1295, $ 6.

New Mexico, p. 1308, par. 5.

North Dakota, p. 1316, par. 11.

South Dakota, p. 1327, par. 11.

Wyoming, p. 1345, par. 10. right to amend exists in absence of state legislation, $ 397. void location cannot be amended so as to defeat intervening townsite entry, $ 176. permitted for purpose of paralleling end lines, $ 582. circumstance justifying change of boundaries, $ 396. objects and functions of amended certificates, 398. void certificates not subject of, as against intervening rights, $397. same formalities required as in case of originals, $ 397. right of amendment when cut off by intervening locations, $ 398. relates back to original, $ 398.

except where new territory is added, $ 398.

treated as original when includes new ground, $ 398. not an abandonment of original, $ 398.

title of colocator cannot be divested by omitting name in, $ 398. purpose for which made need not be recited in certificate, $ 398.

foreign laws on subject of, $$ 1-3.

requirement of, under local rules prior to act of 1866, $ 623. performance of, necessary to perpetuate estate, 623. provisions of federal law, $ 623. amount of, fixed by act of May 10, 1872, 73. act of March 1, 1873, extending time for, 75. June 6, 1874, $ 75.

January 22, 188(, fixing uniform time, 7o. text of act, p. 1169. performance of, imperative, $ 624. when first year's work must bo performed, 624. law concerning, applicable to placers, $ 625. not applicable to millsites, 6Sf<.

"claim," as used in $ 2324 Revised Statutes, defined, 628. each location to be regarded as a claim for purpose of, $ 628. amount where several lode claims consolidated, 628. .

amount where several placer claims consolidated, 9 62S. amount where placer locations made by association, $ 628. object of law requiring, $ 629. character of, 629.

what is and what is not sutlioient compliance with law, $ 629. placing tools and material on ground, 629. roadways, when may be estimated, (>29.

buildings, when costof may beconsideretl improvements, '629-(531. wages paid watchman, 629.

Index. 1405

Ammal IMfor—OoiUinued,

work done within limits of a single claim, $ 629. group of claims, ( 630.

claims must be contiguous, $ 630.

must be held in common, $ 630. consolidation for development, $630. aggregate amount of, $ 630. character of, $ 630. work done outside the boundaries, $ 631.

tunnels, $ 631. constructing water ditches and pipe lines, $ 631.

dams and reservoirs, $ 631. period within which must be done, $ 632. may preliminary development work be credited to? $ 632. may work done prior to January 1 next succeeding date of location

be credited to? $632. work done in one year in excess of amount required cannot be

credits on next year, $ 632. by whom must be performed, 633. by trespassefs not considered, $ 633. by holder of color of title, $ 633. grantor of owner, $ 633. pendency of patent proceedings does not excuse. $ 632.

nor of suit upon adverse claim, $ 632. circumstances under which excused, $ 634. special acts of congress, $ 634. Indian hostilities, $ 634. forcible dispossession. $ 634. threats and tortious acts of others, $ 634. bona Jide efifort to perform, necessary, $ 634. when obligation to perform ceases, $ 637. value of, how estimated, $ 635. reasonable value the test, $ 635. state statutes fixing value of day's labor, $ 635. immaterial, whether paid for or not, $ 635. forfeiture for failure to perform, $$ 645, 646.

to co-owners, $ 646. right of one co-owner to contribution for, $ 646.

representation is a unit, $ 646. resumption of, prevents forfeiture, $ 651.

what constitutes valid, $ 652. when right must be exercised, $ 653. general rules, $ 654. proof of, in patent proceedings, $686. State liei station.

may not decrease amount ftxed by federal law, $$ 626, 250 (10).

may increase amount required by federal law, $ 250 (10).

fixing value of day's labor invalid, $$ 6-'l5, 250 (10).

can preliminary development work be credited to annual? $ 443 .

validity of certain existing, questioned, $ 626.

summary of, $ 626.

Annual tA>.1tOT—Cimtined.

Arizona, p. 1337, $ 8.

Colomdo (ptaaere), p. 12T0, par. 2.

Nevada, p. 1206, i 9.

New Mexioo, p. lin. par. &.

Oregon, p. 1320, pur. 4.

South Dakota, p. 1328, par. 13.

WHahliigtoD. p. I33N, par. 4.

WyomiDK Iplacera), p. 1347, par. 2. proofof. under state laws, H 638. 250 (HI.

ArlKoDS, p. Vias, i 9.

California, p. 1:, i 1.

Colorado, p. 1287, par. U.

Idaho, p. VJSO, i 6,

Moutana, p. 12S8, par. 5, Nevada, p. 12!I7. $ 1(1.

New Mesloo, p, 1309, par. T.

Utab, p. 1332, $G.

Wyoming (placersj, p. 1317, par. 2. Under Local Hnlea.

iu absence of state legislation anioaDt of, may be increased, $ 270. when (thangeo are made, previoua locators muat conform to, $ 270. Apex.

aa a controllinK [actor in lode locations, i 305. a lode, or vein, must have an, 4 30f>. term nut found in tninera' viMAhul&ry. 306, not defined by eeologiats, J SOU. deUnitioiia of lexiDographers, #3013.

contrlbnted to publlo land commission, f 3(i7. of Dr. Raymond, i 30S. judicial. $310. the ideal lode and iia, i 30I'. necessarily a surface. $ 300. departure frooi the ideal lode, $ 310. the case of Duggan v. Davey, $ 310.

i I lustrations, $310. the Leadville cases, i 311.

Illustrations, j 311.

hypothetical lliust rations based upon, i 312. exintencQ and filiia a. question of fact, $ 313. discovery of any portion of, within limits of claim sulUcieiit, 33T,

ideal location covering, described, $ 300. any portion of, sufHuient to support location, $304, location can only be made covering. $ 364. Judge Hallett's viewa as to location on dip, f 364. existence of, presumed after patent, $ 364.

but locim of, must be shown, $ 364. prior to patent existence of, must be shown if locator's rights are

challenged, $ 364. entire width of, must be included when exlralateral right asserted, $6B3.

bronder ChBii localioci, SS3. bisected by side line, 583, be estKbliRhed in exerdtie of extrKlateral right, U (116, 806.

See EXTHALATSRAt. RtOHT.

Appeal.

from Hurveyor- general 'a action refusliiE to order Burvey forpalet

uityof. within lineBorlncatioii, ((116,8

trim aurveyor-general's action refusing to spproTe Burvay, i 6T1. from regiater and receiver where objeptlons to adverse claim aus lined nr overruled, i 737.

1 available before tim

mlHBloner suspending certificate of

eflect of Huch appeal, j la Judgment in ault on a

elapses, 784. eCfeot of, from order of purchase, i 772. See Lamp Dkpartmknt. Application for Patent. Lode ClalRin.

provisions of federal law. Revised Statutes, i 2325, p. 1170. regulations of land department, p. 1192, par. 31. certificate of location, the buais of, $739.

amendment of, prior to, f 396. patent proceedings are in rem. f 713, contents of, i 680.

suggested form, p. 1374. to bellied with register of land office, #B7S. may not be filed if land not clear on tract books, i 619. filing of, withdraws the land, i 079.

applicant need not adverse subsequent applications, i 7!S. pending, annual work must be done, i fftO. by one of several co-owners, $ 681. by corporallfvna, 4 681. verification of. HSi. when may be dlHmlssed, i 679. schedule of instruments to accompany, f 678.

suggested forma of, pp. 1374-1302. notice of, for posting its contents, i 877. form, p. 1370, exhibit "A." object of posting, H 677, T13, proof of posting, i 683.

form, p. 1378. publlcaliun of, $ (iB5.

dealgaatlon of newep aper, 0%. agreement of publlsber, $B8,'i. form, p, 1382.

S713.

pr

mputed, }738.

1408 / Index.

Application for latent— Contiyiued. abstract of title, $ 687. certified copies of notice of location, $ 687. proof of title by possession witliout location, $ 688. proof that plat and notice remained posted on claim, $ 69J .

form, p. 1387. statement of fees and charges, ( 693.

form, p. 1388. application to pnrchase, $ 694.

form, p. 1389. rtdsumd of proceedings, $ 695. MlUsites.

how applied for, $708.

federal statute. Revised Statutes. $ 2337, p. 1 179.

regulations of department, p. 1202, pars. 64-6S. Placer Glalms.

proceedings same as in lodes, $ 699.

provisions of federal law, Revised Statutes, $ 2329, p. 1174. regulations of department, p. 1198, par. 52. description of placers on surveyed lands, 700. proof of five hundred dollars* expenditures, 701 . proof of mineral character of land, $ 702. proof that no known lodes exist within, $ 703. lodes within placers, how applied for, $ 704. See Adverse Claim ; Patent Prooeeoinqs. Appropriation of 'flTater.

not recognized at common law, $ 838.

in some of the states, $ 838. the Pacific coast doctrine permitting, 838. right to reasonable use of water for deposit of tailings, $$ S40, 841,

liode Iiocatlons.

maximum superficial, $ 361. effect of exceeding maximum, $362. excess in length, how cast otf, $ 362. in width, how cast off, $ 366. not controlled by number of locators, $ 362. fifillsites.

limited to five acres, 519, 520. Placer locations.

form and extent of, prior to Revised Statutes, $ 447.

under Revised Statutes, $ 448. maximum, by individuals, $ 438. by associations, $ 438. See Strface. Arizona*

acquired partly by treaty with Mexico, $ 40.

through Gadsden purchase, $ 40. subject to federal mining laws, $ 81.

Mexican grants in, acts of congress concerning, 118, 127. forest reservation in, 197. alien laws of congress operative in, $ 243.

Index. 1409

Arlwotkti—Conti7iued.

alien act of 1887, $$ 243, 2H.

1897. text of law, p. 1229.

its etfect, p. 863, note 1. saline law of January 12, 1877, does not apply to, $ 514. dower abolished in, $ 544. mining as a " public use " in, $ 259. laws of, on subject of mine drainage noted, $ 252. - Minin£ lieislation in.

location notice, contents of, $$ 380, 250 (4).

text of law, p. 1235, $ 1. void unless contornis to law, p. 1235, $ 2. form suggested, p. 1357. location, how made, p. 1236, $ 3. discovery shaft, p. 1236. $ 3.

its equivalent, p. 1237, $ 5. time allowed for completing, p. 1237, $ 6. posting notice, $ 353.

text of law, p. 1236, $ 3. marking boundaries, p. 486, $ 347.

text of law, p. 1236, $$ 3, 4. amendment to locations, $ 397.

text of law, p. 1237, $ 7. relocation of abandoned claims, 9$ 408, 250 (9).

text of law, p. 1239. $ 11. recording notice (Revised Statutes 1887, $ 2349), $ 389. annual work, $$ 626. 230 (10). text of law, p. 1237, $ 8. proof of performance of, $$ 636, 250 (11). text of law, p. 1238, $ 9. concerning rights of way and mining easements, $232. forfeiture to co-owners, how effected, pp. 1240, 1241, J$ 1-5.

validity of legislation questioned, $$ 251 (5), 646. description of mining claims, p. 1241, $ 5. does legislation apply to placers? $$ 442, 455, 459. Miscellaneous Mining liOgislation. reference table, p. 1242. Arkansas.

acquired through Louisiana purchase, $ 33.

lands in, containing baser metals, sold under special laws, ($ 20, 35. federal coal land laws operative in, 497.

commissioner of general land office ex officio surveyor-general of, p. 1191, par. 28.

Arsenic.

classified as mineral under French laws, $ 12.

Asbestos.

occurring in veins in place, how located, $ 323. Aspttaltum.

classified as mineral by land department, $ 97.

lands containing, subject to entry under placer laws, $ 420. Assessment lork. See Annual Labor.

1410 Index.

does term association of persons'* named in placer laws indade

corporations? $$ 226, 449. placer location by, limited to one hundred and sixty acres, $ 447.

federal statute. Revised Statutes, 2330-2331, p. 1175.

construed by land department, p. 1200, i>ar. 61.

entire area located jointly, $ 438.

requirement as to discovery, $ 438. applications for placer patents by, $ 684.

consolidation of claims for patent purposes, $ 447.

expenditure required for patent, $ 438.

proof of citizenship, $ 684.

(general mining refiulations, p. 1205, pars. 76-80. See Corporations ; Placer Locations.

liability for injury caused by removal of, 807, 808. Blsmutli.

classified as mineral under French laws, $ 12. Bitumen.

classified as mineral under French laws, $ 12. Board of Hqultable AcUudlcatlon.

who constitute, and its functions, p. 852, note 3. Borax.

classified as mineral by land department, $ 97. lands containinfiT deposits not in place subject to entry under placer laws, $ 420. when occur rini; in place " how located, $ 323. Boundaries.

manner of marking: under Mexican law, 13, 375. requirements of federal law. Revised Statutes, $ 2324, p. 1168. liode liocatlons.

end lines and side lines constitute, $ 361.

controlling; importance of surface, $ 361.

end lines, how constructed and their functions, $ 365.

side lines, and their functions, 366.

side-end lines, $ 367.

markinsr, requirements of federal law mandatory, $ 371.

state has no power to dispense with requirements of federal law, $371. state may prescribe character of, $ 371. in absence of state lefislation local rules may prescribe,

$ 270. what is sufficient marking in absence of state or local regulations, $ 373. a question for the jury, 373. depends upon circumstances, $ 373. examples of, $ 373.

suggestions of land department, p. 1187, par. 15. posting notices cannot be substituted for, 373. state legislation defining character of, 374. Arizona, p. 1236, $ 4. Colorado, p. 1265, par. 6.

Index. 1411

Idaho, p. 1277, $ 2. Moutana, p. 1286, par. 2. Nevada, p. 1292, $ 2. New Mexico, p. 1307, par. 2. North Dakota, p. 1315, par. 6. Sooth Dakota, p. 1325, par. 6. Utah, p. 1331, $3. Wyoming, p. 1342, par. 4. should be within statutory limit, $ 373.

and not on (sround covered by previous location, $ 365. including: excessive area, when will not vitiate location, $$ 362, 373. excess in length, how cast off, $ 362. in width, $ 366. failure to mark renders ground subject to relocation,

$ 373. in case of relocations, $ 408.

perpetuation of monuments not necessary, $ 376. exception to the rule, $ 375. statutory requirement in Utah, p. 1331, $ 3. location not complete until marked, $ 371. object of, $ 371. time allowed for, 372.

what is a reasonable, 339. prescribed in different states, $ 374. Arizona, p. 1236, 3, 4. California, p. 1245, $ 3. Colorado, p. 1264, par. 5. Idaho, p. 1277, $ 2. Montana, p. 1286, par. 2. Nevada, p. 1292, $ 2. New Mexico, p. 1307, par. 2. North Dakota, p. 1314, par. 5. South Dakota, p. 1325, par. 5. Utah, p. 1331, par. 3. Wyoming, p. 1342. par. 4. change of, not permitted to detriment of intervening locator, $$ 373, 396-397-398.

circumstances justifying, $396.

for purpose of including abandoned overlapping surface, $396.

paralleling end lines, 396, 582. right to change exists independent of state legislation, $397. state legislation <'on(;erning, $ 397.

acts necessary to collect, $ 3JI8. See Amendment of Location. objects and functtions of ainonded certificates, $ 398. variation between calls in certificate of location and monuments,

$382. variation between calls in patents, $ 778.

1412 Index.

Boundaries— Continued.

" natural objects " defined, $ 383. "permanent monuments'* defined, $383. lines of adjoining claims as permanent monuments, $ 373. classification of rights from location with reference to, $ 549. lode cannot be pursued on its strike beyond, $ 553. intralimital rights not affected by form of surface, $ 552. extralateral right, how affected by form of surface. See ExtbaliATBRAL Right. Millsites.

location of, substantially same as mining claims, $ 521. state legislation concerning marking, California no provision. Statement in $ 521 erroneous. Montana, p. 1286, par. 2. Nevada, p. 1301, $ 16. Utah, p. 1331, $ 3. Placer locations.

rule as to marking in absence of state legislation, ( 454. state legislation requiring marking, $ 455. California, p. 1246, $4- Colorado, p. 1269, par. 1. Idaho, p. 1284, $ 12. Montana, p. 1286, par. 2. Nevada, p, 1299, $ 13. Utah, p. 1331, $3. Wyoming, p. 1346, par. 1. Tunnel Lioeations. marking of, $ 475. See Tunnel Locations. Brick Clay.

classified as mineral by English authorities, $ 92. rulings of land department as to, 97.

lands containing deposits of, subject to entry under placer laws, $424.

character of, which may be considered improvements under annual

labor laws, $ 629. owner of underlying mines not compelled to support, $ 820. adjacent mines, $ 833. Bttlldlnft: Stone.

falls within designation of mineral'* under English authorities,

$92. rulings of land department as to mineral character, $$ 97, 210.

in state school selections, $ 139. as to manner of acquiring title to, $421. decisions of courts as to mineral character of, $ 421. lands containing may be entered under placer laws, $ 210.

or under stone and timber act, $ 210. recent ruling of Secretary Bliss on marble,** note to Revised Statutes, $ 2319, p. 1163. See Stone.

Index. 1413

BmdeM or Proofs

in cases of slleeed forfeiture or sbsndonment, rests upon party ssserting, H 36, 643.

burden when shifted, under Idsho law. § €36, text of the law, p. llfoO, $ 6.

burden, when shiAed, under New Mexico law, § 636. text of law, p. 1309, par. 7. in contests over character of land. §§ 106, 689.

to OTercome surveyor-generars return, 106. 207, 689. when burden shifts, 6&9. in actions arisini; out of underground trespasses, 866.

does burden shift during trial? 866. CalifomUu

discovery of gold in, 4 40.

acquired by treaty with Mexico, $ 40.

system of local rules adopted in, followed in other states, $ 56.

liistorical review of origin and scope of local rules, $ 44.

legislative and judicial recognition of, $ 44. subject to federal mining laws, $ 81. adjustment of claims to Mexican grants in, $ 117. forest reservations in, $ 197. laws of, defining property rights of aliens, $ '238. mining not a public use " in, $ 263. legislation in, concerning rights of way and mining easements,

$252. unconstitutional legislation in, concerning condemnation for mining easements, $ 263. constitutional provisions on subject of eminent domain, $253. saline law of January 12, 1877, applies to, $514. no dower exists in, $ 543. repealing state laws providing for sale of mineral lands belonging

to the state, p. 1250, $ 1. mineral lands of state not to be sold, p. 1250, $ 2. mining claims on sixteenth and thirty-sixth sections, how located, $ 1051.

validity of law questioned, note, p. 1251. act of congress creating California debris commission, p. 1251.

causes leading up to its passage, $ 848.

essential features of, $ 850.

hydraulic mining within the meaning of the act, $ 852.

judicial interpretation, its constitutionality, $ 853. See California Debris Commission.

right to appropriate running water, to what extent recognized in,

$841. MininjE Liegislatlon in. Lode Claims.

certificate of location, contents, $380.

text of law, p. 1245, $ 3.

void, unless conforms to law, p. 1248, $ 0.

form of, suggested, p. 1360.

verification of, $ 385.

text of law, p. 1245, $ 3.

1414 Index.

flifomla — Continued,

record of, $ 389.

text of law, p. 1245, $ 3. as evidence, p. 1247, $ 5. recording in districts abolished, p. 1248, $ 7. development work, text of law, p. 1245, $ 3.

time allowed for completion, p. 1245, $ 6. posting preliminary notice, text of law, p. 1243, $ 2.

object of the law, note, p. 1244,

form of notice suggested, p. 1359.

notice must also be recorded, p. 1244. marking boundaries, $ 374.

text of law, p. 1245, $ 3. proof of annual labor, $ 636.

text of law, p. 1249, 1. Millsitea. No legislation iu. Statement in $ 521 erroneous. Placer Claims,

manner of locating, $ 443.

text of law, p. 1246, $ 4. location certificate, $ 459.

text of law, p. 1246, $ 4.

record of, p. 1246, $ 4.

form of, suggested, p. 1362. posting notice, $ 442.

text of law, p. 1246, $ 4. marking boundaries, $ 455.

text of law, p. 1246, $ 4. development work required, $ 443.

text of law, p. 1246, $ 4.

affidavit of performance of, to be filed, p. 1247, par. 5. form, p. 1363.

object and purpose of such laws, 344, 443. proof of annual labor, }636.

text of law. p. 1249, $ 1. forfeiture to co-owners, p. 1249, $ 1.

validity of legislation questioned, $$ 251 (5), 646. Miscellaneous Minings Leiislation. reference table, p. 1262. California Debris Commission. act of congress creating, p. 1251.

causes leading up to its passage, $ 848.

essential features of, $ 850.

hydraulic mining*' within meaning of, 852.

judicial interpretation ; its constitutionality, 853. how composed, p. 1252, 1. organization, p. 1252, $ 2. compensation of, p. 1252, 2. adoption of rules, p. 1252, $ 2. territorial jurisdiction, p. 1252; $ 3.

hydraulic mining, without license from commission, prohibited, p. 1252, $ 3.

defined, p. 1254, $ 8.

Index. 1415

California Debris Catntnlsion— Continued.

doty of, p. 1253, $$ 4, 5, 6.

annual report of, p. 1254, $ 7.

permit to mine, how obtained, p. 1254, $ 9.

rights of petitioner to be surrendered to United States, p. 255, $ 10.

joint petition by adjoining owners, p. 1255, $ 11.

publication of notice of petition, p. 1256, $ 12.

examination of mine, p. 1256, $ 12.

hearings to determine merits of petition, p. 1256, $ 12.

decision of the commissioner, p. 1256, $ 13.

order directing manner of constructing dams, p. 1256, $ 13.

submission of plans for correction, p. 1257, $14.

construction of works, p. 1257, $ 14.

when mine owner may commence mining, p. 1257, i 15.

joint construction and use of dams by adjoining owners, p. 1257,

$ 16. no hydraulic mining allowed when debris cannot be impounded,

p. 1258, $ 17. order permitting mining may be revoked or modified, p. 1258, $ 18. intentional violation of order works forfeiture of right to mine,

p. 1258, $ 19. duty of commission to visit mines in operation, p. 1259, $20. public lands, and timber and stone thereon, may be used by,

p. 1259. $ 21. penalty for willfully injuring dams, p. 1259, $ 22. penalty for working by hydraulic process contrary to law, p. 1259,

$ 22. debris fund established, tax upon gross proceeds of mine, p. 1260,

$23. commission may consult with state engineers, p. 1261, $ 24. may construct dams to restrain debris in main rivers, p. 1261, $ 25. recommendations concerning, adopted, p. 1261, $25. Canals.

right of way for, over public lands, $ 630.

mining locations subject to pre-existing easements for, $$ 530, Cancellation.

of certificate of purchase, power of commissioner of general land office. $$772, 208.

eff'ect of, $$ 772, 208.

order of, when takes eff'ect, $ 772.

effect of appeal from order, $ 772.

courts may inquire into action of commissioner, $772. Carbonate of Soda.

classified as mineral, $ 07.

lands containing, subject to entry under placer law, $ 420. Cement Oravels (Subterranean). are not deposits "in place,'* $$ 301, 427. subject to location under placer laws, $$ 301, 427. must locations of, on surveyed lands conform to public surveys?

$448.

1416 Index.

Certificate.

that no suit is pendinfir, to be filed in patent proceedings, $$ 688, 750.

suggested form of, p. 1389. of surveyor-general of five hundred dollars' expenditures for patent purposes, $ 673. when must be tiled, $ 673.

what to be shown by when claims are consolidated, $ 673. Certificate of Incorporation.

evidence of citizenship of corporation, $ 226. in patent proceedings, $ 681.

provisions of the federal law, Revised Statutes, $ 2321, p.ll65. regulations of the department, p. 1205, par. 76. Certificate of Iocatlon. liode.

is instrument prepared for record after completion of location, $379. diflfersfrom posted notice, except in Arizona and New Mexico, $379. is a statutory writing affecting realty, $ 379. is first muniment of locator's paper title, $ 379. purpose and function of, $ 379. not required by federal law, $ 379.

provisions of federal law as to contents of, where state law requires record, $ 379. text of, $ 2324, Revised Statutes, p. 1168. where state requires recording, certificate must contain elements

provided for by Revised Statutes, $ 379. contents of, in the several states and territories, $ 380. Arizona, p. 1235, $ 1.

form, p. 1357. California, p. 1245, $ 3.

form, p. 1360. Colorado, p. 1263, par. 3.

form, p. 1364. Idaho, p. 1277, $ 2. form, p. 1366. Montana (declaratory statement), p. 1287, par. 3.

form, p. 1367. Nevada, p. 129-3, $ 3.

New Mexico, p. 1306, par. 1.

form, p. 1368. North Dakota, p. 1313, par. 3.

form, p. KJ70. Oregon, p. 1319, par. 2.

form, p. 1371. South Dakota, p. 1:24, par. 3.

form, p. 1371. Uteh, p. 1330, 2, p. 1331, $ 4.

form, p. 1371. Wyoming, p. 1343, par. 7. form, p. 1372. rules of construction applied to, $ 381. technical accuracy of expression not required, $ 381.

Index. 1417

Gertiflcate of lacatlan—Ccmtinued.

should be construed on lines of obvious common sense, $ 381.

erroneous calls in, when do not aftect validity, $ 381.

may be aided by monuments on the ground, $ 381.

to be considered in connection with markings on the ground, $ 381.

variation between calls of certificate and monuments, $ 382.

courses and distances yield to monuments, $ 382.

but to invoke rule monuments must be perpetuated, $$ 375, 382. natural object*' defined, $ 383. permanent monuments '' defined, $ 383. Illustrations of natural objects'' and permanent monuments,'*

$383. sufficiency of reference to natural objects a question of fact, $ 383.

when presumed, $ 383. parol evidence when admissible in aid of, $ 383. effect of failure to comply with state laws as to contents, $ 384. Verification of,

states requiring, $385. California, p. 1245, $ 3. Idaho, p. 1283, $13.

Montana (declaratory statement), p. 1287, par. 3. validity of legislation discussed, $$ 251 (4), 385. Amendment of.

state legislation concerning, $ 397.

Arizona, p. 1237, $ 7.

Colorado, p. 1267, par. 13.

Idaho, p. 1279, $ 5.

Nevada, p. 1295, $ 6.

New Mexico, p. 1308, par. 5.

North Dakota, p. 1316, par. 11.

South Dakota, p. 1327, par. 11.

Wyoming, p. 1345, par. 10. right to amend exists in absence of state legislation, $ 397. void location cannot be amended so as to defeat intervening townsite entry, $ 176. permitted for purpose of paralleling end lines, $ 582. circumstance justifying change of boundaries, $396. objects and functions of amended certificates, $ 398. void certificates not subject of, as against intervening rights, $397. same formalities required as in case of originals, $ 397. right of amendment when cut off by intervening locations, $ 398. relates back to original, $ 398.

except where new territory is added, $ 398.

treated as original when includes new ground, $ 398. not an abandonment of original, $ 398.

title of colocator cannot be divested by omitting name in, $ 398. purpose for which made need not be recited in certificate, $ 398. Recording,

in absence of state legislation local rules may provide for, $ 270. records of mining districts do not prove themselves, $$ 272, 391.

how provedr

popular understanding as to necessity

1418 Index.

Certificate of lacAtlan— Continued. oastom as to, how shown, $ 273. to be binding, should be well known, $ 273. failure to, does not w6rk forfeiture unless law or rule so prescribes,

$$ 273, 274, 890. unnecessary, unless required by state law or local rule, $$ 273, 328,

constructive notice imparted by, a creature of the statute, $$ 392, 64d. evidence of, unless authorized by state law or local rule, inadmissible, 273, 392. if required by local rules, must contain requirements of federal law,

$273. if required by state law, must conform to requirements of federal

law, $$ 355, 379. proof of record, $391. record as evidence, 392. time allowed, in absence of state law, $ 389. place of, $ 389. state legislation as to time and place of, $ 389.

Alaska, regulated by local rules, p. 1372. governed by laws of Oregon, p. 1352.

Arizona (Revised Statutes 1887, p. 2349), $ 389*.

California, p. 1245, § 3.

as evidence, p. 1247, $ 5.

in districts, prohibited, p. 1248, $ 7.

Colorado, p. 1263, par. 3.

Montana, p. 1279, 4.

Nevada, p. 1293, $ 3.

New Mexico, p. 1306, par. 1.

North Dakota, p. 1313, par. 3.

Oregon, p. 1319, par. 2.

South Dakota, p. 1324, par. 3.

Utah, p. ia32, $ 4.

Washington, p. 1339, par. 6.

Wyoming, p. 1343, par. 7. effect of failure to record within time fixed by state law, $ 390. Millsites.

location made substantially same as mining claim, $ 521. state legislation concerning, 521.

California, no legislation, statement in 521 as to, erroneous.

Montana, p. 1286, par. 1.

Nevada, p. 1301, JO.

Utah, p. 1330, par. 2; p. 1332, par. 3. Placers.

generally same rules apply as in lodes, 459. state legislation concerning, $ 559.

Arizona, does legislation apply to placers? 459.

California, p. 1246, $ 4.

Colorado, p. 1260, par. 1.

Idaho, p. 1284, $ 12.

Montana, p. 1287, par. 3.

Nevada, p. 1300, $ 14.

Index. 1419

Certificate of 'LiOcatian— Continued,

New Mexico, does legrislation apply to placers ? $ 459. Wyoming, p. 1346, par. 1. Tunnels.

governed by regulations of land department, $ 472.

text of departmental regulations, p. 1190, pars. 23, 24. state legislation concerning, $ 250 (14). Colorado, p. 1273.

Montana, Comp. State. Mont. 1887, $$ 1487-1491. Nevada, p. 1301, 19; p. 1302. $ 21. Certificate of Purcliase.

evidence of perfected location, $ 773.

issuance of, $ 770.

supervision of commissioner of general land office over, $$ 208, 637,

power of commissioner not to be arbitrarily exercised, $$ 208, 772. may be suspended in proper cases, $$ 208, 637, 772.

efifect of suspension, $$ 208, 772. may be canceled in proper cases, $$ 208, 772. effect of cancellation, 208, 772. when takes effect, $ 772.

effect of appeal from order of cancellation, $ 772. order of cancellation may be inquired into by the courts $ 772. title conveyed by, $ 771.

equivalent to patent, 208, 771. recovery in ejectment may be had on, $ 773. distinction between mining and agricultural, $773. discovery of mineral after issuance of agricultural, will not defeat, $208. not subject to collateral attack, $ 773. how assailed, $ 773.

obligation to perforii\ annual labor ceases with issuance, $ 637. Clialk.

classified as mineral, p. 99, note 3. when occurring in place" how located, $ 323. Cliaracter of Iaiid.

falling within provisions of federal mining laws, $ 85. necessity for definition of terms, $ 85. terms of reservation employed in various acts, $ 86. " mine and mineral " indefinite terms, $ 87. English denotation, $ 88.

enlarged moaning of mine,*' $ 89. definition of mineral," $ 9').

element of profitableness of controlling weight, $90. rules of interpretation of term mineral," $ 91. substances classified as mineral, $ 92. American cases, defining " mine" and mineral," $ 93.

"mineral lands," $94. rules of statutory interpretation, $ 96. interpretation of terms by land department, $ 95. substances held to be mineral, $ 97.

1420 Index.

character of LtanA— Continued,

recent decision of Secretary Bliss, note to Revised Statutes, $2319, p. 1163. rules for determining mineral, $ 96. no general classification of public lands, $ 102. geological surveys, $ 103. general system of land surveys, $ 105. surveyor-general's return, what constitutes, $ 105.

prima facie, established by, $$ 106, 207. presumptions flowing from, $$ 106, 156,

144,689. how overcome, $ 106. unreliability of, $ 106. a question of fact, $$ 107, 207. land department may alone determine, 717. when and how established, 107. hearings to establish, 107, 679.

state lieu selections, $ 143.

sixteenth and thirty-sixth sections, ( 144. railroad grants, $ 156.

indemnity selections, $ 157. homesteads, $$ 2a5, 207.

regulations of land department concerning, p. 1211, pars. 108-118. in grants to states, sixteenth and thirty-sixth sections, $ 144. effect of surveyor-general's return, $ 144.

state may accept, $ 144. interpretation of" mineral lands " in, 137, 138, 139, 140. when open to contestation, 144. petroleum lands in, $ 138. building stone lands in, 139. time to which inquiry is addressed, 140.

state lieu selections, 142, test of, as applied in, 140, 141. subsequent discovery of mineral will not defeat title of state,

142, 143. subsequent exhaustion of mineral will not revest title in state,

$ 142. hearings to determine, 143, 144. state has right to be heard, $ 144. general principles governing, $ 145. distinction between railroad grants and, 156. in railroad jgrants, mineral lands reserved, 152. except in grant of right of way, $ 153. to be determined when patent applied for, $ 154. construction of reservation by the courts, $ 154.

by the land department, $$ 155, 158. distinction between school grants and, $ 156. departmental restriction upon definition of mineral lands,"

$ 158. ruling of department as to phosphates, 158.

petroleum, 158.

Cbaracter of Ind— Onfmiwi.

return of eurveor-itenBrRl, elTect of, I5fl. lest of, i ISO.

Indemnity selectioiia, f 157. bearliie>t to determine, H IStS. tAT. HgrrlculturBl cislma— h(tines(aclB, $204.

("laimRnt my " prove tnlneral off," 4204.

land department governed In Brat instance bf aitrveyor-gan-

eral'H return. (204. heftriiiKg to determine, wiiere mineral asserted, H 20a, 20!.

Irlct rnle of Interpretation applied, 3S8. within to be determined, {207. question one of oompamtive value, $ 207. test of, 207.

open to contestation until linal entry, ( 20S. '

intermediate determination not L'oaulusive. 208. in townsites, 173, 175.

what tronalitutes mineral under reservatioaa in, i 17A. decision of Iftnd department to, flnul, 207. patent uoneluslve evidence of. i 779.

qualidoation of the rule, i 770. liberal rules of construction applied Itelween rival ml iting claim

ants, 336. strict rules of construction applied liatweeu mining and agricultural clsimants, i 3Sli. mineral not inferreil from churocter of adjoining tracts, $ 438. determination of, soiiKlit to be entered as coal, i 41X1. proof of, in patent proceedings, esa, 7oa. suBgastil form for lodes, p. 1384. China Clay.

claasi11e<l as mineral by Euglisli authorities. {02.

land deparCnient, $ 07. lands containing, subject to entry under placer laws, i 120. Chinese.

born in llie United Slates are citizens, $ 221. Cinnabar,

apei-ially named in the lode law of ISOtl, 323. aetof 1872, {{71,323, Kevised Slatulea, 2320, p. IPH. mines of, reserved from Mexican grants under nut of 13D1, {{118, 127-

fronj entry under tnwnsite laws, 16<1, 17S. manner of locating lands containing, depends uiion form of ociur' rence, 323. CltUcns.

only, and those who liave declared their Intention, may looite mining cUlms, 223. tita federal law. Revised Statutes, 3310, p. 1163. who are. 224.

neilber age nor sev involved iu doanition, 224. by l)irth, $2i4. by aturnlluitlon. 224.

1422 Index.

Cltlsens— -Otm6fnu</.

etfeot of subeequent naturalization on estate of alien locator, $$ 232, 234. Indians, $ 224.

Chinese born in the United States, i 224. married women, $ 224.

marriage of citizen woman with alien, $ 224. minors, $ 224,

domestic corx>orations, § 226.

may acquire good title by purchase fom alien locator, $ 233. relocation by, of mining claim in possession of alien, $$ 233, 234. See Citizenship. Cltlsensblp.

how proved, $ 227.

presumption as to, from residence, $ 227. of domestic corporations, $ 226. of stockholders of a corporation, $ 226. proof of, in proceedings before the land department, $ 227. in patent proceedings, $ 684.

the federal law, Revised Statutes, $ 2321, p. 1165. departmental regulations, p. 1205, pars. 76-80. of original locators not required unless they are applicants, $ 227. in ordinary actions, $ 227. in actions upon adverse claims, $ 755. suggested form of affidavit, p. 1381. averment of, when necescary in actions concerning mining claims,

J$ 754, 755. not open to contestation except in patent proceedings, $ 227.

at instigation of govemment, $$233,234. proceedings to obtain patent in nature of inquest of office,*'

233, 234. of patentee conclusively presumed, $$ 227, 777. See Aliens; Citizens.

influence of, in development of American mining system, $ 1. regalian doctrine, of same as common law, $ 11. ownership of mines under, $ 11.

decr€e of Emperor Gratian, $ 11. (ramboa's statement of the rules of, $ 11. Roger's, $ 11. Ilalleck's, $ 12. estate'in unpatented mining claim compared with tenures of, $541. Claim. See MiNiNo Claim.

Clay.

China, or kaolin, classified as mineral under English law, $ 92.

by American authorities, $ 97.

lands containing, subject to entry under placer laws, $ 420.

in place,'* how located, $ 323. brick, classified as mineral by English authorities, $92.

rulings of land department as to, $ 97.

subject to entry under placer laws, $ 424.

Index. 1423

Coal.

mines in Forest of Dean regulated by local customs, $ 7.

state legislation regulating manner of working, $ 19.

act of July 1, 1864, providing for disposal of lands, f 49.

March 3, 1865, i 49.

classified as mineral under English decisions, i 92.

by American courts, J 93.

land department, $ 97.

by legislative construction, $ 495.

lands containing, do not pass under school grants, $ 140.

nor under railroad grants unless specially named, $$ 152, 158,

its occurrence in veins suggested, ( 323.

lands containing, sold under special laws, $ 323.

hiftory of legislation concerning, (495.

rules for determining character of land, $ 496.

geographical scope of federal laws, $ 497.

federal laws regulating sale of lands, pp. 1214-1217.

departmental regulations, pp. 1217-1224.

who may enter coal lands, i 501.

different classes of entries, $ 502.

private entry, $ 503.

preferential right of purchase, $ 504.

declaratory statement, $ 505.

assignability of inchoate rights, $ 506.

purchase price, $,507.

final entry, $ 508.

system compared with other mining laws, $ 509.

Collateral Attack.

certificate of purchase not subject to, $ 773.

patent not subject to, $ 777.

Colonies.

reservation of mines in crown grants to American, $ 31.

Colorado.

acquired partly through Louisiana purchase, $38.

partly through cession from Mexico, $ 40.

H ubjcct to federal mining laws, $ 81.

Mexican grants in, acts of congress in relation to, $$ 118, 127.

forest reservations in, $ 197.

laws of, defining property rights of aliens, J 238.

mining as a public use in, $ 252.

legislation in, concerning rights of way and mining easements,

$ 252.

drainage of mines, $ 252.

constitutional provinions on subject of eminent domain, $ 253.

saline law of January 12, 1877, applies to, $ 514.

no dower exists in, $ 543.

legislation on subject of subjacent support, $ 822.

Minlni; Lteilslation in.

Lode claims.

length, ySt'A.

text of law, p. 1263, par. 1.

1424 Index.

t

Colorado — Continued, width, $ 361.

text of law, p. 1283, par. 2. location, how made, p. 1264, par. 5. certificate of location, contents, $ 380.

text of law, p. 1263, par. 3.

void, unless conforms to law, p. 1264, par. 4.

must claim but one location, p. 1269, par. 16.

form of, sufifgested, p. 1364.

record of, $ 389.

text of law, p. 1263, par. 3.

amendment of, % 397. i

text of law, p. 1267, par. 13. discovery shaft, %% 343, 250 (15).

text of law, p. 1264, par. 5.

its equivalent, p. 1265, par. 7.

time allowed for completion, p. 1265, par. 8. posting: preliminary notice, % 352.

text of law, p. 1264, par. 5.

form of notice suggested, p. 1363. marking boundaries, $ 374

text of law, p. 1265, par. 6.

change of boundaries, p. 1267, par. 13. rights conveyed by perfected location, p. 1265, pars. 9, 10, 12.

validity of law questioned, $ 251. defining rights in cases of cross or uniting veins, p. 1266, par. 11,

validity of law questioned, $ 251. proof uf annual labor, $ 636.

text of law, p. 1267, par. 14. relocation of abandoned claims, $ 408.

text of law, p. 12(38, par. 15. Placer Claims.

location certificate, $ 459.

text of law, p. 1269, par. 1.

must claim but one location, p. 1269, par. 16.

record of, p. 1269, par. 1.

amendment of, p. 1267, par. 13. posting preliminary notice, $ 442.

text of law, p. 1269, par. 1. marking boundaries, $ 455.

text of law, p. 1269, par. 1. annual labor, $$ 626, 250 (10).

text of law, p. 1270, par. 2. law invalid, $626.

proof of, $ 636.

text of law, p. 1267, par. 14. forfeiture to co-owners, p. 1270, par. 2.

validity of legislation questioned, 251 (5), 646. Tunnel Claims.

recording, p. 1273.

length on lode discovered in, p. 1274.

law not in force. See note to Revised Statutes, $ 2323, p. 1167.

Index. 1425

ColorSLO—Coyitinued,

right to run tfaroagh another's ground, p. 1272, $M 2.

constitutionality of such laws discussed. $$ 252-264. right to enter and inspect, p. 1272, $ 2. forfeiture of right to continue tunnel, p. 1272, $ 2. damages for extracting ore from another's vein, p. 1273, $ 3. burden of proof as to ownership of vein discovered in, p. 1273,

For rights of tunnel proprietor under federal law, see Tunnel

Locations. Bfiscellanoous Mining Liesislation. reference table, p. 1274. Commidsloner of tlie Oeneral Iaiicl Office. appointment, powers, and duties, $ 662. supervisory power over acts of register and receiver, 208. may suspend or cancel final certificate of purchase, $$ 208, 627. See Land Department. Common Ia'w.

engrafted upon American legal system, $ 1. property in mines under, $ 2.

owner of surface prtwia/aci owner of minerals, $ 2. prima facie ownership of minerals, how rebutted, $ 2. *'6yal mines defined, ownership of, J 3. rules of, modified by local customs in parts of England, $ 4. doctrine of, as to customs, no application to local customs in America, $ 272. estate in unpatented mining claim compared with copyhold estates

at, $ 540. grant of right to pursue vein in depth beyond boundaries, not in

derogation of, $ 568. doctrine of, as to riparian rights and stream pollution, $$ 838, 839. tin streaming" in Cornwall, $839. accepted in some of the states, $ 838. modified in the mining states, $$ 838, 840. Condemnation.

of private property for mining purposes, $ 19.

in Massachusetts, $ 19. Kentucky, $ 19. Tennessee, $ 19. New York, $ 20. Colorado, $ 252. Arizona, $ 259. Georgia, $260. Nevada, $ 258. Pennsylvania, J 261. West Virginia, $ 262. California, $ 263. for purposes of mining easements, state legislation, $ 252. See Easements; Eminent Domain; Public Use. Conflict Area.

exceptions in junior patents of, held under senior title, $782. See Adverse Claim.

1426 Index.

Congrress.

power of, to legfislate for territories, $$ 242, 252.

cannot control exercise of rights of eminent domain by states, $252. cannot invest state courts with jurisdiction in adverse suits, $ 750. See Acts of Congress. Connecticut.

not subject to federal mining: laws, 19. no mining legislation in, 19. reservation of mines in crown grants to, 31. Constitutional Iaw.

state, on subject of alienage, 232.

right of, in states governed by state constitution, 252. federal government may not interfere with state rights,

vS 252. mining as a public use, 254. Arizona, $ 259. Georgia, § 2(K). Nevada, 258. Peimsylvania, 2G1. West Virginia, 2(>2. general conclusions, $ 264. condemnation for purpose of pipe lines, $ 255,

lateral railroads, § 252. tramways (Colorado), $252 physical and industrial conditions as affecting rule of public utility, $ 257.

Contracts*

tribute or beneftciating contracts not within inhibition of alien

laws, $ 244. **grub stake" and prospecting, $858.

options, working bonds and executory contracts of sale, $ 859. mining licenses and their distinguishing features, $ 860. mining leases, $ vSOl.

distinction between leases and tribute contracts, $ 244. Contribution.

between co-owners for assessment work, $$ 406, 790.

cotenants for improvements made by one in possession, $790. Conveyance .

of mining claim, in early days parol transfer authorized by local rules, $ 270. under existing laws, and recording transfer not subject to district regulation, $ 270. must be in writing, $$ 270, 642. rules applicable to other real estate governs, $ 270. law of, regulated by the states, $$ 541, 857. ' by one of several cotenants, etfect of, $ 791.

Co-oivners.

location by several, creates tenancy in common, $ 788. one locating for benefit of several cannot divest rights by reloca* tion, $$ 331, 398.

Index. 1427

Co-owners— CoMft7iwe</.

one cannot relocate in his own name after neglect of all to perform

annual work, $ 406. amended location by one will inure to benefit of all, 398. one cannot protect his individual estate by performance of annual

labor, $ 4(K). annual representation a unit, $ Gl(5. failure of one to contribute to assessment work not evidence of

abandonment, $ 044. remedy whore one contributes more than his share, $ 646. application for patent l>y one of several, $ 681. remedy of those excluded from, $ 646. as adverse claimants in patent proceedings, 728. contribution between, for assessment work, s406, 770, 779. cotenancy in mining claim, how created, $ 788, general rules of cotenancy applicable to, 788. right of each to occupy and use common property, $ 789. working by one in ordinary way not waste, 789. remedy of excluded, 7iK). accounting between, 790.

when injunction lies against one in possession, $ 790. one cannot compel others to join in working, $ 790. leases and licenses executed by one of several, $ 791. conveyance by one of his interest, $ 791.

forfeiture to, for failure to contribute to assessment work, $ 646. text of the federal law. Revised Statutes, $ 2324, p. 1168. object of the statute, vS 646. suggestion of unconstitutionality, $ 646. to be strictly construed, (>46, 251 (5). how treated by land department, $ 646. proceedings culminating in, how established, $ 646. stAte statutes supplementing federal law, $ 251 (5). Arizona, p. 1240, 1-5. California, p. 1249, § 1. Colorado, p. 1270, par. 2. Nevada, p. 12i)7, 11.

validity of laws questioned, 251 (5), 646. Copper.

exploration for, in Lake Superior regions, 29. ordinance of 1785 reserved one third to government, 30. development of copper mines of Lake Superior, 32. lauds in Michigan sold under special laws, 35. specially named in act of 1866, 71, 323; p. 1142, 2.

act of 1872, $$ 71, 323; p. 1150, $ 2. Revised Statutes, $ 2320, p. IKM. mines of, reserved from entry under townsite laws, $ 166. Coprolltes*

(phosphatic nodules} classified as mineral, Cop>'tiold.

analogy between estate by, and mining tenure under civil law, $11. estate in unpatented mining claim compared with, 54<).

1428 Index.

Contiwail.

ouBtoms of, as de{ea,ting prima facie ownership of mineralB, $ 2.

tin mines in, regulated by local custom, $ 5.

rights of "free tinners,'* $ 5.

"dish" or "toll* 'tin, $6.

tin bounds, their nature and extent, $ 5.

proclamation of, at stannary courts, $ 5.

writ of possession, $ 5.

renewal of boundaries, $ 5.

failure to renew boundaries, effect of, $ 5.

sale of, $ 5.

nature of estate in, $ 5.

failure to work, forfeited estate, $ 5.

time allowed for commencing: work, $ 5.

stannary courts, their jurisdiction, $ 5. "tin streaming" in, $ 839,

pollution of streams sanctioned by custom, $ 839. Corporations. Domestic.

what are, $ 226.

are citizens, $ 226.

may locate mining claims, $ 226.

citizenship, how proved, $ 226.

proof of, in patent proceedings, J 684.

the federal law, $ 2321. Revised Statutes, p.

departmental regulations, p.l205, pars. 76-80. of stockholders presumed, $226.

in territories under alien act of 1887, $$ 243, 244. extent of placer ground which may be located by, J 226,

are they to be treated as individuals or associations? $$226, 449. applications for patents by, $ 681. proofs to be furnished, $ 681. Foreign.

may hold title to unpatented mining claims until office found, $244. See Aliens. Cotenancy* See Co-owners; Tenants in Common. Course of Vein.

onward, called "strike,'* $318. "strike" defined, $318.

cannot be followed beyond boundaries, $$ 553, 60. rule prior to patent under act of 1866, $$ 68, 59. cross lodes, $$ 557-5W. presumptions as to continuity within location boundaries, $$ 615, 866. downward, term used in Revised Statutes, $ 317.

text of federal law, Revised Statutes, $ 2322, p. 1166. equivalent of "dip," $318.

"dip " judicially defined, $ 318.

See EXTRALATERAL RiOHT.

Courts.

cannot interfere with land department in the disposal of pablio lands, $ 438.