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Cc ey
Caruell Law School Library
ican min
1924 019 226 1
Tbe Hornbook Series
Of elementary treatises on all the principal subjects of the law. The
special features of these books are as follows:
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$0 9 A Ue obo
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Published and for sale by
WEST PUBLISHING CO., ST. PAUL, MINN.
C5855d
HANDBOOK
ON
AMERICAN MINING LAW
>\ \
By GEO. P. COSTIGAN, Jr.
DEAN OF THE COLLEGE OF LAW OF THE UNIVERSITY OF NEBRASKA
ST. PAUL, MINN.
WEST PUBLISHING CO.
1908
Bes
ee 1908,
WEST PUBLISHING COMPANY.
(Cost. M1n.L.)
PREFACE.
Tue author, who has lived in mining camps, has practiced law in the
mining law states of Colorado and Utah, and has supplemented prac-
tical experience with several years of teaching mining law, hopes that
this book will prove a help to practicing lawyers, as well as to law
students. He acknowledges his indebtedness to the many meritorious
works on the subject of American mining law, and in particular to
the very serviceable “Morrison’s Mining Rights” of Messrs. Morri-
son and De Soto, and the excellent two-volume treatise on Mines by
Mr. Lindley. No book on American mining law yet written, however,
meets the joint need of student and of practitioner which this Horn-
book seeks to satisfy.
The title American Mining Law has been chosen because of its
simplicity and because the law chiefly dealt with, while it affects only
a comparatively small part of the United States and its possessions,
is so national in its character as deservedly to be spoken of by all
writers on the subject as American Mining Law.
In the notes the cases which for one reason or another are sug-
gested as best for students to consult are printed in large type. As is
true of other Hornbooks, an exhaustive citation of cases has not been
attempted, but the endeavor has been to give a comprehensive, well
proportioned, and up-to-date treatment of the subject.
Because, within a few months after a book on mining law is pub-
lished, state or federal legislation or land department regulations may
render obsolete various forms suggested in such a book, no attempt
is made herein to offer forms for the practitioner. The last edition
of Morrison’s Mining Rights, a book which has rapidly succeeding
revised editions, should be consulted for the latest and best forms.
In the text of the present book only such forms are printed as eluci-
date particular points, while in one of the appendices, for the pur-
pose of assisting students to understand the various steps in patent
proceedings, certain of the forms for patent proceedings contained in
the 13th edition of Morrison’s Mining Rights are inserted by the
generous permission of Messrs. Morrison and De Soto. Another of
the appendices contains also forms of leases prescribed by the United
States for the leasing of certain Indian lands.
In the appendices will be found the various federal statutes and de-
partmental rules and regulations relating to mining. These include
(¥)
vi PREFACE.
the United States statutes and departmental regulations governing
mineral lands in Alaska and in the Philippines, as well as those ap-
plicable to such lands in the mining law states. Except in the case of
Texas, the statutes of which on mining are of general interest, because
they constitute a system of laws independent of federal control or
interference, state statutes on mining matters are not inserted in the
appendices. Lack of space, if nothing else, would forbid such inser-
tion; but, apart from that difficulty, it is believed that nothing of im-
portance would be gained by the printing of such statutes. A basis
for the comparison of the various important state statutory provisions
on matters covered by the text is furnished at appropriate places in
the text itself, and, for the rest, no mining law book can relieve the
practicing lawyer from the necessity of consulting the mining law
sections of the statute books of his own state.
The author wishes to express his thanks to one and all who have
contributed information or suggestions for this book.
Gro. P. CosTIcan, JR.
Lincoln, Neb., Sept. 1, 1908.
TABLE OF CONTENTS.
CHAPTER I.
THD ORIGIN AND HISTORY OF AMERICAN MINING LAW.
Section ; Page
1. Definition of American Mining Law................ aR alee 1-2
2. The Origin of American Mining Law.........csceceecsccces 2-8
3. The Federal Mining Statutes..........0.c cece se eeceeeeeees 8-21
4, Supplemental State Legislation............. cece ceeeececes 21-23
5. Supplemental District Rules, Regulations, and Customs.... 23-29
6.
The Attitude of the Courts Toward the Miner............. 29-30
CHAPTER II.
THE MINING LAW STATUS OF THE STATES, TERRITORIES, AND POS-
SESSIONS OF THE UNITED STATBES.
7. The Mining Law States and Territories.........cscecrcccce 31
8. The Mineral Land History of the United States............ 31-34
9. The Mining Law Status of the Several States and Territories 34-47
CHAPTER III.
THE LAND DEPARTMENT AND THE PUBLIC SURVEYS.
10. The Land Department.........c ccc ccc ccc ce cece eer eneecene 48-50
11. The Attitude of the Courts Toward the Land Department... 51-54
12. The System of Public Land SurveysS..........cecceeccecuce 54-57
18. The Location of District Land Offices. .... ccc cece reeves ate 58
CHAPTER IV.
THD RELATION BETWEEN MINERAL LANDS AND THE PUBLIC LAND
GRANTS.
14-15. Mexican Land Grants........c sees eee se ces eeee averse eremiensiens 59-64
16-17. State School Land Grants..............0. Fie RG cea 64-71
18-19. Railroad Land Grants........scceccccecscccere airateehar te ees. 71-82
Cost. MIN.L. : (vii)
viii
TABLE OF CONTENTS,
CHAPTER V.
THE RELATION BETWEEN MINERAL LANDS AND HOMESTEAD,
‘Section
20.
21,
22.
TIMBER, AND DESERT ENTRIES.
Page
Homestead Entries..... Scneyavusnece i Wei etecacaditetenesveens 83-87
Timber and Stone Land Entries....... aeiens’s iMacs SIS88
Desert HntrieS........ccecescseses sn Ge uNnaviahe Daal anle “eFaxonsuasorecere 88
CHAPTER VI.
THE RELATION BETWEEN MINERAL LANDS AND THE VARIOUS PUB-
23.
24,
25.
26.
27.
LIC LAND RESERVATIONS.
Indian Reservations. ............c0eceeee i tales euetere eraneroreie ... 89-91
Military Reservations................0005 exe bran aentatayvar ces see 91-92
National Parks................00- She os ray Ramee Seabee aR 92
Forest ReserveS............... bie ta wepteisialansiees slate wis heehee axe 92-93
Reservoir SiteS........cc sees cece ec eeace ahichsrtaynsaven sais weudnane us . 94
CHAPTER VII.
THE RELATION BETWEEN MINERAL LANDS AND TOWNSITES.
28.
29.
30.
31.
Lands Subject to Townsite Entry.............. ede ewe ees 96-100
The Location of Known Veins in Townsites........... eee 101-102
CHAPTER VIII.
DEFINITIONS OF PRACTICAL MINING TERMS.
Lode Mining Terms....... ebayer 6 lacey elated avarecddeue aerate .. .103-108
(a) Terms Relating to the Working of a Lode Claim... .103-105
(b) Terms Relating to the Vein or Lode................ 105-107
(c) Terms Relating to the Ore and Its Treatment......107-108
Placer Mining Termis........... oa soap ahins Wal Bid a LWW So . 108-110
CHAPTER IX.
DEFINITIONS OF MINING LAW TERMS.
Definition of “valuable mineral deposits.”.............. .- 111-121
Definition of “vein” or “lode.”’.............. ee shams baviersaeie a: 122-185
Definition of “placer.”......... wlisanaeavitenlerinsats caus '. 135-137
Definition of “apex” of veins............. MPa S Sicciosiota 8 vende dalerahy 187-140
Definition of “course” or “strike” of veins............... an 140
Definition of “dip” of veins..... ds ict a a ol ccisniicer lara ena 140-141
Definition of “mining claim” or “location.”................. 142-143
Definition of “mine.”............ ee eee SG ees sees s Bde se 143-146
Section
40-43.
44,
45.
46.
TABLE OF CONTENTS, 1X
CHAPTER X.
THD DISCOVERY OF LODHP AND PLACER CLAIMS.
Page
The Discovery of Lode Claims........... RN seater ares 147-155
Pedis Possessio...... aR siaenaeverwiiselneese aay tavenaranese dead arene LOD=159
The Relation Between Discovery and Location, : Ssavatn stip asevarenoie LOO OL,
The Discovery of Placer Claims........cccecceecseceee eee eL62-166
CHAPTER XI.
WHO MAY AND WHO MAY NOT LOCATE MINING CLAIMS.
AiONS sits mesnnenwnaswm ieee sce ere ac Sask caiens as wnces bac das esuanaizakauieds . 167-170
Land “OMGe: WMployéSiawswasccnawacanwe aesoneaoreuianeesk 170-171
Corporations... ..ceceeese ce eeeeees ita non ono cancaeu ceaaeneKetemieS 171-173
MINOrSis semensdanunae nae cee Mae G Ne SR a OREO 173
ME CUTS i: pseisieie ine tvieresens pirenespieets seenita Sie uaais puavswak caer Risse ecertens Sie «. 173-174
CHAPTER XII.
THE LOCATION OF LODE CLAIMS.
Definition of Location.. Discucansvapsasetbaisasvanens Spaataceresaeyais oe ee Ll 75-176
The Discovery or Penanechat! s Wablce naan ee ee ... 176-178
The Discovery Shaft or its Equivalent................ wee. 178-184
Marking the Location upon the Ground............... «eee 184-196
Mxcessive: Locations viisccscs-cnceycwnsesieee cen awenes .. 196-204
Changing Boundaries............... cece eens ee ce ween e 6204-205
Posting of Notices of Location............0 ccc eee eens ooo 205-211
FRECOLGIN GE coysisce wsoter sie ccrseialacorsie fetus saldsalonerd giniersters seen aentere +. .211-220
Amendments of Reretd sates nev aptn Se aserexoaaistoedsed Cauesavin vstamcunIoNe oe 6221-223
Adding and Dropping Names of Locators............6..223-224
CHAPTER XIII.
THE LOCATION OF MILL SITES.
The Two Kinds of Mill Sites......... éGidutRriRaaaeNNe LOO 26
Mill Sites Located by the Proprietor of a Vein or Lode......226-229
Use Necessary to Hold Such Mill DILLER. 2:95, 0.ad gidtecey arouse SLO —L2O
Mill Sites Claimed by Mills.........: ean RtaLoNN cee ema ee 229-230
The Acts of Location of Mill Sites................ prevaceridvanenede 230-231
x TABLE OF CONTENTS,
CHAPTER XIV.
THE LOCATION OF TUNNEL SITES AND OF BLIND LODES CUT BY
TUNNELS.
Section Page
62. The Location of Tunnel Sites.............eeeeee edidw sae 232-236
63. The Nature of Tunnel Sites........ obo Gyavlasat 8, Suasaiee oi otiredead SOROS 236-237
64. Dumping Ground for Tunnel Sites...............- ‘afartsgartsSernsots 238-239
65, 66. The Location of Blind Veins. ..... 2... cece eee e eee eee teen eee 239-242
67. Rights of Way through Prior Claims..... Pa ee eRe Os eR ee oF 243-244
68. Tunnels and Annual Labor.............4. eS P dNnteablona atetioe ees . 244
CHAPTER XV.
THD LOCATION OF PLACERS AND OF LODES WITHIN PLACERS.
69. The Location of PlacerS..........ceee eee e ee eees eaew shee sea 245-247
70. The Discovery Notice.........ce ce ee cece cence rae anemia. ene 247-248
71. The Discovery Work........ be Vow Se eae = NEES 4 ae eet 248-249
72. The Marking of the Location on the Ground................ 249-258
73. The Posting of the Location Notice...........ss eee eeerees 258-259
GA, RRECOTE) -sis6 ac a saps g ieee Oe Sa S SWHG WS Mews Mee Cee Be HAS Se 259-260
75-77. Lodes Within Placers islsies da voauito este S Gaia raat tte SETS ee eeees -260-269
CHAPTER XVI.
THE ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS.
78. Claims Subject to Annual Labor Requirement............. 270-271
79. What is Annual Labor.............. ccc ec eee ee sogedasaw 271-274
80-81. Place of Performance and Kind of Annual Labor.......... 275-282
82. Amount of Annual Labor....... cece ce eee ee cece ce eens 282-283
83. Excuses for Annual Labor................. cece eeee dered 283-284
84. Proof of Annual Labor............ CEO Cae Bo Law e esa eee 284-286
85. Annual Labor Pending Patent Proceedings........ siew ar ehhate 286-287
86-88. Resumption of Work............. cao a evan te. Tha Breese eve le dean gona 288-292
89-90. Forfeiture to Co-OWNELr.... cece cece cece ese e cece ence eee 299-299
CHAPTER XVII.
THE ABANDONMENT, FORFEITURE, AND RELOCATION OF LODE
AND PLACER MINING CLAIMS.
91-92. The Distinction between Abandonment and Forfeiture...... 300-307
93. The Burden of Proof in Cases of Abandonment and of For-
FEIUTE! ccs sa cine hs Saws 6 HSE + HOO F4 BAN TEI. a odadee 44i0nB0T-300
Section
94.
95.
95a.
95b.
96.
96a.
97.
TABLE OF CONTENTS, xi
Page
The Kinds of Relocation.................0000 sans wien cPO09=B10
Relocations by Third Persons................- inter venenaaLO-B2t
Resumptions of Work. ........... ccc ee ee eee cchuatianeheatats 317-320
Premature Relocations............ Sisunitesieie Steere Oe ae 321-327
Relocations by the Forfeiting Owners. ..............0.000- 327-341
Relocations by Amendment.......... cece eee cece ees 335-341
The Forteiture of Improvements..... Sse e aR ReaeRaiang wR iene 341-342
CHAPTER XVIII.
UNCONTESTED APPLICATION TO PATENT MINING CLAIMS.
98.
99.
99a.
99b.
99c.
99d.
100.
101.
101a.
102.
The Five Hundred Dollars Pxpenditure................05 . 843-344
The Patenting of Lode Claims.............c cece eer e nee ees 345-359
The Survey Requirements. ........... cee eee ee ee eens 345-349
The First Set of Application Papers............000.00- 349-357
The Final Set of Application Papers................. 357
Entry sand. Patent......... scseswoss stew. See HSS AER e 3857-359
The Patenting of Mill SiteS........... cece eee eee eens 360-361
The Patenting of Placer ClaimS...........cc eee see ence eee 361-364
Known Lodes Within Placers..........cce eee ee eee aee 363-864
Conflicts of Lodes and Placers with Older Locations. sees e . 864-865
CHAPTER XIX.
ADVERSE PROCEEDINGS AND PROTESTS AGAINST PATENT APPLI-
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
CATIONS.
Adverse Claims...cicsscessaewdsoae epee HARM ARARORS ROS . 866-373
Court Proceedings on Adverse Claims........... ec ee ee eeees 3874-383
The Relation of the Land Department to the Court Proceed-
ings on Adverse Claims............. rnenean euiceimnaeda 383-385
Protests: sc usuwais-seipiasies cares esirneeviersws a gietetey gyervieitueis 6 4 BOO-OO
CHAPTER XX.
PATENTS.
Native Of G DAtGM Bias coceissets wsscesererc ose ga) ore w later naa iergtersineieserer ee DOO OO 4
Advantages of Patent........ccc ccc e cece cece eee ee ences 395-398
Effect of Patent of Placer on Known Lodes in the Placer.. 399
Direct Attacks on Patents......... aah crarewssaaiaNend siongbaver a eeneanueaet 399-400
Patentees aS Truste@S....... 0 eee ee eee eee SM svoniatuaunna . 400-401
The Doctrine of Relation..... OREN ey aR IE Ne ais BAS ss wewres 401-402
Section
118.
114,
115.
116.
117.
118.
118a.
118b.
118¢.
118d.
118e.
118f
118g.
118h.
118i.
118).
118k.
1181.
118m.
118n.
119.
120.
121-122.
123.
124.
TABLE OF CONTENTS,
CHAPTER XXI.
SUBSURFACE RIGHTS.
Page
Presumption as to Subsurface Rights...............08% ~-- 404-409
Extralateral Rights Dependent on the Vein Apexing in the
Mining: LOCation..« 4 sca vised oc eieiec od wh oes Se aR eS eI ON eS 409-410
Pxtralateral Rights Dependent on the Identity, Continuity,
and Dip of the Vein. .......... cc cc cece eee cere ee eees 410-414
Extralateral Rights and the Right to Cross Cut through
Another's and: .« sce.064 ee sesisina on cies eee aids auistaxerotae steiaits 415
Extralateral Rights under the Act of 1866... Siodabbaceesanssweces «» 415-417
Extralateral Rights under the Act of 1872...............-..417-452
Parallelism of End Lines........ wah sjsiate shies Meets geen 41 8=422
Side Lines as End Lines...... epeaMaae suaneethetioce ae cevees 422-425
Vein Crossing One End Line and One Side Line...... 426
Vein Crossing One End Line, but Stopping before Anoth-
er Boundary Line is Reached..... sussex sna’ ssh’sfaciovecailecevaleia © 427-428
Vein Not Reaching Any Boundary Line...............428-429
Vein Crossing Two Opposite Parallel Boundary Lines,
but in Its Course Going out of and Returning through
Another Boundary Line................00000e aE 429-432
Vein Entering and Departing through Only One Bound-
TY: MALMO is eae asec g bh vote es aeere Mocgense, sseasatng oes ate he lanar ct oneneece 433-434
Vein Covered by Conflicting Surface Locations Which
have Diverse Extralateral Right Planes—‘Judicial
ADOR air iad BeaatAam asses cea Saw eon oe eG . 434-436
Broad Vein Bisected on Its strike by the Common Side
Line of Two Locations. ...... 0... cece ee ew ee eens woe. 487-488
Vein Splitting on Its Strike........ cee cee ee ee eee 439
Secondary or Incidental Veins............ a teleenacne eats - 440-449
Vein Dipping under Prior Patented Land......... as ewes 449-450
“Theoretical Apex.’”..... toe Aide woe! O Ra Ree eS Mew ee Seis 450-451
Rights of Grantor and Grantee after a Grant of Part of
a Located Apex....... Avemaesnate Sesvaveia Teladaveuasoew ter Mavevein wouter’ 451-452
Gross: Veins: xijchs 4 aekn-sr eka canis eee tew's ee ere 458-455
Crossing of Exiralateral Rights on the Dip of the Same Vein 456
Veins Uniting on the Dip and on the Strike............. as 457
Extralateral Right Compromise Agreements and Deeds.... 458
Diagram to Illustrate Relative Extralateral Rights........459-461
CHAPTER XXII.
COAL LAND AND TIMBER AND STONE LAND ENTRIES AND PATENTS.
125.
125a.
125b.
125e.
126.
Coal Land Entries....... apeitine a8 alain Fon nie ods ee eeee ee 462467
Ordinary Cash Entry............-2e00ee et orsea Seu cseeee 463-465
Cash Entry under a Preference Right...... wens eases 465-466
Indian Coal Land Leases. ...... cc cece ccc ence cece wees 467
TABLE OF CONTENTS, xiii
CHAPTER XXIII.
OIL AND GAS LEASES.
Section Page
‘127. Kinds of Oil and Gas LeaseS.........020-ceeee ees ste oeee 470-477
128. Ordinary Obligations of Lessors and LesseeS.........«+++ «478-480
CHAPTER XXIV.
OTHER MINING CONTRACTS AND LEASES.
129. Prospecting or Grub-Staking Contracts............. aoee- 481-483
130. Mining Licenses and LeaseS............0-- eee eeeceee «. «484-486
131-132. Leases and Options and Title Bonds..... g dias in. sisseaeue tise SRS 487-488
138, Working Contracts ccs « < seauss aes 006 seed ee HOU 28 errs oe as 488
134... (OLE? OnEBACS «cess ccnnie sak feee tee Ghwa oe Heme Obs eae wees 489
CHAPTER XXV.
MINING PARTNERSHIPS AND TENANCIES IN COMMON.
185; Mining. Partners Dips ieccisss «si sscecseis: ot seyiee 9 e-viacears 04 aes as Rishi 490-493
135a. Differences between Mining Partnerships and Ordinary
Partnerships « ssa ss nwoxs 2 ssaw sé dole Hee wee eos eRe @ 491-493
186. Tenancies in Common of Mining Property..............68-. 493-496
136a. Accounting between Co-tenants........... cece ee ee wees 494-495
136b. Fiduciary Relationship of Co-tenants..............e00- 496
136¢. Relations between Surface and Subsurface Owners.... 496
CHAPTER XXVI.
CONVEYANCES AND LIENS.
137. Necessity of Written Conveyances of Mining Claims...... 497-499
138. Quitclaim and Warranty Deeds.............eeeeseeeees 499-502
138a. The Special “Dips, Spurs,” etc., Clause................ 500
138b. After-Acquired Title... .... ccc cece ccc cece cet e cane 501-502
189. Basements on Severance... .... ccc cece cece ee cee ence eeaee 502-508
140), .MOrigages) @ 6 os aw se easredics axis ta~ WSR dens BORE F< Wee Tas ORG Os 509
T4d 5. *OEHer TA STS gis sicaies sa ceveriets, ac avalsive iain ie rate. nse vaviai se Seva sepia go gars 8 509-510
142), Bxaminations of Title... 22sec cst deste eee ee ne new 510-511
xiv
Section
143.
144.
144a.
145.
146.
147.
148.
149.
150.
151.
152.
153.
154-155.
156-157.
158.
TABLE OF CONTENTS,
CHAPTER XXVII.
MINING REMEDIES.
Page
Ejectment Actions and Suits to Quiet Title............ ioSGi-wue 512
TPESPASS: daca see aie sere non ace wal aad. ead ress hiede ese de-eraiy: die DS THOM 513-516
The Measure of DamageS............cccsccevcccsenes 5138-516
Trover and Replevithe:.. sicces cneccn ccc ccecee eset nea senies 516-517
EDP UTC HONS! 5.6.2 odes). cusscoinraravonacetavanede cdsecaceoec dine Sle, WAIT SRE Be 517-518
ACCOUDUNG sa sec ee eaa cid ca vedw deny ven eam esse ete eee oe 519
Inspection and Survey.......... ce ee cere cere eevee encecs 519-520
RVSCELVETSDUPS: oiocc.toces oss seceaisceescers eieraie ooh PUTS TEATS ees 520
Partition, «v.66 s¢sevisawd-ow owe volves e decane eemas Sew eesm ease §21-522
Condemnation Proceedings—Eminent Domain.............. 522-523
Personal Injury ActionS......... 0.0... ce ee eee eee renee 523
Adverse Possession—Statutes of Limitation...............523-525
CHAPTER XXVIII.
WATER RIGHTS AND DRAINAGE.
The Appropriation of Water Doctrine.............. eee ee ee 026-530
Pollution of Water—Débris........... cc cece eee cree eens 531-534
Drainage: sevscaccsviwavcveawesaawecsiee’ oe eccscccece 004-035
APPENDICES.
(Pages 587-690.)
t
HANDBOOK
ON
AMERICAN MINING LAW
CHAPTER I.
THD ORIGIN AND HISTORY OF AMERICAN MINING LAW.
Definition of American Mining Law.
The Origin of American Mining Law.
The Federal Mining Statutes.
Supplemental State Legislation.
Supplemental District Rules, Regulations, and Customs.
The Attitude of the Courts Toward the Miner.
SHOr Ne
DEFINITION OF AMERICAN MINING LAW.
1. American mining law consists of (1) federal legislation; (2) supple-
mental state legislation; and (3) local mining rules, regula-
lations, and customs. All these, judicially expounded and ap-
plied, constitute the law applicable to that part of the public
mineral domain of the United States which has been disposed
of, and to that part which is to be disposed of, under the fed-
eral mining act of 1866 and the subsequent federal mining
acts.
American mining law consists of mining customs and legislation in-
terpreted by court decisions in the light of the history of mining in
America. It is found primarily in congressional legislation and in
United States Supreme Court decisions; but these are supplemented
by the decisions of the lower federal courts and of the state courts, by
stich state enactments as are authorized by and are consistent with the
acts of Congress, and by such district mining rules, regulations, and
customs as are consistent both with the state laws and with the con-
gressional legislation. American mining law is the law applicable to
‘Cost. M1n.L.—1
2 ORIGIN AND HISTORY OF AMERICAN MINING LAW. (Ch.1
what remains of the public mineral domain of the United States and
to those parcels of mineral lands which have been disposed of under
the federal mining acts to individuals, but to which for certain pur-
poses, such as to govern extralateral rights, the mining laws still ap-
ply. American mining law relates, therefore, to those parts of what
are now or have been the public mineral lands of the United States, to
which the federal mining statutes have applied, and to which, even
after patent and for some purposes, they still apply.
THE ORIGIN OF AMERICAN MINING LAW.
2. American mining law began with the discovery of gold in Califor-
nia, and its first phase was that of rules, regulations, and
customs adopted and enforced by the miners in the various
mining districts created by them. These rules, regulations,
and customs governed the location and retention of mining
elaims. They originated in necessity, have received federal
as well as state approval, and have been called the American
common law of mining.
It was through the discovery of gold in California in 1848 that
American mining law came into existence.1 The discovery of gold on
the public land of the United States in the then comparatively inacces-
sible region of California, and the consequent rapid influx there of
thousands of miners and adventurers, created in an astonishingly short
space of time unique conditions, which demanded and received a legal
solution just as unusual. The inrushing treasure seekers found a land
belonging to the United States and under military government, and
they proceeded to enter in and possess it, although there was no prece-
dent for such action, and although the English common-law theory of
sovereign mining rights was distinctly against it. On February 12,
1848, the Mexican laws relating to mining were declared by Colonel
Mason, the military governor of California, to be of no force and ef-
fect,? and the population of the gold fields thereupon proceeded to
1“Commodore Sloat raised the American flag at Monterey July 7, 1846.
Marshall discovered gold at Coloma [Cal.] in January, 1848. The treaty of
Guadalupe-Hidalgo was concluded February 2, exchanged May 30, and pro-
claimed July 4, 1848. This treaty added to the national domain an area of
more than half a million square miles, embracing the states of California,
Nevada, Utah, the territories of Arizona (except the Gadsden Purchase of
1853) and New Mexico west of the Rio Grande and north of the Gadsden
Purchase, and the state of Colorado west of the Rocky Mountains, and the
southwestern part of Wyoming.” 1 Lindley on Mines (2d Ed.) § 40,
2 His proclamation read: “From and after this date the Mexican laws and
customs now prevailing in California relative to the denouncement of mines
are hereby abolished.” Yale on Mining Claims and Water Rights, 17. Com-
pare Castillero v. U. S., 2 Black (U. S.) 18, 17 L. Hd. 360.
§ 2) THE ORIGIN OF AMERICAN MINING LAW. 3
evolve mining laws of their own. The military governor did not in-
terfere, for, as he said, while the entire gold fields, with the exception
of a few Mexican land grants, belonged to the United States, and he
was anxious to secure rentals and fees from those who took the gold
therefrom, still, “upon considering the large extent of the country,
the character of the people engaged, and the small, scattered force at
my command, I am resolved not to interfere, but to permit all to work
freely, unless broils and crimes should call for interference.” ®
Left by the military governor to “work freely” in a country where
general law was undefined and largely unenforceable, the mining popu-
lation, under the leadership, seemingly, of the Cornish miners, adopted
a system of miners’ regulations, enacted at meetings of the miners of
self-created mining districts, and also evolved customs which the min-
ers of the respective districts enforced, even though those customs
were not embodied in the regulations adopted at the miners’ meetings.
The regulations voted at the early miners’ meetings applied to many
things beyond the legal jurisdiction of such assemblages. For instance,
they imposed banishment for Asiatics, whipping and banishment for
practicing lawyers, and death for horse or mule stealing and for mur-
der. But so far as they prescribed rules about mining matters they
were, in general, legally validt Trespassers upon the public domain,
3 Report of August 17, 1848, contained in Donaldson’s Public Domain, 312—
317, at page 314.
4 A good example of the early rules is found in those of Jacksonville mining’
camp, in Tuolumne county, Cal. They are found in Donaldson’s Public Do-
main, 317, 318, and are as follows:
“Article I. The officers of this district shall consist of an alcalde and sher-
iff, to be elected in the usual manner by the people, and continue in office at.
the pleasure of the electors.
“Art. II. In case of the absence or disability of the sheriff, the alealde
shall have power to appoint a deputy.
“Art. III. Civil causes may be tried by the alcalde, if the parties desire
it; otherwise, they shall be tried by jury.
“Art. IV. All criminal cases shall be tried by a jury of eight American
citizens, unless the accused shall desire a jury of twelve persons, who shall
be regularly summoned by the sheriff and sworn by the alcalde, and shall try
the case according to the evidence.
“Art. V. In the administration of law, both civil and criminal, the rule
of practice shall conform as near as possible to that of the United States;
but the forms and customs of no particular state shall be required or adopted.
“Art. VI. Each individual locating a lot for the purpose of mining shall be:
entitled to twelve feet of ground in width, running back to the hill or moun-
tain and forward to the center of the river or creek, or across a gulch or ra-
vine (except in cases hereinafter provided for), lots commencing in all cases
at low-water mark and running at right angles with the stream where they »- =
located.
“Art. VII. In cases where lots are located according to Art. VI and the
parties holding them are prevented by the water from working the same, they”
4 ORIGIN AND HISTORY OF AMERICAN MINING LAW. (Ch. 1
and far from the seat of government in actual distance and in the
means of communication, the swarming thousands, suddenly engaged
in mining in California, had to create for themselves laws adapted to
may be represented by a pick, shovel, or bar until in a condition to be work-
ed; but, should the tool or tools aforesaid be stolen or removed, it shall not
dispossess those who located it, provided he or they can prove that they were
left as required; and said location shall not remain unworked longer than one
week, if in condition to be worked; otherwise, it shall be considered as
abandoned by those who located it (except in cases of sickness).
“Art. VIII. No man or party of men shall be permitted to hold two loca-
tions, in a condition to be worked at the same time.
“Art. IX. No party shall be permitted to throw dirt, stones, or other ob-
structions upon located ground adjoining them.
“Art. X. Should a company of men desire to turn the course of a river
or stream for the purpose of mining, they may do so (provided it does not
interfere with those working below them), and hold and work all the ground
so drained ; but lots located within said ground shall be permitted to be work-
ed by their owners, so far as they could have been worked without the turning
of the river or stream; and this shall not be construed to affect the rights and
privileges guaranteed or prevent redress by suit at law.
“Art. XI. No person coming direct from a foreign country shall be permit-
ted to locate or work any lot within the jurisdiction of this encampment.
“Art. XII. Any person who shall steal a mule, or other animal of draught
or burden, or shall enter a tent or dwelling and steal therefrom gold dust,
money, provisions, goods, or other articles amounting in value to $100 or over,
shall, on conviction thereof, be considered guilty of felony, and suffer death
by hanging. Any aider or abettor therein shall be punished in like manner.
“Art. XIII. Should any person willfully, maliciously, and premeditatedly
take the life of another, on conviction of the murder, he shall suffer death by
hanging.
“Art. XIV. Any person convicted of stealing tools, clothing, or other ar-
ticles, of less value than $100, shall be punished and disgraced by having his
head and eyebrows close-shaved and shall leave the encampment within 24
hours.
“Art. XV. The fee of the alcalde for issuing.a writ or search warrant,
taking an attestation, giving a certificate or any other instrument of writing
shall be five dollars; for each witness he may swear, two dollars; and one
ounce of gold dust for each and every case tried before him.
“The fee of the sheriff in each case shall be one ounce of gold dust and a like
sum for each succeeding day employed in the same case. The fee of the
jury shall be half an ounce in each case.
“A witness shall be entitled to four dollars in each case.
“Art. XVI. Whenever a criminal convict is unable to pay the costs of the
case, the alcalde, sheriff, jurors, and witnesses shall render their services free
of remuneration.
“Art. XVII. In case of the death of a resident of this encampment the
alcalde shall take charge of his effects and dispose of them for the benefit of
his relatives or friends, unless the deceased shall otherwise desire it.
“Art, XVIII. All former acts and laws are hereby repealed and made null
and void, except where they conflict with claims guaranteed under said laws.
“Abner Pitts, Ir., Secretary.
“Jacksonville, January 20, 1850.”
§ 2) THE ORIGIN OF AMERICAN MINING LAW. 5
the extraordinary conditions which confronted them, and so well did
they accomplish their task as to mining that the rules and customs
adopted by the miners, first in California and later on in other terri-
tories and states, received the approval of the courts, of the local Leg-
islatures,® and, finally, of Congress.
Of these miners’ rules and regulations, and the relation which the
act of Congress of 1866 bore to them, Mr. Justice Field, in a passage
often quoted, said: “The discovery of gold in California was follow-
ed, as is well known, by an immense immigration into the state, which
increased its population within three or four years from a few thou-
sand to several hundred thousand. The lands in which the precious
metals were found belonged to the United States, and were unsurvey-
ed, and not open by law to occupation and settlement. Little was
known of them, further than that they were situated in the Sierra Ne-
vada Mountains. Into these mountains the emigrants in vast numbers
penetrated, occupying the ravines, gulches, and cafions, and probing
the earth in all directions for the precious metals. Wherever they
went, they carried with them that love of order and system and of fair
dealing which are the prominent characteristics of our people. In
every district which they occupied they framed certain rules for their
government, by which the extent of ground they could severally hold
for mining was designated, and their possessory right to such ground
secured and enforced, and contests between them either avoided or de-
termined. These rules bore a marked similarity, varying in the several
districts only according to the extent and character of the mines; dis-
tinct provisions being made for different kinds of mining, such as
placer mining, quartz mining, and mining in drifts or tunnels. They
all recognized discovery followed by appropriation, as the foundation
of the possessor’s title, and development by working as the condition
5 The state of California, admitted to the Union in 1850, recognized miners’
rules in 1851 by an act which provided that: “In actions respecting mining
claims, proof shall be admitted of the customs, usages or regulations estab-
lished and in force at the bar or diggings embracing such claims; and such
customs, usages or regulations, when not in conflict with the Constitution and
laws of this state, shall govern the decision of the action.” St. 1851, p. 149.
ec. 5. Prior to any legislation by Congress, this act was held to make the
miners’ rules part of the general law.
“These usages and customs were the fruit of the times, and demanded by
the necessities of communities who, though living under the common law,
could find therein no clear and well-defined rules for their guidance applicable
to the new conditions by which they were surrounded, but were forced to de-
pend upon remote analogies of doubtful application and unsatisfactory results.
Having received the sanction of the Legislature, they have become as much a
part of the law of the land as the common law itself, which was not adopted
in a more solemn form.” MORTON v. SOLOMBO COPPER MIN. CO., 26 Cal.
527, 532, 5383.
6 ORIGIN AND HISTORY OF AMERICAN MINING LAw. (Ch. 1
of its retention; and they were so framed as to secure to all comers,
within practicable limits, absolute equality of right and privilege in
working the mines. Nothing but such equality would have been tol-
erated by the miners, who were emphatically the lawmakers, as re-
spects mining, upon the public lands in the state. The first appro-
priator was everywhere held to have, within certain well-defined limits,
a better right than others to the claims taken up; and in all controver-
sies, except as against the government, he was regarded as the original
owner, from whom title was to be traced.” ®
And again, in St. Louis Smelting & Refining Co. v. Kemp,’ Mr. Jus-
tice Field said: ‘Previously to the act of July 9, 1870, Congress im-
posed no limitation to the area which might be included in the location
of a placer claim. This, as well as every other thing relating to the
acquisition and continued possession of a mining claim, was determin-
ed by rules and regulations established by miners themselves. Soon
after the discovery of gold in California, as is well known, there was
an immense immigration of gold seekers into that territory. They
spread over the mineral regions, and probed the earth in all directions
in pursuit of the precious metals. Wherever they went they framed
rules prescribing the conditions upon which mining ground might be
taken up—in other words, mining claims be located and their continued
possession secured. ‘Those rules were so framed as to give to all
immigrants absolute equality of right and privilege. The extent of
ground which each might locate—that is, appropriate to himself—
was limited, so that all might, in the homely and expressive language
of the day, have an equal chance in the struggle for the wealth there,
buried in the earth, * * * The rules and regulations originally es-
tablished in California have in their general features been adopted
throughout all the mining regions of the United States. They were so
wisely framed, and were so just and fair in their operation, that they
have not to any great extent been interfered with by legislation, either
8 JENNISON v. KIRK, 98 U. S. 453, 457-458, 25 L. Ed. 240. Of this pas-
sage Mr. Lindley says: “This exposition of the law governing mining rights,
as it existed in the early history of the mining industry in the West, leaves
nothing to be added by the author. The decision stands as a forensic classic.
Judge Field was a part of the history of which he wrote. He served as an
alcalde during the chaotic period antedating the admission of California as
a state. He served his state in its first legislatures, and was the author of
many of its early laws. As Chief Justice of its Supreme Court, his was the
task to solve the great and overshadowing questions which arose over land
titles in a new state coming into the Union under peculiar and novel condi-
tions, and he carried to the Supreme bench of the United States, not only the
practical knowledge acquired by personal contact with the mining communi-
ties, but a trained judicial mind.” I Lindley on Mines (24 Ed.) § 44,
7104 U. S. 636, 649, 650, 26 L. Ed. 875.
§ 2) THE ORIGIN OF AMERICAN MINING LAW. 7
state or national. In the first mining statute, passed July 9, 1866, they
received the recognition and sanction of Congress, as they had pre-
viously the legislative and judicial approval of the states and terri-
tories in which mines of gold and silver were found.”
The fundamental thing to bear in mind about these early mining
rules and customs, which related to district boundaries, the size and
method of location of claims; the keeping of records by a district re-
corder, the amount of work required to keep a location alive, the way
in which claims could be forfeited, when they should be deemed aban-
doned,® etc., is that they are the foundation stones upon which our
American mining law has heen built. They have been called the Amer-
ican common law of mining.®
With reference to the origin of these rules, the following words of
a prominent mining lawyer are of interest: “Did these miners initiate or
create their regulations something after the fashion ascribed to the
makers of our own federal Constitution by Mr. Gladstone? Or did
they but consciously adopt and here put in force known mining regula-
tions of other countries, of which they were informed by tradition or
reading, or by the knowledge of the inhabitants of these different lands
who congregated in this new world? This is a subject of dispute.
Those who adopt the views of Rousseau find here an illustration of the
civil compact; others, the reproduction of laws derived intentionally
from older states; others, the application of the organizing faculty of
the American people to the circumstances of their new situation. Upon
the one hand, it is asserted most vigorously, by those familiar through
participation in the work, ‘that the large emigration of young men’
who rushed to this modern Ophir found no laws governing the pos-
session and occupation of mines but the common law of right, which
Americans alone are educated to administer; that they were forced by
the very necessity of the case to make laws for themselves.’ Again,
it is asserted that the mining code, as far as it can be traced, has sprung
from the customs and usages of the miners, with rare applications of
common-law principles by the courts to vary them; or that the origin
of the rules and customs of the miners is immediately recognized by
those familiar with Mexican ordinances and continental mining codes,
and with the regulations of the Stannary convocations among the tin
bounders of Devon and Cornwall in England, and the High Peak
regulations of the lead mines in the county of Derby; finally, that all
8 For early district regulations, see the Report of J. Ross Browne on Mineral
Resources in 1867, being H. R. Ex. Doc. No. 29, 39th Cong., 2d Sess.; Yale on
Mining Claims and Water Rights, pp. 73-84. See, also, address by Mr. C. J.
Hughes, Jr., of Denver, in 24 Am. Bar Ass’n Rep. (1901) p. 320 ff.
® King v. Edwards, 1 Mont. 235.
8 ORIGIN AND HISTORY OF AMERICAN MINING Law. (Ch. 1
these regulations are founded in nature, based upon equitable prin-
ciples, comprehensive and simple, have a common origin, and are
matured by practice. Halleck expressed the opinion that in the main
the miners adopted, as best suited to their wants, the principles of the
mining laws of Mexico and Spain, by which the right of property in
mines is made to depend upon discovery and development, and that
discovery is made the source of title, development or working the con-
dition of its continuance, and that these two principles constitute the
basis of all their local laws and regulations. The merit of adoption,
the power of perceiving their appropriateness, and willingness to en-
force them, whatever the source of suggestion or origin, belongs to the
men who made these laws. At first they constituted all the law there
was upon the subject, and we have here a modern instance of an orig-
inal congregation of the people creating the law required by their
necessities, upon the assumption that the right to legislate was in-
herent in the people themselves. They proceeded upon the theory that
the public domain belonged to the people; that the mineral therein was
the subject of free private acquisition, as a reward for discovery and
occupation; and thus defied in effect the settled traditions and laws
of other countries, and the right of the United States as a government
to the mineral contained in its lands. The forms adopted, the methods
of operation, the ideas of right, the machinery of justice selected by
these miners in their primitive, inartificial, but direct and expressive,
resolutions, present to the student of jurisprudence and of its originals
instructive objects of investigation, since they contain the history
of the formation and growth of a living system of law.” 1°
However the rules originated, it must be said that the miners’
meetings at which they were adopted played a part in the education
and civilization of the mining frontier comparable only to the in-
fluence of the New England town meeting on New England institu-
tions,
THE FEDERAL MINING STATUTES.
3. Though the state of California early laid claim to the gold and
silver in the public domain within the state, the California
Supreme Court in 1861 abandoned the doctrine and opened
the way for uncontested federal legislation. Accordingly in
1866 Congress passed the first federal mining act. That act
authorized the location of mining claims and provided for the
patenting of lode claims. The failure to provide for the pat-
enting of placer claims was corrected by the placer act of'
1870, and the acts of 1866 and 1870 were merged in and im-
10 Mr. Charles J. Hughes, Jr., of Denver, Colo., in 24 Am. Bar Ass'n Rep.
(1901) pp. 825-827.
$ 3) THE FEDERAL MINING STATUTES. f
proved by the act of 1872. The act of 1872, as amended, is
embodied in the provisions of the Revised Statutes of the
United States on mining and the amendments thereto.
The Question of State Sovereignty.
Very early in the history of California the question of whethe1
the state of California or the federal government owned the gold anc
silver in the public domain arose. It was conceded on all sides that
under the government of Spain the right to the minerals was in the
crown, and that on the separation of Mexico that right passed to anc
vested in the Mexican nation. It was also conceded by everybody that
by the cession of California to the United States the title to the min-
erals passed from the Mexican nation to the United States. But it
was contended “that the minerals of gold and silver which passed by
the cession were held by the United States in trust for the future state
and that upon the admission of California the ownership of ther
vested in her.” 24. The last contention was upheld by the Californie
Supreme Court in 1853.1? That court said: “It is hardly necessary
at this period of our history to make an argument to prove that the
several states of the Union, in virtue of their respective sovereignties
are entitled to the jura regalia which pertained to the king at commor
law” *3—and asserted further: “In reference to the ownership of the
public lands, the United States only occupied the position of any pri-
vate proprietor, with the exception of an express exemption from state
taxation. The mines of gold and silver on the public lands are as muct
the property of this state, by virtue of her sovereignty, as are similat
mines in the lands of private citizens. She has, therefore, solely the
right to authorize them to be worked, to pass laws for their regulation
to license miners, and to affix such terms and conditions as she may
deem proper to the freedom of their use. In her legislation upon this
subject she has established the policy of permitting all who desire il
to work her mines of gold and silver, with or without conditions; ané
she has wisely provided that their conflicting claims shall be adjudicat-
ed by the rules and customs which may be established by bodies of
them working in the same vicinity.” **
Perhaps it was this assertion of state rights, as much as anything
that prevented early mining legislation by Congress, for it was not un-
til 1861, at the beginning of the Civil War, in the case of Moore v
11 MOORE v. SMAW, 17 Cal. 199, 217, 79 Am. Dec. 123.
12 Hicks v. Bell, 3 Cal. 219. See, also, Stoakes v. Barrett, 5 Cal. 36.
13 Hicks v. Bell, 3 Cal. 219, 226.
14 Hicks v. Bell, 3 Cal. 219, 227.
10 ORIGIN AND HISTORY OF AMERICAN MINING LAW. (Ch. 1
Smaw,?® that the California Supreme Court finally abandoned this
claim of sovereignty. The opinion in that case by Mr. Justice Field
is so important in the history of American mining law that a long quo-
tation from it is desirable, particularly as that quotation will constitute
our only reference to the doctrine of the common law as to mines. In
that case of Moore v. Smaw the California court said:
“It is undoubtedly true that the United States held certain rights
of sovereignty over the territory which is now embraced within the
limits of California only in trust for the future state, and that such
rights at once vested in the new state upon her admission into the
Union. But the ownership of the precious metals found in public or
private lands was not one of those rights. Such ownership stands in
no different relation to the sovereignty of a state than that of any
other property which is the subject of barter and sale. Sovereignty
is a term used to express the supreme political authority of an inde-
pendent state or nation. Whatever rights are essential to the existence
of this authority are rights of sovereignty. Thus the right to declare
war, to make treaties of peace, to levy taxes, to take private property
for public uses, termed the ‘right of eminent domain,’ are all rights
of sovereignty, for they are rights essential to the existence of supreme
political authority. In this country this authority is vested in the peo-
ple, and is exercised through the joint action of their federal and
state governments. To the federal government is delegated the ex-
ercise of certain rights or powers of sovereignty, and, with respect
to sovereignty, ‘rights’ and ‘powers’ are synonymous terms; and the
exercise of all other rights of sovereignty, except as expressly prohibit-
ed, is reserved to the people of the respective states, or vested by them
in their local governments. When we say, therefore, that a state of
the Union is sovereign, we only mean that she possesses supreme polit-
ical authority, except as to.those matters over which such authority
is delegated to the federal government or prohibited to the states; in
other words, that she possesses all the rights and powers essential to
the existence of an independent political organization, except as they
are withdrawn by the provisions of the Constitution of the United
States. To the existence of this political authority of the state—this
qualified sovereignty, or to any part of it—the ownership of the min-
erals of gold and silver found within her limits is in no way essential.
The minerals do not differ from the great mass of property, the owner-
ship of which may be in the United States or in individuals, without
affecting in any respect the political jurisdiction of the state. They
15 17 Cal. 199, 79 Am. Dec. 123. See the earlier cases of Merced Mining Co.
v. Fremont, 7 Cal. 317, 68 Am. Dec. 262, and Boggs v. Merced Min, Co., 14 Cal
279. ;
§ 3) THE FEDERAL MINING STATUTES. 11
may be acquired by the state, as any other property may be; but when
thus acquired she will hold them in the same manner that individual
proprietors hold their property, and by the same right—by the right
of ownership, and not by any right of sovereignty,
“In Hicks v. Bell the court states correctly that according to the
common law of England mines of gold and silver were the exclusive
property of the crown, and did not pass in a grant of the king under
the general designation of lands or mines; but it assumes that this
right of the crown—this regalian right—vested in the state. ‘It is
hardly necessary,’ in the language of the opinion, ‘at this period of our
history, to make an argument to prove that the several states of the
Union, in virtue of their respective sovereignties, are entitled to the
jura regalia which pertained to the king at common law.’ It is in this
assumption that the error of the decision consists. Under the general
designation of ‘jura regalia’ are comprehended, not only those rights
which pertain to the political character and authority of the king, but
also those rights which are incidental to his regal dignity, and may be
severed at his pleasure from the crown and vested in his subjects. It
is only to certain rights of the first class that the states, by virtue of
their respective sovereignties, are entitled. It is to the second class
that the right to the mines of gold and silver belongs.
“In the great case of The Queen v. The Earl of Northumberland, 1
Plowden, 310, which was argued before the Barons of the Exchequer
and all the Justices of England, it was held by their unanimous judg-
ment ‘that by the law all mines of gold and silver within the realm,
whether they be in the lands of the queen or of subjects, belong to the
queen by prerogative, with liberty to dig and carry away the ores there-
of, and with other such incidents thereto as are necessary to be used
for the getting of the ore,’ and also ‘that a mine royal, either of base
metal containing gold or silver, or of pure gold and silver only, may, by
the grant of the king, be severed from the crown, and be granted to an-
other, for it is not an incident inseparable to the crown, but may be
severed from it by apt and precise words.’ This case was decided in
1568 during the reign of Queen Elizabeth, and continues unto this day
an authoritative exposition of the doctrines of the common law. It is
conclusive to the point that the right to the.mines was not regarded by
that law as an incident of sovereignty, but was regarded as a personal
prerogative of the king, which could be alienated at his pleasure.
“No reasons in support of the prerogative are stated in the resolu-
tion of the judges, and those advanced in argument by the queen’s
counsel would be without force at the present time. Onslow, the
queen’s solicitor, says Plowden ‘alleged three reasons why the king
shall have mines and ores of gold and silver within the realm, in what-
12 ORIGIN AND HISTORY OF AMERICAN MINING LAW. (Ch. 1
soever land they are found. The first was in respect to the excellency
of the thing, for of all things which the soil within this realm pro-
duces or yields gold and silver is the most excellent, and of all persons.
in the realm the king is, in the eye of the law, most excellent; and the
common law, which is founded upon reason, appropriates everything to
the person whom it best suits, * * * and, because gold and silver
are the most excellent things which the soil contains, the law has ap-
pointed them (as in reason it ought) to the person who is most ex-
cellent, and that is the king. * * * The second reason was in re-
spect to the necessity of the thing; for * * * the office of the
king, to which the law has appointed him, is to preserve his subjects;
and their preservation consists in two things, viz., in the army, to de-
fend them against hostilities, and in good laws. And an army cannot
be had and maintained without treasure, for which reason some au-
thors, in their books, call treasure the sinews of war; and therefore,
inasmuch as God has created mines within this realm as a natural pro-
vision of treasure for the defense of the realm, it is reasonable that
he who has the government and care of the people, whom he cannot
defend without treasure, should have the treasure wherewith to de-
fend them. * * * The third reason was in respect of its con-
venience to the subjects in the way of mutual commerce and traffic;
for the subjects of the realm must, of necessity, have intercourse or
dealing with one another, for no individual is furnished with all neces-
sary commodities, but one has need of the things which another has,
and they cannot sell or buy together without coin” * * *
“Tt would be a waste of time to show that none of the reasons thus
advanced in support of the right of the crown to the mines can avail
to sustain any claim of the state to them. The state takes no property
by reason of ‘the excellency of the thing,’ and taxation furnishes all
the requisite means for the expenses of government. ‘The convenience
of citizens in commercial transactions is undoubtedly promoted by a
supply of coin, and the right of coinage appertains to sovereignty.
But the exercise of this right does not require the ownership of the
precious metals by the state, or by the federal government, where this
right is lodged under our system, as the experience of every day
demonstrates. The right of the crown, whatever may be the reasons
assigned for its maintenance, had in truth its origin in an arbitrary ex-
ercise of power by the king, which was at the time justified on the
ground that the mines were required as a source of revenue, * * *
“It follows, from the views, we have thus expressed, that the first po-
sition advanced by the defendants cannot be sustained ; that the gold and
silver which passed by the cession from Mexico were not held by the
United States in trust for the future state; that the ownership of them
§ 3) THE FEDERAL MINING STATUTES. 13
is not an incident of any right of sovereignty; that the minerals were
held by the United States in the same manner as they hold any other
public property which they acquired from Mexico; and that their own-
ership over them was not: lost, or in any respect impaired, by the ad-
mission of California as a state.” 1°
The final conclusion of the California court in this matter has ever
since been acquiesced in, where the question has been between the
United States as a landed proprietor and the state in which the Unit-
ed States land is situated.17 It must not be supposed, from the fore-
going, however, that New York, for instance, is in error in insisting
that it owns the gold and silver within its borders. While Moore v.
Smaw is law as to United States domain within a state, the New York
doctrine would seem to be perfectly sound for New York and other
states where the United States never has owned any public lands. The
case of Shoemaker v. United Statest® bears this out. In that case,
which adopted the opinion of the lower court on the point, it was de-
cided that by the grant of Charles I to Lord Baltimore all veins, mines,
and quarries of gold, silver, gems, and precious stones in Maryland
passed to the grantee in fee, he yielding to the king the fifth part of all
gold and silver ore which should happen from time to time to be found
there; that after the Revolution the confiscation act of 1780 passed
by Maryland ended the proprietary’s title and vested it in the state of
Maryland, which had by the Revolution become entitled also to the
king’s one-fifth; and that the act of cession of 1791, conveying the Dis-
trict of Columbia to the United States, passed the title to gold and sil-
ver mines in the District of Columbia to the United States. This de-
cision certainly favors the New York theory for the thirteen original
states,1® but the doctrine of Moore v. Smaw is the one that prevails
where what we call the American mining law exists,
Though Moore v. Smaw was decided in 1861, it was not until the
act of July 26, 1866, that Congress attempted to regulate mining, and
actually legislated on the subject. The power of Congress was, of
course, ample.2® The statute of July 26, 1866, was the first general
16 MOORE v. SMAW, 17 Cal. 199, 218-222, 79 Am Dec. 123. For the situ-
ation in England to-day, see St. 1 W. & M. c. 30, and St.5 W. & M.c. 6, and
the case of Attorney General v. Morgan, [1891] 1 Ch. 432.
17 Doran v. Central Pac. R. Co., 24 Cal. 245.
18147 U. S. 282, 13 Sup. Ct. 361, 87 L. Ed. 170.
19 See, also, Fremont v. U. S., 58 U. 8. 542, 15 L. Hd. 241.
20 “With respect to the public domain, the Constitution vests in Congress
the power of disposition and of making all needful rules and regulations. That
power is subject to no limitations. Congress has the absolute right to pre
scribe the times, the conditions, and the mode of transferring this property,
2114 Stat. 251, ¢. 262.
14 ORIGIN AND HISTORY OF AMERICAN MINING LAW. (Ch. I
statute providing for the conveyance of mines or minerals by the
United States, though curiously enough its title, “An act granting
the right of way to ditch and canal owners over the public lands and
for other purposes,” gives no indication of that fact.2? The act of
February 27, 1865, had previously recognized miners’ rights by pro-
viding “that no pending action between individuals in any of the courts
for the recovery of a mining title, or for damages to any such title,
shall be affected by the fact that the paramount title to the land on
which such mines lie is in the United States, but each case shall be
judged by the law of possession."?* The act of 1866 was, however,
the first general federal mining statute.
The -1ct of 1866.
The essential features of the act of 1866 were: (1) The declaration
“that the mineral lands of the public domain, both surveyed und un-
surveyed, 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.” ** (2) A pro-
vision giving extralateral rights. (3) A provision for the patenting of
lode claims, with a provision for adverse suits. (-1) A provision recog-
nizing and protecting water rights vested by priority of possession.
In this act, incomplete and faulty in many respects though it was,
Congress recognized its moral obligations. As the United States Su-
preme Court said before its passage: “We know, also, that the terri-
torial Legislature [of Nevada] has recognized by statute the validity
and binding force of the rules, regulations, and customs of the mining
districts. And we cannot shut our eyes to the public history, which in-
forms us that under this legislation, not only without interference by
or any part of it, and to designate the persons to whom the transfer shall be
made. No state legislation can interfere with this right or embarrass its ex-
ercise; and, to prevent the possibility of any attempted interference with it,
a provision has been usually inserted in the compacts by which new. states
have been admitted tuto the Union that such interference with the primary dis-
posal of the soil of the United States shall never be made.” Gibson vy. Chou-
fenu, 18 Wall. (UO. 8.) 92, 99, 20 L. Ed. 584; Shannon v. U. 8. (C. C, A.) 160
Jed. 870.
22 In Yale on Mining Claims and Water Rights, 12. the explanation of the
act’s title is made, The mining bill was tacked onto a bill in regard to ditches
in order to expedite the mining bill’s passage,
2912 Stat. 441, c. Gt, § 9, now Rev. St. U.S. § 910 (U.S. Comp. St. 1901, p.
679), given in appendix.
24 14 Stat. 251, e 262,
§ 8) THE FEDERAL MINING STATUTES. 15
the national government, but under its implied sanction, vast mining
interests have grown up, employing many millions of capital, and con-
tributing largely to the prosperity and improvement of the whole coun-
try? 25
By the act of 1866, enacted in recognition of these moral obligations
of the United States, Congress “passed a law by which title to mineral
lands might be acquired from the government at nominal prices, and
by which the idea of a royalty in the product of the mines was forever
relinquished.” ?® As Mr. Lindley so well says: ‘What had thereto-
fore been technically a trespass became thenceforward a licensed priv-
ilege, untrammeled by governmental surveillance or the exaction of
burdensome conditions. Such conditions as were imposed were no
more onerous than those which the miners had imposed upon them-
selves by their local systems. That such a declaration of governmental
policy stimulated and encouraged the development of the mining in-
dustry in the West is a matter of public history.” ?7
One astonishing defect of the act of 1866 was the failure to provide
for the patenting of placer claims. The defect was due, probably, to
the diminishing importance of placer mining in California and to the
widespread feeling that lode mining, which had extended to several
states and territories and caused important litigation, was in especial
need of legislation.2® That Senator Stewart of Nevada was one of
the authors of the act ?® and that in Nevada the needs of lode mining
were all-absorbing were additional reasons. Whatever the reason, it
was not until the placer law of 1870 that placer lands could be patented.
But the act of 1866 exhibited other defects, the natural outcome of
the mining law evolution. When the miners rushed into California on
the discovery of gold, the bar in placer mining, of course, and the dis-
covery lode, as a consequence, in lode mining, became the all-important
things. The miners’ rules and regulations, originated in California;
and copied elsewhere in the mining region, provided that, within cer-
tain defined limits, a discovery vein, with all its dips, angles, and varia-
tions, should belong to the locator, but that, in general, no other vein
or ore should. Take, for instance, the following articles from the
\
25 SPARROW v. STRONG, 3 Wall. 97, 104, 18 L. Ed. 49. See Conger v.
Weaver, 6 Cal. 548, 65 Aim. Dec: 528; Gold Hill Quartz Min. Co. vy. Ish, 5 Or.
104. But see Boggs v. Merced Min. Co., 14 Cal. 279.
26 IVANHOE MINING CO. v. CONSOLIDATED MIN. CO., 102 U. S. 167,
178, 26 L. Ed. 126.
271 Lindley on Mines (2d Ed.) § 55. See Wolfley v. Lebanon Min. Co., 4
Colo. 112; Robertson v. Smith, 1 Mont. 410.
28 See 1 Lindley on Mines (2d Ed.) § 57.
29 JENNISON vy. KIRK, 98 U. S. 453, 459, 25 L. Hd. 240,
16 ORIGIN AND HISTORY OF AMERICAN MINING LAw. (Ch. 1
Regulations of Reese River District, Nevada, which, because adopted
in Senator Stewart’s own state, may well have influenced the act of
1866:
“Sec. 6. Each claimant shall be entitled to hold by location two hun-
dred feet on any lead in the district, with all the dips, spurs, and angles,
offshoots, outcrops, depths, widths, variations, and all the mineral and
other valuables therein contained; the discoverer of and locator of a
new lead being entitled to one claim extra for discovery.
“Sec. 7. The locator of any lead, lode, or ledge in the district shall
be entitled to hold on each side of the lead, lode, or ledge located by
him or them one hundred feet; but this shall not be construed to mean
any distinct or parallel ledge within the two hundred feet other than
the one originally located.” *°
Such mining regulations were responsible, no doubt, for the pro-
vision of section 3 of the act of 1866 that the plat, survey, or descrip-
tion filed on an application for patent “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.” *2 The lode was
the principal thing and the surface an incident under the act of 1866,°?
because it had been so under the miners’ rules.
In speaking of Flagstaff Silver Mining Co. v. Tarbet,?? and other
decisions involving the act of 1866, Mr. Justice Brewer says: ‘These
decisions show that, while the express purpose of the statute was to
grant the vein for so many feet along its course, yet such grant could
only be made effective by a surface location covering the course to such
extent.” 34 But, while a reasonable amount of surface for the con-
venient working of the lode was a necessary incident to the lode, other
veins within that surface were not necessary, and hence not incident.
As to surface ground the act of 1866 merely left the amount to the dis-
cretion of the Land Department. “Obviously,” says Mr. Justice Brew-
er, “the statute contemplated the patenting of a certain number of feet
of the particular vein claimed by the locator, no matter how irregular
its course, [but it?] made no provision as to the surface area or the
form of the surface location, leaving the Land Department in each par-
ticular case to grant so much of the surface as was ‘fixed by local rules,’
30 Mineral Resources, p. 247.
3114 Stat. 251, ce. 262, § 3.
32 CALHOUN GOLD MIN. CO. v. AJAX GOLD MIN. CO., 27 Colo. 1, 59 Pae.
607, 612, 50 L. R. A. 209, 83 Am. St. Rep. 17; Del Monte Mining & Milling Co.
v. Last Chance Mining & Milling Co., 171 U. 8. 55, 68, 18 Sup. Ct. 895, 43 L.
Ed. 72.
3398 U. S. 463, 25 L. Ed. 253.
34 Del Monte Mining & Milling Co. v. Last Chance Mining & Milling Co., 171
U. S. 55, 65, 18 Sup. Ct. 895, 43 L. Hd. 72.
§ 3) THE FEDERAL MINING STATUTES, 17
or was, in the absence of such rules, in its judgment necessary for the
convenient working of the mine. The party to whom the vein was
thus patented was permitted to follow it on its dip to any extent, al-
though thereby passing underneath lands to which the owner of the
vein had no title. As might be expected, the patents issued under this
statute described surface areas very different and sometimes irregular
in form. Often they were like a broom, there being around the dis-
covery shaft an amount of ground deemed large enough for the con-
venient working of the mine, and a narrow strip extending therefrom
as the handle of the broom.*® ‘This strip might be straight, or in a
curved or irregular line, following, as was supposed, the course of the
vein. Sometimes the surface claimed and patented was a tract of con-
siderable size, so claimed with the view of including the apex of the
vein, in whatever direction subsequent explorations might show it to
run. And, again where there were local rules giving to the discoverer
of a mine possessory rights in a certain area of surface, the patent fol-
lowed those rules and conveyed a similar area. Even under this stat-
ute, although its express purpose was primarily to grant the single
vein, yet the rights of the patentee beneath the surface were limited
and controlled by his rights upon the surface. If, in fact, as shown by
subsequent explorations, the vein on its course or strike departed from
the boundary lines of the surface location, the point of departure was
the limit of right. In other words, he was not entitled to the claimed
and patented number of feet of the vein, irrespective of the question
whether the vein in its course departed from the lines of the surface
location.” 6
In other words, while before patent the owner of a lode could fol-
low it in whatever direction its strike might go, so long as he kept
within the length of strike allowed him by virtue of his location, after
patent, even though the surface was an incident of the lode, he could
not have more of the strike of the lode than was included in his pat-
ent.27_ “One who discovers and locates a lode mining claim under the
act of 1866 thereby renounces and abandons all rights and privileges
to follow his lode on its course beyond the exterior lines of his patented
claim, when he locates it upon the surface of the ground, enters it, and
accepts a patent for it under the law.” *8
35 For curious shapes of claims under the act of 1866, see 1 Lindley on Mines
(2d. Ed.) § 59.
36 Del Monte Mining & Milling Co. v. Last Chance Mining & Milling Co.,
171 U. S. 55, 63, 64, 18 Sup. Ct. 895, 898, 48 L. Ed. 72.
87 Flagstaff Silver Mining Co. v. T'arbet, 98 U. S. 468, 25 L. Ed. 253.
38 Larned v. Jenkins, 113 Fed. 634, 686, 51 C. C. A. 344, citing New Dunder-
berg Mining Co. v. Old, 79 Fed. 598, 606, 25 C. C. A. 116; Wolfley v. Lebanon
Cost.M1n.L.—2
18 ORIGIN AND HISTORY OF AMERICAN MINING LAW. (Ch. 1
Despite the issuance under the act of 1866 of a patent covering a
definite surface, a subsequent claimant, who first showed that two lodes
were covered, could doubtless locate the extra vein. As the Idaho court
said, where the question was between a locator before patent and one
seeking to get an extra vein: “It is true that the law allows him [the
locator] to hold only one lode by this location; but the fact that two
ledges exist within these bounds must first be established before the
subsequent claimant has any lawful right to pass into them. If by
going outside of these boundaries, and tracing it into them, he shows
that another and distinct lode exists, then he may pass boundaries that
would otherwise be sacred to the first locator. But until he does so he
has no right to go upon the ground which the law has already given
to his neighbor.” °° Indeed, the situation was clearly analogous to
the case of known lodes in placers under the act of 1872. In both cases
the patent states expressly the reservation which the law makes.*°
But, apart from the question of the extraordinary shape given to
claims under the act of 1866, the question of the extent of the strike
of the vein located, and the question of several lodes included in the
surface boundaries, there were other difficulties under the act, such
as the determination of extralateral rights. These we shall have oc-
casion to advert to later.
The Placer Act of 1870.
The act of 1866 was amended by the act of July 9, 1870,41 which
provided for the patenting of placers. This act of 1870 was the first
act for the patenting of placers, and therein lies its importance. The
general act of May 10, 1872, which is substantially in force today, re-
tained practically all of the provisions of this placer act of 1870.
The Act of 1872.
The act of May 10, 1872,*? was drawn on a different theory from
the act of 1866 with reference to lode claims. A fundamental differ-
ence from the earlier act is that under the act of 1872 a miner locates
Min. Co., 4 Colo. 112, 116; Lebanon Min. Co. v. Rogers, 8 Colo. 34, 38, 5 Pac.
661.
39 Atkins v. Hendree, 1 Idaho, 95, 99. Compare Eureka Cases, 4 Sawy. (U.
S.) 302, 323, Fed. Cas. No. 4,548.
40 “In all patents issued under the act [of 1866] a recital was inserted re-
stricting the grant to one vein, or lode described therein, and providing that
any other vein or lode discovered within the surface ground described should
be excepted and excluded from the operation of the grant.” 1 Lindley on Mines
(2d. Ed.) § 58. On reservation of known lodes in placers, see infra, chapters
XVIII and XX; 2 Lindley on Mines (2d. Ed.) § 781.
4116 Stat. 217, ¢. 235.
4217 Stat. 91, c. 152,
§ 3) THE FEDERAL MINING STATUTES. 19
a surface, which must be so laid out as to include the top or apex of
his lode. If he succeeds in making a valid location, then he also ac-
quires all other veins or lodes apexing within the ground. Where un-
der the law of 1866 the miner located a lode, under the act of 1872 he
locates a surface with a lode in it.#* The act of 1866 threw open to
exploration and occupation the mineral lands of the United States, and
gave the locator the right to get a patent for his “mine.” The act of
1872 threw open to exploration and purchase all valuable mineral de-
posits, and made free and open to occupation and purchase “the land in
which they are found.” Under the act of 1866 the patentee got the
lode located, but only one lode. Under the act of 1872 his patent gives
him all lodes apexing in what the common law would denominate
his ground. No longer is the surface ground, as under the act of 1866,
merely for the convenient working of the claim; under the act of
- 1872, it has become an essential part of the claim. It is so essential that
where there is a vein, but no surface is left to locate, it is held that the
vein cannot be located.**
The act of 1872 has been construed to make other important changes.
Because of a provision that “the end lines of each claim shall be parallel
to each other” the act has been held to mean that there can be no ex-
tralateral rights on the vein unless the end lines are parallel, so far at
least as the end lines extended would diverge on the dip. Then the
possible size of a claim is much increased under the act of 1872. By
the act of 1866 no location could exceed 200 feet in length, with an ad-
ditional claim for discovery to the discoverer. The width of the lo-
cation was not restricted, however, except by district rules. By the act
of 1872 a lode claim cannot exceed 1,500 feet in length nor 600
feet in width. By the act of 1866 only one location on a vein
could be made, except that the discoverer could make two locations,
and not more than 3,000 feet could be taken in any one claim by any
association of persons. By the act of 1872 as many lode claims may be
located by one person as he can make discoveries for,*® it being pro-
vided that ‘no location of a mining claim shall be made until the dis-
covery of the vein or lode within the limits of the claim located.” *®
By the act of 1866 the lodes that could be located were those of “quartz
or other rock in place, bearing gold, silver, cinnabar, or copper.” By
43 Gleeson vy. Martin White Min. Co., 13 Nev. 442, 457.
44 Traphagen v. Kirk, 30 Mont. 562, 77 Pac. 58, and cases cited. See, also,
Heil v. Martin (Tex. Civ. App.) 70 S. W. 430; Gleeson v. Martin White Min.
Co., 13 Nev. 442.
45 But see B. & C. Comp. Or. § 3974. Compare Prosser v Parks, 18 Cal.
47. See discussion of Oregon act in chapter X, § 45, infra.
46 Rey. St. U. S. § 2320 (U. S. Comp. St. 1901, p. 1424).
20 ORIGIN AND HISTORY OF AMERICAN MINING LAW. (Ch. 1
the act of 1872 they were those “of quartz or other rock in place, hea
ing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits.”
Besides departing from the act of 1866 in the above particulars
and in others, the act of 1872 provided for the ownership of cross-
veins and veins uniting on the dip, made more complete and definite the
provisions about patenting claims, fixed the method of acquiring known
lodes in placer ground, and legislated about tunnel site locations, mill
sites, etc. With reference to lode claims, the act of 1872 provided
that the location must be distinctly marked on the ground, so that its
boundaries can be readily traced, that records, where required, shail
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, and
that on each claim, until a patent shall have been issued therefor, not
less than $100 worth of labor shall be performed or improvements
made during each year. The act also provided for forfeitures.
Subsequent Statutes.
Since 1872 there have been a number of amendments to the mining
laws. Some of the amendments except particular states from the
operation of the mining laws. One extends the time for the perform-
ance of annual labor ; others, such as the act in regard to saline lands,
the stone and timber act, the act in regard to petroleum lands, etc.,
govern special kinds of mining land; and still others, such as the Alas-
kan and the Philippine acts, are mining codes for isolated parts of
United States territory. Perhaps the most important single acts of
general application to all kinds of mining claims are the act of January
22, 1880,*” fixing a uniform time for the performance of annual labor
on all unpatented claims located since the act of 1872, and that of
March 3, 1881,** providing that in adverse suits, if title to the ground
in controversy is not established by either party, “the jury shall so find,
and judgment shall be entered according to the verdict.” The impor-
tant amendments will be dealt with in the discussion of the mining
problems to which they apply.
The United States Revised Statutory Provisions on Mining.
The Revised Statutes of the United States are in effect a revision
and consolidation of the previous statutes. It is familiar doctrine of
statutory construction that “when the meaning is plain the courts can-
not look to the statutes which have been revised to see if Congress erred
in that revision, but may do so when necessary to construe doubtful
47 21 Stat. 61, c. 9, § 2 (U. S. Comp. St. 1901, p. 1426).
48 21 Stat. 505, c. 140 (U. S. Comp. St. 1901, p. 1431).
NN
§ 4) : SUPPLEMENTAL STATE LEGISLATION. 21
language used in expressing the meaning of Congress.” *® The acts
of 1866, 1870, and 1872 are to be examined only in case of doubt as
to the meaning of the Revised Statutes.
SUPPLEMENTAL STATE LEGISLATION.
4. In the act of 1872 Congress authorized the various states in which
was situated public mineral domain of the United States to
legislate in regard to mining. Such legislation is necessarily
only supplemental to the federal legislation, but covers a large
and important field. All of the mining law states, except Cali-
fornia, have mining codes, and the details of such codes are
considered in subsequent chapters.
Since the congressional legislation of 1866, 1870, and 1872, the
different mining states have legislated on the subject of mining. Of
all the states and territories of the mining region, California is the
only one without statutory regulations. In California, because a min-
ing code enacted in 1897 was repealed in 1899 and 1900, all the min-
ing requirements, if any, in excess of those prescribed by the federal
statutes (with the exception, probably, of record, which is still a state
requirement),°° are determined by district regulations and customs.*?
The right of Congress to authorize (as in the act of 1872 it did au-
thorize) supplemental state legislation °? is thoroughly well established
by authority. State legislation must, of course, be purely supplemental,
in no way infringing any provision of Congress in regard to mining;
but a very great latitude is left to the states, as the case of Montana,
where down to 1907 somewhat stringent legislation in regard to mining
was indulged in, and the cases of Nevada and Oregon, where similar
legislation still exists, show.**
49U. S. v. Bowen, 100 U. S. 508, 513, 25 L. Ed. 631.
“No reference, therefore, can be had to the original statutes, to control
the construction of any section of the Revised Statutes, when the mean-
ing is plain, although in the original statutes it may have had a larger or more
limited application than that given to it in the revision.” Deffeback v. Hawke,
115 U. S. 392, 402, 6 Sup. Ct. 95, 29 L. Ed. 423.
50 Civ. Code Cal. 1901, §§ 1159-1169.
51 A location which met federal requirements, but did not comply with the
California statute, was upheld, because the locators were in possession when
the California statute was repealed, and remained in possession, Dwinnell v.
Dyer, 145 Cal. 12, 78 Pac. 247, 7 L. R. A. (N. S.) 763.
52 Rey. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426). See Copper Globe
Min. Co. v. Allman, 23 Utah, 410, 64 Pac. 1019.
53 Butte City Water Co. v. Baker, 196 U. S. 119, 25 Sup. Ct. 211, 49 L. Ed.
409: Hickey v. Anaconda Copper Min. Co., 33 Mont. 46, 81 Pac. 806; Mares v.
Dillon, 30 Mont. 117, 75 Pac. 963; Wright v. Lyons, 45.Or. 167, 77 Pac. 81.
In 1907 Montana repealed its objectionable law and enacted a very fair one in
22 ORIGIN AND HISTORY OF AMERICAN MINING LAW: (Ch. 1
The various classes of state legislation will be taken up when we
reach the proper topics in the main body of the book; but a very in-
teresting classification of state legislation has been made by Mr. Lind-
ley, and should be stated here. He has two groups: (a) Proper state
legislation; and (b) doubtful state legislation.**
Under group (a) which consists of matters of legislation “unques-
tionably proper within certain limits,” he classifies: (1) Length of lode
claims. (2) Width of lode claims. (3) Posting notices of location.
(4) Contents of notices and certificates of location. (5) Recording no-
tices and certificates of location. (6) Posting certificate of recorder to
the fact that the location certificate is recorded. (7) Authorizing
amended locations and amended location certificates. (8) Marking of
boundaries and defining the character of posts and monuments. (9)
Requiring sinking of discovery shaft or its equivalent prior to comple-
tion of location. (10) Requiring affidavit of sinking discovery shaft or
its equivalent to be attached to and recorded with the notice of loca-
tion. (11) Fixing time within which location shall be completed after
discovery. (12) Providing for the manner of relocating abandoned
claims. (13) Amount of annual work. (14) Posting notice that annual
or development work is in progress. (15) Authorizing the recording
of affidavits of performance of annual labor. (16) Prescribing man-
ner of organizing mining districts. (17) Authorizing survey of claim
to be made by deputy mineral surveyor, and, when recorded, to become
a part of the location certificate, and become prima facie evidence as to
all facts therein contained. (18) Manner of locating tunnel claims and
length allowed on discovered lode. (19) Manner of locating mill sites
and area allowed therefor.
Under group (b), which consists of matters of legislation “either
clearly obnoxious to the federal law or open to criticism as being in-
effectual,” he classifies: (1) Laws giving a locator the right to all
lodes which have their tops or apex within the location, and defining
the extralateral right. (2) Laws defining the rights of parties in cases
of lodes crossing or uniting. (3) Laws determining the rights of lo-
cators of two crevices found to be the same lode. (4) Laws prohibiting
the proprietor of a mining claim from pursuing his vein on its strike
its place, which even made valid previous locations which complied with the
new act, if no intervening rights of third persons were affected. Laws Mont.
1907, pp. 18-23. But in the same year Nevada reaffirmed by amendment its
harsh legislation, which really sets a trap for the unwary. Laws Nev. 1907, pp.
418421. The Nevada act of 1907 seems to have the great merit, however, of
curing all defects in previous records of locations not already taken advantage
of by third persons. Id. It is to be hoped that Nevada and Oregon will follow
Montana in adopting a reasonable statute on mining.
541 Lindley on Mines (2d Ed.) §§ 250, 251.
§ 5) SUPPLEMENTAL DISTRICT RULES, ETO. 23
beyond vertical planes drawn through surface boundaries. (5) Laws
requiring verification of location certificates by oath. (6) Laws pro-
viding methods for forfeiting estate of delinquent co-owner. (7) Laws
specifying the character of deposits which may be located under the
placer laws.
It would seem as if Mr. Lindley made a mistake in not putting (b)
(5) under (a).°5 The requirement of the verification of location cer-
tificates by oath seems legally unobjectionable.
The various states have legislated, also, in regard to drainage, ease-
ments, rights of way, mining corporations, etc.; but, with the exception
just noted, the strictly mining code provisions have been well classified
by Mr. Lindley as set forth above.*
SUPPLEMENTAL DISTRICT RULES, REGULATIONS, AND CUS-
TOMS.
5. The so-called common law of mining in America, which consists
of the local mining district rules, regulations, and customs,
has had a continually decreasing importance, because of the
increasingly greater range of state legislation. The district
rules, regulations, and customs have shaped the federal and
state statutes, and in some localities even to-day they are of
considerable importance. Such rules, regulations, and customs
are valid, if they are reasonable, if they are actually in force,
and if they do not conflict with either state or federal legis-
lation. :
A very important effect of state legislation has been the way it has
tended to supersede district mining rules and regulations. Under the
, act of 1872 such rules and regulations must be consistent, not only with
Congressional legislation, but also with the supplemental state legisla-
tion.®* There is a tendency on the part of mining law writers to slight
the subject of district mining rules, just because in so many of our
55 See Butte City Water Co. v. Baker, 196 U. 8S. 119, 25 Sup. Ct. 211, 49 L.
Ed. 409.
* The last Nevada Legislature has passed an act which seems to be uncon-
stitutional. It provides for the location of minerals in unfenced and unim-
proved privately unowned land, of which the legal owner is to be deprived on
being paid a compensation based on the value of the land to him without con-
sidering the minerals. Sess. Laws Nev. 1907, pp. 140, 141.
56 Rey. St. U. S. § 2824 (U. S. Comp. St. 1901, p. 1426); Jupiter Min. Co.
vy. Bodie Consol. Min. Co. (C. C.) 11 Fed. 666; Original Company of the Williams
& Kellinger v. Winthrop Min. Co., 60 Cal. 631; Woodruff v. North Bloomfield
Gravel Min. Co. (C. C.) 18 Fed. 753, 9 Sawy. 441. A state statute requiring
mining district recorders to deliver their records to the proper county recorders
was upheld in Re Monk, 16 Utah, 100, 50 Pac. 810.
24 ORIGIN AND HISTORY OF AMERICAN MINING LAW. (Ch. 1
mining law states such rules have practically been supplanted by elabo-
rate mining codes; but when it is remembered that in Utah and Wyo-
ming something, and in Arkansas and Alaska still more, is left to
district mining rules, that in California practically everything that the
state Legislature could require is so left, that under some of the min-
ing codes considerable room still exists for district rules as to placer
mining claims, and that other states may some day follow California by
repealing their mining statutes, these district rules are seen to have
such an actual and potential value, in addition to their historical signifi-
cance, that it is only right to give them careful attention.®*
Mining districts were, and so far as they exist to-day are, terri-
torial divisions, varying in size according to the needs and notions of
their organizers. It is almost invariably the rule to describe a mining
claim in a conveyance as situated in such and such a mining district.
“Where land office or other forms contain a blank for the name of the
mining district, and no district has ever been formed, it is usual to fill
such blank with the word ‘unorganized.’ And there is no doubt that a
mining district may exist to the extent of giving a name to a locality,
* * * and such name, when adopted by common consent, is as valid
as if adopted at a district meeting.” °* Mining districts have been
well described by the authority just quoted as “quasi municipal organi-
zations.” 5°
District rules had a much wider range before congressional legis-
lation than they have had since; for, under the acts of Congress, dis-
trict rules may relate to “the location, manner of recording, [and]
amount of work necessary to hold possession of a mining claim,” °°
subject to the requirements of Congress about marking the location,
about the contents of a record (if one is required by district rules or by
state legislation), and about not less than $100 worth of labor or im-
provements being put on each claim each year. Prior to the federal
statutes, the rules and regulations of miners were free from restric-
tions, except such as were imposed by state statutes,®* and it is a ques-
tion how far the latter were valid. Since the acts of Congress, the dis-
57It seems as if, under Act Jan. 31, 1901, c. 186, 81 Stat. 745 (U. S. Comp.
St. 1901, p. 1485), there is considerable room in states where salt abounds for
district mining rules as to salt claims.
58 Morrison’s Mining Rights (13th Ed.) p. 5.
59 Morrison’s Mining Rights (13th Ed.) p. 4. An attempted organization of
a mining district by two miners in the presence of three Indians who did not
understand English was held insufficient in Fuller v. Harris (D. C.) 29 Fed. 814.
60 Rev. St. U. S. § 2524 (U. 8. Comp. St. 1901, p. 1426).
81 Compare Glacier Mountain Silver Min. Co. v. Willis, 127 U. S. 471, 8 Sup.
Ct. 1214, 82 L. Ed. 172.
§ 5) SUPPLEMENTAL DISTRICT RULES, ETO. 25
trict rules have been able to affect only those matters not disposed of
by the state and federal legislation.
With reference to district rules, wherever such rules are material,
the courts have adopted a liberal policy. The courts will not take ju-
dicial notice of district mining regulations and customs, for “to say that
the court is advised as to the nature and extent of such regulations is
contrary to the fact, and therefore they cannot be the subject of judi-
cial notice.” ©? But such regulations may be shown to exist by custom
or usage, even if their enactment is irregular.** A valid district rule
need not be found among the written rules of the district before it can
be proved; for a custom which is reasonable, and which is recognized
and followed by the miners, will prevail against an obsolete written
mining regulation.** The existence or nonexistence of a mining dis-
trict regulation or custom is, of course, a question of fact for the
jury; °* but the courts are liberal in allowing evidence of custom to go
to the jury, and here, as elsewhere, the courts do all that they can to
give effect to reasonable mining customs. A mining regulation adopt-
ed at a miners’ meeting “does not, like a statute, acquire validity by the
mere enactment, but from the customary obedience and acquiescence
of the miners following its enactment. It is void whenever it falls into
disuse or is generally disregarded. It must not only be established, but
in force. A custom, reasonable in itself and generally observed, will
prevail, as against a written mining law which has fallen into disuse.
It is a question of fact for the jury whether the law is in force at any
given time.” °
The Idaho court, in considering a district requirement that placer
claims should be no more than 80 rods in length, said: “Rules and
customs of miners, reasonable in themselves and not in conflict with any
higher law, have long been recognized and sanctioned by legislative
enactments and judicial decisions. That such rules may still be adopt-
ed and enforced as part of the law of this country is too well settled
to admit of argument. We cannot see that the custom in question in
62 Hallett, C. J., in Sullivan v. Hense, 2 Colo. 424, 429, 430. See Perigo v.
Erwin (C. C.) 85 Fed. 904; Poujade v. Ryan, 21 Ney. 449, 33 Pac. 659.
63 Gore v. McBrayer, 18 Cal. 582; Flaherty v. Gwinn, 1 Dak. 509; Colman
vy. Clements, 23 Cal. 245.
64 Harvey v. Ryan, 42 Cal. 626. See Jupiter Min. Co. v. Bodie Consol. Min.
Co. (C. C.) 11 Fed. 666; North Noonday Min. Co. v. Orient Min. Co. (C. C.)
1 Fed. 522, 6 Sawy. 299.
65 Harvey v. Ryan, 42 Cal. 626. In the absence of proof of miner’s rules,
it will be presumed that locations are governed simply by the state and fed-
eral statutes. Anderson v. Caughey, 3 Cal. App. 22, 84 Pac. 223.
66 Harvey v. Ryan, 42 Cal. 626. See Haws v. Victoria Copper Min. Co., 160
U. S. 308, 317, 318, 16 Sup. Ct. 282, 40 L. Ed. 436; Jupiter Min. Co. v. Bodie
Consol. Min. Co. (C. C.) 11 Fed. 666, 7 Sawy. 96.
26 ORIGIN AND HISTORY OF AMERICAN MINING LAW. (Ch. 1
any way conflicts with either the acts of Congress or the laws of the
territory; but, on the contrary, we think the custom a reasonable one
and entirely in harmony with the spirit of the mining laws.” °”
So long as the customs are shown actually to exist, to be acquiesced
in, and to be reasonable, and are further found not to be in conflict
with state or national laws and Constitutions, they must be complied
with. Once proved to exist, regulations are presumed to continue to
exist, if the contrary is not shown.*® They need not exist at all, of
course, for a good mining title to be made out,®° unless the title in fact
depends upon them.7°
There is nothing peculiar about the proof of mining rules and cus-
toms, and they are to be shown in evidence in the same way as other
written rules and unwritten customs. “The mode of proof, of course,
is governed by the ordinary rules of evidence, and it would seem, from
the weight of authority and reason, that mining district rules or regula-
tions upon a particular point must be offered in evidence as a whole,
must be proven by the best evidence, and must be proved by the books
themselves properly produced, if there are books,"! or by the production
of such other paper evidence as there may be of their existence. If
there are no books, and the rules are not in writing, they may, of
course, be proved by any competent evidence, the same as any other
fact. The land department accepts proof of mining district rules by a
certified copy of the rules or by-laws, attested by the seal of the dis-
trict, and the seal of the recorder or other legal custodian.72. If no
proof is made of a custom or by-law upon a given point, the court will
assume, for the purposes of the trial, that none exists.’7% Where
67 ROSENTHAL v. IVES, 2 Idaho (Hasb.) 265, 12 Pac. 904. That prior to the
act of 1866 mining district rules could limit a claim to 25 feet, see Prosser v.
Parks, 18 Cal. 47.
68 Riborado v. Quang Pang Min. Oo., 2 Idaho (Hasb.) 144, 6 Pac. 125.
89 Golden Fleece Gold & Silver Min. Co. vy. Cable Consol. Gold & Silver Min.
Co., 12 Nev. 312. =
70 Sears v. Taylor, 4 Colo. 38. *
71 Orr vy. Haskell, 2 Mont. 225. That a district record, kept in a pocket di-
ary, {is no record, see Fuller v. Harris (D. C.) 29 Fed. 814.
72 The Idaho court has held that in Idaho there cannot be a deputy district
mining recorder. Van Buren v. McKinley, 8 Idaho, 93, 66 Pac. 936. In ap-
lications for patent, the land department has power to decide what district
rules and regulations are in force. Parley’s Park Silver Mining Co. v. Kerr,
130 U. S. 256, 9 Sup. Ct. 511, 32 L. Ed. 906.
731 Snyder on Mines, § 126, citing. on manner of proof, English v. Johnson,
17 Cal. 107, 76 Am. Dec. 574; Roberts v. Wilson, 1 Utah, 292; Campbell y.
Rankin, 99 U. S. 261, 25 L. Ed. 485; Pralus v. Pacific Gold & Silver Min. Co.,
35 Cal. 80; Doe v. Waterloo Min. Co., 70 Fed. 455, 17 GC. CG. A. 190; St. John
vy. Kidd, 26 Cal. 263,
§ 5) SUPPLEMENTAL DISTRIOT RULES, ETO. 27
there is a question as to whether mining district rules actually are in
force, both the written rules and parol proof of the mining customs of
the district will be received in evidence."
It is desirable to notice some of the district rules and customs which
have been held to be void. A custom which authorized persons en-
gaged in mining to encroach upon and take away the rights of the
owners of land which is not mineral and which is not in a mineral
region would be invalid.7* A rule which attempts to restrict the
size of a claim located before its adoption is void as to such claim,’*®
though a rule requiring increased annual labor in future seems to be
valid.77 So a mining rule cannot limit the number of claims a person
may buy; 78 nor can it provide that a given number of days’ work shall
amount to the $100 required by the United States statute as annual
labor ;7® nor can it authorize the location of a mill site on mineral
land.8° So it has been held that a mining rule requiring the annual
labor to be done every 60 days is invalid; ** but the United States Cir-
cuit Court of Appeals for the Ninth Circuit has decided that a mining
regulation requiring a shaft to be sunk to a depth of 10 feet within 90
days of location, the shaft seemingly being a part of the first year’s an-
nual labor, and not a part of the location, is valid; *? and it seems clear
that the states, or, if they do not act, then the mining districts, may in-
crease the amount, and, if so, the frequency, of the annual labor.**
An Alaska case holds that a mining district rule cannot limit a time
for record less than the 90 days allowed by the federal statute ap-
plicable to Alaska.**
On the effect of a noncompliance with district rules there has been
controversy. If the rule is legal, and expressly provides that noncom-
74 Colman y. Clements, 23 Cal. 245. See Leet v. John Dare Silver Min. Co.
6 Ney. 218.
75 Woodruff v. North Bloomfield Gravel Min. Co. (C. C.) 18 Fed. 758, 9 Sawy.
441.
78 Table Mt. Tunnel Co. v. Stranahan, 21 Cal. 548; Id., 31 Cal. 387. A min-
ing district rule requiring all placers to be of a specific form was held void in
Price v. McIntosh, 1 Alaska, 286.
77 Strang v. Ryan, 46 Cal. 33.
78 Prosser v. Parks, 18 Cal. 47.
729 PENN v. OLDHAUBER, 24 Mont. 287, 61 Pac. 649; WOODY v. BER-
NARD, 69 Ark. 579, 65 S. W. 100.
80 Cleary v. Skiffich, 28 Colo. 362, 65 Pac. 59, 89 Am. St. Rep. 207.
81 ORIGINAL COMPANY OF THE WILLIAMS & KELLIGER v. WIN-
THROP MIN. CO., 60 Cal. 631. See Johnson v. McLaughlin, 1 Ariz. 493, 500,
4 Pac. 130.
82 NORTHMORE v. SIMMONS, 97 Fed. 386, 38 C. C. A. 211.
83 Northmore y. Simmons, 97 Fed. 386, 38 C. C. A. 211; Sisson v. Sommers,
24 Nev. 379, 388, 55 Pac. 829, 77 Am. St. Rep. 815; Strang v. Ryan, 46 Cal. 33.
84 Butler v. Good Enough Min. Co., 1 Alaska, 246.
28 ORIGIN AND HISTORY OF AMERICAN MINING LAW. (Ch. 1
pliance shall work a forfeiture, no one doubts that a forfeiture may re-
sult; but the dispute arises where the rule does not fix a penalty for its
violation. The California court early held that the failure of a party to
comply with a mining rule or regulation cannot work a forfeiture, un-
less the rule itself provides that forfeiture shall follow noncompliance
with it, and that has remained the California rule.2® This California
rule has been adopted in Arizona ** and in one United States Circuit
Court decision,’ and seems to be favored by one Dakota case.** On
the other hand, the Montana Supreme Court, though giving the Cali-
fornia cases careful consideration, declares that the regulations of
miners are like conditions subsequent in deeds, and, as in the case of
such conditions subsequent, a failure to comply with them works a
forfeiture.*® The analogy of a condition subsequent is, however, only
an analogy; for as to ordinary realty it is the grantor who imposes
such conditions, whereas the mining district is not a grantor of mining
claims, and, besides, a condition subsequent as to ordinary realty can be
reserved only to the grantor and his heirs, and they alone have the
right to enter for breach, whereas in the case of a mining claim the
one to enter is a new locator. While the Montana court might still
insist on the analogy on the theory that the United States, through the
mining district, imposes the condition for itself and its citizens, and
that the United States, through the new locator, makes the entry for
breach of condition, or else, as a sovereign grantor, rightfully reserves
a condition to third persons, the real question is what view a court,
wishing to deal fairly with the mining district rules, as the spirit and
the letter of the mining acts require the court to do, should take as to
forfeiture. On the one side, it may be argued: “If the district wants
a forfeiture to result, let it say so.” On the other side, it may be said:
“Unless you say that a forfeiture results, you nullify the district resolu-
tions.” Perhaps the best way out is frankly to admit that in the early
days the Montana rule, which is also followed in Nevada,®® was fairer
85 McGARRITY v. BYINGTON, 12 Cal. 427; English v. Johnson, 17 Cal.
108, 117, 76 Am. Dec. 574; Bell v. Red Rock Tunnel & Mining Co., 36 Cal. 214;
EMERSON v. McWHIRTER, 133 Cal. 510, 65 Pac. 1036.
86 JOHNSON v. McLAUGHLIN, 1 Ariz. 493, 4 Pac. 180; Rush vy. French,
1 Ariz. 99, 25 Pac. 816.
87 Jupiter Min. Co. vy. Bodie Consol. Min. Co. (C. C.) 11 Fed. 666, 7 Sawy.
96, 117.
88 See Flaherty v. Gwinn, 1 Dak. 509, 511, where the court says that mining
regulations ‘must impose an obligation to do some certain and specific act
which, if not complied with, will, by the terms of the rule, deprive the locator
of some right.”
89 KING v. EDWARDS, 1 Mont. 235. See Purdum v. Laddin, 23 Mont. 387,
59 Pac. 153.
90 Mallett v. Uncle Sam Gold & Silver Min. Co., 1 Nev. 188, 90 Am. Dec. 484;
§ 6) THE ATTITUDE OF THE COURTS TOWARD THE MINER. 29
to the miners and was the one to be adopted, but that to-day, owing to
the restricted field of mining district rules and the relatively unimport-
ant things about which alone, in most states, mining districts may legis-
late, the California and Arizona rule is best. The United States Su-
preme Court has recently refused to go out of its way to decide the
question.
THE ATTITUDE OF THE COURTS TOWARD THE MINER.
6. The courts construe and enforce the mining statutes with as lit-
tle technicality as possible.
In closing this historical sketch, it is highly desirable to say a word
about the attitude of the courts towards mining rights. There is much
in the cases which may seem strange to one who does not know the
atmosphere of mining camps. The courts that have had to pass on
mining cases have known that they had to fix the rights of typical
frontiersmen, often unlettered immigrants, certainly few of them learn-
ed in the law, and the most of them actually in the early days shunning
and denouncing lawyers; and those courts have realized that Congress,
in approving the rules and regulations of the miners enacted in their
miners’ meetings, spoke in favor of the adoption of the miners’ point
of view. The result has been that the courts allow as much as may be
to hang on the good faith of the miner. As Mr. Charles J. Hughes,
Jr., whom we have already quoted, so well says: “Many controversies
arise as to whether or not a discovery has been made; whether or not
the necessary work has been done, stakes set; whether ‘the location cer-
tificate is in proper form, properly recorded : whether or not the vein
pursues the proper course within the boundaries of the claim, or has
its apex therein; whether or not the vein is continuous in its descent
into the earth—and upon each and every of these questions in-
numerable litigations have arisen, which have taxed the wisdom of
the courts, the ingenuity of the lawyers, and the learning and skill of
experts and miners in their presentation. The principle followed by the
courts, however, in their construction of the law, has been to give it a
practicable interpretation, in view of the fact that the prospector and °
locator of claims is to be governed by it, and that he cannot be attend-
ed, in his explorations, by a lawyer to construe the law, a surveyor to
determine the boundaries and position of his claim, and assayers and
Oreamuno v. Uncle Sam Gold & Silver Min. Co., 1 Nev. 215; SISSON v. SOM-
MERS, 24 Nev. 879, 55 Pac. 829, 77 Am. St. Rep. 815.
+Yosemite Gold Mining & Milling Co. v. Imerson, 208 U. S. 25, 28 Sup. Ct.
196, 52 L. Hd. —
30 ORIGIN AND HISTORY OF AMERICAN MINING LAW. (Ch. 1
geologists to give him the result of their operations and the character
of the formation in which he is working, all of which would be neces-
sary, if some of the contentions urged against the validity of locations
should be by the courts sustained. A liberal spirit has been adopted
generally in these decisions, sustaining good faith and honest effort
to comply with the law, and an avoidance of technical defects to meri-
torious claims, while at the same time requiring a fair, honest, and
substantial compliance with the terms upon which the general govern-
ment extends its bounty to the prospector and locator.” ®*
In noticing the general attitude of the courts as above set forth, we
must also bear in mind certain rules of statutory construction applicable
to American mining law. They are stated by Mr. Lindley as follows:
“(1) The mining laws are to be read in the light of matters of public
history, relating to the mineral lands of the United States. (2) Where
a statute operates as a grant of public property to an individual, or the
relinquishment of a public interest, that construction should be adopt-
ed which will support the claim of the government, rather than that
of the individual. (8) In the case of a doubtful or ambiguous law,
the contemporaneous construction of those who have been called upon
to carry it into effect is entitled to great respect, and ought not to be
overruled without cogent reasons. We might add a fourth rule, de-
ducible from the foregoing and from the current of American au-
thority and decisions of the land department, and that is that the
word ‘mineral,’ as used in these various acts, should be understood in
its widest signification.”
9124 Am. Bar Ass’n Rep. (1901) pp. 349, 350.
921 Lindley on Mines (2d Ed.) § 96.
§ 8) MINING LAW STATUS OF STATES AND TERRITORIES, ETO, 31
CHAPTER II.
THE MINING LAW STATUS OF THE STATES, TERRITORIES, AND POS-
SESSIONS OF THE UNITED STATES.
7 The Mining Law States and Territories.
8. The Mineral Land History of the United States.
9. The Mining Law Status of the Several States and Territories.
THE MINING LAW STATES AND TERRITORIES.
% American mining law applies to Alaska, Arizona, Arkansas, Cali-
fornia, Colorado, Idaho, Montana, Nevada, New Mexico, North
Dakota, Oregon, the Philippine Islands, South Dakota, Utah,
Washington, and Wyoming. It applies also to certain land in
Oklahoma.
Those parts of the public domain which the mining laws affect form
but a comparatively small portion of the lands comprised within the
United States and its territorial possessions, and to-day they consist
of Alaska,t Arizona, Arkansas, California, Colorado, Idaho, Montana,
Nevada, New Mexico, North Dakota, Oregon, the Philippine Islands,?
South Dakota, Utah, Washington, and Wyoming. Parts of Oklahoma
are also subject to those laws.
THE MINERAL LAND HISTORY OF THE UNITED STATES.
8. The land history of the United States reveals that parts of the
United States have never been subject to the American min«
ing law, because:
(a) The United States never owned any mineral land in the thirteen
original states, nor in the states of Kentucky, Maine, Ver-
mont, and West Virginia, created out of them, nor in Texas.
1 Alaska mining is regulated under special acts. Act June 6, 1900, c. 786,
31 Stat. 321; Act June 6, 1900, c. 796, 31 Stat. 658 (U. S. Comp. St. 1901, p.
1441); Act June 138, 1902, c. 1082, 32 Stat. 385; Act April 28, 1904, ec. 1772, 33
Stat. 525 (U. S. Comp. St. Supp. 1907, p. 479); Act March 2, 1907, c. 2559, 34
Stat. 1248 (U. S. Comp. St. Supp. 1907, p. 476); Act May 28, 1908 (quoted
in 87 Land Dec. Dep. Int. Adv. Sheets, 22), By Act May 17, 1884, c. 53, 23
Stat. 24, the mineral laws of the United States were extended to Alaska. Mey-
denbauer v. Stevens (D. C.) 78 Fed. 787; Revenue Min. Co. v. Balderston, 2
Alaska, 363. :
2A separate elaborate mining code has been provided for the Philippines.
Act July 1, 1902, c. 1869, 32 Stat. 697, amended by Act Feb. 6, 1905, c. 458, 33
Stat. 692. It has been supplemented by acts of the Philippine Commission.
See Appendix.
32 MINING LAW STATUS OF STATES AND TERRITORIES, ETC. (Ch. 2
(b) In the other states and territories, not subject to American
mining law, either there were no mineral lands, or such lands
were disposed of prior to the creation of American mining
law, or under express statutory exception from that law.
The simplest way to explain why land in a given state or territory
is or is not subject to the mining laws is to look at the history of that
state or territory. Before taking up individual states and territories,
however, a few preliminary words are needed about the general ter-
ritorial acquisitions of the United States.
The Thirteen Original States.
The thirteen original states of the Union, namely, Connecticut, Dela-
ware, Georgia, Maryland, Massachusetts New Hampshire, New Jersey,
New York, North Carolina, Pennsylvania, Rhode Island, South Caro-
lina, and Virginia, so far as concerns the land within their present
boundaries, were never affected by the mining or other land statutes
of the United States; for no part of the land within such boundaries,
other than sites for federal buildings, forts, etc., ever belonged to
the United States. These thirteen original states embraced within
their conceded boundaries lands which afterwards, with the consent
of the interested states, were erected into separate states, and these
latter states, namely, Kentucky, Maine, Vermont, and West Virginia,
like the parent states, were never subject to the United States mining
laws. So, too, the District of Columbia has never been subject to the
mining laws.
The thirteen original states also claimed during the Confederation
large tracts of land to the west and north of their present boundaries,
but during the Confederation and later they made various cessions of
such lands to the United States. Taking these cessions in their natural
order for our special purposes, rather than in their chronological
order, we note first that South Carolina in 1787, North Carolina in
1790, and Georgia in 1798 and 1802, made cession of part of their
lands to the United States, and these lands were organized into two
territories, namely, the “Territory South of the Ohio,” created in 1790,
and the “Mississippi Territory,” created in 1798. Out of these south-
ern territories and part of Virginia were created the states of Ken-
tucky, Tennessee, Mississippi, and Alabama. For physical reasons,
and also because their lands were largely disposed of before the min-
ing laws developed, none of these states have been appreciably affect-
ed by the mining laws. As we have just noted, Kentucky never was
subject to those laws. ‘Tennessee was formed out of territory ceded
to the United States by North Carolina. “The entire area of Tennes-
see was public domain, but the United States gave the same to the
state, after deducting the land necessary to fill the obligations in the
§ 8) MINERAL LAND HISTORY OF THE UNITED STATES. 33
deed of cession of North Carolina.” * The mineral lands in Alabama
and Mississippi were by the act of June 21, 1866,* expressly excepted
from the land laws applicable to those states. By the act of March
8, 1883,° it was provided that all public lands in Alabama, “whether
mineral or otherwise, shall be subject to disposal only as agricultural
lands.” Mississippi does not seem to have had or to have any federal
mineral lands.®
During the Confederation, New York, Virginia, Massachusetts, and
Connecticut ceded to the United States the territory north of the Ohio
river, east of the Mississippi, and west of Pennsylvania and New York,
known as the “Northwest Territory,” and governed under the North-
west Ordinance of June 13, 1787. Even the Western Reserve, the
region within 125 miles of Pennsylvania retained by Connecticut, was,
on May 30, 1800, ceded as to jurisdiction to the United States. This
Northwest Territory, out of which were carved the states of Illinois,
Indiana, Michigan, Ohio, and Wisconsin, was subject to the United
States land laws, and the mineral lands therein, consisting of. coal,
iron, lead, and copper, were first leased and finally sold under special
laws prior to the general mining legislation.?’ Michigan and Wiscon-
sin were in 1873 expressly excepted from the operation of the mining
laws.8
8 Donaldson, Public Domain, pp. 421-423,
414 Stat. 66, ¢. 127.
5 22 Stat. 487, c. 118 (U. S. Comp. St. 1901, p. 1439).
6 See Statement of Unappropriated Public Lands of the United States,’ Is-
sued by the Department of the Interior, General Land Office, on July 1, 1906.
7 See 1 Lindley on Mines (2d Ed.) §§ 32-35. ‘The general policy of the Unit-
ed States, as expressed in the statutes, executive acts, and proclamations pri-
or to 1845, was to reserve the mineral lands from sale absolutely. These lands,
so far as then known, consisted of lead, iron, copper, and zine lands in that
part of the United States territory which was then called the Northwest or
Indian Territory, and comprised that portion of the country now embraced
within the states of Michigan, Wisconsin, Illinois, Iowa, Missouri, and Min-
nesota. This policy was trenched upon occasionally by acts authorizing the
President of the United States to lease certain lead lands. This policy and
these acts, as might naturally be expected, were provocative of mischief and
endless disputes. It was impossible to collect the rents and royalties with
certainty or regularity. Sales of mineral lands—that is to say, lead lands—
were finally authorized by statute; but this applied only to: the lead lands of the
upper Mississippi. At first only Missouri was included. By a later statute lead
lands in Illinois, Wisconsin, Iowa, and Arkansas were authorized to be sold
for the space of six months. By a still later act the copper, lead, and other
mineral leads of Michigan were authorized to be sold after an advertisement
of six months. Later the lead land in the Chippewa district in Wisconsin was
included.” 1 Snyder on Mines, § 56.
8 Act Feb. 18, 1873, c. 159, 17 Stat. 465.
Cost.M1n.L.—3
a4 MINING LAW STATUS OF STATES AND TERRITORIES, ETC. (Ch. 2
Subsequent Acquisitions.
The Louisiana purchase in 1803, the Florida purchase in 1819, the
Texas annexation in 1845, the recognition of our claims to Oregon
by Great Britain in 1846, the Mexican cession in 1846, and the Gads-
den purchase in 1853, brought to the United States a vast extent of
territory, nearly the whole of which, except that inclosed within the
borders of the present state of Texas, was subject to the United States
land laws. Of the states and territories which have resulted from these
acquisitions, a number have not been subject to the United States min-
ing laws, for one reason or another. ‘Texas retained the title to its
own lands, so never was subject to the United States mineral or other
land laws. It has a mining law code of its own. Other states, because
of lack of minerals within their borders or for other reasons, have
been without the mining law jurisdiction.
The Alaska purchase in 1867, the Hawaiian annexation in 1898, the
Spanish cession in 1899 of Porto Rico, of the Philippines, and of
Guam, and the acquisition of part of the Samoan Islands by the treaty
of December 2, 1899, ratified in 1900, added other territory. Alaska is
mining law territory, and is governed by a special act approved June
6, 1900,° and a supplementary act of June 13, 1902.19 The Philip-
pines are also subject to an elaborate special mining act, of date July
1, 1902,11 amended February 6, 1905.12 Porto Rico, the Hawaiian
Islands, and the Samoan Islands seem to have no mining law and to
need none.
THE MINING LAW STATUS OF THE SEVERAL STATES AND TER-
RITORIES.
9. Congress has provided specially for Alaska and the Philippines.
The other mining law territories and states, with the ex-
ception of California, have adopted mining codes. A number
of the states not subject to American mining law have legis-
lation for the inspection and other police regulation of coal
and other mines.
Now we are ready to take up the different states and territories
alphabetically. In doing so we shall note briefly local, as well as na-
tional, legislation in mining. It should be pointed out at the start that
931 Stat. 321, c. 786.
10 32 Stat. 385, c. 1082. A special act about Alaskan coal lands, approved
May 28, 1908, and land department rules thereunder, will be found in 37 Land
Dec. Dep. Int. (Advance Sheets) 20-23. See, also, acts cited in note 1, supra.
1132 Stat. 697, c. 1369.
12 33 Stat. 692, c. 453.
§ 9) MINING LAW STATUS OF STATES AND TERRITORIES. 35
under the act of January 31, 1901, the placer mining acts, so far as
saline lands are concerned, are extended to all states and territories
and to the district of Alaska.18
Alabama. By the act of June 21, 1866,1* Congress expressly ex-
cepted mineral lands from the land laws applicable to the state. By
the Revision of 1875 it was expressly provided that only homesteaders
could acquire public lands in Alabama.?® By the act of March 3,
1883,*® all lands in Alabama were declared to be agricultural. Un-
der the act of March 27, 1906,* the coal and iron public lands in Ala-
bama have been reclassified, and such lands are not subject to entry.+
By state legislation the inspection and other police regulation of coal
mines is provided for. *”
Alaska. By the act of June 6, 1900,1° the laws of the United States
relating te mining are extended to Alaska, with a provision that the
miners may make district rules and regulations not in conflict with the
laws of the United States. ~Recording divisions are provided, and
the recording of notices of location of mining claims required. The
recording divisions are defined by the act of June 13, 1902.19 The
coal lands laws were extended to Alaska by the act of June 6, 1900,?°
and later the location and patenting of coal lands in Alaska was espe-
cially provided for by the act of April 28, 1904.74 A statute making
special provisions about Alaskan coal lands was approved May 28,
1908.t The coal land regulations, issued by the General Land Office
April 12, 1907, also contain special provisions for Alaska.
13 31 Stat. 745, c. 186 (U. S. Comp. St. 1901, p. 1435). See 1 Lindley or
Miues (2d Ed.) §§ 514a, 515. Under that act ‘all unoccupied lands of the United
States containing salt springs or deposits of salt in any form, and chiefly
valuable therefor, are hereby declared to be subject to location and purchase
under the provisions of the law relating to placer mining claims, provided that
the same person shall not locate or enter more than one claim hereunder.”
1414 Stat. 66, ¢. 127.
15 Rey. St. U. S. § 2303. This section was repealed by Act July 4, 1876, c.
165, 19 Stat. 73 (U. S. Comp. St. 1901, p. 1411).
16 22 Stat. 487, c. 118 (U. S. Comp. St. 1901, p. 1439).
*34 Stat. 88, c. 1347 (U. S. Comp. St. Supp. 1907, p. 476).
+Instructions, 86 Land Dec. Dep. Int. 109.
17 Civ. Code Ala. 1896, §§ 2899-2936; Gen. Laws 1898-99, p. 86; Gen. Laws
1903, pp. 52, 86, 427. ;
1831 Stat. 321, c. 786. Compare Act May 17, 1884, c. 53, § 8, 23 Stat. 26.
19 32 Stat. 385, e. 1082.
2031 Stat. 658, c. 796 (U. S. Comp. St. 1901, p. 1441).
2133 Stat. 525, c. 1772 (U. S. Comp. St. Supp. 1907, p. 479). See Circular of
Land Office, 33 Land Dec. Dep. Int. 114.
{See 37 Land Dec. Dep. Int. (Advance Sheets) 22, 23.
36 MINING LAW STATUS OF STATES AND TERRITORIES, ETC. (Ch. 2
Arizona is one of the mining law territories. It has a general min-
ing code, supplementary to the federal legislation.??
Arkansas. By the act of June 21, 1866,2* Congress expressly ex-
cepted mineral lands from the land laws applicable to the state. By
the Revision of 1875 it was expressly provided that only homesteaders
could acquire public land in Arkansas.?* By the act of July 4, 1876,”°
however, the provision of the revision was repealed. The lead lands
in Arkansas were sold under special acts prior to the general mining
laws, but the federal mining laws seem to be applicable to mineral land
in Arkansas other than lead.2* By state legislation the inspection and
other police regulation of coal mines is provided for *’ and a brief
general mining code is enacted.*®
California is one of the mining law states; but it does not have a
statutory code to supplement the federal laws. A mining code was
enacted in 1897,2° but repealed in 1899.°° District mining rules, regu-
lations, and customs there supplement the federal statutes. Various
state statutes, including those as to evidence and recording, affect
mining claims. Sections 1159 and 1169 of the California Civil Code,
for instance, seem to require notices of location of mining claims to
be recorded in the county recorder’s office.*. There are also statutes
for the inspection and other police regulation of mines.*?
Colorado is one of the mining law states, and has a general mining
code, supplementing the federal legislation, and also statutes providing
for the inspection and other police regulation of mines.**
Connecticut is one of the original thirteen states, in which the United
States never had any public domain. The federal mining laws are
22 Civ. Code Ariz. 1901, pars. 3231-3259; Laws 19038, p. 12, No. 5; Laws
1907, pp. 20, 27, cc. 20, 22.
2314 Stat. 66, e. 127.
24 Rey. St. U. S. § 2303.
2519 Stat. 73, c. 165 (U. S. Comp. St. 1901, p. 1411).
26 See Norman v. Pheenix Zinc Mining & Smelting Co., 28 Land Dec. Dep.
Int. 361; Woody v. Bernard, 69 Ark. 579, 65 S. W. 100; Buffalo Zine & Cop-
per Co. v. Crump, 70 Ark. 525, 69 S. W. 572, 91 Am. St. Rep. 87.
27 Kirby’s Dig. Ark. §§ 5337-5359.
28 Kirby’s Dig. Ark. §§ 5360-5366.
29 St. Cal. 1897, p. 214, ¢ 159.
30 St. Cal. 1899, p. 148, ce. 118.
31 See, also, St. 1905, p. 738, c. 563, for a statute making the date of loca-
tion recited in a United States patent prima facie evidence of such date. —
82 Gen. Laws Cal. 1903 (Deering’s Ed.) pp. 609-626.
332 Mills’ Ann. St. Colo. §§ 3186-3247; Mills’ Ann. St. Rev. Supp. 1891-
1905, §§ 3186-8247; Laws 1905, pp. 160, 342, ce. 79, 184; Laws 1907, p. 336,
ec. 153. In Laws 1905, p. 342, c. 1384, mining locations on state lands are pro-
vided for.
§ 9) MINING LAW STATUS OF STATES AND TERRITORIES. 37
therefore inapplicable. The state taxes “quarries, mines and ore
beds,” ** and allows nonresident aliens to acquire and hold real estate
“for the purpose of quarrying, mining, dressing or smelting ores on
the same, or converting the products of such quarries and mines into
articles of trade and commerce.” ** It also regulates the sale of shares
of stock in mining corporations.**
Delaware is one of the original thirteen states, so never was sub-
ject to the federal mining laws. There seems to be no state legisla-
tion on mining.
District of Columbia. The mining laws of the United States have
never applied here, and there seems to be no legislation on mining for
the District. The only suggestion that there are federal mining rights
in the District seems to be found in Shoemaker v. United States.*7
Florida. For federal legislation as to Florida, see Arkansas, down
through the act of 1876. Though the mining laws are applicable to
Florida, there seems to be no mining land. There also seems to be
no state legislation, except in regard to the necessity of inclosing pits
and washings.*®
Georgia is one of the original thirteen states, so never was subject
to the federal mining laws. A state statute provides for the condemna-
tion of roads, tracts, tramways, and ditchways needed for the success-
ful operation of mines.*®
Hawaii. The United States public land laws have not been extend-
ed to the Hawaiian Islands. The joint resolution of July 7, 1898,*°
said that the public land laws of the United States should not apply
there, and the act of April 3, 1900,*1 declared that the laws of Hawaii
as to public lands should remain in force until Congress should other-
wise provide. Congress has made no provision about mining in Ha-
waii. There seems to be no local legislation, and there appears to be
no need of any enactment.*?
Idaho is a mining law state, with a general mining code, supplement-
ing the federal iegislation.**
34 Gen. St. Conn. 1902, § 2322.
85 Gen. St. Conn. 1902, § 4411.
86 Pub. Laws 1903, p. 179, ¢. 196.
87147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170.
38 Gen. St. Fla. 1906, §§ 3152, 3394.
391 Pol. Code Ga. 1895, §§ 650-657; Laws 1897, p. 21.
40 30 Stat. 750, Resolution No. 55.
4131 Stat. 141, 154, c. 339.
42 See 2 Lindley on Mines (2d Hd.) § 877.
43 Civ. Code Idaho 1901, §§ 2555-2578; Sess. Laws 1903, pp. 4, 290. An
eight-hour day is provided by Sess. Laws 1907, p. 97.
38 MINING LAW STATUS OF STATES AND TERRITORIES, ETC. (Ch. 2
Illinois. The public lands in Illinois were practically all sold before
the discovery of gold in California. The lead lands were sold under
special laws. For the foregoing reason, the federal mining laws never
have had a practical operation in Illinois. The state legislation pro-
vides for the inspection and other police regulation of coal mines.**
Indiana. Same state of facts as Illinois, so far as federal legisla-
tion is concerned. The state legislation provides for the inspection
and other police regulation of mining.*®
Iowa. Same state of facts as Illinois, so far as federal legislation is
concerned.4® The state legislation provides for the inspection and
other police regulation of mines.*?
Kansas. By the act of Congress of May 5, 1876,48 Kansas was ex-
cepted from the operation of the federal mining laws and all land made
subject to disposal as agricultural lands. The state legislation pro-
vides for the inspection and other police regulation of coal mines.*®
Kentucky was carved out of Virginia, one of the original thirteen
states. It has never been subject to the federal mining or other land
laws of the United States, but succeeded to the ownership of the lands
within its borders undisposed of by Virginia. The state legislation
provides for the inspection and other police regulation of coal mines.®°
Louisiana. For federal legislation, see Arkansas, down through the
act of 1876. Though the federal mining laws are applicable to Louisi-
ana, there seems to be no public mining land there. The state legisla-
tion provides that the usufructuary is to enjoy mines and quarries al-
ready opened, but not others.**
Maine was carved out of Massachusetts, one of the original thirteen
states. The United States has never owned public land there, so the
federal mining laws have never applied there. By the act of separa-
44 Starr & C. Ann. St. Supp. 1902, pp. 841-868, ¢. 93, pars. 1-89; Starr & ©.
Ann. St. Supp. 1903, pp. 385-889, c. 93, pars. 1-18; Laws Ill. 1905, pp. 824-
330; Laws 1907, pp. 387-403.
45 For Indiana state inspection and other police regulation of coal mines,
see 2 Horner’s Ann. St. Ind. 1901, §§ 5458-54801; Acts 1903, p. 176, ¢c. 90;
Acts 1907, pp. 347-3538, ¢. 204. :
46 But see 1 Snyder on Mines, p. 126, § 158, where the argument is advanced
that Iowa has been excluded from the operation of the federal mining law.
47McClain’s Code 1888, §§ 2449-2482; Code 1897, §§ 1967-1974; Code
Supp. 1902, §§ 2478-2496; Laws 1902, p. 63, ec. 100; Laws 1907, pp. 129, 180,
ce. 180.
4819 Stat. 52, ce 91 (U. S. Comp. St. 1901, p. 1439).
491 Gen. St. Kan. 1901, §§ 4109-4181; Laws 1903, p. 557, « 360; Laws
1905, pp. 438, 473-476, 898, cc. 278, 304, 584; Laws 1907, pp. 399-4038, ¢. 249.
50 Ky. St. 1899, §§ 2722-2739a; Acts 1902, p. 125, ce. 25.
51 Merrick’s Rey. Civ. Code La. 1900, art. 552.
$9) MINING LAW STATUS OF STATES AND TERRITORIES. 39
tion of June 19, 1819, Massachusetts gave Maine half the ungranted
lands within the borders of Maine, and in 1853 deeded to Maine the
rest.°? The state legislation establishes a mining bureau to collect in-
formation about mines,°* allows the condemnation of ditches for
drainage of mines and quarries,®* and provides for the inspection of
mines and quarries.®®
Maryland is one of the original thirteen states, in which the United
States never had any public domain. The federal mining laws have,
therefore, never applied there. The state legislation provides a meas-
ure of damages for abstracting minerals from another’s land,®* and
regulates mining companies.°"
Massachusetts was one of the thirteen original states, so never was
subject to the federal mining laws. The state legislation provides for
the condemnation of roads, ditches, etc., for approaching, draining,
etc., quarries, mines, or mineral deposits,®* and provides for the incor-
poration of mining companies and their taxation.®®
Michigan was subject to the general land laws of the United States.
Its lead and copper lands were sold under special acts prior to the gen-
eral mining legislation. By the act of February 18, 1873,°° the mineral
lands of the state were excluded from the operation of the mining
act of 1872, and “declared free and open to exploration and purchase
according to the legal subdivisions thereof, as before the passage of
said act.” The state legislation asserts “the sovereign right of the
people of Michigan” to “(1) all mines of gold or silver, or either of
them,” within the state, and “(2) all mines of other metals or minerals
* * * which are connected with, or shall be known to contain gold
or silver in any proportion,” but provides that this sovereign right
shall not be enforced against any citizen of the state owning the fee
of the soil containing the mines or minerals by bona fide purchase
from, through, or under the general or state government, except that
he must pay in lieu of all other state taxes a specific tax of 2 per cent.
upon the product of iron mines and of 4 per cent. upon the average
52 See Roberts v. Richards, 84 Me. 1, 5, 24 Atl. 425,
53 Rev. St. Me. 1903, c. 40, §§ 59-62.
54 Rey. St. Me. 1903, c. 21, §§ 28-35.
55 Laws Me. 1907, p. 77, ¢. 77.
562 Code Pub. Gen. Laws Md. 1904, art. 75, § 92.
571 Code Pub. Gen. Laws Md. 1904, art. 23, §§ 227-239; Laws 1906, p.
259, ce. 178.
582 Rev. Laws Mass. 1902, c. 195, §§ 17-25.
591 Rev. Laws Mass. 1902, c. 14, §§ 49-51.
6017 Stat. 465, c. 159; Rev. St. U. S. § 2345 (U. S. Comp. St. 1901, p. 1438).
See U. S. v. Omdahl, 25 Land Dec. Dep. Int. 157.
40 MINING LAW STATUS OF STATES AND TERRITORIES, ETC. (Ch. 2
yield and value of all ores and product of other mines. Known min-
eral lands of the state are reserved from sale,°* but may be leased by
the commissioner of the state land office.** A commission to collect
and distribute mining statistics is created.** The inspection of coal
mines is provided for.®®
Minnesota. For federal legislation affecting Minnesota, see Mich-
igan. The lands sold under special federal laws in Minnesota were
lead lands. Minnesota has a regular mining code.*® It was adopted
in 1867; but in 1873 the federal mining laws were declared by Con-
gress no longer applicable to Minnesota. The code is therefore prac-
tically a dead letter. Here it should be noted that Minnesota has a
very interesting statutory provision that, where there is a plurality of
owners of lands containing minerals, those who own half or more of
the property may apply to the proper court and get an order which
will entitle the one getting the order, on giving bond, to open, operate,
and develop the mine, by keeping accounts and making settlement on
demand after monthly statements rendered.*7 Nonoperating owners
are given access to the property and workings at all reasonable times
to measure up the workings and to verify accounts.°* If the majority
in interest do not want to work the property, or abandon their right
for a year, the minority in interest may get an order.°® Only judg-
ment liens can attach to the lands so being worked.7° The state legis-
lation also provides, among other things, for the leasing of state lands,
for the mining and shipping of iron ore,"! for the taxation of miner-
al lands,”* and for the creation of corporations for mining and smelt-
ing ores and manufacturing metals.7? Minerals in state lands are
reserved to the state.’*
Mississippi. See Louisiana, for federal legislation. There seems
to be no state legislation.
811 Comp. Laws Mich. 1897, §§ 1526-1530. The validity of this legisla-
tion may in part be questioned. See.1 Lindley on Mines (2d Ed.) p. 88, § 20.
621 Comp. Laws Mich. 1897, § 1528.
63 1 Comp. Laws Mich. 1897, §§ 1411-1421.
642 Comp. Laws Mich. 1897, §§ 4630-4635.
65 Pub. Acts Mich. 1899, p. 93, No. 57; Pub. Acts 1903, p. 147, No. 125;
Pub. Acts 1905, pp. 142-147, No. 100.
661 Gen. St. Minn. 1894, §§ 4059-4075.
67 Laws Minn. 1907, pp. 198-201, ec. 177.
68 Td,
69 Td.
70 Id.
71 Gen. St. Minn. 1894, §§ 4076-4083.
72 Laws Minn. 1899, p. 268, ¢. 235.
731 Gen. St. Minn. 1894, §§ 2827-2837,
74 Laws Minn. 1901, pp. 108-110, ec. 104.
§ 9) MINING LAW STATUS OF STATES AND TERRITORIES. 41
Missouri came under the general land and mining laws, as part
of the Louisiana purchase. Its lead mines were leased by authority
of Congress early, and finally sold under special acts prior to the
discovery of gold in California. The general mining laws at first
applied to Missouri, but by the act of May 5, 1876,’° deposits of
minerals in Missouri were excluded from these laws and made sub-
ject to disposal as agricultural lands. The state legislation provides
for the inspection and other police regulation of mining.7®
Montana is a mining law state, and has a general statutory mining
code, supplementing federal legislation,’® and also statutes providing
for the condemnation of rights of way and the inspection and other
police regulation of mines.8° Mining partnerships are also legislated
about.®*
Nebraska, as a part of the Louisiana purchase, has been subject to
the general land laws. The enabling act of the state, approved April
19, 1864,°? specifically provided that all laws of the United States
not locally inapplicable should have the same force and effect within
the state as elsewhere within the United States. Despite the state-
ment of Mr. Snyder to the contrary,®? it seems clear that Nebraska
would be subject to the mining laws, if there were mineral lands in
the state. The state legislation offers a reward for the discovery of
iron, coal, oil, or gas in the state.®*
Nevada is a mining law state, and has a general mining code, sup-
plementary to federal legislation,®® and has also police and other reg-
ulation of mines and mine owners.®®
7519 Stat. 52, c. 91 (U. S. Comp. St. 1901, p. 1439).
782 Rev. St. Mo. 1899, §§ 8766-8828 (Ann. St. 1906, pp. 4068-4100); Laws
1901, pp. 211-215 (Ann. St. 1906, §§ 8793, 8794, 8811, 8818, 8826, 8828); Laws
1903, pp. 242-247 (Ann. St. 1906, §§ 8819 (1) -8819 (19), 8791, 8791a, 8826, 8827) ;
Laws 1905, pp. 236-238 (Ann. St. 1906, §§ 8796 (1), 8796 (2), 8801a, 8811);
Laws 1907, pp. 362-366.
79 Pol. Code Mont. 1895, §§ 3613, 3614, 3616; Laws 1907, pp. 18-23.
80 Pol. Code Mont. 1895, §§ 580-590; Pol. Code 1895, §§ 3350-3372, 3630-
3654; Laws 1897, pp. 66, 67, 245; Laws 1899, pp. 134, 149; Laws 1905, p. 30;
Laws 1907, pp. 337-342.
81 Civ. Code 1895, §§ 8350-3359.
8213 Stat. 47, c. 59.
831 Snyder on Mines, § 153, p. 126.
84 Comp. St. Neb. 1907, §§ 4508-4513.
85 Comp. Laws Nev. §§ 208-249; Laws 1901, pp. 97, 118, cc. 93, 107; Laws
1907, pp. 140, 193, 378, 418-420, cc. 65, 91, 177, 194; Comp. Laws Ney. §§
2715, 2716, 2720-2724, 3407-3414, 3706; Laws 1905, p. 199, c 98; Laws
1907, pp. 370, 371, c. 174.
86 Comp. Laws Nev. §§ 250-300.
42 MINING LAW STATUS OF STATES AND TERRITORIES, ETC. (Ch. 2
New Hampshire is one of the original thirteen states so never was
subject to the federal mining laws. State legislation provides that
real estate is to be taxed independently of any mines or ores therein
until the latter become a source of profit.’?
New Jersey. Like New Hampshire, New Jersey is one of the orig-
inal thirteen states, so never was subject to the federal mining laws.
State legislation provides for the inspection of mines.**
New Alexico is one of the mining law territories. It has a general
mining code, supplementary to the federal legislation.*°
New York. Like New Hampshire, New York is one of the orig-
inal thirteen states, so never was within the federal mining laws.
The New York statute asserts that “the following mines are the prop-
erty of the people of the state in their right of sovereignty: (1)
All mines of gold and silver discovered, or hereafter to be discovered,
within the state. (2) All mines of other metals and of talc, mica or
graphite discovered, or hereafter to be discovered, upon any lands
owned by persons not being citizens of the United States. (3) All
mines of other metals and of talc, mica or graphite discovered, or
hereafter to be discovered, upon lands owned by a citizen of the
United States, the ore of which, on an average, shall contain less
than two equal third parts in value of copper, tin, iron, and lead, or
any of these metals. (4) All mines and all minerals and fossils dis-
covered, or hereafter to be discovered, upon any lands belonging to
the people of this state.’”’®° Mines or minerals on state lands dis-
covered by citizens of New York may be appropriated by giving no-
tice to the Secretary of State. That notice gives the right to work
“such mine,” and the discoverer “and his heirs or assigns shall have
the sole benefit of all products therefrom, on the payment into the
state treasury of a royalty of two per centum of the market value of
all such products,” such valuation to be made when the product ‘‘shall
first be in a marketable form,’ and to be ascertained from sworn
semiannual statements.°* All mines, other than gold and silver, dis-
87 Pub. St. N. H. 1901, ec. 55, § 4.
882 Gen. St. N. J. 1895, p. 1904, §§ 37-40. :
8° Comp. Laws N. M. 1897, §§ 2286-2359; Laws 1899, p. 111, e. 57; Laws
1905, p. 196, c. 83.
904 Cumming & G. Gen. Laws N. Y. Supp. 1906, p. 1287, § 80. The va-
lidity of this legislation is not open to the same attack as that of Michigan
for the federal mining laws never applied in New York, as they did in
Michigan.
912 Cumming & G. Gen. Laws N. Y. 1901, p. 3000, §§ 81-83. It is held
that under this statute the discoverer does not get a legal title to the mine
or to the minerals in the land, but only a right to take the minerals out, and
that the discoverer cannot maintain ejectment to recover Possession of the
§ 9) MINING LAW STATUS OF STATES AND TERRITORIES. 43
covered in lands owned by a citizen of the United States, “the ore
of which, on an average, contains two equal third parts or more in
value of copper, tin, iron, and lead, or any of these metals, shall
belong to the owner of such land.” °? The discoverer of gold or sil-
ver mines, who gives notice of the discovery to the Secretary of State
is exempted, and so are his personal representatives and assigns, from
paying any royalty for 21 years from the time of giving notice, and
after the end of that term “the discoverer, his heirs, or assigns, shall
have the sole benefit of all products therefrom on the payment into
the state treasury of a royalty of one per centum of the market
value of all such products.” 98 No trees can be cut or destroyed on
state lands, “except such trees as it may be actually necessary to re-
move in order to uncover or make a road to such mine,” and these
must be paid for. No one can prospect on lands without the con-
sent of the owner; the commissioners of the land office being the ones
to give consent where state lands are concerned.®* Corporations may
acquire by condemnation the right to enter upon and break up lands
necessary for the operation of their mines.®® Various police regula-
tions govern the working of mines.®°
North Carolina is one of the thirteen original states, and hence
has never been subject to the federal mining law. State legislation
provides for the inspection and other police regulation of mines and
the condemnation of waterways.*"
North Dakota is a mining law state, and has a general mining code,
supplementing the federal legislation.®*
Ohio. The federal mining laws have had practically no operation
in Ohio, because its lands were sold prior to the general mining acts.
State legislation provides for the taxation, inspection, and general
police regulation of mines.*®
Oklahoma. By the act of March 3, 1891,?°° all lands in Oklahoma
were “declared to be agricultural land,” though by the act of June
lands, but must seek relief in equity. MOORE v. BROWN, 189 N. Y. 127, 34
N. EL. 772.
922 Cumming & G. Gen. Laws N. Y. 1901, p. 8000, §§ 81-83.
932 Cumming & G. Gen. Laws N. Y. 1901, p. 3001, § 84.
942 Cumming & G. Gen. Laws N. Y. 1901, pp. 3001, 3002, §§ 84, 85."
952 Cumming & G. Gen. Laws N. Y. 1901, p. 3002, § 85.
96 See 4 Cumming & G. Gen. Laws N. Y. Supp. 1906, p. 923, §§ 131-133.
972 Revisal N. C. 1905, §§ 4930-4957.
98 Rey. Codes N. D. 1905, §§ 1800-1817, 6256-6263, 7536.
991 Bates’ Ann. St. Ohio (8d Ed.) 1900, §§ 290-310, 2792, 2 Bates’ Ann. St.
(8d Ed.) 1900, §§ 4378-1 to 4879-5, 4935-1; Laws 1904, p. 63; Laws 1908,
pp. 169, 259.
10026 Stat. 1026, c. 543, § 16 (U. S. Comp. St. 1901, p. 1617).
44 MINING LAW STATUS OF STATES AND TERRITORIES, ETC. (Ch. 2
6, 1900,*°* the existing mining laws of the United States were ex-
tended over Oklahoma lands ceded to the United States by the Co-
manche, Kiowa, and Apache tribes of Indians. The local legisla-
tion provides penalties for malicious injury to mining notices, stakes,
shafts, and records,1°? and the Constitution of the new state creates
the office of chief inspector of mines, oil, and gas and directs the
Legislature to create mining districts.1°° The part of Oklahoma
formerly known as Indian Territory was and is subject to certain
federal legislation about mining in Indian lands. By the act of
June 28, 1898,1°* Congress, in addition to providing for allotments
of lands in Indian Territory, legislated about mining in those lands.
The act provides that “all oil, coal, asphalt and mineral deposits in the
lands of any tribe are reserved to such tribe and no allotment of
such lands shall carry the title to such oil, coal, asphalt or min-
eral deposits,” +°° and the Secretary of the Interior is given sole
authority to make leases of “oil, coal, asphalt and other minerals in
said territory,” under rules and regulations from time to time pro-
vided by him, and with certain restrictions fixed by the act.1°* The
validity of this legislation has been upheld by the United States Su-
preme Court.1°7
Oregon is a mining law state, and has a general mining code, sup-
plementing the federal legislation.1°*
Pennsylvania was one of the thirteen original states, and so never
was subject to the federal land laws. The state legislation provides
for the inspection and other police regulation of mines.1°?
Philippine Islands. By the act of July 1, 1902,11° amended by the
act of February 6, 1905,111 a complete mining law code is provided for
the islands. By it the Philippine Commission is authorized to make
mining regulations not in conflict with the acts, and has made a num-
101 31 Stat. 680, ¢c 8138.
102 Sess. Laws Ok]. 1905, p. 198, ce. 13.
103 Const. Okl. art. 6, §§ 25, 26.
10430 Stat. 495, ¢. 517; Ind. T. Ann. St. 1899, §§ 57q-57z91.
105Act June 28, 1898, ¢. 517, § 11, 30 Stat. 497.
196Act June 28, 1898, c. 517, § 13, 30 Stat. 498,
107 CHEROKEE NATION vy. HITCHCOCK, 187 U. 8S. 294, 23 Sup. Ct. 115,
47 L. Ed. 183.
1082 B. & C. Comp. Or. 1902, §§ 3974-3990; Laws 1903, pp. 326-330; Laws
1905, p. 254; Laws 1907, pp. 294, 311.
1092 Pepper & Lewis’ Dig. (Pa.) pp. 38062ff; 3 Pepper & Lewis’ Dig.
Supp. p. 417ff; 4 Pepper & Lewis’ Dig. Supp. 1239ff; P. L. 1903, 180-184; P.
L, 1905, 344-350, 363-368; P. L. 1907, 270, i
110 32 Stat. 697, ec. 1369ff,
111 33 Stat. 692, c« 453ff.
§ 9) MINING LAW STATUS OF STATES AND TERRITORIES. 45
ber. The acts and the insular legislation are given in the appendix.
The Code differs considerably from the general American mining law.
It allows no extralateral rights, but to make up for that a greater
width of lode claim is permitted. Only one lode claim, not to exceed
300 meters square, may be located on the same vein by the same
locator or locators.
Porto Rico. By the act of July 1, 1902,11? all public lands in Porto
Rico were ceded by the United States to the government of Porto
Rico. There is apparently no local legislation, though there seems
to be mineral land there.1+*
Rhode Island. Same state of facts as Delaware.
South Carolina was one of the thirteen original states, so the feder-
al mining laws have never applied there. The state legislation
provides that, where lands are actually mined, the gross proceeds alone
shall be assessed and taxed.1+* It also regulates the employment of
children in mines.
South Dakota is a mining law state, and has a general mining code,
supplementing the federal legislation.**®
Tennessee. The entire area of Tennessee was originally public
domain; but the United States donated the same to the state,t+® and
the federal mining laws have not applied there. The state legisla-
tion provides for the inspection and other police regulation of
mines.1*7
Texas came into the Union owning its own lands. The federal
land laws have never applied there. The state has a complete min-
ing code.17® It is given in the appendix, and differs from the federal
legislation principally in recognizing no extralateral rights.
Utah is a mining law state, and has a general mining code, supple-
menting federal legislation,’*® as well as acts for the inspection and
other police regulation of mines.**°
112 32 Stat. 731, c. 1883.
118 See 2 Lindley on Mines (2d. Ed.) § 878.
114Acts S. C. 1905, pp. 996, 997, § 14.
115 Rey. Pol. Code S. D. §§ 2656-2711; Laws 1903, pp. 209-213, ec. 178-182.
116 Donaldson, Public Domain, pp. 421-423.
117 Mill. & V. Code Tenn. §§ 807-309; Shannon’s Code Supp. (1897-1903)
pp. 472-502, 683.
1182 Sayles’ Ann. Civ. St. Tex. 1897, arts. 3481-3498t; Sayles’ Ann. Civ.
St. Supp. 1897-1904, pp. 355, 356; Gen. Laws Tex. 1907, p. 331, ¢c. 178.
119 Rev. St. Utah 1898, §§ 1495-1506; Laws 1899, pp. 26-29; Laws 1901,
p. 19; Laws 1903, p. 9; Compiled Laws Utah 1907, §§ 1495-1506x2.
120 Rey. St. Utah 1898, §§ 1507-1540; Laws 1901, pp. 83-91, 150-151;
Laws 1907, p. 34; Compiled Laws Utah 1907, §§ 910, 1837, 1338, 1507-1540x4.
46 MINING LAW STATUS OF STATES AND TERRITORIES, ETC. (Ch. 2
Vermont was created out of territory belonging to some of the
thirteen original states, and never has been subject to the federal min-
ing or other land laws. Both New Hampshire and New York had
claimed jurisdiction over Vermont territory, but whichever was en-
titled necessarily gave up its rights to Vermont on the latter’s admission
into the Union. The state legislation taxes mining and quarry
rights.2?+
Virginia was one of the thirteen original states, so the federal
mining laws have never applied there. The state legislation requires
the state board of agriculture to collect minerals and assay them for the
benefit of the owners, provides for the assessment of taxes on mineral
lands and the sale or lease of infants’ mineral lands, and contains cer-
tain police regulations.*??
Washington is a mining law state, and has a general mining code,
supplementing federal legislation,??* and statutes for the inspection
and other police regulation of mines, providing for a mining bureau,
giving special rights to mining corporations, etc.***
West Virginia was carved out of Virginia, one of the thirteen
original states, and was never subject to the federal mining laws.
It succeeded to the rights of Virginia in undisposed-of lands. The
state legislation provides for the inspection and other police regula-
tion of coal mines.*?®
Wisconsin. For federal legislation and experience, see Michigan
supra. The state legislation covers a number of mining matters.
Among other things, it provides that corporations may be formed for
mining, smelting, quarrying, and other like business. It lays down
rules to govern mining contracts, provides for the condemnation of
water-ways, for drainage, etc., imposes criminal penalties for digging
121 V. S. 1894, § 365; Laws 1900, pp. 10-12, No. 12.
1221 Va. Code, 1904, §§ 1783a, 1783g; 2 Va. Code 1904, §§ 2570-2572, 2616—
2626, 3657bb.
123] Ballinger’s Ann. Codes & St. Wash. §§ 3151-3157 (Pierce’s Code, §§
6432-6439) ; Laws 1899, pp. 47, 69, 155, 337, cc. 34, 45, 96, 147; Laws 1901,
p. 292, e@ 187.
124 Ballinger’s Ann. Codes & St. Wash. §§ 179-182, 3145-3150, 3158-8211,
4081, 4280-4284 (Pierce’s Code, §§ 6493, 6494, 6497, 6498, 6501-6504, 6495-—
6496a, 6499, 6500, 6611, 6513, 6516, 6509, 6515, 6512, 6506, 6505, 6510, 6514,
6517, 6519, 6522, 6524, 6520, 6521, 6471-6479, 6454-6470); Laws 1907, pp.
130, 2038, ec. T7, 105.
125 Code W. Va. 1899. pp. 1045-1061; Laws 1901, pp. 84-86, 142, 224-234,
ec. 81, 57, 106 (Code 1906, §§ 420-429, 468, 404, 409, 410, 419); Laws 1903,
p. 163, ce. 51 (Code 1906, § 471); Laws 1905, pp. 426-480, 491, cc. 46, 75 (Code
1906, §§ 400-403, 455-458).
§ 9) MINING LAW STATUS OF STATES AND TERRITORIES. 47
up, severing, or carrying away minerals from public lands, or lands
belonging to or lawfully occupied by another, prescribes rules to be
followed in the case of conflicting claims to mining grounds, requires
smelters to keep accounts of ores, regulates the employment of chil-
dren in mines, etc.12%
Wyoming is a mining law state, and has a general mining code, sup-
plementing federal legislation,??7 and statutes for the inspection and
other police regulation of coal mines.1?8
1261 St. Wis. 1898, §§ 220, 1379 (1), 1647-1657, 1728a; 2 St. Wis. 1898, §§
4441, 4442; Sanborn’s St. Supp. 1906, §§ 1042j, 1647a.
127 Rey. St. Wyo. 1899, §§ 2583-2561; Laws 1901, pp. 39, 104, 105, ce.
41, 100.
128 Rev. St. Wyo. 1899, §§ 110-115, 2562-2596; Laws 1908, pp. 9, 18-21,
31-33, 101, cc. 6, 28, 35; Laws 1905, p. 100, ¢. 58.
48 LAND DEPARTMENT AND PUBLIC SURVEYS. (Ch. 3
CHAPTER III.
THE LAND DEPARTMENT AND THE PUBLIC SURVEYS.
10. The Land Department.
11. The Attitude of the Courts Toward the Land Department.
12. The System of Public Land Surveys.
18. The Location of District Land Offices.
THE LAND DEPARTMENT.
10. The land department is a branch of that department of the federal
government of which the Secretary of the Interior is the head.
The chief functions of the land department are to attend to
the survey of the public lands, to supervise land entries, and
to issue patents. Under the Secretary of the Interior is the
Commissioner of the General Land Office, and subordinate to
the latter, are the surveyors general of the different districts
and the registers and receivers of the local land offices.
All proceedings begin in the survey and land districts, and reach the
Commissioner of the General Land Office on appeal or in due
course of ex parte procedure. In proper cases an appeal may
be taken to the Secretary of the Interior. All proceedings are
governed by the regulations of the land department.
Preliminary to an understanding of our subject, it is desirable to
know something about the land department of the national govern-
ment, as that is intrusted by Congress with the management and sale
of the public lands of the United States. The land department has
been since 1849 a branch of the Interior Department of the United
States government. Prior to that time it was under the Treasury
Department.
The Secretary of the Interior.
The head of the land department is, of course, the Secretary of
the Interior, who represents the President of the United States. The
Secretary is charged with the supervision, among other things, of the
public business relating to “the public lands, including mines.” 2 The
1 Act March 3, 1849, c. 108, 9 Stat. 395; Rev. St. U. S. § 487 (U. S. Comp.
St. 1901, p. 248) ff. Compare U. 8. v. Schlierholz (D. C.) 133 Fed. 333.
2 Rey. St. U. S. § 441 (U. S. Comp. St. 1901, p. 252). See Knight v. U. S$.
142 U. 8. 161, 12 Sup. Ct. 258, 35 L. Ed. 974. “Further, it must be re-
membered that the general supervision of the affairs of the land department
is now vested in the Secretary of the Interior, and that, unless Congress
clearly designates some other officer to act in respect to such matters it will
§ 10) THE LAND DEPARTMENT. 49
Secretary of the Interior is represented in the land department by as-
sistant secretaries.
The Commissioner of the General Land Office.
Under the Secretary of the Interior is the Commissioner of the
General Land Office, who, under direction of the Secretary, is :to
perform “all executive duties appertaining to the surveying and sale
of the public lands of the United States, or in any wise respecting
such public lands, and also such as relate to private claims of land,
and the issuing of patents for all grants of land under the authority
of the government.” *® An assistant commissioner of the General
Land Office and other subordinate officers are provided for.*
The Surveyor General.
The Commissioner of the General Land Office being charged, as
above, with the executive duties appertaining to the surveying, as
well as the sale, of the public lands, it seems to be clear that the
surveyors general appointed in the different states and territories by
the President, one for each survey district, are subordinate to the
Commissioner of the General Land Office.® The surveyors general
appoint the deputy mineral surveyors, subject to review by the General
Land Office. Other officers under the Commissioner of the General
Land Office are the registers and receivers of the various local land
offices,’? who have to reside at the place where the land office for
which they are appointed is kept.®
Registers and Receivers.
When controversies over land arise, it is in the local land offices
that they start. “A local land office is an office occupied by two of-
ficers. It is the office of the register, and also of the receiver.” ® The
duties of the registers and receivers are distinct, the register being
primarily a temporary recorder (though, since, sooner or later, all pa-
pers are transmitted to the General Land Office, and only plat and
tract books remain permanently at the local land office, the local office
is not strictly a place of record), and the receiver being primarily a
treasurer; but the two officers must act together for so many purposes
be assumed that he is the officer to represent the government.” Johanson
vy. Washington, 190 U. S. 179, 185, 23 Sup. Ct. 825, 47 L. Hd. 1008.
3 Rev. St. U. S. § 453 (U. S. Comp. St. 1901, p. 257).
4U. S. Comp. St. 1901, p. 256; U. 8. Comp. St. Supp. 1907, p. 61.
5 Craigin v. Powell, 128 U. S. 691, 9 Sup. Ct. 203, 32 L. Hd. 566.
6 Robert Gorlinski, 20 Land Dec. Dep. Int. 283.
7 Rev. St. U. S. §§ 2234-2237 (U. S. Comp. St. 1901, p. 1366). See list of
land offices in section 13 of this chapter.
8 Rey. St. U. S. § 2235 (U. S. Comp. St. 1901, p. 1366).
9 Paris Meadows et al., 9 Land Dec. Dep. Int. 41, 44.
Cost.M1n.L.—4
50 LAND DEPARTMENT AND PUBLIC SURVEYS. (Ch. 3
that it is held that “the action of each is necessary within their appro-
priate spheres to the administration of the office,” *° and that a vacancy
in the office of either the register or the receiver disqualifies the re-
maining incumbent from performing the duties of his own office
until the vacancy is filled.1! If both offices are filled, it seems that the
register and receiver “can act independently and separately in most
of the matters pertaining to their duties in the land office. They
need not act jointly in administering oaths, or in examining wit-
nesses, or in hearing testimony, for all testimony is required to
be reduced to writing and cases may be decided upon the record so
made; but in rendering opinions and publishing decisions on matters
affecting the rights or interests of adverse parties the law contem-
plates that they shall act jointly.” 1? Both officers need not act sim-
ultaneously. “The receiver may act at one time, and the register at
another; but both must act before the case is concluded and the
papers signed upon which the patent is subsequently issued.”**
The practice before these officers is governed by the rules of the
General Land Office;+* all testimony offered being received, sub-
ject to their rulings on its admissibility. All papers in matters before
them are forwarded, sooner or later, to the General Land Office, where
they remain,
- Appeals.
Appeal from the registers and receivers lies to the Commissioner
of the General Land Office. The latter’s decision may be reviewed
by the Secretary of the Interior, and perhaps there may be an ap-
peal “under special circumstances to the President.’’15 Congress
has, of course, the power at any time to withdraw a contest from the
land department and determine for itself the rights of the parties.*
10 Christian F. Ebinger, 1 Land Dec. Dep. Int. 150.
11 Graham y. Carpenter, 9 Land Dec. Dep. Int. 365; Smith v. McKerracher,
20 Land Dee. Dep. Int. 276.
12 Peters v. United States, 2 Okl. 116, 131, 33 Pac. 1031.
.18 Smith v. United States, 170 U. S. 372, 377, 18 Sup. Ct. 626, 42 L. Ed.
1074; Potter v. United States, 107 U. S. 126, 1 Sup. Ct. 524, 27 L. Ed. 230.
14 Department mineral land regulations must be appropriate, reason-
able, and within the limitation of the law for the enforcement of which they
are provided, or they are void. Anchor v. Howe (C. C.) 50 Fed. 366.
16 Shepley vy. Cowan, 91 U. S. 330, 340, 23 L. Ed. 424.
*Emblen y. Lincoln Land OCo., 102 Fed. 559, 42 C. C. A. 499.
§ 11) ATTITUDE OF COURTS TOWARD LAND DEPARTMENT. 53
ATTITUDE OF THE COURTS TOWARD THE LAND DEPARTMENT.
11. If there has been no fraud nor imposition, the courts regard all
decisions of the land department on questions of fact as con-
elusive. They will give effect to those decisions, despite errors
of law, unless the courts are convinced that but for the errors
of law the decisions would have been the other way, or unless
the land department has exceeded its jurisdiction. The courts,
moreover, incline to accept the long-continued construction
placed by the land department on ambiguous statutes.
As we have seen, the chief function of the land department is
to supervise land entries and to issue patents. In determining be-
tween different classes of claimants whether land is mineral or not,
and whether, if mineral, an applicant is entitled to a patent, the land
department is acting in a quasi judicial capacity. Its chief function
is that of a jury, namely, to investigate and pass upon the facts.
If there has been no fraud nor imposition, all questions of fact
decided by the department are regarded by the courts as conclu-
sively settled.1® Even though questions of law are mixed with the
questions of fact, and the questions of law may have been wrongly
decided, still, if the courts cannot say that but for an error of law
the case must have been decided the other way, the courts will not
interfere.17 While, of course, any action of the land department
may be attacked on the ground that it was beyond the jurisdiction
of that branch of the government, the presumption is in favor of
16 DE CAMBRA v. ROGERS, 189 U. S. 119, 23 Sup. Ct. 519, 47 L. Ed. 734;
Gardner vy. Bonestell, 180 U. S. 362, 21 Sup. Ct. 399, 45 L. Ed. 574; Moss v.
Dowman, 176 U. S. 413, 20 Sup. Ct. 429, 44 L. Ed. 526; Johnson y. Drew,
171 U. S. 938, 18 Sup. Ct. 800, 48 L. Ed. 88; Stewart v. McHarry, 159 U. S.
643, 16 Sup. Ct. 117, 40 L. Ed. 290; Carr v. Fife, 156 U. S. 494, 15 Sup. Ct. 427,
389 L. Ed. 508; Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249, 29 L. Bd. 570;
Moore vy. Robbins, 96 U. S. 530, 24 L. Ed. 848; Peyton v. Desmond, 129 Fed.
1, 68 C. C. A. 651; Mineral Farm Min. Co. vy. Barrick, 33 Colo. 410, 80 Pac.
1055; Jeffords vy. Hine, 2 Ariz. 162, 11 Pac. 351. See Golden Reward Min.
Co. v. Buxton Min. Co. (C. C.) 79 Fed. 868. While the land department de-'
cisions are subject to review for fraud, mistakes, or other equitable ground,
Estes v. Timmons, 12 Okl. 537, 73 Pac. 303, it seems that perjury during the
hearing before the land department is not ground enough, Cagle v. Dunham,
14 Okl. 610, 78 Pac. 561; Kennedy v. Dickie, 34 Mont. 205, 85 Pac. 982.
Compare Cragie v. Roberts (Cal. App.) 92 Pac. 97.
17 MARQUEZ v. FRISBIE, 101 U. 8. 473, 476, 25 L. Ed. 800, where the
court says: “It is a sound principle that 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.”
52 LAND DEPARTMENT AND PUBLIC SURVEYS. (Ch. 3
jurisdiction.1* Where the matter is within the jurisdiction of the land
department, and yet that department has made a clear and controlling
mistake of law, the courts in a proper case will correct the error.*®
In Hawley v. Diller, the United States Supreme Court says: “It
is suggested that the order of the land department canceling the en-
try was based upon a misconstruction of the law. If it had been, then
the error could be corrected by the courts.” ?°
The attitude of the courts towards the land department is, how-
ever, one of great friendliness, even on matters of law. They are
not bound by the land department’s construction of the land statutes,
yet when the statutes are ambiguous, and the land department has
18 KING v. McANDREWS, 111 Fed. 860, 50 C. C. A. 29; New Dunderberg
Min. Co. v. Old, 79 Fed. 598, 25 C. C. A. 116.
19 Sanford v. Sanford, 139 U. S. 642, 647, 11 Sup. Ct. 666, 35 L. Ed. 290;
Baldwin vy. Starks, 107 U. S. 463, 465, 2 Sup. Ct. 478, 27 L. Hd. 526; Lee
vy. Johnson, 116 U. S. 48, 6 Sup. Ct. 249, 29 L. Ed. 570; Southern Cross Gold
Min. Co. of Kentucky v. Sexton, 147 Cal. 758, 82 Pac. 423; Hoyt v. Weyer-
haeuser (C. C. A.) 161 Fed. 324. See Gonzales v. French, 164 U. S. 338, 17 Sup.
Ct. 102, 41 L. Ed. 458.
20 Hawley v. Diller, 178 U. S. 476, 489, 20 Sup. Ct. 986, 44 L. Ed. 1157.
Compare Wisconsin Cent. R. Co. v. Forsythe, 159 U. S. 46, 61, 15 Sup. Ct.
1020, 40 L. Ed. 71.
“A patent to land of the disposition of which the land department has ju-
risdiction is both the judgment of that tribunal and a conveyance of the
legal title to the land; but the judgment and conveyance of the department
do not conclude the rights of the claimants to the land. They rest on es-
tablished principles of law and fixed rules of procedure, which condition
their initiation and prosecution, the application of which to the facts of
each case determines its right decision; and if the officers of the land
department are induced to issue a patent to the wrong party by an erroneous
view of the law, or by a gross or fraudulent mistake of the facts, the right-
ful claimant is not remediless. He may avoid the decision and charge the
legal title derived from the patent which they issue with his equitable title
to it on either of two grounds: (1) That upon the facts found, conceded, or
established without dispute at the hearing before the department, its officers
fell into an error in the construction of the law applicable to the case,
which caused them to refuse to issue the patent to him, and to give it to
another; or (2) that through fraud or gross mistake they fell into a mis-
apprehension of the facts proved before them, which had the like effect.
If he would attack the patent on the latter ground, and avoid the depart-
ment’s finding of facts, however, he must allege and prove, not only that
there was a mistake in the finding, but [also] the evidence before the de-
partment from which the mistake resulted, the particular mistake that was
made, the way in which it occurred, and the fraud, if any, which induced
it, before any court can enter upon the consideration of any issue of fact de-
termined by the officers of the department at the hearing.” Sanborn, J.,
in James v. Germania Iron Co., 107 Fed. 597, 600, 601, 46 C. C. A. 476, 479.
Patents will not be set aside for mistake, except where the proof is plain
and convincing beyond reasonable controversy. Thallmann y. Thomas, 111
Fed. 277, 49 C. ©. A. 817.
§ 11) ATTITUDE OF COURTS TOWARD LAND DEPARTMENT. 53
consistently and for a considerable length of time followed a given
construction of them, particularly where the adoption of the con-
struction was practically contemporaneous with the passage of the
statutes, the courts will accept the department’s construction.**
The court's aid may be sought by litigants either before patent or
after patent. Prior to the land department’s loss of jurisdiction
over a matter by the issuance of a patent ?? or other final action,?*
the courts refuse, in general, to interfere with proceedings in the
land department.2* Under the forcible entry and detainer statutes,
and by injunction, however, the courts will prevent wrongful inter-
ference with the actual possession of the land affected pending the
land office’s determination of the questions before that office.2® After
the issuance of patent no disputed question of fact presented to the
land department can be litigated in the courts. The patent, if valid
on its face and issued under a law authorizing its issuance, cannot
be collaterally attacked, but may be subject to several kinds of direct
attack. For instance, the United States may file a bill in equity to
annul the patent because obtained by fraud,?® by inadvertence or mis-
take,?” or even, it seems, because issued through erroneous views of
21 Hewitt v. Schultz, 180 U. S. 139, 21 Sup. Ct. 309, 45 L. Ed. 463; Hastings
& D. R. Co. v. Whitney, 182 U. 8. 357, 366, 10 Sup. Ct. 112, 83 L. Ed. 363;
U. S. v. Burkett (D. C.) 150 Fed. 208; McFadden v. Mountain View Mining:
& Milling Co., 97 Fed. 670, 88 C. C. A, 354.
22 The issuance of patent does not necessarily mean here the actual de-
livery of the patent, but may precede such delivery. United States v. Schurz,
102 U. S. 378, 26 L. Ed. 167. except in a case
where the right of way has been definitely located by the construction
of the road prior to the location of the mining claim.7® A railroad
right of way grant is also subject to prior homestead claims.77 Where
a mining claim or homestead across the proposed right of way is
valid, the railroad must resort to condemnation proceedings to go
over it, if an agreement between the company and the owner cannot
be reached."®
With reference to the grants of rights of way, it must be noted
that the term “right of way” does not imply that the railroad company
gets only an easement. In a few cases it gets only that;7® but as a
74 WILKINSON v. NORTHERN PAC. R. CO., 5 Mont. 538, 547, 548, 6
Pac. 349. See Doran y. Central Pac. R. Co., 24 Cal. 246; Pennsylvania Min.
& Imp. Co. v. Everett & M. C. R. Co., 29 Wash. 102, 69 Pac. 628. Compare
Sousa v. Pereira, 132 Cal. 97, 64 Pac. 90.
75 SOUTHERN CALIFORNIA RY. CO. v. O’DONNELL, 3 Cal. App. 382, 85
Pac. 932; Alaska Pac. Ry. & Terminal Co. v. Copper River & N. W. Ry. Co.
(C. C. A.) 160 Fed. 862.
76 PENNSYLVANIA MIN. & IMP. CO. v. EVERETT & M. C. R. CO.,,
29 Wash. 102, 69 Pac. 628.
77 Oregon Short Line R. Co. v. Fisher, 26 Utah, 179, 72 Pac. 931; Dough-
ty v. Minneapolis, St. P. & S. S. M. R. Co., 15 N. D. 290, 107 N. W. 971;
Slaght v. Northern Pac. R. Co., 39 Wash. 576, 81 Pac. 1062; Northern
Pace. Ry. Co. vy. McCormick (C. C.) 89 Fed. 659; Union Pac. R. Co. v. Har-
tis (Kan.) 91 Pac. 68.
#78 See Enid & A. Ry. Co. v. Kephart (Okl.) 91 Pac. 1049; Slaght v. North-
ern Pac. R. Co., 39 Wash. 576, 81 Pac. 1062; Denver & R. G. R. Co. v.
Wilson, 28 Colo. 6, 62 Pac. 843. Where a prior mining claimant deeded a
right of way to the railway company, and afterward the claimant abandoned
the claim, and it was relocated by a third person, it was held that the re-
location was subject to the easement of the railway company. Bonner v.
Rio Grande 8S. R. Co., 31 Colo. 446, 72 Pac. 1065. If after the definite lo-
cation of the road the route is changed to run over homestead or other
privately owned lands, the new right of way must be procured by purchase
or by condemnation. Northern Pac. R. Co. v. Murray, 87 Fed. 648, 31 C.
C. A. 188; Steele v. Tanana Mines Ry. Co., 2 Alaska, 451.
79 See Grand Canyon Ry. Co. v. Cameron, 35 Land Dec. Dep. Int. 495, 497
74 MINERAL LANDS AND PUBLIC LAND GRANTS. (Ch. 4
rule the grant of the right of way, so called in the acts, is practically
the grant of the fee to the strip,®° upon its being defined by the filing
of the approved map of definite location or by the actual construction
of the road. This fee is not granted for all purposes, however, but
only so long as the land is used for the railroad right of way, and
in consequence a title to the right of way cannot be acquired by ad-
verse possession.*? The importance of this doctrine is apparent in
view of the holding that a grant of 100 feet wide right of way must
be protected from adverse possession to the full extent of the 100 feet.**
Since the company gets the fee in such case, the right of way forth-
with ceases to be public domain, and no mineral location is thereafter
possible upon it.®4
80 Missouri, K. & T. Ry. Co. v. Roberts, 152 U. S. 114, 14 Sup. Ct. 496, 38
L. Ed. 377; Melder v. White, 28 Land Dec. Dep. Int. 412; Oregon Short
Line R. Co. v. Stalker (Idaho) 94 Pac. 56.
81 S§t. Joseph & D. C. R. Co. v. Baldwin, 103 U. S. 426, 26 L. Hd. 578;
Missouri, K. & T. Ry. Co. v. Watson, 74 Kan. 494, 87 Pac. 687.
The actual construction of the road fixes the time as definitely as approval
of the map of location would. JAMESTOWN & N. R. CO. v. JONES, 177
U. S. 125, 20 Sup. Ct. 568, 44 L. Ed. 698.
82 “Manifestly the land forming the right of way was not granted with
the intent that it might be absolutely .disposed of at the volition of the
company. On the contrary, the grant was explicitly stated to be for a des-
ignated purpose, one which negated the existence of the power to volunta-
rily alienate the right of way or any portion thereof. The substantial con-
sideration inducing the grant was the perpetual use of the land for the
legitimate purpose of the railroad, just as though the land had been con-
veyed in terms to have and to hold the same so long as it was used for the
railroad right of way. In effect the grant was of a limited fee made on
an implied condition of reverter in the event that the company ceased to
use or retain the land for the purpose for which it was granted. This be-
ing the nature of the title to the land granted for the special purpose nam-
ed, it is evident that, to give such efficacy to a statute of limitations of a
state as would operate to confer a permanent right of possession thereof
upon an individual for his private use would be to allow that to be done
by indirection which could not be done directly. * * * Of course noth-
ing that has been said in any wise imports that a right of way granted
through the public domain within a state is not amenable to the police pow-
er of the state,” exercised in providing crossings, etc. NORTHERN PAC.
R. CO. v. TOWNSEND, 190 U. 8S. 267, 271, 272, 23 Sup. Ct. 671, 47 L. Ed.
1044. See, also, McLucas v. St. Joseph & G. I. R. Co., 67 Neb. 603, 97 N.
W. 312; Oregon Short Line R. Co. v. Quigley, 10 Idaho, 770, 80 Pac. 401,
and cases cited.
83 Oregon Short Line R. Co. v. Quigley, supra. See Northern Pac. R.
Co. v. Smith, 171 U. S. 260, 18 Sup. Ct. 794, 43 L. Ed. 157.
84 PENNSYLVANIA MIN. & IMP. CO. v. EVERETT & M. C. R. CO.,
29 Wash. 102, 69 Pac. 628. See St. Joseph & D. C. R. Co. v. Baldwin, 103
U. S. 426, 26 L. Ed. 578; Montana Cent. R. Co., 25 Land Dec. Dep. Int. 250.
§$ 18-19) RAILROAD LAND GRANTS. 75
Grants of Designated Sections.
The grant of the designated alternate sections within the prescribed
limits on each side of the line of the road, which are “floating” lands
until the line of the road is defined and approved, and “in place” lands
thereafter, was known as a grant in presenti; i. e., the title passed as
soon after the definite location of the line as the sections were surveyed
and identified by number, or, if the government survey of the sections
preceded the definite location of the line of the road, then immediately
upon that location, and forthwith that title related back to the date of
the passage of the land grant act.2® As a consequence the filing of the
map of definite location and its acceptance by the Secretary of the In-
terior was a final election by the railroad company to take only the
lands allowable according to that map, or the lieu lands provided in
their place.2* Qn the completion of the road the title to granted lands
not excepted by the act passes, without a selection by the road or ap-
proval by the Secretary of the Interior.8 In the case of in place sec-
tions bona fide settlers within the exterior limits of the grant prior to
the definite location of the road are protected.2® The same, of course,
holds true of mining claim locators. .
But with reference to the unlocated mineral lands in the sections in
place there is no doubt that the mineral reservations in the land grant
acts apply. That matter was determined by the case of Barden v.
Northern Pac. R. Co.,8® which involved the grant to the Northern
85 DESERET SALT CO. v. TARPEY, 142 U. S. 241, 12 Sup. Ct. 158, 35
L. Ed. 999; UNITED STATES v. MONTANA LUMBER CO., 196 U. S.
573, 25 Sup. Ct. 367, 49 L. Ed. 604; Southern Pac. R. Co. v. Lipman, 148
Cal. 480, 83 Pac. 445; Walbridge v. Board of Com’rs of Russell County,
87 Kan. 341, 86 Pac. 473; Wiese v. Union Pac. R. Co. (Neb.) 108 N. W.
75. See United States v. Oregon & C. R. Co., 176 U. S. 28, 20 Sup. Ct. 261,
44 L. Ed. 358. In Sage v. Rudnick, 91 Minn. 325, 98 N. W. 89, 100 N. W.
106, it is held accordingly that adverse possession of granted lands runs
against the railroad from the time of the filing of the map of definite
location.
86 See Smith v. Northern Pac. R. Co., 58 Fed. 513, 7 C. C. A. 397; North-
ern Pac. R. Oo. v. Murray, 87 Fed. 648, 31 ©. C. A. 183. Prior to the filing
of the map of definite location, Congress may dispose of land within the
exterior limits of the general route of the railroad shown in the map of
that route. United States v. Oregon & C. R. Co., 176 U. S. 28, 20 Sup. Ct.
261, 44 L. Ed. 358; Wilcox v. Hastern Oregon Land Co., 176 U. S. 51, 20
Sup. Ct. 269, 44 L. Ed. 368.
87 HOWARD v. PERRIN, 200 U. 8. 71, 26 Sup. Ct. 195, 50 L. Ed. 374.
See Jamestown v. Northern Pac. R. Co., 177 U. S. 125, 20 Sup. Ct. 568,
44 L. Ed. 698; Wallula Pac. Ry. Co. v. Portland & S. R. Co. (C. C.) 154
Fed. 902.
88 Nelson v. Northern Pac. R. Co., 188 U. S. 108, 23 Sup. Ct. 302, 47 L.
Ed. 406. See Sage v. United States, 140 Fed. 65, 71 GO. OC. A. 404.
89154 U. S. 288, 14 Sup. Ct. 1030, 38 L. Ed. 992.
76 MINERAL LANDS AND PUBLIC LAND GRANTS. (Ch. &
Pacific Railroad under the act of July 2, 1864; the line of the road
past the lands in controversy having been fixed by the filing of the
requisite map of definite location and the approval thereof July 6,
1882. The lands in controversy had been returned by the surveyor
general as agricultural, and prior to the discovery of the quartz min-
ing claims in 1888 the railroad company had applied to the land depart-
ment for a certificate or patent for the land, but one had not yet been
issued. The Supreme Court of the United States proceeded to estab-
lish in that case the doctrine that a railroad grant of sections in place
does not pass mineral lands. Later cases establish that even non-
mineral land will not pass under the railroad grants, if a claim has
been made to it under the mining laws, and the claim is pending of
record in the land office at the time the line of the road is establish-
ed,®°° or if the lands are sub judice under a Mexican land grant claim
prior to the act of 1891.9! ‘The Barden Case is so important that it
must be quoted from:
“The grant was of 20 alternate sections of land, designated by odd
numbers, on each side of the road which the plaintiff was authorized
to construct—a tract of 2,000 miles in length and 40 miles in width,
constituting a territory of 80,000 square miles. It is true that the
grant was a float, and the location of the sections could not be made
until the line of the proposed road had become definitely fixed. The
ascertainment of the location of the sections in no respects affected the
nature of the lands or the conditions on which their grant was made.
If swamp lands or timber lands, or mineral lands previously, they con-
tinued so afterwards. It is also true that the grant was one in pre-
senti of lands to be afterwards located. From the immense territory
from which the sections were to be taken it could not be known where
they would fall until the line of the road was established. ‘Then the
grant attached to them, subject to certain specified exceptions; that is,
the sections, or parts of sections, which had been previously granted,
90 NORTHERN PAC. R. CO. v. SANDERS, 166 U. 8S. 620, 17 Sup. Ct.
671, 41 L. Ed. 1189. But see Bonner y. Rio Grande S. R. Co., 31 Colo.
446, 72 Pac. 1065. U.S. v. Chicago, M. & St. P. Ry. Co. (C. CG. A.) 160 Fed.
818. Where a claim of record in the land office has in fact been adandoned
prior to the selection of the land by the railroad as lieu lands, the rail-
road may take. Oregon & C. R. Co. v. United States, 190 U. 8. 186, 23 Sup.
Ct. 673, 47 L. Ed. 1012. But it may not take lands abandoned by home-
steaders after the grant. St. Paul, M. & M. Ry. Co. v. Donohue, 210 U. 8.
21, 28 Sup. Ct. 600, 52 L. Ed. —. The railroad may also take lands within
the primary or place limits of the grant abandoned prior to the grant. United
States v. Oregon & C. R. Co. (C. C.) 152 Fed. 473.
91 SOUTHERN PAC. R. CO. vy. UNITED STATES, 200 U. S. 354, 26 Sup.
Ct. 298, 50 L. Ed. 512.
§§ 18-19) RAILROAD LAND GRANTS. 77
sold, reserved, occupied by homestead settlers, or pre-empted or other-
wise disposed of, were excepted, and the title of its other sections or
parts of sections attached as of the date of the grant, so as to cut off
intervening claimants. In that sense the grant was a present one.
But it was still, as such grant, subject to the exception of mineral
lands made at its date or then excluded therefrom by conditions an-
nexed. Whatever the location of the sections, and whatever the ex-
ceptions then arising, there remained that original exception declared
in the creation of the grant. The location of the sections and the
exceptions from other causes in no respect affected that one or limited
its operation. There is no language in the act from which an inference
to that effect can be drawn, in the face of its declaration that all mineral
lands are thereby ‘excluded from its operations,’ and of the joint res-
olution of 1865 that ‘no act of the Thirty-Eighth Congress [that is,
of the previous session of 1864] granting lands to states or corpora-
tions, to aid in the construction of roads or for other purposes, shall be
so construed as to embrace mineral lands.’
“The plaintiff, however, appears to labor under the persuasion that
only those mineral lands were excepted from the grant which were
known to be such on the identification of the granted sections by the
definite location of the proposed road and the ascertainment at that
time of the exceptions from them of parcels of land previously disposed
of, and that the want of such knowledge operated in some way to
eliminate the reservation made by Congress of the mineral lands. But
how the absence of such knowledge on the ascertainment of the sec-
tions granted and the parcels of land embraced therein previously dis-
posed of had the effect, or could have the effect, to eliminate the res-
ervation of mineral lands from the act of Congress, we are unable to
comprehend. Such a conclusion can only arise from an impression
that a grant of land cannot be made without carrying the minerals
therein; and yet the reverse is the experience of every day. The
granting of lands, either by the government or individuals, with a
reservation of certain quarries therein, as of marble, or granite, or
slate, or of certain mines, as of copper, or lead, or iron found therein,
is not an uncommon proceeding, and the knowledge or want of knowl-
edge at the time by the grantee in such cases of the property reserved
in no respect affects the transfer to him of the title to it. No one will
affirm that want of such knowledge, on the identification of the lands
granted containing the reserved quarries or mines, would vacate the
reservation, and we are unable to perceive any more reason from
that cause for eliminating the reservation of minerals in the present case
from the grant of the government than for eliminating for a like cause
the reservation of quarries or mines in the cases supposed. And it
78 MINERAL LANDS AND PUBLIC LAND GRANTS. (Ch. 4
will hardly be pretended that Congress has not the power to grant por-
tions of the public land, with a reservation of any severable products
thereof, whether minerals or quarries contained therein, and whether
Anown or unknown; yet such must be the contention of the plain-
tiff, or its conclusion wiil fall to the ground.
“The cases cited in support of the claim of the plaintiff only show
that the identification of the sections granted and of the exceptions
therefrom of parcels of land previously disposed of leaves the title
of the remaining sections, or parts thereof, to attach as of the date
of the grant, but has absolutely no other effect. Such is the purport,
and the sole purport, of the cases of St. Paul & P. R. Co. v. Northern
Pac. R. Co., 139 U. S. 1, 5, 11 Sup. Ct. 389, 35 L. Ed. 77, and Deseret
Salt Co. v. Tarpey, 142 U. S. 241, 247, 12 Sup. Ct. 158, 35 L. Ed. 999,
cited by the plaintiff. In both of those cases the writer of this opin-
ion had the honor to write the opinions of this court; and it was never
asserted or pretended that they decided anything whatever respecting
the minerals, but only that the title to the lands granted took effect, with
certain designated exceptions, as of the date of the grant. They never
decided anything else. And what was that title? It was of the lands
which at the time of the grant were not reserved as minerals, and of
the lands which at the time of the location had not been sold, reserved,
or to which a pre-emption or homestead right had not attached. If
one were to sell land, reserving therefrom the minerals of gold or
silver found therein, and tell the purchaser to take the surveyor and
measure off the land, would it be urged or pretended that the moment
the surveyor ascertained the boundaries of the land sold the reservation
of the minerals then undiscovered would be eliminated? Would any
one uphold the reasoning, or the doctrine, which would assert such
a conclusion? And can any one see the difference between the case
now before us and the case supposed? Not a word was said or sug-
gested in the cases cited about the elimination of the reservation for
that cause; and not only in the cases cited by the plaintiff, but in a
multitude of other cases, almost without number, a like silence was
observed. In none of them was it ever pretended that the ascertain-
ment of the location of the lands granted operated to withdraw from
the grant the reservation of the minerals then undisclosed. The grant
did not exist without the exception of minerals therefrom, and Con-
gress has declared, in positive terms, that the act shall not be construed
to embrace them, and there is nothing in any of the cases cited in the
plaintiff’s contention which indicates in the slightest degree that the
original exception was subsequently qualified. ~
“It seems to us as plain as language can make it that the intention
of Congress was to exclude from the grant actual mineral lands, wheth-
§§ 18-19) RAILROAD LAND GRANTS. 79
er known or unknown, and not merely such as were at the time known
to be mineral. After the plaintiff had complied with all the conditions
of the grant, performed every duty respecting it, and among other
things that of definitely fixing the line of the route, its grant was still
limited to odd sections which were not mineral at the time of the grant,
and also to those which were not reserved, sold, granted, or otherwise
appropriated, and were free from pre-emption and other claims or
rights at the time the line of the road was definitely fixed, and was
coupled with the condition that all mineral lands were excluded from
its operation, and that, in lieu thereof, a like quantity of unoccupied
and unappropriated agricultural lands, in odd sections, nearest to the
line of the road, might be selected. There is, in our judgment, a funda-
mental mistake made by the plaintiff in the consideration of the
grant. Mineral lands were not conveyed, but by the grant itself and
the subsequent resolution of Congress cited were specifically reserved
to the United States and excepted from the operations of the grant.
Therefore they were not to be located at all, and if in fact located they
could not pass under the grant. * * * ‘The plaintiff in this case,
not having a patent, and relying solely upon its grant, which gives no ti-
tle to the minerals within any of its lands, shows by its complaint no
cause of action for the possession of the mineral lands claimed.” %?
In a still later case it has been held that lands valuable solely or
chiefly for granite quarries are mineral lands within the meaning of
the exception of mineral lands in the grant made by the act of July 2,
1864.93
But, while the minerals in the lands are excepted from the grant
even where patents issue to the railroad for the lands,tt it seems
that no valid mining location can be made on the lands, for the
reason that the surface of the lands belongs to the railroad. Not only
do the mining statutes provide no method of getting possession of or
locating minerals in the soil, except where a surface embracing or
over the minerals is unappropriated public land of the United States,°*
92 BARDEN v. NORTHERN PAC. R. CO., 154 U. S. 288, 313-316, 332, 14
Sup. Ct. 1030, 88 L. Ed. 992. ~
93 NORTHERN PAC. R. CO. v. SODERBERG, 188 U. S. 526, 23 Sup.
Ct. 365, 47 L. Ed. 575.
tt A patent issued to a railroad for known mineral lands was held to be
void in United States v. Central Pac. R. Co. (C. C.) 84 Fed. 218. In a suit
by the United States to cancel a patent issued to a railroad for granted
land claimed to be mineral, the burden is on the complainant to show, not
only that the land was known mineral land at the time of the patent, but
also that it was’ chiefly valuable for mineral purposes. United States vy.
Central Pac. R. Co. (C. C.) 93 Fed. 871.
94 TRAPHAGEN v. KIRK, 30 Mont. 562, 77 Pac. 58, and cases cited.
80 MINERAL LANDS AND PUBLIC LAND GRANTS. (Ch. 4
but it is also impossible to initiate a location by trespass and have it
valid, and both of these facts stand in the way of a valid location of
minerals in railroad lands.
While mineral lands are excepted by the railroad land grant acts
from the grants of sections in place, the railroad company is, of course,
entitled to its day in court in the land department on the question of
whether the land really is mineral. That right of the railroad company
merely requires that notice be given to it in some sufficient way before
the land department disposes of the land as mineral. The publication
of notice of application for patent by a mineral land claimant in the
manner required by statute is such sufficient notice; ®* but otherwise
personal notice would seem to be required.®* The land department re-
quires “prompt and appropriate notice” to the railroad’s grantees.®7
Grants of Liew or Indemnity Land.
Lieu or indemnity lands, of course, cannot pass in presenti. They
depend upon deficiencies in the “in place” sections, and cannot be de-
termined until those deficiencies are ascertained. A's in the case of
state indemnity lands, the title does not pass until after the lands have
been selected and have been certified by the Secretary of the In-
terior.°* Homestead entries within indemnity limits, made in good
faith prior to such selection by and certification to the railroad, will
be given priority.°* Lands within the indemnity limits of a grant
to a railroad do not pass, on the forfeiture of such grant, to a second
railroad, although within the place limits of the grant which was made
See Hill v. Martin (Tex. Civ. App.) 70 S. W. 430; Gleeson v. Martin White
Min. Co., 18 Ney. 442.
95 Northern Pac. R. Co. v. Cannon, 54 Fed. 252, 4 GC. O. A. 303.
96 See McCloud v. Central Pac. R. Co., 29 Land Dec. Dep. Int. 27.
97 Instructions, 33 Land Dec. Dep. Int. 262.
98 SJOLI v. DRESCHEL, 199 U. S. 564, 26 Sup. Ct. 154, 50 L. Ed. 311; Ore-
gon & C. R. Co. v. United States, 189 U. S. 1038, 23 Sup. Ct. 615, 47 L. Ed. 726;
United States v. Missouri, K. & T. R. Co., 141 U. 8. 358, 12 Sup. Ct. 18, 35 L.
Ed. 766; Sage v. Maxwell, 91 Minn. 527, 99 N. W. 42. The approval by the
land department of lieu selections made in sections subject only to entry un-
der homestead laws does not operate to vesf title in the railroad company.
Clark v. Herington, 186 U. S. 206, 22 Sup. Ct. 872, 46 L. Ed. 1128. The right
of a railroad does not attach to any specific lands within the indemnity limits
of its grant until selection, notwithstanding the loss on account of which in-
demnity might be taken 1s ascertained to be largely in excess of all land sub-
ject to indemnity selection. Oregon & C. R. Co., 36 Land Dec. Dep. Int. 349.
99 Sjoli v. Dreschel, 199 U. S. 564, 26 Sup. Ct. 154, 50 L. Ea. 311; Hoyt v.
Weyerhaeuser (C. C. A.) 161 Fed. 324; Osborn vy. Froyseth (Minn.) 116 N. W.
1113. That the land may be entered as a homestead after the filing of the list
of selections of indemnity land by the railruad, but prior to the approval
§§ 18-19) RAILROAD LAND GRANTS. 81
to the second railroad prior to the forfeiture of the grant to the first
railroad, but, instead, become a part of the public land of the United
States.1°°
That lieu or indemnity lands must be nonmineral is as clear as that
the “in place” sections must be so.'°! The language of the joint reso-
lution, that no act “granting lands to states or corporations to aid in
the construction of roads or for other purposes * * * shall be so
construed as to embrace mineral lands,” etc., leaves no room for doubt.
The Classification of Railroad Lands.
By the act of February 26, 1895,1°? Congress provided for commis-
sioners to determine the character of railroad lands granted in Idaho
and Montana. That act merely relates to the odd-numbered railroad
sections; the character of the even-numbered sections, in which the
railroad company are not interested, being involved only so far as they
help fix the character of the odd-numbered sections.1°* The com-
missioners have hearings and report their determinations to the land
department, and their work is only final when approved by the Sec-
retary of the Interior. Their return is not conclusive, and on a sub-
sequent showing that land classified by them as mineral is really not
mineral the land department may make such disposition of the land
as is proper.°* The classification of land by the commissioners as
mineral, and the final approval of such classification by the Secretary
of the list by the Secretary, is declared in Northern Pac. Ry. Co. v. Wass
(Minn.) 116 N. W. 987. Bona fide settlers within indemnity limits prior
to the definite location of the road will be protected, even though it afterwards
appears that all the sections in such limits are needed to supply deficiencies.
OREGON & C. R. CO. v. UNITED STATES, 189 U. S. 108, 23 Sup. Ct. 615, 47
L. Ed. 726. Or that the land was withdrawn without authority of law from
homestead entry. Brandon v. Ard (U. S.) 29 Sup. Ct. 1, 53 L. Ed. —.
100 San Jose Land & Water Co. v. San Jose Ranch Co., 189 U. 8. 177, 23 Sup.
Ct. 487, 47 L. Ed. 765, and cases cited; Northern Lumber Co. v. O’Brien, 204
U. S. 190, 27 Sup. Ct. 249, 51 L. Ed. 488. See St. Paul, M. & M. R. Co. v. Don-
ohue, 210 U. S. 21, 28 Sup. Ct. 600, 52 L. Ed. —-. No one but the United
States may forfeit the grant. Spokane & B. CO. Ry. Co. v. Washington & G. N.
Ry. Co. (Wash.) 95 Pac. 64, and cases cited.
101 Southern Pac. R. Co. v. Allen Gold Min. Co., 138 Land Dec. Dep. Int. 165.
See Mullen v. United States, 118 U. S. 271, 6 Sup. Ct. 1041, 30 L. Ed. 170.
102 Chapter 131, 28 Stat. 683.
103 Instructions, 26 Land Dec. Dep. Int. 684. Since the act does not au-
thorize the classification of lands in even-numbered sections, the fact that such
lands are classified as mineral will not avail against the surveyor general’s
return of the land as nonmineral at the time of actual government survey.
Northern Pacific Ry. Co. v. State of Idaho, 37 Land Dec. Dep. Int. (Advance
Sheets) 68.
104 LYNCH v. UNITED STATES, 138 Fed. 535, 71 C. C. A. 59. See Holter
v. Northern Pac. R. Co., 80 Land Dec. Dep. Int. 442.
Cost.M1n.L.—6
82 MINERAL LANDS AND PUBLIC LAND GRANTS. (Ch. 4
of the Interior, is, in effect, however, a cancellation of a previous selec-
tion of such land by the railroad, and the latter can question the char-
acter of the land only for fraud in classification.1°® An approved
classification of lands under the provisions of the act will not be in-
quired into upon a protest filed subsequently to the time allowed in
the act for the filing of protests, where the protest contains no com-
petent allegations that there was such irregularity in the classification
as to vitiate it.1°° ,
105 Luthye v. Northern Pac. R. Co., 29 Land Dec. Dep. Int. 675; Lamb vy.
Northern Pac. R. Co., 29 Land Dee. Dep. Int. 102.
106 Beveridge v. Northern Pac. Ry. Co., 86 Land Dec. Dep. Int. 40.
§ 20) MINERAL LANDS AND HOMESTEAD, ETC., ENTRIES. 83
CHAPTER V.
THH RELATION BETWEEN MINPRAL LANDS AND HOMESTEAD,
TIMBER, AND DESERT BNTRIES.
20. Homestead Entries.
21. Timber and Stone Land Entries.
22. Desert Entries.
Since the pre-emption laws were repealed by the act of March 3,
1891,1 the homestead laws have been the chief mode of acquiring
title to nonmineral lands, though under the stone and timber act of
June 3, 1878,? as amended by the act of August 4, 1892,° lands chief-
ly valuable for timber may also be acquired, and under the act of
March 3, 1877,4as amended by the act of March 3, 1891,5 desert
lands may be taken up.
HOMESTEAD ENTRIES.
20. The issuance of a homestead patent for land is an authoritative ad-
judication by the land department that the land is nonmineral,
and, subject to the right of the United States to have it set
aside in equity for fraud, the patent passes the title to the land
to the patentee, even though he knows the land to be mineral.
It is only prior to the patent that the question of the mineral
or nonmineral character of the land may be Htigated in the
land department.
The homestead act (Act May 20, 1862, c. 75, 12 Stat. 392) pro-
vides that “every person who is the head of a family, or who has
arrived at the age of twenty-one years, and is a citizen of the United
States or who has filed his declaration of intention to become such, as
required by the naturalization laws shall be entitled to enter one-
quarter section, or a less quantity, of unappropriated public lands, to
be located in a body in conformity to the legal subdivisions of the pub-
lic lands; but no person who is the proprietor of more than one hun-
dred and sixty acres of land in any state or territory shall acquire
any right under the homestead law. And every person owning and
residing on land may, under the provisions of this section, enter
126 Stat. 1098, c. 559 (U. S. Comp. St. 1901, p. 1531).
220 Stat. 89, c. 151 (U. S. Comp. St. 1901, p. 1545).
327 Stat. 348, c. 375 (U. S. Comp. St. 1901, p. 1434).
419 Stat. 377, e 107 (U. S. Comp. St. 1801, p. 1548).
526 Stat. 1095, c«. 561 (U. S. Comp. 1901, p. 1535).
84 MINERAL LANDS AND HOMESTEAD, ETC., ENTRIES. (Ch. 5
other land lying contiguous to his land, which shall not, with the land
so already owned and occupied, exceed in the aggregate one hundred
and sixty acres.” ®
Under the federal statutes the land is entered by a sworn appli-
cation, filed by the settler in the proper land office, describing the
land and alleging the applicant’s qualifications and good faith, and
by a payment of the required fee. The entry can, of course, be
made only where the land is at the time unappropriated. When the
entry is made, the applicant receives a receipt for the fee paid; but
no certificate is given him, or patent issued to him, for five years, un-
less after 14 months the entryman commutes his entry and in that way
gets his patent.”
Mineral Question Prior to Patent.
At the time of attempted entry the first question about minerals
may arise. The land may have been returned by the surveyor gen-
eral as mineral, and in that case no entry can be made until the ap-
plicant “proves off” the mineral,* and if the land department on some
former hearing decided that the land was mineral the applicant can
prove off the mineral only by showing the result of subsequent in-
vestigations.* If, however, the applicant proves off the mineral to
the satisfaction of the land office and is allowed to make entry of the
land as agricultural, the burden of proof thereafter rests on one as-
serting it to be mineral.® No matter if the land is unquestionably
mineral nor even if it be shown that a mining claim was located there-
on at the time of the entry, the land will not be patented to the
mineral claimant without a hearing in the land office and a cancella-
tion of so much of the homestead entry as affects mineral Jand.?°
Upon the hearing the question is simply: Is the tract more valuable
as mineral land than as agricultural? ++ The land having been entered,
and hence being prima facie nonmineral, the question then arises,
8 Rev. St. U. S. § 2289, as amended by Act March 8, 1891, c. 561, § 5, 26 Stat.
1097 (U. S. Comp. St. 1901, p. 1888).
7 Rev. St. U. S. §§ 2291, 2301 (U. S. Comp. St. 1901, pp. 1890, 1406). See
the land department’s circular of “Suggestions to Homesteaders and Persons
Desiring to Make Homestead Entries,” approved March 9, 1908.
*U. 8. Mining Regulations, Approved May 21, 1907, Rule 100.
8 Mackall v. Goodsell, 24 Land Dec. Dep. Int. 553; Leach v. Potter, Id. 573.
® Majors v. Rinda, 24 Land Dec. Dep. Int. 277; Bay vy. Oklahoma Southern
Gas, Oil & Min. Co., 18 OkI. 425, 73 Pac. 936.
10 Hooper v. Ferguson, 2 Land Dec. Dep. Int. 712; Elda Mining & Milling
Co., 29 Land Dec. Dep. Int. 279. ‘
11 Tinkham v. McCaffrey, 13 Land Dec. Dep. Int. 517; Long v. Isaksen, 23
Land Dec. Dep. Int. 353. See Aspen Consol. Min. Co. y. Williams, 23 Land
Dec. Dep. Int. 34; United States vy. Reed (C. C.) 28 Fed. 482. Compare Colo-
§ 20) HOMESTEAD ENTRIES. 85
can a mining location be made upon it? The answer to that question
depends upon the answer to the questions: (1) What interest the
claimant acquires by his entry? and (2) can the location be made
without its being initiated by a trespass?
The first question may arise where the homstead claimant enters
land on which a valid subsisting location exists. In such case, says
the land department, the entry does not pass to the homestead claim-
ant any interest in the mining claim land.t?_ There is, in effect, an
exception of the land from the entry. But the question may also
arise where the claim is not located until after the entry. There,
also, the land department treats the mineral land as excepted.*®
“The fact that when the alleged mining claim was located the home-
stead entry of Currence was still of record and uncanceled did not
of itself affect the validity of the location. No vested right to the
lands had attached under the entry, and until such right should at-
tach the lands belong to the United States, and, if mineral in char-
acter, are subject to location and purchase under the mining laws.” 14
This ruling, though hard on the homestead claimant, finds some justi-
fication in the attitude of the United States Supreme Court toward
homestead entries, which are not regarded as giving such vested
rights as attach under the mining laws.1®
For the answer to the second question, the initiation of a mining
rado Coal & Iron Co. v. United States, 123 U. S. 307, 8 Sup. Ct. 131, 31 L. Ed.
182.
At any time before final proof and payment is made on a homestead entry
on lands in a district which is subject to the mining laws, a cancellation of
the entry may be obtained by showing that the land is more valuable for min-
eral than for agricultural purposes. Bay v. Oklahoma Southern Gas, Oil &
Min. Co., 18 Okl. 425, 73 Pac. 936. The hearings are governed by Land Office
Mining Regulations, Approved May 21, 1907, Rules 99 to 111. See Appendix.
The decision of the land department that the land is mineral or that it is non-
mineral is conclusive on the courts. Cragie v. Roberts (Cal. App.) 92 Pac. 97.
12 Manners Construction Co. vy. Rees, 31 Land Dec. Dep. Int. 408.
13 Id.
14 Manners Construction Co. v. Rees, 31 Land Dec. Dep. Int. 408, 410.
15 Yosemite Valley Case (Hutchings v. Low) 15 Wall. (U. 8.) 77, 21 L. Ed.
82. See Wagstaff v. Collins, 97 Fed. 3, 38 C. C. A. 19; Shiver v. U. S., 159
U. S. 491, 16 Sup. Ct. 54, 40 L. Hd. 231. Failure to make entry, of course, pre-
vents rights of property from existing. Gonzales v. French, 164 U. 8. 338, 17
Sup. Ct. 102, 41 L. Ed. 458; Camfield v. U. S., 167 U. S. 518, 17 Sup. Ct. 864,
42 L. Ed. 260.
“It appears to have been uniformly held by the federal courts that an entry
[of a homestead] in the proper land office does not create any vested right in
the entryman as against the United States, and that Congress may, by subse-
quent legislation, dispose of the land to any one notwithstanding such entry.”
Oregon Short Line R. Co. v. Quigley, 10 Idaho, 770, 80 Pac. 401, 408, and cases
cited.
86 MINERAL LANDS AND HOMESTEAD, ETC., ENTRIES. (Ch. 5
location by trespass, we must look in part to the solution of the first.
If the mineral land is a true exception from the entry, and that
seems to be the land department’s view of the case, then a mineral
claimant who keeps to excepted surface can no more be a trespasser
than can the locator of a known lode in a placer who keeps on
the strip 25 feet on each side of the vein. But it would certainly seem
as if the land department is in error in treating any surface as ex-
cepted. The minerals may be excepted; but, unlike the case of known
lodes in placers where a definite number of feet of surface is excepted
by statute, no surface seems to be excepted from the homestead en-
try. So far as the courts are concerned, which cannot recognize a
location of a lode apart from a surface,?* it seems clear that no min-
eral location on lands covered by a homestead entry can be recognized,
unless it is made after the homestead entry has been canceled by the
land department after notice and hearing.** If, however, as seems to
be the case, the land department permits a mining location to be made
on a homestead entry in order to form the basis of a contest in the land
department, a cancellation of the homestead entry would doubtless be
held by the courts to inure to the benefit of the locator so favored by
the land department;} but that question has not come up. In the
case of a homestead entry, however, just as is true in the case of a
placer location,"* it would doubtless be such a trespass to go upon the
land to prospect for unknown lodes as to make the location thereby
initiated void, even from the land department’s point of view. “The
fact that a certain tract of land is decided upon testimony to be min-
eral in character is by no means equivalent to an award of the land
to a miner. In order to secure a patent for such land, he must pro-
ceed as in other cases, in accordance with the foregoing regulations.”’t
Mineral Question after Patent.
So much for the situation before patent. Where a homestead patent
is issued for land, that is an authoritative adjudication by the land
16 Traphagen yv. Kirk, 30 Mont. 562, 77 Pac. 58, and cases cited. See Heil
v. Martin (Tex. Civ. App.) 70 S. W. 480; Gleeson v. Martin White Mining Co.,
13 Nev. 442.
17 Bay v. Oklahoma Southern Gas, Oil & Min. Co., 13 Okl. 425, 73 Pac. 936;
HEINE v. ROTH, 2 Alaska, 416; Steele v. Tanana Mines Ry. Co., 2 Alaska,
451 (decided on other grounds in 148 Fed. 678, 78 C. C. A. 412). Until the
homestead entry is canceled, the mining claimant cannot be permitted to oc-
cupy the land jointly with the homesteader. Bay v. Oklahoma Southern Gas,
Oil & Min. Co., 18 Okl. 425, 73 Pac. 936, 940.
7That the land department would so regard it if the mineral claimant stay-
ed with the claim, see Adams v. Polglase, 32 Land Dec. Dep. Int. 477, 33 Land
Dec. Dep. Int. 30.
18 CLIPPER MIN. CO. v. ELI MINING & LAND CO., 194 U. S. 220, 24 Sup.
Ct. 632, 48 L. Ed. 944.
t Land Office Mining Regulations, approved May 21, 1907, Rule 111.
§ 21) TIMBER ENTRIES. 87
department that the land is nonmineral. If in fact the land is min-
eral, and was known to be so at the time of patent, the title never-
theless passes. The patent is for the whole quarter section or other
survey subdivision, and while it stands must on principle cover min-
erals, known as well as unknown.1® Where known mineral land
has been entered as agricultural, the patent may be set aside in equity
at the suit of the United States,?° and, if there was a pre-existing
valid mining location on the ground patented to the homestead set-
tler, the patentee may doubtless be declared a trustee of the mining
claim ground for the benefit of the mining claim owner at the suit
of the latter.24~ Any veins or lodes unknown before patent, but dis-
covered after patent, belong, of course, to the patentee. “In cases
of homestead, pre-emption, or townsite entries, the law excludes.
mineral lands; but it was never doubted that the title, once passed,
was free from all conditions of subsequent discoveries of mineral.” ?
TIMBER AND STONE LAND ENTRIES.
21. To timber entries under the timber and stone lands act the same
rules about minerals apply as do to homestead entries, though
when stone entries are made under that act only gold, silver,
cinnabar, copper, and coal deposits are excepted from the en-
tries.
Under the timber and stone lands act, the same doctrines govern
as to minerals that apply to homestead entries, except that, when
stone lands are acquired under the act, only lands containing gold,
silver, cinnabar, copper, or coal are excepted. Building stone lands
may still be entered under this act, although the building stone act
of August 4, 1892,?% allows them to be entered as placer claims.?*
Until the final certificate of purchase is issued to a timber applicant,
19 STANDARD QUICKSILVER CO. v. HABISHAW, 132 Cal. 115, 64 Pac.
118. But see, contra, as to pre-emption, Gold Hill Quartz Mining Co. v. Ish,
5 Or. 104.
20 Colorado Coal & Iron Co. v. U. 8., 123 U. 8S. 307, 8 Sup. Ct. 131, 31 L. Ed
182.
21 See Salmon v. Symonds, 30 Cal. 301.
22 SHAW vy. KELLOGG, 170 U. S. 312, 332, 18 Sup. Ct. 632, 42 L. Hd. 1050;
Kirby v. Potter, 188 Cal. 686, 72 Pac. 338.
23 27 Stat. 348, ¢. 375 (U. S. Comp. St. 1901, p. 1434).
24 Forsythe v. Weingart, 27 Land Dec. Dep. Int. 680. Lands are subject to
entry under the timber and stone act so long as they are chiefly valuable for
stone, even though under existing conditions the stone may not be marketable
at a profit. Narver v. Eastman, 34 Land Dec. Dep. Int. 123. Under this act
one who takes granite from the public domain and shapes it for a tombstone
becomes the exclusive owner of it, although he does not acquire the exclusive
88 MINERAL LANDS AND HOMESTEAD, ETC., ENTRIES. (Ch. 5
the lands, if mineral, are subject to exploration and purchase under
the mining laws;** but after the certificate issues to the timber land
applicant a subsequent discovery of mineral inures to the purchaser of
the lands.2° One who fraudulently obtains a patent under the timber
act to land on which another has a valid mining location will be made
to hold the legal title in trust for that other.t{
DESERT ENTRIES.
22. Desert entries are governed by the same rules as to minerals as
apply to homestead entries.
If mineral deposits are found in desert land entries, the same rules
apply as govern in the case of homestead entries.?°
right to the land from which it is taken. Sullivan v. Schultz, 22 Mont. 541,
57 Pac. 279.
** The surveyor general’s return that the land is timber throws the burden
of proof of its mineral character upon the person. asserting it against a claim-
ant under the timber and stone act. Purtle v. Steffee, 31 Land Dec. Dep. Int.
400. On the right to take timber, see Gallagher v. Gray, 35 Land Dec. Dep.
Int. 90.
25 Chormicle v. Hiller, 26 Land Dec. Dep. Int. 9. Public land covered by a
heavy growth of timber, which constitutes its chief value, is held subject to
entry under the timber and stone act, although it would be fit for cultivation
if the timber were removed. Thayer v. Spratt, 189 U. S. 346, 23 Sup. Ct. 576,
47 L. Ed. 845.
{i MERY v. BRODT, 121 Cal. 332, 53 Pac. 818.
26 “Desert land claimants will rarely come in conflict with mining claim-
ants. Of course, beds of gypsum, borax, nitrate, and carbonate of soda are
found in the desert regions; but their mineral character is generally so obvi-
ous that no controversy is likely to arise. It would be much cheaper and more
expeditious for a claimant to enter these classes of lands under the placer
laws than to attempt to acquire title under the onerous provisions of the desert
land law.” 1 Lindley on Mines (2d Ed.) § 212.
§ 23) MINERAL LANDS AND PUBLIC LAND RESERVATIONS. 89
CHAPTER VI.
THH RELATION BETWEEN MINERAL LANDS AND THE VARIOUS PUB-
LIC LAND RESERVATIONS.
23. Indian Reservations.
24. Military Reservations,
25. National Parks.
26. Forest Reserves,
27. Reservoir Sites.
Those parts of the federal public domain which the national govern-
ment has not patted with, but which for various public purposes it
has withdrawn from the operation of the mining and other land laws,
may be grouped under the title of “Land Reservations,” and, so group-
ed, are enumerated as follows: (1) Indian reservations; (2) military
reservations; (8) national parks; (4) forest reserves; (5) reservoir
sites.
INDIAN RESERVATIONS.
23. Mining locations, properly made prior to the creation of an Indian
reservation, are upheld; but mineral lands within an existing
reservation are not subject to location, except under acts spe-
cifically providing for mining locations on given reservations.
After an Indian reservation has been thrown open again, min-
ing locations may, of course, be made.
Under executive orders reserving lands for Indian occupancy, our
Indian reservations have been created. The title which the Indians
have to the lands thus reserved is one of occupancy only, unless al-
lotments are made which confer greater rights, and, where the Unit-
ed States makes the Indian reservation, the fee is in the United States,
subject to this right of occupancy. Since the title is in the United
States, the federal government has the power, should it see fit, to pass
title to lands in the Indian reservation without the consent of the
Indians. But no presumption will be indulged that the federal govern-
ment intended to exercise that power, and, even if it does actually
exercise it, the rights of occupancy of the Indians are protected? It
is well settled that, after an Indian reservation has been established
by the federal government, the land embraced within the reservation
1 United States v. Alaska Packers’ Ass’n (C. C.) 79 Fed. 152.
2 Buttz v. Northern Pac. R. Co., 119 U. S. 55, 7 Sup. Ct. 100, 80 L. Hd. 330.
United States v. Moore (C. C. A.) 161 Fed. 513.
90 MINERAL LANDS AND PUBLIC LAND RESERVATIONS. (Ch. 6
is thereafter not unoccupied land of the United States, and hence is
not subject to new mining locations. This proposition seems to have
been laid down first in French v. Lancaster,? and is now well estab-
lished. As the Supreme Court of the United States said in Kendall
v. San Juan Mining Co.: “The effect of the [Indian] treaty was to
exclude all intrusion for mining or other private pursuits upon the
territory thus reserved for the Indians. It prohibits any entry of the
kind upon the premises, and no interest could be claimed or enforced
in disregard of this provision. Not until the withdrawal of the land
from this reservation of the treaty by a new convention with the
- Indians, and one which would throw the lands open, could a mining
location thereon be initiated by the plaintiffs. The location of the
Bear lode, having been made whilst the treaty was in force, was in- .
operative to confer any rights upon the plaintiffs.” 5
Mining claims cannot, therefore, be located on existing Indian
reservations, except under acts specifically allowing such locations.®
Where -no specific statutory authorization for such locations exists,
then, the given mining location is invalid, unless it either antedated the
Indian reservation or was made after the Indian occupancy was ended
and the lands were thrown open to location. If the mining location
was made before the Indian reservation was created, the mining loca-
tion will be upheld by the land department, and so will a valid reloca-
tion of it by others.’ The location is in effect a prior grant of posses-
sory title by the United States to the locator, and as such is excepted
from the Indian reservation. After an Indian reservation has been
thrown open again, mining locations may, of course, be made*; and
it has further been held that a mining location, invalid because made
while the land was in an Indian reservation, was validated where the
locator, who was in possession when the reservation was withdrawn,
32 Dak. 346, 47 N. W. 395.
4 KENDALL vy. SAN JUAN MINING CO., 9 Colo. 349, 12 Pac. 198; 144 U.
S. 658, 12 Sup. Ct. 779, 36 L. Ed. 583. Gibson v. Anderson, 131 Fed. 39, 65 C.
C. A. 277; McFadden v. Mountain View Min. & Mill. Co., 97 Fed. 670, 38 C.
C. A. 354; Acme Cement & Plaster Co., 31 Land Dec. Dep. Int. 125. Compare
King v. McAndrews, 111 Fed. 860, 50 C. C. A. 29.
5 KENDALL y. SAN JUAN MIN. CO., 144 U. S. 658, 12 Sup. Ct. 779, 36 L.
Ed. 583. Compare Spalding v. Chandler, 160 U. S. 394, 16 Sup. Ct. 360, 40 L.
Ed. 469; Missouri, K. & T. R. Co. v. Roberts, 152 U. S. 114, 14 Sup. Ct. 496,
38 L. Ed. 377.
6U. S. v. Four Bottles Sour Mash Whisky (D. C.) 90 Fed. 720.
7 Navajo Indian Reservation, 30 Land Dec. Dep. Int. 515.
*See Collins v. Bubb (C. C.) 73 Fed. 735, where the prospectors were not
even made to wait for the president’s proclamation, and where the Indians
were not allowed to select as part of their allotments lands valuable for min-
erals,
§ 24) MILITARY RESERVATIONS. 91
and who had made a discovery, proceeded upon such withdrawal to
post a notice and to mark boundaries, to cause a proper record to be
made, and, in addition to adopting what he had previously done, to
perform the annual labor necessary to hold the claim.* But the loca-
tion, if not so adopted after the reopening of the reservation, must
actually be made after such reopening, or the location is invalid. Ac-
cordingly, where an act of Congress subjected mineral lands in an
Indian reservation to mineral entry, and on the same day on which the
act was passed two joint resolutions were also passed postponing the
operation of the act for seven months, a location made the day the act
was passed was held invalid, because made seven months too soon.®
Where a location is attempted during the existence of the Indian reser-
vation, it is held to be invalid as against a location made after the
land is open to settlement.2° Moreover, where an Indian reservation is
opened for no other purpose than to permit the location, development,
and operation of mines, a clear showing that the ground claimed by
location contains minerals in sufficient quantity to pay to work, and that
the purpose of the locator is to develop and operate mines, is re-
quired.?+
MILITARY RESERVATIONS.
24. Mineral lands in military reservations are in the same situation as
such lands in Indian reservations.
Military reservations are established by presidential proclamation
and vacated in the same way.1?, The mineral lands contained in them
8 Caledonia G. M. Co. v. Noonan, 3 Dak. 189, 14 N. W. 426; NOONAN vy.
CALEDONIA GOLD MINING CO., 121 U. 8. 393, 7 Sup. Ct. 911, 30 L. Ed.
1061; Golden Terra Min. Co. v. Smith, 2 Dak. 377, 11 N. W. 98. The mineral
character of the land must be made to appear. Durant v. Corbin (C. C.) 94
Fed. 382. A dedication of a right of way made by the claimant during the ex-
istence of the Indian Reservation was enforced against him after the Indian
title ceased and patent issued to him, in City of Deadwood v. Whittaker, 12
S. D. 520, 81 N. W. 908.
® Gibson v. Anderson, 131 Fed. 39, 65 C. C. A. 277. See Bay v. Oklahoma
Southern Gas, Oil & Min. Co., 18 Okl. 425, 73 Pac. 936; McFadden v. Moun-
tain View Min. & Mill. Co., 97 Fed. 670, 38 C. C. A. 354. Though the lands in
Oklahoma, acquired by treaty from the Comanche, Kiowa and Apache Indian
tribes, were classed as agricultural lands, they were subject to the mineral
laws of the United States. Bay v. Oklahoma Southern Gas, Oil & Min. Co., 13
Okl. 425, 73 Pac. 936.
10 KENDALL v. SAN JUAN MINING CO., 9 Colo. 349, 12 Pac. 198; Id.,
144 U. S. 658, 12 Sup. Ct. 779, 36 L. Ed. 583.
11 Durant v. Corbin (C. ©.) 94 Fed. 382.
12 See Florida Town Imp. Co. v. Bigalsky, 44 Fla. 771, 33 So. 450.
92 MINERAL LANDS AND PUBLIC LAND RESERVATIONS. (Ch. 6
seem to be in the precise situation of such lands in an Indian reserva-
tion. Mining locations made previous to the reservation will be up-
held by the land department,?? but not those made during the existence
of the reservation.1t The only serious difficulty in the matter is that
the government may need to exclude the mining claimant of a previous
location from the reservation; but, of course, the government, if
it did so, could not forfeit the location for failure in the perform-
ance of annual labor. Such exclusion of the claimant by the War
Department would simply excuse him from the performance of
annual labor while he was so excluded. As to claims located during
the military reservation and adopted after its vacation, and as to claims
located after the vacation, the rule applicable to Indian reservations
would seem to apply.t®
NATIONAL PARKS.
25. Mineral lands in national parks are in the same situation as such
lands in Indian reservations.
National parks, such as the Yellowstone Park and the Yosemite Val-
ley, are governed by the same rules as Indian and military reserva-
tions. Unless the acts creating them allow mineral locations, and
usually they do not,?® none can be made after the creation of the parks,
FOREST RESERVES.
26. Mineral lands in forest reserves, as distinguished from national
parks, are open to location.
Forest reserves are really national parks, except that they are made
under the general act of March 3, 1891,1” while the so-called parks have
usually been created by special acts. Forest reservations are made by
13 Fort Maginnis, 1 Land Dec. Dep. Int. 552.
14Id. A discovery within a naval reservation will not sustain a location
which lies partly within and partly without such reservation. Behrends v.
Goldsteen, 1 Alaska, 518.
15 By Act July 5, 1884, ¢. 214, § 5, 23 Stat. 104 (U. S. Comp. St. 1901, p. 1610),
it is provided that, whenever lands containing valuable mineral deposits are
vacated by the reduction or abandonment of any military reservation, they
ae be disposed of exclusively under the mineral land laws of the United
ates.
16 The Mt. Rainier national park act allows them. Act March 2, 1899, ¢. 377,
& 5, 30 Stat. 995.
17 26 Stat. 1103, c. 561, § 24 (U. S. Comp. St. 1901, p. 1537).
§ 26) FOREST RESERVES. 93
presidential proclamation.1® There is, however, a very important dis-
tinction between forest reserves and national parks, due to the fact that
the act of June 4, 1897,1° throws open to location and entry under the
mineral laws all mineral lands in forest reservations, and allows mining
claimants to cut timber and use water for actual mining use on the
mining claims. It is perfectly clear, therefore, that all forest reserves,
as distinguished from the national parks governed by special acts, are
open to mining locations.2° The purpose of the forest reserves is to
protect the forest region from destructive fires and waste, so that it
may be available for agriculture and mining, and incidentally, per-
haps, to assist in diminishing spring freshets in the mountains. Mining
is therefore favored in forest reserves, and roadways and other rights
of way are authorized for mining purposes.?*
Under the forest reserve act of June 4, 1897,2% and the act of
June 6, 1900,?* homestead claimants who find that their entries or
patented lands are included within a forest reserve can make lieu se-
lections elsewhere of lands subject to homestead entry, with full time
of residence credit. It of course follows that the lieu lands are sub-
ject to all the rules about homestead entries considered heretofore.
An attempted lieu selection in a township not yet sectionized, where
the selection is liable to be defeated by prior adverse claims or by
proof that the land selected is mineral, has been held to pass neither
a legal nor an equitable title.2* Known mineral land, and that means
known when the choice is approved,?° cannot be selected. A miner-
al claim cannot be made the basis of a lieu selection.?®
18 If the proclamation is signed by the Secretary of the Interior, it will be
presumed to have been by direction of the President; but only public lands
can be reserved. United States v. Blendauer (D. C.) 122 Fed. 703.
19 80 Stat. 36, c. 2 (U. S. Comp. St. 1901, p. 1542).
20 Instructions, 32 Land Dec. Dep. Int. 307. See circular, 30 Land Dec. Dep.
Int. 28, § 19. See, also, Act Feb. 20, 1896, c. 28, 29 Stat. 11 (U. S. Comp. St.
1901, p. 1537).
21 Act Feb. 1, 1905, c. 288, § 4, 33 Stat. 628 (U. S. Comp. St. Supp. 1907, p.
551).
2230 Stat. 11, 33-36, c. 2 (U. S. Comp. St. 1901, p. 1538).
28 31 Stat. 588, 614, c 791.
24 Peters v. Van Horn, 37 Wash. 550, 79 Pac. 1110.
25 Cosmos Hxploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 50 C. ©. A. 79,
61 L. R. A. 230. See Kern Oil Co. v. Clarke, 31 Land Dec. Dep. Int. 288.
26 Act June 6, 1900, c. 791, 31 Stat. 588, 614; Instructions, 28 Land Dec. 328.
94 MINERAL LANDS AND PUBLIC LAND RESERVATIONS. (Ch. 6
RESERVOIR SITES.
27. Existing mining locations can be taken for reservoir sites only by
condemnation, Known mineral lands can be taken for a reser=-
voir site by the government only.
Under the federal statutes reservoir sites may be located by (1)
private individuals and corporations who are engaged in raising live
stock, and (2) by the government itself.
(1) By the express provisions of the act providing for the location
of reservoir sites by individuals and corporations, mineral lands can-
not be selected; ?7 but, if a reservoir site has once been selected, a sub-
sequent mining location on it is doubtless invalid, unless it thereafter
appears that the land is not required for reservoir purposes.?®
(2) Similar rules apply to the selection of reservoir sites for ir-
rigation purposes by the government itself, except, of course, that the
government may select unappropriated mineral land. Mineral loca-
tions may be made and entered for patent, subject to the actual loca-
tion of the reservoir site, and if the lands located are not needed for
reservoir purposes such entries may be perfected. 29 A mining loca-
tion, made prior to the selection of the reservoir site, has- pronty @ as
to the conflict area.®°
By the act of June 17, 1902,31 Congress provided for the con-
struction and maintenance of irrigation works for the storage, diver-
sion, and development of waters for the reclamation of arid and semi-
arid lands in the mining law states and territories and some others.
Under that act the Secretary of the Interior is authorized to withdraw
from public entry the lands required for the irrigation works. As the
act does not except mineral lands, the action of the secretary in with-
drawing such lands would doubtless make it impossible to locate
them.*? Previous mining locations, of course, must be respected,??
and, if needed for the works, must be taken by condemnation pro-
ceedings.
27 Act Jan. 13, 1897, c. 11, 29 Stat. 484 (U. S. Comp. St. 1901, p. 1574).
28 See Colomokas Gold Min. Co., 28 Land Dec. Dep. Int. 172.
29 Td.
30 John U. Gabathuler, 15 Land Dec. Dep. Int. 418.
8132 Stat. 388, c. 1093, § 3 (U. S. Comp. St. Supp. 1907, p. 518).
82 See Instructions, 832 Land Dec. Dep. Int. 887.
83JId.; Opinion, 34 Land Dec. Dep. Int. 155. But, as to timber and stone
lands, see Board of Control v. Torrence, 32 Land Dec. Dep. Int. 472.
MINERAL LANDS AND TOWNSITES. 95
CHAPTER VII.
THE RELATION BETWEEN MINERAL LANDS AND TOWNSITES.
28. Lands Subject to Townsite Entry.
29. The Location of Known Veins in Townsites.
“Whenever any portion of the public lands have been or may be
settled upon and occupied as a townsite, not subject to entry under the
agricultural pre-emption laws, it is lawful, in case such town be in-
corporated, for the corporate authorities thereof, and if not incorporat-
ed, for the judge of the county court for the county in which such
town is situated, to enter at the proper land office, and at the minimum
price, the land so settled and occupied, in trust for the several use and
benefit of the occupants thereof, according to their respective inter-
ests, the execution of which trust, as to the disposal of the lots in
such town, and the proceeds of the sales thereof, to be conducted un-
der such regulations as may be prescribed by the legislative author-
ity of the state or territory in which the same may be situated.” Rev.
St. U.S. § 2387 (U. S. Comp. St. 1901, p. 1457).
“That townsite entries may be made by incorporated towns and cities
on the mineral lands of the United States, but no title shall be acquired
by such towns or cities to any vein of gold, silver, cinnabar, copper, or
lead, or to any valid mining claim or possession held under existing law.
When mineral veins are possessed within the limits of an incorpo-
rated town or city, and such possession is recognized by local authority
or by the laws of the United States, the title to town lots shall be sub-
ject to such recognized possession and the necessary use thereof and
when entry has been made or patent issued for such town sites to such
incorporated town or city, the possessor of such mineral vein may enter
and receive patent for such: mineral vein, and the surface ground ap-
pertaining thereto: provided, that no entry shall be made by such
mineral vein claimant for surface ground where the owner or oc-
cupier of the surface ground shall have had possession of the same be-
fore the inception of the title of the mineral vein applicant.” Act
March 3, 1891, c. 561, § 16, 26 Stat. 1101 (U. 5. Comp. St. 1901, p.
1459).
96 MINERAL LANDS AND TOWNSITES. (Ch. 7
LANDS SUBJECT TO TOWNSITE ENTRY.
28. Under the early townsite acts, townsites could not be located on
mineral lands; but under the act of 1891 townsite entries may
be made on mineral lands by incorporated towns and cities.
Townsite patents do not, however, carry title to mineral veins
which at the time of entry are known to exist. Minerals not
known to exist at the time of townsite entry pass to the town.
While there are other methods of acquiring townsites, the one
set forth in Rev. St. U. S. § 2387 (U. S. Comp. St. 1901, p. 1457), and
in the act of 1891,! above quoted, is the one prevailing in the mining
region. And it should be noted that the act of 1891 applies expressly
only to incorporated towns and cities, and therefore appears not to
cover townsite entries made by the judge of the county court, as au-
thorized by section 2387, Rev. St. U. S. Both section 2387 and the
act of 1891 must be read and considered in connection with the whole
general land law system, and with the mining law as a special, but
integral, part ot that general system. As was inevitable, the mining
regions and the towns have been closely associated. “Some of the
most valuable mines in the country,” said Mr. Justice Field, “are
within the limits of incorporated cities, which have grown up on what
was, on its first settlement, part of the public domain; and many
of such mines were located and patented after a regular municipal
government had been established. Such is the case with some of the
famous mines of Virginia City, in Nevada. Indeed, the discovery of
a rich mine in any quarter is usually followed by a large settlement in
its immediate neighborhod, and the consequent organization of some
form of local government for the protection of its members. Explora-
tion in the vicinity for other mines is pushed in such case by the new-
comers with vigor, and is often rewarded with the discovery of valuable
claims.” 2 In the case in which Mr. Justice Field made the above
statements, the United States Supreme Court held that a miner who
had located a mining claim within the limits of a new town prior to a
patent for a townsite had a valid location superior to any claim of thé
town. Prior to the act of 1891 it is hard to see how the matter could
ever have been in doubt, where the location was made peaceably, as
was true in the case mentioned, and the actual surface ground thus ob-
tained without the actual occupation of the rest of the land by the
townspeople for town purposes being interfered with.®
126 Stat. 1101, c. 561, § 16 (U. S. Comp. St. 1901, p. 1459).
2 STEEL v. ST. LOUIS SMELTING & REFINING CO., 106 U. S. 447, 449,
1 Sup. Ct. 389, 27 L. Ed. 226.
3 See Poire v. Wells, 6 Colo. 406.
§ 28) LANDS SUBJECT TO TOWNSITE ENTRY. 97
Effect of Actual Occupancy of Public Land for Town Purposes.
Yet with reference to the actual occupation by the townspeople some
very perplexing problems have arisen under the act of 1891. Those
problems seem to grow out of the concurrence of two doctrines: (1)
That by settling on land not known at the time to be mineral the towns-
man initiates, under the act of 1891, a right which, taken with the
rights of his fellow townsmen, will lead on to a townsite patent, and
which, when so initiated, takes the occupied surface;* and (2) that
the mining act of May 10, 1872 (17 Stat. 91, c. 152), and the revi-
sion contemplate no mining location unless a surface containing a lode
can be located. The validity of the second doctrine seems not to be
questioned,® but even prior to the act of 1891 the first doctrine was
never satisfactorily discussed by the courts. Certainly the cases of
Steel v. St. Louis Smelting & Refining Co.,° Deffeback v. Hawke,’
and Davis v. Weibbold ® left the question in a far from satisfactory
shape.
The problem of actual occupancy by the townspeople is discussed
in Bonner v. Meikle,® a case arising under the act of 1891. It should
be noticed that Bonner v. Meikle was technically an adverse suit, un-
der the statute in reference to the patenting of mining claims, and
as such necessarily litigated priority of interest in the surface.t® More-
over, the case was decided in 1897, after the act of 1881,11 which re-
quired that if, in an adverse suit, it appeared that neither party es-
tablished title to the ground in controversy, judgment should be entered
accordingly. As the court rendered judgment for the townspeople,
even though no townsite patent had yet been applied for by them, the
conclusion is irresistible that the case stands for the proposition that
the surface belongs to the townspeople, even though the town remains
inchoate. The court said: “The citizens of a town have as much
right to build houses upon the public domain in which to live as others
have to locate mining claims upon which to work. One purpose is as
4 See BONNER v. MEIKLE (C. C.) 82 Fed. 697.
5 TRAPHAGHN v. KIRK, 30 Mont. 562, 77 Pac. 58; Montana Ore Pur-
chasing Co. v. Boston Mining Co., 20 Mont. 336, 51 Pac. 159; State v. District
Court, 25 Mont. 504, 65 Pac. 1020. See Heill v. Martin (Tex. Civ. App.) 70 S.
W. 430; Gleeson v. Martin White Min. Co., 13 Nev. 442.
6106 U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226.
7115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423.
8139 U. S. 507, 11 Sup. Ct. 628, 35 L. Ed. 238.
»(C. C.) 82 Fed. 697. See, also, Young v. Goldsteen (D. C.) 97 Fed. 303.
10 The land department, however, holds that an adverse suit does not dispose
of the matter. See Ryan vy. Granite Hill Mining & Development Co., 29 Land.
Dee. Dep. Int. 522; Grand Canyon Ry. Co. v. Cameron, 35 Land Dec. Dep.
Int. 495.
11 Act March 8, 1881, ¢. 140, 21 Stat. 505 (U. 8S. Comp. St. 1901, p. 1431).
Cost. M1n.L.—7
98 MINERAL LANDS AND TOWNSITES. (Ch. 7
necessary as the other. Both are entitled to the equal protection of the
law. Although complainants have not connected themselves with any
government title, nor sought in any manner to secure such title, yet
they have such a possessory right to the land upon which their build-
ings have been erected as will prevent others, not having any title from
the government, from entering thereon and taking their property from
them without first establishing a superior right thereto. There are
many cases where the owners of mining ground valued at millions
of dollars have preferred to hold the same under ‘a mere possessory
right,’ rather than to take any steps to secure a patent from the gov-
ernment. Would it not be absurd to claim that in such cases the owners
of the possessory title under valid mining locations were not entitled
to any protection, and could not even protest against the application of
some subsequent locator, for a patent covering a portion or all of
their ground, because they had never taken any steps to secure title
to their property from the United States?”’12 The court then puts
forward the idea of a “townsite location”; i. e., the idea that actual
occupancy for business purposes is equivalent to a mining location, so
far as to prevent a subsequent mining location of the same ground
from being made.®
Bonner v. Meikle would seem to announce sound doctrine with ref-
erence to occupation by inhabitants of incorporated towns and cities
under the act of 1891, but what about the previous acts? As to them,
despite the somewhat ambiguous dicta to be found in the decisions, it
seems as if Mr. Lindley’s “conclusion that the Supreme Court of the
United States never intended to establish the rule that prior occupancy
of the public mineral lands for trade or business purposes operated to
withdraw such lands prior to the issuance of a townsite patent from
appropriation under the mining laws, provided, always, that such ap-
propriation was effected by peaceable methods and without resort to
force or violence,” 1* is the proper one to draw.1®
Relation of Act of 1891 to Older Acts.
It must not be forgotten that the theory underlying the act of 1891
is very different from that underlying the old acts. Under the old
acts title to mineral lands was not to be acquired by townsites, and if
the land department, in its investigation of the character of the land
12 BONNER v. MEIKLE (C. C.) 82 Fed. 697, 699.
18 Compare White v. Whitcomb, 13 Idaho, 490, 90 Pac. 1080, where there is
a dictum that lands occupied for town purposes are not subject to homestead
entry.
141 Lindley on Mines (2d Ed.) § 170. See Martin v. Browner, 11 Cal. 12.
15 Compare case of railroad grant. NORTHERN PAC. R. R. CO. v. SMITH,
171 U. 8. 260, 18 Sup. Ct. 794, 43 L. Ed. 157.
§ 28) . LANDS SUBJECT TO TOWNSITE ENTRY. 99
sought to be patented as a townsite, determined that the whole land
was mineral, even though nobody else claimed it, it could not patent the
land as a townsite, and when a patent issued known mineral land did
not pass under it.1® But under the act of 1891 it is expressly provided
that townsite entries may be made on mineral lands by incorporated
towns and cities—the usual kind, of course, to-day. No longer, then,
if the town or city applying for a townsite patent is incorporated, may
the land department refuse the townsite patent because the land is min-
eral, though, of course, previous mining locations must be protected.?"
In view of such a fundamental difference between the new act and the
old, it is possible and proper to have a fundamental difference in the
effect on attempted mining locations of a townsman’s occupancy prior to
townsite patent.
In still another respect the act of 1891 has changed things. Indi-
rectly, if not directly, it changed a ruling of the land department. That
department had held that after a townsite patent issued for a tract
of land it could not issue a patent to a mining claim validly located
prior to the issuance of the townsite patent, but that the mineral claim-
ant must bring a suit in equity to set aside the townsite patent.1® Since
the act of 1891, however, the holding has been reversed, and a patent
will now issue for mining claims to which the townsite patent cannot
apply.*® Whether the latest ruling of the land department is right or
wrong depends upon whether a previously located mining claim is
technically excepted from the townsite patent by virtue of the town-
site acts and the reservations actually inserted in the townsite patents
pursuant thereto. That it is such a technical exception, just as a
lode known to exist in a placer at the time of the application for a
patent of the placer is an exception, would seem to be true,?° though Mr.
Lindley intimates, and whatever he says deserves serious consideration,
that it is not an exception. “Logically,” says Mr. Lindley, “we think
the mineral claimant’s remedy in this class of cases is in equity to erect
16 Moyle v. Bullene, 7 Colo. App. 308, 44 Pac. 69; Brady’s Mortgagee vy. Har-
ris, 29 Land Dec. Dep. Int. 89, 426.
17 Nome & Sinook Co. v. Townsite of Nome, 34 Land Dec. Dep. Int. 102, 276;
Telluride Additional Townsite, 833 Land Dec. Dep. Int. 542.
18 See Cameron Lode, 128 Land Dec. Dep. Int. 369; Board of Education vy.
Mansfield, 17 S. D. 72, 95 N. W. 286, 106 Am. St. Rep. 771.
19 NOME & SINOOK CO. v. TOWNSITE OF NOME, 34 Land Dec. Dep. Int.
276; Hulings v. Ward Townsite, 29 Land Dec. Dep. Int. 21.
20 See Silver Bow M. & M. Co. v. Clark, 5 Mont. 378, 5 Pac. 570; Talbott
v. King, 6 Mont. 76, 9 Pac. 484; Butte City Smoke House Lode Cases, 6 Mont.
397, 12 Pac. 858. That a located mill site is also excepted, see Hartman y.
Smith, 7 Mont. 19, 14 Pac. 648.
100 MINERAL LANDS AND TOWNSITES. (Ch. 7
a trust on the townsite patent, or, perhaps, an application to the land
department, to institute a suit to vacate the patent pro tanto.” **
The California Supreme Court, however, would seem to be right in
deciding that a valid mining location existing at the time of townsite en-
try is excepted from the townsite patent, even though it was not known
at the time of townsite entry that the claim contained minerals of suffi-
cient value to justify expenditure for extracting them.?* If there
is mineral enough to sustain the location, the latter is excepted from
the townsite entry, even though the claim cannot be worked at a profit.
It is, of course, true under all the acts that a townsite patent vests in the
town absolutely the title to minerals not then known to exist in the
patented area, and a subsequent discovery of minerals will not permit
third persons to make a mining location.?*
The fact that minerals underlie the streets will not prevent the pass-
ing of the minerals to the town, if they are unknown at the time of
patent. They will pass to the town, and then will stay in the town, if
according to the laws of the state where the town is situated the fee to
the street is in the town, or, if the abutting landowners get the fee to the
streets, with an easement for highway purposes in the town, will pass
from the town to the abutting landowners at the time the latter derive
title to the abutting lands. This is clearly the intent of the provision
in section 2387, Rev. St. U. S., that the execution of the townsite patent
trust as to the disposal of lots and their proceeds by the proper au-
thorities shall be “conducted under such regulations as may be prescrib-
ed by the legislative authority of the state or territory in which the
same may be situated.”
211 Lindley on Mines (2d Ed.) p. 316, § 177.
22 Callahan v. James, 141 Cal. 291, 74 Pac. 853. See Cascaden v. Bartolis,
146 Fed. 789, 77 C. C. A. 496. But see Horsky v. Moran, 21 Mont. 345, 53 Pac.
1064; Harkrader v. Goldstein, 31 Land Dec. Dep. Int. 87.
23 Bonner v. Meikle (O. C.) 82 Fed. 697; McCormick v. Sutton, 97 Cal. 373;
32 Pac. 444. See Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. 628, 35 L. Ed.
238; Larned v. Jenkins, 113 Fed. 634, 51 C. C. A. 344.
24 Where the grantor of lands to a city reserved the minerals under the sur-
face of the street, and then granted to a third person a lot which abutted on
the street, the grantee was held to get the minerals under the half of the street
immediately in front of his lot. Tousley v. Galena Mining & Smelting Co., 24
Kan. 328; Snoddy v. Bolen, 122 Mo. 479, 24 8. W. 142, 25 S. W. 932, 24 L. R.
A. 507; Snoddy v. Clark, 122 Mo. 479, 25 S. W. 935. Where land is dedicated
to the public for a street in Colorado, the statute gives the city the fee to the
street, and not to the land, and hence the dedicator still has the right to ex-
tract minerals beneath the street, so far as he does not interfere with street
uses. City of Leadville v. Bohn Mining Co., 87 Colo. 248, 86 Pac. 1038. This
is not true, however, in a state where the title to the land passes by dedica-
tion. Union Coal Co. v. La Salle, 136 Ill. 119, 26 N. BE. 506, 12 L. R. A. 826;
§ 29) LOCATION OF KNOWN VEINS IN TOWNSITES. 101
THE LOCATION OF KNOWN VEINS IN TOWNSITES.
29. Known veins can be located in the town limits prior to the town-
site patent, if the location is made peaceably, and after town-
site patent issues previous mining locations may be patented.
Whether “known veins” in patented townsites may be located
—query?
Known veins are not even reserved under the act of 1891, unless
they are of gold, silver, cinnabar, copper, or lead, or are validly locat-
ed prior to the townsite entry. “Known mines” under the townsite
reservations, prior to the act of 1891, meant that, to be excepted from
the townsite patent, “it is not sufficient that the lands do in fact con-
tain minerals, or even valuable minerals, when the townsite patent takes
effect, but that they must at that time be known to contain minerals
of such extent and value as to justify expenditures for the purpose
of extracting them; and, if the lands are not known at that time to
be so valuable for mining purposes, the fact that they have once been
valuable, or are afterwards discovered to be still valuable, for such pur-
poses, does not defeat or impair the title of persons claiming under the
townsite patent.” 25> Known veins of gold, silver, cinnabar, copper, or
lead, under the act of 1891, must doubtless accord with the foregoing
test.2° If they do, then, as was the case with known mines under the
earlier acts, they are excepted from the townsite patent as completely
as if they were actually located at the time.?*
The only question about known veins under the act of 1891 that
remains, and it does not seem to be as simple as it might be, is whether
such known lodes can be located after the townsite patent. The ques-
tion seems to be much the same as that in regard to Mexican land
grants covered by the act of March 3, 1891. Indeed, the townsite act
and the Mexican land grant act, both approved March 3, 1891, show a
common design to give the surface to the patentee and reserve the min-
eral. In the case of Mexican land grants Congress seems to reserve
unknown minerals, but in the case of townsites only known ones. Un-
der the Mexican land grant act of 1891, no location of minerals can be
City of Des Moines v. Hall, 24 Iowa, 234; Trustees of Hawesville v. Hawes’
Heirs, 6 Bush (Ky.) 282.
25 DOWER v. RICHARDS, 151 U. 8. 658, 663, 14 Sup. Ct. 452, 88 L. Ed.
305. See Larned vy. Jenkins, 113 Fed. 634, 51 C. C. A. 344. But see Callahan
y. James, supra.
26 See Brophy v. O’Hare, 34 Land Dec. Dep. Int. 596.
27 See Callahan v. James, 141 Cal. 291, 74 Pac. 853; Hulings v. Ward Town-
site, 29 Land Dec. Dep. Int. 21; Lalande v. Townsite of Saltese, 32 Land Dec.
Dep. Int. 211.
102 MINERAL LANDS AND TOWNSITES. (Ch. 7
made without the surface owner’s consent until Congress shall act.
What about the townsite case? Mr. Lindley says the case is like that
of a known lode in a placer; but, unfortunately, there is this marked
difference: That in the case of a known lode in a placer Congress
has reserved a surface strip of at least 50 feet, 25 feet of surface
on each side of the vein or lode,?* but in the case of a town
site no surface is reserved. The question then arises: Can a lode be
located without a surface to include it? The Montana Supreme Court
has several times asserted that it cannot,?® and the conclusion of that
court seems to be sound. Section 2319, Rev. St. U. S. (U. S. Comp.
St. 1901, p. 1424), providing for the location of mining claims “re-
quires the location of surface ground, including the minerals sought
to be obtained.” ®° It has been decided in at least one case that un-
der the townsite laws prior to the act of 1891 known mineral land in a
patented townsite cannot be located,* and the provision in the act of
1891 forbidding entry where the owner or occupier of the surface
ground on a patented townsite shall have had possession of the same
before the inception of the title of the mineral vein applicant would
seem to show that a location was not to be permitted in such case.
As has several times been noticed, the provisions of Rev. St. U. S.
§ 2392 (U. S. Comp. St. 1901, p. 1459), reserved from the townsite
patent “any valid mining claim or possession held under existing laws,”
and the act of 1891 has repeated the reservation. That reserves only
locations that are not void for uncertainty.* Such reserved locations
are so fully protected that they may not even protest against the
townsite patent successfully as they cannot be prejudiced by its issu-
ance.*?
28 Rev. St. U. S. § 2333 (U. S. Comp. St. 1901, p. 1433).
29 TRAPHAGEN v. KIRK, 30 Mont. 562. 77 Pac. 58; Montana Ore Purchas-
ing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 20 Mont. 336, 51 Pac.
159; State v. District Court, 25 Mont. 504, 65 Pac. 1020. See Hill v. Martin
(Tex. Civ. App.) 70 S. W. 430; Gleeson v. Martin White Min. Co., 13 Nev. 442.
30 Traphagen v. Kirk, 30 Mont. 562, 573, 77 Pac. 58, 60.
* Board of Education v. Mansfield, 17 S. D. 72, 95 N. W. 286, 106 Am. St.
Rep. 771; Carter v. Thompson (C. C.) 65 Fed. 329. See Duffy Quartz Mine, 18
Land. Dec. Dep. Int. 259. For the rule applicable to certain townsites spe-
cially reserved by act of Congress, see Instructions, 31 Land Dec. Dep. Int. 154.
31 TOMBSTONE TOWNSITE CASES, 2 Ariz. 272, 15 Pac. 26; Blackmore
vy. Reilly, 2 Ariz. 442, 17 Pac. 72.
82 Lalande v. Townsite of Saltese, 32 Land Dec. Dep. Int. 211.
§ 30) DEFINITIONS OF PRACTICAL MINING TERMS. 103
CHAPTER VIII.
DEFINITIONS OF PRACTICAL MINING TERMS.
380. Lode Mining Terms. :
(a) Terms Relating to the Working of a Lode Claim.
(b) Terms Relating to the Vein or Lode.
(c) Terms Relating to the Ore and Its Treatment.
4 81. Placer Mining Terms.
A student of American mining law should acquaint himself at the
outset with various technical mining terms used by those engaged
in mining the precious metals and in treating those metals after their
extraction. It is well to consider first lode mining terms and then
placer mining terms.
PRACTICAL MINING TERMS.
30. LODE MINING TERMS.—(a) Terms relating to the working of a
lode claim: Adit, back stoping, bottom, breast, chute, crib-
bing, cross cut, down cast, drift, face, floor, heading, incline
drift, lagging, lateral drift, level, lift, man hole, mill hole,
open cut, overhand stoping, raise, roof, set work, shaft, stop-
ing, stulls, sump, timber, tunnel, underhand stoping, up cast,
winze.
Lode mining starts usually with a “shaft,” a perpendicular ex-
cavation similar to a well, sunk either on a vein or to reach it, or
with a “tunnel”—a horizontal excavation like a railroad tunnel—run
into the mountain either on the vein,‘ or to reach it. If the tunnel
is driven into the “country rock”’—i. e., the ordinary solid part of the
mountain—in order to cut across the course of a vein, it is called
appropriately a “cross cut.” ?
1 This kind of tunnel Messrs. Morrison and De Soto seemingly would call
an adit, and not a tunnel. Morrison’s Mining Rights (13th Ed.) 43. There
{s no doubt that such a tunnel, run to do the discovery work, is an adit, with-
in a statute allowing an adit to take the place of a discovery shaft. Gray
v. Truby, 6 Colo. 278. But it seems to be none the less a tunnel.
2 Messrs. Morrison and De Soto recognize no tunnel except a cross cut,
or what would be a cross cut if it were not so long. They say: “The
words ‘cross cut’ and ‘tunnel’ are identical terms, except that the former is
usually applied to short workings and the latter to those of greater length.”
Morrison’s Mining Rights (13th Ed.) 48. Of course, it has to be borne in
mind that they are speaking there of statutes allowing discovery work by
an open cut, adit, cross cut, or tunnel.
104 DEFINITIONS OF PRACTICAL MINING TERMS. (Ch. 8
Sometimes the work on a lode begins with an “adit,” or an “open
cut.” Before the case of Electric Magnetic M. & D. Co. v. Van
Auken,* it was supposed that an adit had to be, in part, at least, under
cover; but that case says that it does not. An open cut, of course,
is not under cover, and accordingly, as Messrs. Morrison and De
Soto point out, the effect of the above decision “is to confuse all
the distinctions between an adit and an open cut.” *
Where a shaft is sunk, the miners at regular intervals in their de-
scent make horizontal excavations on the vein, called “levels” or
“lateral drifts.” These are known, according to depth underground,
as “the 50-foot level,” the ‘100-foot level,’ ® etc. The space between
two levels is known as a “lift,” while a shaft, other than the main
one, sunk from a level, is called a ‘“‘winze.” The “breast,” “face,”
or “heading” of a drift or tunnel is the end where the work of ex-
cavating is going on or is to be continued. A ventilating shaft for
the air to ascend through is called an “up cast,” and one for it to
descend through is called a “down cast.” When a shaft or winze is
made by working from below up, it is called a “raise.” A “man hole”
is an opening of the right size to permit a man to get from one place
of working to another. Where a shaft is sunk a little below a level,
to form a cavity for the collection of water found in the level, it is
called a “sump.” An “incline drift” is one run at an incline for drain-
age purposes.
Between a level and the surface, or between levels, the ore is taken
out by “stoping”; that is, either by digging and blasting it up from
the “bottom,” “floor,” or “sole,” of the drift, or by digging or blast-
ing it down from the “roof,” “top,” or “back” of the level, and fol-
lowing that roof up by the aid of timbering and waste rock. The
first kind is “underhand stoping,” and the second “overhand or back
stoping.” ‘Timbers replace the back or roof of the level in overhand
stoping, and thereafter the roof or back being stoped is known as
the “roof of the stope.” Passages left in the stope for throwing down
rock or ore are known as “mill holes.”
It is often necessary to “timber” a mine. That consists in putting
poles on the four sides of a shaft or winze as a lining to keep rock
and dirt from caving in on the workers below, in putting poles on
the sides and roofs of tunnels for the same purpose, in lining mill
holes so that ore will go down readily, etc. “Cribbing” is the name
29 Colo. 204, 11 Pac. 80.
4 Morrison’s Mining Rights (18th Ed.) 43.
5It seems that everything below the 50-foot level and above the 100-foot
level is, for stoping purposes, called the “100-foot level.” Cambers vy.
Lowry, 21 Mont. 478, 54 Pac. 816.
§ 80) PRACTICAL MINING TERMS. 105
given to the light timber used to line shafts, etc. ‘The small poles are
also known as “lagging.” The extra heavy timber, such as those at
the foot of the stope, which often bear a great weight of débris, are
called “stulls.” The supporting timbers or stulls are also known as
“set work.” :
‘
(b) Terms relating to the vein or lode: Apex, blossom, blow out,
bonanza, brecciated vein, cap, chimney, dip, faulting, feeder,
float, foot wall, gangue, gouge, hanging wall, horse, lode, out
crop, pay streak, pinch, pocket, prospecting, selvage, slicken-
siding, slipping, spur, strike, veins, vug, wall.
Now a word about the vein or lode. We shall define “vein” or
“lode” later in considering what the mining law recognizes as a
vein; but for the present we may accept the following very liberal
definition of a geologist: “Veins are collections of mineral matter,
citen closely related to, but differing more or less in character from,
the inclosing country rock, usually in fissures formed in those rocks
after the rocks had more or less consolidated.” ®
Before a vein is found, it often happens that a miner in “pros-
pecting’”—that is, looking for the vein ’—comes upon pieces of vein
matter lying around, and these are known as “float.” “A vein,
outcropping on the surface, becomes oxidized and crumbles by ac-
tion of the atmosphere, rain, etc. Pieces break off and fall down hill.
Some of this float is barren quartz or country rock, and some may be
mineralized.” & By the “outcrop” of a vein is meant the part show-
ing on the surface. If that outcrop is decomposed, it is known as
“blossom.” ® A spreading outcrop is known as a “blow out.” The
“apex” is the top of the lode, whether that top outcrops, or whether
it is overlaid.t° The “dip” of a vein is its departure from the hori-
zontal or the perpendicular. If the vein dips, its lower wall is its
“foot wall” or its “floor,” and its upper wall is its “hanging wall”
6 Lakes’ Prospecting for Gold and Silver in North America (3d Ed.) 86.
7 The word “prospecting” also means opening up a located vein to see if
ore that will pay to work can be found. :
8 Lakes’ Prospecting for Gold and Silver (8d Ed.) p. 17. Float found on
the unlocated public domain belongs to the finder. Burns v. Clark, 133 Cal.
634, 66 Pac. 12, 85 Am. St. Rep. 233; Burns v. Schoenfield, 1 Cal. App. 121,
81 Pac. 713. See Robertson v. Smith, 1 Mont. 410; Sullivan v. Schultz, 22
Mont. 541, 57 Pac. 279. But see Brown v. Quartz Mining Co., 15 Cal. 152, 76
Am. Dec. 468.
9 Lakes’ Prospecting for Gold and Silver (8d Ed.) p. 90.
10 A more detailed definition of “apex” is given in the next chapter.
106 DEFINITIONS OF PRACTICAL MINING TERMS. (Ch. 8
or its “roof’11 The vein matter proper is called the “gangue.” *?
“A layer or sheet of clay, called ‘gouge’ or ‘selvage,’ often lines one
or both walls of a vein between the country rock and the gangue, or vein
proper. It is derived from the elements of the adjacent country rock,
decomposed by water, and sometimes by the friction of the walls
of the fissure against one anoth-
FIGURE No. Ps ° er, or against the vein matter,
in the process of ‘slipping’ or
‘faulting,’ which is often shown
by its being smoothed, ‘slick-
ensided,’ polished, or grooved.
LQ S Gouge often contains some rich
f US SA decomposed mineral in it, such
Li pas BS Sn as sulphurets of silver. * * *
Ler ton AANSISS6 SN. Gouge is sometimes useful in
Yip iy} aN defining the limit of the vein
y/ y EN between walls, thus preventing
jj rr unprofitable exploration into
4
1,
SESS ESS the ‘country.’ It is also a
Showing how cross-cut tunnels and gtide for following down a
shafts may miss veins by change of dip vein, when mineral and gangue
or faulting. ‘
may be wanting or obscure.” +8
A “brecciated vein” is one containing small, irregular pieces of
country rock scattered through it. A vein with a “horse” in it is
one having a very large piece or mass of country rock in it.1* A
“spur” or “feeder” of a vein is a small branch or offshoot of the
vein. A “pinch” or “cap” in a vein is a place where the walls con-
tract so as to leave only a very thin vein, or none. A “pocket” is
an enlargement of the pay ore in a vein. A “chimney” or “chute”
of ore is a perpendicular enlargement of the ore body; that is, it is
8
11 “It is not uncommon for a fissure vein to have but one clearly defined
wall; the other, if it exists, being obscured or changed by mineral solutions.
Sometimes two cracks or fissures occur parallel to each other, and the inter-
vening country rock has been altered and mineralized into a vein. It is
probable that in this way many wide veins were formed.” Lakes’ Prospect-
ing for Gold and Silver (8d Ed.) 88.
12“Gangue minerals” is a term sometimes applied to the nonmetallic
minerals, “which carry no values worth extracting”; the word “ore” being
used in contrast to cover “those portions of the ore body of which the
metallic minerals form a sufficiently large proportion to make their extraction
profitable.’ See Prof. Heinrich Ries’ Economic Geology of the U. S. 223.
13 Lakes’ Prospecting for Gold and Silver (8d Ed.) p. 87.
14 From Lakes’ Prospecting for Gold and Silver (8d Ed.) p. 105.
15 See Book v. Justice Min. Co. (C. C.) 58 Fed. 106, 126.
§ 30) PRACTICAL MINING TERMS. 107
a particular kind of pocket of ore. A “bonanza” is a large body of
paying ore. The “pay streak’’ is the part of the vein containing the
valuable or pay ore. A “vug” is a cavity in the ore body. ;
(c) Terms relating to the ore and its treatment: Amalgam, assay,
base ores, clean-up, concentrates, dump, free milling ores,
leaching, mill run, refractory ores, retort, roasting, smelting,
sorting, tailings.
When the ore is mined, it is usually “sorted,” either underground
or after it reaches the surface; i. e., the valuable part of the rock
mined is separated from the part that is to be thrown on the “dump,”
or place of deposit for waste rock. The word “dump” is also used to
mean the piled-up rock which has been thrown away. The ore hav-
ing been sorted, it is ready for “treatment,” which varies with its
needs. “Those ores whose precious metal contents can be readily
extracted after crushing,’* by amalgamation with quicksilver, are
termed ‘free milling ores.’ This includes the ores which carry na-
tive gold or silver, and often represent the oxidized portions of ore
bodies. Others, containing the gold as telluride, or containing sul-
phides of these metals, are known as ‘refractory ores,’ *" and require
more complex treatment. These, after mining, are sent direct to the
smelter,’* if sufficiently rich; but, if not, they are often crushed and
mechanically concentrated. The smelting process is also used for
mixed ores; the latter being often smelted primarily for their lead
or copper contents, from which the gold or silver is then separated.
* * * Low-grade ores may first be ‘roasted,’ and the gold then
exttacted by ‘leaching’ with cyanide or chlorine solutions. The
introduction of the cyanide and chlorination processes, which are
applied chiefly to gold ores, has permitted the working of many de-
posits formerly looked upon as worthless, and in some regions even
the mine dumps are now being worked over for their gold contents.
* * * The value of ore and bullion is determined by a ‘sample
16 The crushing is either in stamp mills or in rotary mills. In both kinds
of mills, after the ore is crushed, the mashed matter is washed over copper
plates covered with quicksilver, so as to catch the gold and silver. Every
once in a while there is a clean-up; the amalgam—i. e., the quicksilver, with
the gold and silver it has caught up—being scraped off the plates. The gold
and silver are then separated from the quicksilver in a “retort”? and sent to
a branch of the United States mint to be refined. The crushed rock not taken
up by the plates becomes either complete waste, known as “tailings,” or be-
comes “concentrates,” which are waste so far as this particular mill is con-
cerned, but may pay to ship to a smelter.
17 Also known as “base ores.”
18 “Smelting” ig a melting process.
108 DEFINITIONS OF PRACTICAL MINING TERMS. (Ch. 8
assay,’ ® and the smelter, in paying the miner for his ore, allows for
gold in excess of $1 per ton of ore at the coinage rate of $20.67 per
ounce, and for silver at the New York market price, deducting
5 per cent. in each case for smelter losses.*° Lead and copper are
paid for in the same manner, as are also iron and manganese, ie
there is a sufficient quantity present. No allowance is, however,
made for zinc, and, in fact, a deduction is made if it exceeds a certain
per cent.” 2*
PLACER MINING TERMS.
31. Bar diggings, booming, clean-up, cradle, deep placers, dredging,
drift mining, dry blowing, hydraulic mining, nuggets, panning,
riffles, rocker, sluice, tailings.
The early California placer mining took place in river bars of sand
and gravel, known as “bar diggings,” or simply as “diggings.” The
gold was gotten out by “panning”; i. e., by so manipulating an iron
“prospecting pan,” or basin, filled with gravel and water, that the sand
would wash away, leaving the gold in the pan, or by the use of a
“rocker,” or “cradle,” a short wooden trough used in substantially
the same way. “Hydraulic mining,’ by which gold-bearing gravel
is washed from its resting place by water under heavy pressure and
19 An “assay” is the determination of the value of a particular mineral in a
selected quantity of ore. A ‘sample assay’ is one made from a portion of the
ore, carefully selected to make it representative of the whole lot. For a discus-
sion, where assays were made from mine specimens, from car samples, and
from mill or battery samples, see Fox vy. Hale & Norcross Silver Min. Co., 108
Cal. 369, 892 ff, 41 Pac. 308, 314 ff. See, also, chapter XXIV, § 134, infra.
A “mill run” is where a number of tons of supposedly representative ore
are run through a mill to serve as an indication of the values of the ore
in the mining claim. It is, of course, a far better test of the worth of the ore
than an assay is, since an assay tests the value of only a very small piece of
ore, and so is much less likely to be representative of the lode.
20 What smelters pay for gold in ore varies slightly from time to time and
in different localities. It depends somewhat, also, upon the amount of gold in
the ore. The general rule in Colorado at present seems to be to pay for gold
in smnll amounts of not less than 5/100 of an ounce per ton on the basis of
$19 an ounce; but in some districts payment is made when the assay shows
3/100 of an ounce of gold per ten. In some districts, also, payment is made
at the rate of $20 an ounce. The words “in excess of $1 per ton” in the text
seem to be erroneous.
21 Prof. Heinrich Ries’ Economie Geology of the U. 8. 329-830.
It is the lead smelters that do not pay for zine. That is because zine in
excess of 614 per cent. is injurious to the trentment of such ores in lead
smelters. Since many ores carry less than 61% per cent. of zine, the lead
smelters in Coiorado have fixed 10 per cent. as the ordinary amount of zine
in ores for which no penalty will be exacted. It is found that the ores hav-
§ 31) PLACER MINING TERMS. 109
forced into sluices, where the gold’s specific gravity separates it irom
the gravel,?* came later; and so did “drift mining,” “dredging,” and
“dry blowing.”
The cause of gold in the gravel and the methods of placer mining
are well described by Professor Ries as follows:
“These auriferous gravels represent the more resistant products
of weathering, such as quartz and native gold, which have been
washed down from the hills on whose slopes the gold-bearing quartz
veins outcrop, and were too coarse or heavy to be carried any dis-
tance, unless the grade was steep. They have consequently settled
down in the stream channels; the gold, on account of its higher
gravity, collecting usually in the lower part of the gravel deposit.
* * # The gold occurs in the gravels in the form of nuggets,
flakes, or dust-like grains; the last being usually hard to catch. The
‘nuggets’ represent the largest pieces. * * * During the early
days of gold mining in California the gravels at lower levels and in
the valley bottoms were worked; but, as these became exhausted,
those farther up the slopes or hills were sought. In the earlier oper-
ations the gravels were washed entirely by hand, either with a pan
or rocker, and this plan is even now followed by small miners and pros-
pectors; but mining on a larger scale is carried on by one of three
methods, viz., drift mining, hydraulic mining, and dredging.
“Drift mining’ is employed in the case of gravel deposits covered
by a lava cap; ** a tunnel being run into the paying portion of the bed
and the auriferous gravel carried out and washed. In ‘hydraulic min-
ing’ a stream is directed against the bank of gravel, and the whole
washed down into a rock ditch lined with tree sections, or into a wood-
en trough,?* with cross-pieces or riffles?° on the bottom. The gold,
being heavy, settles quickly, and is caught in the troughs or ditches,
while other materials are carried off and discharged into some neigh-
boring stream. Mercury is sometimes put behind the riffles to aid
in catching the gold?® * * * Qwing to the great amount of
ing 10 per cent. of zine or less in them average less than 614 per cent. of
zinc. While the lead smelters do not pay for zinc, there are zine smelters
that pay for zinc and something for lead. The writer is indebted for the
information in this note and in the preceding one to the American Smelting &
Refining Company.
22 “TTydraulic mining is mining by means of the application of water, under
pressure, through a nozzle against a natural bank.” Civ. Code Cal. § 1425.
23 These are the “deep placers,” described when we come to define placers.
24 Called a “sluice” or “sluice box.”
25 Rifle blocks.
26In placer mining, too, there is a “clean-up.” Where no quicksilver has
been used, the gold which has settled in the flume is simply gathered up.
116 DEFINITIONS OF PRACTICAL MINING TERMS. (Ch. &
débris which was swept down into the lowlands [of California by
hydraulic mining], a protest was raised by the farmers dwelling
‘there, who claimed that their farms were being ruined, and it soon
became a question which should survive, the farmer or the miner;
for in places the gravels and sand from the washings choked up
streams and accumulated to a depth of 70 or 80 feet. The question
was settled in 1884 in favor of the farmer by an injunction issued
by the United States Circuit Court which caused many of the
hydraulic mines to suspend operations, and at a later date this was
extended by state legislation adverse to the hydraulic mining industry.
Owing to this setback, hydraulic mining fell to a comparatively un-
important place in the gold-producing industry of California, while
at the same time quartz mining increased. The passage of the Ca-
mietti law now permits hydraulic mining, but requires that a dam
shall be constructed across the stream to catch the ‘tailings.’ 7
“ ‘Dredging’ consists in taking the gravel from the river with some
form of dredge. * * * The gravel, when taken from the river,
is discharged onto a screen, which separates the coarse stones, and the
finer particles pass over amalgamated plates, tables with riffles, and
then over felt. * * * In arid regions, where the gold-bearing
sands are largely the product of disintegration, and water for wash-
ing out the metal is wanting, a system known as ‘dry blowing’ is re-
sorted to.” 78
The author should also have mentioned “booming,” where the water
is dammed up from time to time and let out in a flood to cut away
the gravel.
Where quicksilver has been used, the amalgam is taken and treated as in the
case of a clean-up at a stamp or rotary mill.
27 The refuse which goes over the tail end of the sluice box or is other-
wise washed down.
28 Prof. Heinrich Reis’ Economic Geology of the U. S. 346-349,
§ 32) DEFINITIONS OF MINING LAW TERMS, Jil
CHAPTER IX.
DEFINITIONS OF MINING LAW TERMS.
82. Definition of “valuable mineral deposits.”
33. Definition of “vein” or “lode.”
34. Definition of “placer.”
85. Definition of “apex” of veins.
86. Definition of “course” or “strike” of veins.
87. Definition of “dip” of veins.
88. Definition of “mining claim” or “location.”
389. Definition of “mine.”
In addition to defining practical mining terms, it is desirable to de-
fine some of the mining law terms as a preparation for the discussion
of specific mining law problems.
VALUABLE MINERAL DEPOSITS.
32. Lands are mineral if they contain recognized minerals in such
quantities that they are more valuable for mining purposes
than for agricultural, and the mineral deposits in such lands
are valuable within the meaning of the federal statute if,
when taken up first for mining, they have such value that the
locator cannot be called irrational in locating and working
them, or if, when taken up first for agriculture, they can be
mined at a profit.
The federal statute throws open to exploration and purchase “all val-
uable mineral deposits in lands belonging to the United States.”+ By
“valuable mineral deposits” is meant, in the first place, deposits known
to be mineral at some time prior to the issuance of a United States pat-
ent. “It is plain, from this brief statement of the legislation of Con-
gress, that no title from the United States to land known at the time
of sale to be valuable for its minerals of gold, silver, cinnabar, or cop-
per can be obtained under the pre-emption or homestead laws, or the
townsite laws, or in any other way than as prescribed by the laws spe-
cially authorizing the sale of such lands, except in the states of Mich-
igan, Wisconsin, Minnesota, Missouri, and Kansas. We say ‘land
known at the time to be valuable for its minerals,’ as there are vast
tracts of public land in which minerals of different kinds are found, but
not in such quantity to justify expenditures in the effort to extract
them. It is not to such lands that the term ‘mineral’ in the sense of the
1 Rey. St. U. S. § 2319 (U. S. Comp. St. 1901, p. 1424).
112 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
statute is applicable. In the first section of the act of 1866 no designa-
tion is given of the character of mineral lands which are free and open
to exploration. But in the act of 1872, which repealed that section and
re-enacted one of broader import, it is ‘valuable mineral deposits’
which are declared to be free and open to exploration and purchase.
The same term is carried into the Revised Statutes. It is there enacted
that ‘lands valuable for minerals’ shall be reserved from sale, except
as otherwise expressly directed, and that ‘valuable mineral deposits’ in
lands belonging to the United States shall be free and open to explora-
tion and purchase. We also say ‘lands known at the time of their sale
to be thus valuable,’ in order to avoid any possible conclusion against
the validity of titles which may be issued for other kinds of land, in
which, years afterwards, rich deposits of mineral may be discovered.
It is quite possible that lands settled upon as suitable only for agricul-
tural purposes, entered by the settler and patented by the government
under the pre-emption laws, may be found, years after the patent has
been issued, to contain valuable minerals. Indeed, this has often hap-
pened. We, therefore use the term ‘known to be valuable at the time of
sale,’ to prevent any doubt being cast upon titles to lands afterwards
found to be different in their mineral character from what was sup-
posed when the entry was made and the patent issued.” *
What is a “mineral deposit” depends somewhat upon the meaning of
“mineral.” “It is not easy in all cases to determine whether any given
piece of land should be classed as mineral land or otherwise. The
question may depend upon many circumstances, such as whether it is
located in those regions generally recognized as mineral lands, or in a
locality ordinarily regarded as agricultural in its character. Lands may
contain the precious metals, but not in sufficient quantities to justify
working them as mines, or make the locality generally valuable for min-
ing purposes, while they are well adapted to agricultural or grazing
pursuits, or they may be but poorly adapted to agricultural purposes,
but rich in minerals ; and there may be every gradation between the two
extremes. There is, however, no certain well-defined, obvious bound-
ary between the mineral lands and those that cannot be classed in that
category. Perhaps the true criterion would be to consider whether up-
on the whole the lands appear to be better adapted to mining or other
purposes. However that may be, in order to determine the question,
it would, at all events, be necessary to know the condition and circum-
stances of the land itself, and of the immediate locality in which it is
situated. It is the duty of the officers of the government having the
2 DELFFEBACK v. HAWKE, 115 U. S. 392, 404, 405, 6 Sup. Ct. 95, 29 L. Ed.
423.
§ 32) VALUABLE MINERAL DEPOSITS. 113
matter in charge, before making a grant, to ascertain these facts, and
to determine the problem whether the lands are mineral or not.””* The
fact is that the term “mineral deposits” cannot be considered apart from
the word “valuable,” and that the full term “valuable mineral depos-
its” is not used in any technial mineralogical sense, but, like the term
“fixture” in the law of real property, has a flexible meaning according
to the circumstances of the given case, and particularly to the situation
of the contending parties.
In Lynch v. United States, where the question of the right of the
defendant to cut certain timber on public lands depended upon whether
the land was “mineral and not subject to entry under existing laws of
the United States except for mineral entry,” > or whether it was agri-
cultural, the United States Circuit Court of Appeals, Ninth Circuit,
said that the classification of the land as mineral by commissioners ap-
pointed under the act of Congress of February 16, 1895,° was not con-
clusive, but was of the same effect as the return of mineral lands made
by the surveyor general; and the court accordingly considered the evi-
dence of the actual use to which the land had been put. A verdict
against the defendant because of the nonmineral character of the land,
the verdict being based on testimony that the region had been pros-
pected, and, though float was found over it, no mineral-bearing veins
had been discovered, and that small tracts near defendant’s mill, and
also adjoining the land from which defendant cut the timber, were cul-
tivated to crops, was allowed to stand. The court said: “Was the
land mineral, and subject to entry as such under the laws of the United
States, or was it agricultural land? The question of the character of
land is always one of fact, and what evidence is more satisfactory than
the actual use to which it has been placed by those who occupied it and
made it a means of livelihood? It may not be conclusive evidence, since
there are many instances where valuable mineral deposits have been
found in ground devoted to other than mining purposes, and where
such deposits were not supposed to exist. But nevertheless this testi-
mony as to the actual use of the land tends to establish its character
and clearly is relative and material for that purpose.” 7
3 Ah Yew v. Choate, 24 Cal. 562, 567. In conveyances and leases of land
“mineral” is generally used in the commercial sense of any inorganic substance
found in nature, having sufficient value, separated from its situs as part of
the earth, to be mined, quarried, or dug for its own Sake, or its own specific
purposes. Hendler v. Lehigh Valley R. Co., 209 Pa. 256, 58 Atl. 486, 103 Am.
St. Rep. 1005.
4188 Fed. 535, 71 C. C. A. 59.
5 Act Cong. June 8, 1878, c. 150, 20 Stat. 88 (U. S. Comp. St. 1901, p. 1528).
6 28 Stat. 683, c. 131.
7 Lynch v. United States, 188 Fed. 535, 540, 71 C. C. A. 59.
Cost.M1Nn.L.—8
114 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
The same court, in the earlier case of United States v. Rossi,® in-
volving the same timber act, where the verdict below was in favor of
the defendants, avoided passing on an instruction below about mineral
lands, because a proper exception to it was not saved. The trial court,
after telling the jury that “the law includes as mineral lands, not only
those tracts on which mineral has actually been discovered, and which
has been or can be legally located as mining locations, but also all oth-
er lands lying in reasonably close proximity to or in the general neigh-
borhood of such tracts, and all such neighboring lands as have the
general characteristics of mining lands, even if mineral has not been
actually discovered therein,’ ® instructed them further as follows:
“Much has been said as to the quantity of mineral that must be found
in ground to constitute it mineral land. The laws themselves fix no
limits. They do not even say that it must be more valuable for min-
eral than for other purposes. It is therefore a subject for conjecture,
—one upon which opinions may and do differ. But I feel justified in
saying to you that ground containing only a trace of mineral—a color —
—or containing it in such small quantities that a miner would not ex-
pect it ever to prove profitable, cannot be held mineral land; but when
it contains sufficient to encourage the miner to claim and locate it in
good faith as mining ground, and to work and develop it in the reason-
able expectation of finding paying quantities, even if it never proves
valuable, it is, within the law, mineral land. The question may arise,
how are we to know the miner’s opinions on these questions? My an-
swer is, by his actions—by what he does, whether or not he located
the ground and continues to occupy it and develop it. I may add in
this connection that an occasional location here and there over a coun-
try, which is not developed and not worked, is just such evidence as
constitutes the entire country a mineral district; but the mining opera-
tions carried on must be such as to indicate that those who do locate
claims and who carry on the work have faith in the country. I mean
by that that you cannot make the mere appearance of mineral in a
country the excuse for claiming the whole country to be mineral. ‘There
must be something substantial back of it in order to justify the claim
that a country is mineral. Now, in this particular case you must judge
of the country by what has been produced there, by what has been
done, and from all that conclude whether or not the men who are en-
gaged in mining in good faith look upon that as mineral country. I
do not know any better rule or test than the judgment of men who are
engaged in mining. If that class of men deem a country a mineral
8.133 Fed. 380, 66 C. C. A. 442.
® United States v. Rossi, 183 Fed. 380, 382, 66 C. C. A. 442.
§ 32) VALUABLE MINERAL DEPOSITS. 115:
country, and show it by their acts and works, it justifies us in conclud-
ing that it is a mineral country.” 1°
The prior bona fide claimant is given the benefit of the doubt. If the
ground is taken up first as agricultural land, or is part of lands grant-
ed to a railroad or to a state for school purposes, from which lands
minerals are excepted, then it cannot be shown to be a valuable mineral
deposit, unless it will pay to work and in general is more valuable for
mining than for agriculture.1+_ This is so, even though the agricultural
entry has been made to cover an abandoned mining claim.1? But if
the ground is located as mining land first, then it must be deemed min-
eral if it contains a placer deposit or a vein of mineral of such value,
however slight, that a miner cannot be called wholly irrational for
working it in the hope of a successful outcome.
“There may be a vast difference between mineral ground which is
valuable for exploitation and that which appears to be valuable for
exploration. There are immense tracts which appear to the miner to
be valuable for the latter purpose, and a large portion of which de-
velops to be valueless for the former. This is evidenced by the honey-
combed and deserted mountains throughout the mining regions, where
toil and wealth have been expended on leads which once attracted the
miner’s exploration, but where the sound of the pick and the drill is.
long since stilled. And it is just this fact that has made and will make’
the mines the ever-present and alluring appearance of value and the
occasional reward of development. Without prospecting there will be
no discovered mines. Without the privilege to claim and locate and
hold a discovery, there will be no prospecting. A prospect not once in
100 times is a mine in sight. If the locator must show a paying mine at
location, the riches in these mountains are a locked treasury. The
law does not contemplate this. The mineral lands are open for two
purposes—for exploration and for purchase. Exploration precedes
purchase. It opens the way for purchase. Without exploration, pur-
chase would be rare. A miner would desire to purchase the mineral
lands at once, if they at once appeared to be of sufficient value to pay
to work. He would desire to explore them, if they seemed sufficiently
valuable to attract exploration. It is a rare claim that is a mine at the
grass roots, or where the paying vein is first found at or near the sur-
face. The history of the mining countries has shown that, in the vast:
10 Id.
11 Hunt v. Steese, 75 Cal. 621, 17 Pac. 920; United States v. Reed (C. C.) 12
Sawy. 99, 28 Fed. 482; Alford v. Barnum, 45 Cal. 482; DAVIS v. WIEB-
BOLD, 189 U. S. 507, 11 Sup. Ct. 628, 85 L. Ed. 238; United States v. Central
Pac. R. Co. (C. C.) 93 Fed. 871.
12 Blackburn v. United States, 5 Ariz. 162, 48 Pac. 904.
116 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
majority of cases, years of toil and thousands of dollars have been re-
quired to demonstrate that a mineral vein will pay to work. And in
many of them, even after years of immense production, when dead
work, prospecting, and development is offset against output, whether
they have paid to work is a doubtful proposition. Must the miner
await large development and tremendous expenditure before he can
take the first steps, by locating and recording, to secure to himself the
right of possession, and of a grant from the government, when the
great mine is developed? I think not.
“Again, the government will not issue a patent for a mine at once up-
on a discovery, no matter how valuable it then appears and actually is.
It requires, first, the expenditure of $500 in improvement and develop-
ment. For what purpose? In order to demonstrate that the claim is
of that character that the government will grant ground as a mine.
Before the mining acts of Congress, the miner was a trespasser upon
the public domain. The acts of Congress gave him rights upon the
mineral lands. The object of the requirement of the expenditure of
$100 annually before the issuance of patent, and of $500 in the aggre-
gate before patent, was to develop the mines and demonstrate their
character. If it were the ordinary nature of valuable mining claims to
appear, upon the instant of discovery, to be of sufficient value to pay
to work them, why make the requirements of these expenditures in
development before the issuance of patent? The whole spirit of the
statutes, and the construction given by the learned tribunals that have
considered them, is not that the prospector must find a paying mine be-
fore he can locate his claim. If it were, mining prospecting in these
regions would suffer an instant and well-nigh total paralysis. If the
fear be suggested that speculative locations may take the public do-
main, we can do no better than adopt the language of Mr. Justice
Field, cited above from Erhardt v. Boaro, 113 U. S. 536, 5 Sup. Ct.
565, 28 L. Ed. 1116, which he concludes with the remark that ‘a jury
from the vicinity of the claim will seldom err in their conclusions on
the subject.’
“I find an ample support in my views in the decisions of the United
States Supreme Court. ‘A valid location of a mining claim may be
made whenever the prospector has discovered such indications of min-
eral that he is willing to spend his time and money in following in ex-
pectation of finding ore.’ Harrington v. Chambers, 3 Utah 94, 1 Pac.
362. This language I do not feel that I can fully adopt. It goes fur-
ther than there is necessity for, or is required to sustain the views I
hold. If it were modified to say, ‘in expectation of finding ore suffi-
ciently valuable to work,’ the views of the learned justice would be
§ 82) VALUABLE MINERAL DEPOSITS. 117
nearer to the opinion I hold. But observe Judge Hallett’s words cited
above, where he says: ‘Nor is it necessary that the ore shall be of
economical value for treatment’—and the language of the context.
Stevens v. Gill, Fed. Cas. No. 13,398. ‘It is only necessary to dis-
cover a genuine mineral vein or lode, whether small or large, rich or
poor, at the point of discovery.’ North Noonday Min. Co. v. Orient
Mining Co. (C. C.) 1 Fed. 522, 6 Sawy. 299. ‘With well-defined bound-
aries, very slight evidence of ore within such boundaries will prove the
existence of the lode-—and the context. Iron Silver Min. Co. v.
Cheesman, 116 U. S. 538, 6 Sup. Ct. 481, 29 L. Ed. 712. And in the
language adopted by Mr. Justice Field in speaking of a lode: ‘It is
an alteration of the verb “lead” and whatever the miner could follow
expecting to find ore was his “lode.” Some formation within which he
could find ore, and out of which he could not expect to find ore, was
his lode. The terms “lode star,” “guiding star,” and “north star” are of
the same origin.’ So that, if the miner finds that which is a lode or
vein within the approved definition, containing valuable mineral de-
posits, if it is a vein of that character, and that which he can follow,
as indicated—a mineral lode, his guide, his star—he may claim it and
locate it and hold it, without being required to show that at the time of
location it contained mineral deposits of sufficient value to justify
work to extract them.” 75
“Reverting to the characteristic of a vein or lode, appearing from
the definitions above quoted, that its filling must consist of a body of
mineral or mineral-bearing rock, what value such material should con-
tain is a matter not devoid of difficulty, and no standard of value ap-
plicable to all such cases has yet, and probably never will be, devised.
It must necessarily depend upon the characteristics of the district or
country in which the vein or lode, in any particular instance claimed
to exist, is located, and upon the character, as to boundaries, of the
vein itself. If the country rock, or the general mass of the mountain
outside of the limits of the vein, is wholly barren, slight values of the
vein material, as before stated, would seem to satisfy the law; but if,
on the other hand, the rock of the district generally carries values, then
undoubtedly the values in the vein materials, where the boundaries of
the vein are not well or not at all defined, either on the surface or at
depth, should be in excess of those of the country rock, else there can
be no line of demarkation, nor, where the rock is generally broken,
shattered, and fissured, anything to separate it from the adjacent coun-
13 SHREVE vy. COPPER BELL MIN. CO., 11 Mont. 309, 343-845, 28 Pac.
315. This was a dissenting opinion, but on this point the majority opinion was
in accord. 11 Mont. 327, 28 Pac. 315.
418 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
try. Values, therefore, of the filling of a vein, must be considered with
special reference to the district where the vein or lode is found.” **
So Judge Hallett, in charging a jury as between two mining claim-
ants, said: “A lode cannot exist without valuable ore; but, if there is
value, the form in which it appears is of no importance. Whether it
be of iron or manganese, or carbonate of lead, or something else yield-
ing silver, the result is the same. The law will not distinguish between
different kinds and classes of ore, if they have appreciable value in
the metal for which the location was made. Nor is it neccessary that
the ore shall be of economical value for treatment. It is enough if it
is something ascertainable, something beyond a mere trace, which can
be positively and certainly verified as existing in the ore. In the case
of silver ore the value must be recognized by ounces—one or more in
the ton of ore; and if it comes to that it is enough, other conditions
being satisfied, to establish the existence of the lode.” 1® An ounce of
silver to the ton is therefore enough to make value,?® and what con-
stitutes mineral sufficient to make a mineral deposit is in general de-
termined by mineralogy and trade. The land department declares that
“whatever is recognized as mineral by the standard authorities on the
subject, whether of metallic or other substances, when the same is
found in the public lands in quantity and quality to render the land
more valuable on account thereof than for agricultural purposes should
be treated as coming within the purview of the mining laws.”17 And
while the authorities have not been uniform to that effect,!® it seems
perfectly clear that mineral in no sense means metal. “In its common
and ordinary signification the word ‘mineral’ is not a synonym of
‘metal,’ but is a comprehensive term, including every description of
stone and rock deposits, whether containing metallic substances or en-
tirely nonmetallic.” 1°
14 GRAND CENTRAL MIN. CO. v. MAMMOTH MIN. CO., 29 Utah, 490,
83 Pac. 648, 678.
16 STEVENS v. GILL, 1 Morr. Min. Rep. 576, 579, Fed. Cas. No. 18,398.
That merely showing the presence of quartz and vein matter, without proof
of some value, will not do, see Territory v. Mackey, 8 Mont. 168, 19 Pac. 395.
16 But see the instruction of the lower court in United States v. Rossi, 133
Fed. 380, 382, 66 C. C. A. 442.
17 Pacific Coast Marble Co. v. Northern Pac. R. Co., 25 Land Dec. Dep. Int.
233, 244.
18 See, for instance, Wheeler vy. Smith, 5 Wash. 704, 32 Pac. 784, where the
court tried to confine mineral'to “mineral ores” and to “metals for which min-
ing works were prosecuted.”
19 Northern Pac. R. Co. v. Soderberg (C. C.) 99 Fed. 506, 507; Id., 104 Fed.
425, 43 C. C. A. 620; Id., 188 U. S. 526, 23 Sup. Ot. 365, 47 L. Ed. 575; Webb
v. American Asphaltum Min. Co., 157 Fed. 208, 84 0. C. A. 651; McCombs v.
Stephenson (Ala.) 44 South. 867; Henderson vy. Fulton, 35 Land Dec, Dep. Int.
$ 32) VALUABLE MINERAL DEPOSITS. 119
Among minerals classified as such by the land department, in ad-
dition to the gold, silver, cinnabar, lead, tin, and copper specifically
named by section 2320, Rev. St. U. S. (U. S. Comp. St. 1901,’p. 1424),
are asphaltum,?° borax,?! building stone,2? carbonate of soda,”* aurif-
erous cement,** clay,?* (other than brick clay),?° coal,?’ fire clay,?*
guano,?® gypsum,®° kaolin,*? limestone,®? marble,** mica,** nitrate of
652. For definitions of mineral, see Johnston v. Crimpton (1899) 2 Ch. 190;
Glasgow v. Fairlie, 18 A. C. 683, 689, 690; Hendler v. Lehigh Valley R. Co., 209
Pa. 256, 58 Atl. 486, 108 Am. St. Rep. 1005. In the last case common mixed
sand which could be used only for grading was held not to be a mineral, with-
in an exception in a deed.
20 Tulare Oil & Min. Co. v. Southern Pac. R. Co., 29 Land Dec. Dep. Int.
269. See Webb v. American Asphaltum Min. Co., 157 Fed. 203, 84 C. C. A. 673.
21 Regulations, 1 Land Dec. Dep. Int. 560.
22 Conlin v. Kelly, 12 Land Dec. Dep. Int. 1; Beaudette v. Northern Pac.
R. Co., 29 Land Dec. Dep. Int. 248. Any stone deposit of special commercial
value makes the ground placer. Vandoren v. Plested, 16 Land Dec. Dep. Int.
508; McGlenn vy. Wienbroeer, 15 Land Dec. Dep. Int. 870. See Freezer v.
Sweeney, 8 Mont. 508, 21 Pac. 20. Stone land cannot be located or patented
as a lode claim. Henderson y. Fulton, 35 Land Dec. Dep. Int. 652; Long v.
Isaksen, 23 Land Dec. Dep. Int. 353; Wheeler v. Smith, 23 Land Dec. Dep.
Int. 395. Act Aug. 4, 1892, ¢. 375, 27 Stat. 348 (U. S. Comp. St. 1901, p. 1434),
settles it that land “valuable chiefly for stone” may be located as mineral un-
der the timber and stone act, and with less trouble than under the placer min-
ing act.
28 See soda.
24 Phifer v. Heaton, 27 Land Dec. Dep. Int. 57.
25Aldritt v. Northern Pac. R. Co., 25 Land Dec. Dep. Int. 349.
26 King v. Bradford, 31 Land Dec. Dep. Int. 108.
27 Brown v. Northern Pac. R. Co., 31 Land Dec. Dep. Int. 29. But coal
lands are entered and patented under special statutes. Rev. St. U. S. §§
2347-2352 (U. S. Comp. St. 1901, pp. 1440, 1441).
28 See clay.
29 Richter v. Utah, 27 Land Dec. Dep. Int. 95. Under the United States
guano islands act a discoverer of an unoccupied guano island has only a
license to occupy the island and remove the,guano, and the license is rev-
ocable at the will of the United States. Duncan vy. Navassa Phosphate Co.,
187 U. S. 647, 11 Sup. Ct. 242, 34 L. Hid. 825.
30 W. H. Hooper, 1 Land Dec. Dep. Int. 571; McQuiddy v. California, 29
Land Dec. Dep. Int. 181.
81 Is china clay. See clay.
82 Shepherd v. Bird, 17 Land Dec. Dep. Int. 82; Morrill v. Northern Pac.
R. Co., 30 Land Dec. Dep. Int. 475. But see Wheeler v. Smith, 5 Wash.
704, 82 Pac. 784.
88 Henderson v. Fulton, 35 Land Dec. Dep. Int. 652; Pacific Coast Marble
Co. v. Northern Pac. R. Co., 25 Land Dec. Dep. Int. 233; Schrimpf v.
Northern Pac. R. Co., 29 Land Dec. Dep. Int. 327. Compare Phelps v.
Church of Our Lady Help of Christians, 115 Fed. 882, 538 C. C. A. 407.
34 See Union Oil Co., 25 Land Dec. Dep. Int. 351, 354.
120 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
soda,?* oil (petroleum),** phosphates,?7 porcelain clay,®* salt,°* slate,*°
soda,* sandstone,*? stone,** sulphur.**
The definitions of minerals have been discussed quite fully recently
by the Supreme Court of the United States. That court in holding
granite quarries to be mineral lands said:
“The word ‘mineral’ is used in so many senses, dependent upon the
context, that the ordinary definitions of the dictionary throw but lit-
tle light upon its signification in a given case. Thus the scientific divi-
sion of all matter into the animal, vegetable, or mineral kingdom would
be absurd as applied to [the exception of minerals from] a grant of
lands, since all lands belong to the mineral kingdom, and therefore
could not be excepted from the grant without being destructive of it.
Upon the other hand, a definition that would confine it to the precious
metals—gold and silver—would so limit its application as to destroy
at once half the value of the exception. Equally subversive of the
grant would be the definition of minerals found in the Century Diction-
ary, as ‘Any constituent of the earth’s crust,’ and that of Bainbridge on
Mines, ‘All the substances that now form, or which once formed, a
part of the solid body of the earth.” Nor do we approximate much
more closely to the meaning of the word by treating minerals as sub-
85 See soda.
36 McQuiddy y. State of California, 29 Land Dec. Dep. Int. 181. See
Gill v. Weston, 110 Pa. 312, 1 Atl. 921; Murray v. Allred, 100 Tenn. 100,
43 S. W. 355, 39 L. R. A. 249, 66 Am. St. Rep. 740; Lanyon Zine Co. v.
Freeman, 68 Kan. 691, 75 Pac. 995; Isom v. Rex Crude Oil Co., 147 Cal.
659, 82 Pac. 317; Preston v. White, 57 W. Va. 278, 50 S. E. 236; Gird
v. California Oil Co. (C. C.) 60 Fed. 532; Van Horn y. State, 5 Wyo. 501,
40 Pac. 964; Sult v. Hochstetter Oil Co. (W. Va.) 61 S. E. 307. But see
Union Oil Co., 28 Land. Dec. Dep. Int. 222, reversed in Union Oil Co., 25
Land Dec. Dep. Int. 351. And see Dunham vy. Kirkpatrick, 101 Pa. 36,
47 Am. Rep. 696; Detlor v. Holland, 57 Ohio St. 492, 49 N. E. 690, 40 L.
R. A. 266. By Act Cong. Feb. 11, 1897, c. 216, 29 Stat. 526 (U. S. Comp.
St. 1901, p. 1434), oil lands may be entered and patented as placers. This
provides for jJands containing “petroleum or other mineral oils.” See
Bay v. Oklahoma Southern Gas, Oil & Min. Co., 18 Okl. 425, 73 Pac. 936.
37 Gary v. Todd, 18 Land Dec. Dep. Int. 58: Pacific Coast Marble Co. v.
Northern Pac. R. Co., 25 Land Dee. Dep. Int. 233; Florida Center & P. Ry.
Co., 26 Land Dec. Dep. Int. 600.
38 See clay.
39 Salt is governed by Act Cong. Jan. 31, 1901, e 186, 31 U. S. Stat.
745 (U. S. Comp. St. 1901. p. 1485). That saline lands are mineral anyway, see
Garrard v. Peak Mines, 94 Fed. 983, 36 C. CG. A. 603.
40 Schrimpf v. Northern Pac. R. Co., 29 Land Dee. Dep. Int. 327.
41 See Regulations, 1 Land Dec. Dep. Int. 560.
42 See building stone.
43 See building stone.
44 See Regulations, 1 Land Dec. Dep. Int. 560.
§ 82) VALUABLE MINERAL DEPOSITS. 121
stances which are ‘mined,’ as distinguished from those which are ‘quar-
ried,’ since many valuable deposits of gold, copper, iron, and coal lie
upon or near the surface of the earth, and some of the most valuable
building stone, such, for instance, as the Caen stone in France, is ex-
cavated from mines running far beneath the surface. * * * Con-
siderable light is thrown upon the congressional definition of the word
‘mineral’ by the acts subsequent to the Northern Pacific grant of 1864
and prior to the definite location of the line in 1884. [The mining
law acts of 1866, 1870, and 1872, and the stone and timber act of 1878,
and amendments thereto, were here cited and discussed. ]
“Conceding that in 1864 Congress may not have had a definite idea
with respect to the scope of the word ‘mineral,’ it is clear that in 1884,
when the line of this road was definitely located, it had come to be
understood as including all lands containing ‘valuable mineral de-
posits,’ as well as lands ‘chiefly valuable for stone,’ and that, when the
grant of 1864 first attached to particular lands by the definite location
of the road in 1884, the railway found itself confronted with the fact
that the word ‘mineral’ had by successive declarations of Congress
been extended to include all valuable mineral deposits. As no vested
rights had been acquired by the railway company prior to the definite
location of its line, it took the lands in question incumbered by such
definitions as Congress had seen fit to impose upon the word ‘mineral’
subsequent to 1864. * * * The rulings of the land department, al-
most uniformly, have lent strong support to the theory of the patentee
that the words ‘valuable mineral deposits’ should be construed as in-
cluding all lands chiefly valuable for other than agricultural purposes,
and particularly as including nonmetallic substances, among which are
held to be alum, asphaltum, borax, guano, diamonds, gypsum, resin,
marble, mica, slate, amber, petroleum, limestone, building stone, and
coal. ‘The cases are far too numerous for citation and there is prac-
tically no conflict in them.
“The decisions of the state courts have also favored the same inter-
pretation. * * * We do not deem it necessary to attempt an exact
definition of the words ‘mineral lands’ as used in the act of July 2,
1864. * * * Indeed, we are of the opinion that this legislation
consists with, rather than opposes, the overwhelming weight of au-
thority to the effect that mineral lands include, not merely metallifer-
ous lands, but all such as are chiefly valuable for their deposits of a
mineral character which are useful in the arts or valuable for purpos-
es of manufacture.” *°
45 NORTHERN PAC. R. CO. v. SODPRBERG, 188 U. 8. 526, 530, 531,
533, 534, 536, 537, 23 Sup. Ct. 365, 47 L. Ed. 575.
122 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
A VEIN OR LODE OF ROCK IN PLACE.
33. A vein or lode, within the meaning of the federal statute, is in-
capable of a hard and fast legal definition; but in general it
may be said to be a reasonably continuous body of mineral-
bearing rock in the general mass of the mountain and of
greater value than the surrounding country rock. While the
body of mineral-bearing rock must be reasonably continuous,
its contents are rock in place, if held together by inclosing
walls, even though those contents are broken up.
All mineral deposits that may not be located as lode claims and
have no special provision for them are to be located as placers, as the
statute provides 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 patent.” #® The first thing to do, therefore,
is to get an idea of what a vein is. The law has tried to look at the
matter from the miner’s standpoint; but, though the miner’s idea of a
vein still differs somewhat from the geologist’s, the proper starting
place is with geology.
The Geologist’s Definition of a Vein.
When a geologist talks of a true vein he means a fissure vein. “A
fissure vein may be defined as a tabular mineral mass occupying or
closely associated with a fracture or set of fractures in the inclosing
rock, and formed either by filling of the fissures as well as pores in
the wall rock, or by replacement of the latter (metasomatism). When
the vein is simply the result of fissure filling, the ore and gangue min-
erals are often deposited in successive layers on the walls of the fis-
sure (Rico, Colo.); the width of the vein depending on the width of
the fissure and the boundaries of the ore mass being sharp. In most
cases, however, the ore-bearing solutions have entered the wall rock
and either filled its pores or replaced it to some extent, thus giving the
vein an indefinite boundary. Therefore the width of the fissures does
not necessarily stand in any direct relation to the width of the vein
(Butte, Mont.).” #7 And the same writer states at another place: “The
manner in which fissure veins have been filled and the source of the
metals which they contain formed a most fruitful subject of discussion
among the earlier geologists. Four general theories were advanced
at an early date. They are: (1) Contemporaneous formation, a theory
no longer advocated by any one. (2) Descension, which likewise no
longer has any adherents. (3) Lateral secretion, in which the vein
46Rey. St. U. S. § 2829 (U. S. Comp. St. 1901, p. 1482).
47 Prof. Heinrich Ries’ Economic Geology of the U. S. 236.
§ 33) VEIN OR LODE OF ROCK IN PLACE. 123
contents are supposed to have been leached from the wall rock, usually
in the immediate vicinity of the fissure, but at variable depths below
the surface. Some geologists holding this view believe that the area
leached was very extensive, and not confined to the immediate vicinity
of the walls. (4) Ascension, the material being deposited by infiltra-
tion, sublimation with steam, sublimation as gas, or igneous injection.
The several arguments for or against these theories are well set forth
in Kemp’s paper,*® and it will suffice here to state that of the various
ones those of lateral secretion and ascension by infiltration are the
most rational. Itis probable that the majority of geologists now believe
in a modified theory of lateral secretion, in which the area of supply
extends beyond the immediate walls of the fissure, and that the ore-
bearing solutions have either ascended the fissure or entered through
the walls.” 4°
On the following page is a very interesting picture from Lakes’
Prospecting for Gold and Silver, supra, showing two systems of ex-
posed fissure veins crossing each other.®°
A “dike” is a fissure which has become filled with lava or porphyry
because it tapped a molten rock reservoir. “In such cases the porphyry
dike or intrusive sheet may, if it be mineralized, answer all intents
and purposes of a mineral vein, or the ore may be found on one or both
sides of such a sheet, in the line of separation and weakness between
it and the adjacent strata, or it may permeate and mineralize, by a ‘sub-
stitution’ process, an adjacent porous or soluble rock, such as limestone.
Thus both in the dike or intrusive sheet itself, as well as at its con-
tact with other rocks, the prospector should look for signs of precious |
metal.” 5?
A “contact vein” is a vein along the plane of contact between un-
like rock formations. ‘Another line of weakness for the attack of
mineral solutions is at the juncture of porphyry sheet or dike with some
other rock. The interval between them is often occupied by a ‘contact
vein.’ The heat of the volcanic matter, together with steam, may have
influenced the solutions, even if the porphyry did not actually supply
the metallic element in the vein.” °? A frequent instance of a contact
vein is between porphyry and limestone.**
After treating fissure veins, Ries disposes of “other forms of ore
deposits” as follows: “ ‘Impregnations’ represent deposits in which
4814 School of Mines Quarterly, 8 (1893).
49 Ries’ Hconomic Geology of the U. 8. 240, 241.
50 Lakes’ Prospecting for Gold and Silver (8d Ed.) 91.
61 Lakes’ Prospecting for Gold and Silver (8d Ed.) 75.
52 Lakes’ Prospecting for Gold and Silver (8d Ed.) 73, 74.
583 See 1 Chamberlain & Salisbury, Geology, 461, for the reason for this.
(Ch. 9
pee Bug
Shi,
‘
, Colorado, show-
g each other.
ville, San Juan
S
ore bodies’
<
is a belt of schist im-
The name “brec-
Mo Sala Acta
ied
if me f
a
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Ye
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DEFINITIONS OF MINING LAW TERMS.
124
Fiaure No. 3.
Ye
( y : ire pull
oe
My
iy
zz
Ziff
mt
a
ing two systems of fissure veins crossin
Metalliferous veins exposed to view near Howard
the ore has been deposited in the pores of the rock, or the crevices of
Ore channels include those
a breccia,°* (Keweenaw Point, Mich.) ‘Fahlband’
pregnated with sulphides.
formed along some path which the mineral solutions could easily
54 Country rock shattered into small angular fragments.
cia” is usually applied to a number of such small pieces of country rock,
which the process of vein formation has. left unconsumed in the vein mat-
§ 33) VEIN OR LODE OF ROCK IN PLACE. 125
follow, as the boundary between two different kinds of rock (Leadville
Colo.; Mercur, Utah). ‘Bedded deposits, found parallel with the
stratification of sedimentary rocks, and sometimes of contemporaneous
origin (Clinton iron ore). ‘Contact deposits,’ as now understood, rep-
resent ore bodies formed along the contact of a mass of igneous and
sedimentary rock (usually calcareous), the ore having been derived
wholly or in part from the intrusive mass (Clifton, Ariz., in part).
‘Chamber deposits,’ whose ore has been deposited in caves of solution
(Missouri lead and zinc ores). ‘Disseminations,’ deposits in which the
ore is disseminated through the rock (southeastern Missouri lead
ores).” 55
The Miner’s Conception of Veins.
So much for the geology of veins. It was early pointed out, how-
ever, that, while the miner regarded as veins all that the geologists
did, he also gave the term a more liberal interpretation, and that the
mining acts adopted the miner’s point of view in talking of veins, lodes,
or ledges. “These acts,” said Mr. Justice Field in the Eureka Case,
“were not drawn by geologists or for geologists. They were not fram-
ed in the interests of science, and consequently with scientific accuracy
in the use of terms. They were framed for the protection of miners
in the claims which they had located and developed, and should receive
such a construction as will carry out this purpose.” ** Under the min-
ing acts the words, “lode,” “vein,’ and “ledge” all mean the same
thing. “Ledge” is a term used in California and Nevada. Mr. Lind-
ley suggests that “of the three terms, the word ‘lode’ is the more
comprehensive. A lode may, and often does, contain more than one
vein.” 57 And Messrs. Morrison and De Soto think that “vein” is
broader than “lode,” because “the word ‘vein’ is universally used to
include coal and other flat nonmetallic deposits, while the word ‘lode’
ter. Pieces which, if small, would be called breccia, are, when large
enough, called “horses.” Lakes’ Prospecting for Gold and Silver (8d Ed.) 73.
“The rock in which a vein is found igs called the ‘country rock’; e. g,,
limestone, granite, porphyry.” Id. 86.
55 Ries’ Economic Geology of the U. S. 241, 242.
56 FUREKA CONSOL. MIN. CO. v. RICHMOND MIN. CO., 4 Sawy. 302,
311, Fed. Cas. No. 4,548, affirmed in Richmond Min. Co. v. Eureka Consol.
Min. Co., 103 U. 8S. 839, 26 L. Ed. 557, 560.
571 Lindley on Mines (2d Ed.) § 290, citing United States v. Iron Silver
Min. Co., 128 U. 8. 673, 680, 9 Sup. Ct. 195, 82 L. Ed. 571. It should be no-
ticed, however, that practical miners often use the word “lode” to mean
the whole mining claim or lode location (Buckeye Min. & Mill. Co. v. Carlson,
16 Colo. App. 446, 66 Pac. 168), a use to which they never put the word
“vein,” and that lode was probably used in that sense in the passage from
United States v. Iron Silver Min. Co., supra, on which Mr. Lindley relies.
126 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
is not so used.” 58 But all authorities agree that the terms, however
differently shaded in meaning in popular use, are legal equivalents.
The first thing to realize is that “many definitions of veins have
been given, varying according to the facts under consideration. The
term is not susceptible of an arbitrary definition applicable to every
case. It may be controlled, in a measure, at least, by the conditions of
locality and deposit.” ®® And the second thing to notice is that some
courts have been willing to follow the Eureka Case idea that anything
is a lode which a miner would be justified in following to find ore,*®
while other courts have inclined toward the geologists’ point of view.*?
Finally, whether there is in the given case a vein or lode is always a
question of fact,®? and the determination of that question is affected by
the rights asserted by the parties and the order of time in which those
rights arise.*%
Legal Definitions of Veins.
The way to ascertain the legal notion of a vein is to take various
definitions that have been given. In Iron Silver Mining Co. v. Chees-
man, it is stated by Mr. Justice Miller, for the United States Supreme
Court, that “what constitutes a lode or vein of mineral matter has
been no easy thing to define. In this court no clear definition has
been given. Mr. Justice Field, in the Eureka Case, 4 Sawy. 302, 311,
Fed. Cas. No, 4,548, shows that the word is not always used in the
same sense by scientific works on geology and mineralogy and by those
engaged in the actual working of mines.” °
58 Morrison’s Min. Rights (13th Ed.) 162. “Coal bed” was held to be
synonymous with “coal vein” in Delaware, L. & W. R. Co. v. Gleason (C.
C. A.) 159 Fed. 383.
59 Beals v. Cone, 27 Colo. 473, 62 Pac. 948, 83 Am. St. Rep. 92.
60 See Harrington v. Chambers, 3 Utah, 94, 1 Pac. 362; Hayes v. Lavag-
nino, 17 Utah, 185, 53 Pac. 1029 (but see Grand Cent. Min. Co. v. Mammoth
Min. Co., 29 Utah, 490, 83 Pac. 648, 677, that this is true only where the
question of a discovery of a vein is involved, and not where the question is
one of extralateral rights); Burke y. McDonald, 8 Idaho (Hasb.) 1296,
29 Pac. 98. See Shoshone Min. Co. v. Rutter, 87 Fed. 801, 31 ©. C. A. 223.
61 See Stinchfield v. Gillis, 96 Cal. 33, 30 Pac. 839, adopting definition of
Judge Sawyer in Jupiter Min. Co. v. Bodie Consol. Min. Oo. (C. CG.) 11
Fed. 675.
62 Bluebird Min. Co. v. Largey (C. C.) 49 Fed. 289, stating properly that
the question of what is the apex of a vein is also a question of fact. That
the latter question should be submitted to a jury, see Campbell v. Golden
Cycle Min. Co., 141 Fed. 610, 615, 73 C. C. A. 260.
63 See MIGEON v. MONTANA CENT. R. CO., 77 Fed. 249, 254, 23 GC. C.
A. 156.
84 IRON SILVER MIN. CO. vy. CHEESMAN, 116 U. S. 529, 533, 6 Sup.
Ct. 481, 29 L. Ed. 712.
§ 33) VEIN OR LODE OF ROCK IN PLACE. 187
In that very case, however, the Supreme Court adopted the charge
to the jury given by Judge Hallett on the trial, viz.: “To determine
whether a lode or vein exists it is necessary to define those terms, and,
as to that, it is enough to say that a lode or vein is a body of mineral,
or mineral-bearing rock, within defined boundaries in the general mass
of the mountain. In this definition the elements are the body of miner-
al or mineral-bearing rock and the boundaries. With either of these
things well established, very slight evidence may be accepted as to the
existence of the other. A body of mineral or mineral-bearing rock in
the general mass of the mountain, so far as it may continue unbroken
and without interruption, may be regarded as a lode, whatever the
boundaries may be. In the existence of such body, and to the extent of
it, boundaries are implied. On the other hand, with well-defined bound-
aries, very slight evidence of ore within such boundaries will prove the
existence of a lode. Such boundaries constitute a fissure, and if in
such fissure ore is found, although at considerable intervals and in
small quantities, it is called a lode or vein. * * * Reverting to that
definition, if there is a continuous body of mineral or mineral-bearing
rock extending from one claim to the other, it must be that there are
boundaries to such body and the lode exists; or if there is a continuous
cavity or opening between dissimilar rocks, in which ore in some quan-
tity and value is found, the lode exists. These propositions are cor-
relative and not very different in meaning, except that the first gives
prominence to the mineral body and the second to the boundaries.
Proof of either proposition goes far to establish a lode, and it may be
said that without proof of one of them a lode cannot exist. * * *
Excluding the wash, slide, or débris on the surface of the mountain, all
things in the mass of the mountain are in place. A continuous body
of mineral or mineral-bearing rock, extending through loose and dis-
jointed rocks, is a lode as fully and certainly as that which is found
in more regular formation; but if it is not continuous, or is not found
in a crevice or opening which is itself continuous, it cannot be called
by that name. In that case it lacks the individuality and extention
which is an essential quality of a lode or vein.” ®* And Mr. Justice
Miller, in approving the charge, said: “Certainly the lode or vein must
be continuous, in the sense that it can be traced through the surrounding
rocks, though slight interruptions of mineral-bearing rock would not be
alone sufficient to destroy the identity of the vein. Nor would a short
partial closure of the fissure have that effect, if a little farther on it re-
66 Iron Silver Min. Co. v. Cheesman, 116 U. S. 529, 536, 537, 6 Sup. Ct. 485,
29 L. Ed. 712.
128 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
curred again with mineral-bearing rock within it.*@ And such is the
idea conveyed in the previous part of the charge.” °7
The reason why the Supreme Court of the United States has been
content to approve as occasion required the definitions of veins framed
by other courts is “that the definition of a lode must always have spe-
cial reference to the formation and peculiar characteristics of the par-
ticular district in which the lode or vein is found.” ®* What may. be a
vein for one purpose and with reference to one party may not be a
vein for another purpose and with reference to a differently situated
party.°® In the case of United States v. Iron Silver Mining Co., Mr.
Justice Field, for the court, said of lodes in placers: “By veins or lodes,
as here used, are meant lines or aggregations of metal imbedded in
quartz or other rock in place. The terms are found together in the
statutes, and both are intended to indicate the presence of metal in
rock. Yet a lode may and often does contain more than one vein. In
Iron Silver Mining Co. v. Cheesman, 116 U. S. 529, 533, 6 Sup. Ct.
481, 29 L. Ed. 712, a definition of a lode is given, so far as it is prac-
ticable to define it with accuracy, and it is not necessary to repeat it.”’ 7°
Eureka Consol. Mining Co. v. Richmond Mining Co." is the clas-
sic case on the definition of a lode or vein. But the Utah court has
given more briefly the essential conclusions of that case as follows:
“Looking at the above, and other evidence in the record of like import,
from a strictly scientific view, it probably would not show the existence
of a vein or lode within the limits of the claim. Geologists, when ac-
curately speaking, apply the terms ‘vein’ and ‘lode’ to a fissure in the
earth’s crust filled with mineral matter. In Von Cotta’s treatise on
Ore Deposits (Prime’s Translation, § 16) the author says: ‘Veins
are aggregations of mineral matter in fissures of rocks. Lodes are
therefore aggregations of mineral matter containing ores in fissures.’
Similar definitions have been given by Dana, Steele, and others. It will
thus be noticed that, in the judgment of a geologist, a fissure or fracture
in the earth’s crust seems to be an essential element in the definition
66 See Cheesman y. Shreeve (C. C.) 40 Fed. 787, 792-796.
67 IRON SILVER MIN. CO. v. CHEESMAN, 116 U. S. 529, 588, 6 Sup. Ct.
481, 29 L. Ed. 712. The definition of Judge Hallett was further approved
in IRON SILVER MIN. CO. v. MIKE & STARR GOLD & SILVER MIN.
CO., 143 U. 8. 394, 404, 12 Sup. Ct. 543, 36 L. Ed. 201.
68 MIGEON v. MONTANA CENT. R. CO., 77 Fed. 249, 255, 23 ©. C. A.
156. See Book v. Justice Min. Co. (C. ©.) 58 Fed. 106, 121.
69 See GRAND CENT. MIN. CO. v. MAMMOTH MIN. CO., 29 Utah, 490,
83 Pac. 648; Tabor v. Dexler, 9 Morr. Min. Rep. 614, Fed. Cas. No. 18,723.
70 United States v. Iron Silver Min. Co., 128 U. S. 673, 679, 9 Sup. Ct.
195, 32 L. Ed. 571.
714 Sawy. 302, Fed. Cas. No. 4,548.
§ 33) VEIN OR LODE OF ROCK IN PLACE. 129
of either of these terms. If, therefore, the validity of a mining lo-
cation, when assailed, were to be tested strictly by these definitions,
it would doubtless be incumbent upon the locator to show that the
location was made upon a fissure with well-defined walls on each side
and filled with metalliferous matter. That many mining claims, the
locations of which have never been questioned, could not withstand
such a test, cannot be doubted. The practical miner has paid little
attention to scientific definitions of these terms. As to the term ‘lode,’
it has been said that the miners made the first definition, and that, as
used by them, before defined by any authority, it simply meant what-
ever they could follow, expecting to find ore—that formation by which
a miner could be led or guided. This is implied by its derivation; the
term being a variation of the verb ‘lead.’ The word ‘vein’ with the
miner means practically the same thing. By him the two terms are
used, interchangeably or together, to mean some formation within
which, or following which, he can find ore, and outside of which he
cannot expect to find it. he fissure, therefore, and its walls, are of
importance, in the business of mining, only as defining the boundaries
within which miners may reasonably expect to find ore. Doubtless, in
practical mining, the terms ‘vein’ and ‘lode’ apply to all deposits of
mineralized matter within any zone or belt of mineralized rock sepa-
rated from the neighboring rock by well-defined boundaries, and the
discoverer of such a deposit may locate it as a vein or lode. We ap-
prehend that the several acts of Congress relating to mining locations
were enacted for the protection of the miners, and that the terms
‘vein’ and ‘lode’ were employed in the sense in which they had used
them, uncontrolled by scientific definitions. The act of July 26, 1866,
provided for the procuring of a patent by any person or association
of persons claiming a ‘vein, or lode of quartz or other rock in place,
bearing gold, silver, cinnabar, or copper.’ The act of May 10, 1872,
speaks of ‘veins or lodes of quartz or other rock in place, bearing
gold, silver, cinnabar, lead, tin, copper,’ and other valuable deposits.
No definitions of the terms ‘vein’ and ‘lode’ are given in either of the
acts, and, from the fact that cinnabar and lead ores are included, it
would seem that it was not the intention of the framers of the acts
that purely scientific definitions should be applied in giving them effect;
for it is not a characteristic of cinnabar that it is found in fissures
of the earth’s crust, or in veins or lodes as defined by geologists. It
occurs generally in fibrous or amorphous masses bedded in shales or
slate rock. So lead is frequently found between strata in flat cavi-
ties, in beds within sandstones and rudimentary limestones—formations
which would not answer to veins or lodes, when speaking with scientif-
ic accuracy. A definition of ‘vein’ or ‘lode’ which would exclude any
Cost. Min.L.—9
130 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
one of the metals mentioned would, with reference to those enactments,
be defective; and its application, in interpretation, would not be in
larmony with the spirit and intent manifest from contexts. Evidently
these laws were not enacted in the interests of science, but for the
purpose of protecting the rights of miners as to their mining claims
located and developed, and therefore should be construed with such
liberality as to effectuate that purpose, and protect miners as to their
mining claims located upon any kind of vein or lode of quartz or
other rock in place, bearing any of the metals named in the acts, re-
gardless of the kind or character of rock or formation in which the
mineral may have been found. The fact that the terms ‘vein’ and
‘lode’ have been used by the legislators in connection with each other
is suggestive that Congress intended to avoid any limitation in the ap-
plication of the acts which might be imposed by a scientific definition
of either term. Mr. Justice Field, in the Eureka Case, 4 Sawy. 302,
Fed. Cas. No. 4,548, after discussing the term ‘lode’ as used in scientific
works and in the acts of Congress, said: ‘It is difficult to give any
definition of the term, as understood and used in the acts of Congress,
which will not be subject to criticism. A fissure in the earth’s crust,
an opening in its rocks and strata made by some force of nature, in
which the mineral is deposited, would seem to be essential to the defini-
tion of a ‘lode,’ in the judgment of geologists. But to the practical
miner the fissure and its walls are only of importance as indicating the
boundaries within which he may look for, and reasonably expect to
find, the ore he seeks. A continuous body of’ mineralized rock lying
within any other well-defined boundaries on the earth’s surface, and
under it, would equally constitute, in his eyes, a lode. We are of
opinion, therefore, that the term, as used in the acts of Congress, is
applicable to any zone or belt of mineralized rock lying within boundar-
ies clearly separating it from the neighboring rock.’ It would seem,
from these considerations, that any deposit of mineral matter, or in-
dication of a vein or lode, found in a mineralized zone or belt within
defined boundaries, which a person is willing to spend his time and
money to follow in expectation of finding ore, is the subject of a valid
location, and that, when metallic vein matter appears at the surface,
a valid location of a ledge deep in the ground, to which such vein
matter leads, may be made.” 7
The argument drawn from the use of “cinnabar” in the mining
acts, first advanced in the Eureka Case, and repeated in Hayes v.
Lavagnino, does not seem to Mr. Lindley to have much weight. He
72 HAYES v. LAVAGNINO, 17 Utah, 194-197, 58 Pac. 1029.
§ 33) VEIN OR LODE OF ROCK IN PLACE. 131
says: “It is not likely, therefore, that the inclusion of cinnabar with
gold and silver in the act was based upon any very clear conception
of its mode of occurrence. However, as we understand the matter
now, the typical cinnabar deposits are in fact fissured, fractured, and
mineralized zones, formed in a way somewhat similar to the more
complex of the gold, silver, copper, and lead bearing lodes. They were
probably regarded as lodes by the miner. There may be differences of
opinion among scientists regarding the proper place for these de-
posits in a system of classification; but that is a matter of little
moment here. ‘They have become ‘lodes’ in the eye of the law. Be
that as it may, the miner first applied the terms ‘lode’ and ‘vein,’ and
they had with him a definite meaning. Whether it accorded with
scientific theories and abstractions is, at this late date, at least, of no
serious moment.” 78
It is apparent that a lode is differentiated from mere impregna-
tions of mineral. “A lead or lode,’ said the Montana court, “is
not an imaginary line without dimensions. It is not a thing with-
out shape or form; but before it can legally and rightfully be de-
nominated a lead or lode it must have length, width, and depth.
It must be capable of measurement. It must occupy defined space
and be capable of identification.”7* In the case of a broad vein,
with no distinct hanging wall, but with a distinct and persistent
foot wall, a United States Circuit Court has said: “To hold that the
ledge extends to the extreme limits of all evidence of mineraliza-
tion is not a reasonable or practical proposition in such a formation
as this. If not, where then? Not beyond the ore deposit line, or
where such strong indications of it are found that the miner would
work or explore with the expectation of compensation. It cannot be
doubted from the evidence that, far beyond the line where any miner
acquainted with the formation would look for ore, there is much evi-
dence of mineralized rock, quite similar to the material recognized
as clearly within the ledge.” 7® As the Utah court has recently said:
“But if, on the other hand, the rock of the district generally carries
values, then undoubtedly the values in the vein material, where the
boundaries of the vein are not well or not at all defined, either in the
surface or at depth, should be in excess of those of the country rock,
else there can be no line of demarkation, nor where the rock is gen-
781 Lindley on Mines (2d Hd.) § 289.
74 Foote v. National Min. Co., 2 Mont. 402.
75BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO.
vy. EMPIRD STATE IDAHO MINING & DEVELOPING CO., 134 Fed.
268, 270.
132 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
erally broken, shattered and fissured, anything to separate it from the
adjacent country.” 7°
An impregnation of minerals, therefore, which is not in excess of
that found in the ordinary country rock of the district, does not es-
tablish a vein; but, if an impregnation greater than that of the sur-
rounding country rock is found, then it will be a vein or lode if it is
in the general mass of the mountain, for its boundaries can be ascer-
tained by assay and analysis. As Judge Hallett said in Hyman v.
Wheeler: “An impregnation, to the extent to which it may be traced
as a body of ore, is as fully within the broad terms of the act of Con-
gress as any other form of deposit. * * * It is true that a lode
must have boundaries; but there seems to be no reason for saying that
they must be such as can be seen. There may be other means of deter-
mining their existence and continuance, as by assay and analysis.” "7
And in approving the above definition the Colorado court said: “The
controlling characteristic of a vein is a continuous body of mineral-
bearing rock in place, in the general mass of the surrounding forma-
tion. If it possesses these requisites, and carries mineral in appreciable
quantities, it is a mineral-bearing vein, within the meaning of the law,
even though its boundaries may not have been ascertained.” 78
There are other definitions of veins, and some of them will have
to be stated when we consider questions of discovery, known lodes in
placers, extralateral rights, etc.; but for our present purpose the
foregoing are enough.”®
“Rock in Place.”
And now for the phrase “veins or lodes of quartz or other rock in
place.” 8° The first thing to notice is that it is the quartz or rock
that must be “in place.” The vein or lode necessarily is in place before
78GRAND CENT. MIN. CO. v. MAMMOTH MIN. CO., 29 Utah, 490,
83 Pac. 648, 678.
77 HYMAN v. WHEELER (C. C.) 29: Fed. 847, 354.
78 Beals vy. Cone, 27 Colo. 473, 486, 62 Pac. 948, 88 Am. St. Rep. 92.
79 For other definitions, see Webb v. American Asphaltum Min. Co., 157
Fed. 203, 84 C. O. A. 673; Stevens v. Williams, Fed. Cas. No. 18,414; North
Noonday Min. Co. v. Orient Min. Co. (C. ©.) 1 Fed. 522, 6 Sawy. 299; Jupi-
ter Min. Co. v. Bodie Consol. Min. Co. (C. ©.) 11 Fed. 666, 7 Sawy. 96;
Book v. Justice Min. Co. (C. C.) 58 Fed. 106; Consolidated Wyoming Gold
Min. Co. v. Champion Min. Co. (C. ©.) 63 Fed. 540; Gregory v. Pershbaker,
73 Cal. 109, 14 Pac. 401; Buffalo Zinc & Copper Co. v. Crump, 70 Ark.
525, 69 S. W. 572, 91 Am. St. Rep. 87. For a full land department discus-
sion of veins, see Henderson v. Fulton, 35 Land Dec. Dep. Int. 652. For
a case where there were held to be two parallel veins, instead of one, see
Waterloo Min. Co. v. Doe, 82 Fed. 45, 27 C. ©. A. 50.
80 Rey. St. United States, §§ 2320, 2329 (U. S. Comp. St. 1901, pp. 1424,
1432).
§ 33) VEIN OR LODE OF ROCK IN PLACE. 133
it can be said to be a vein or lode. “In place,” in the above statutory
phrase, has reference to the contents of the vein or lode, though this
fact is often forgotten. A vein or lode must be in place to be a vein
or lode, and it is only the contents or filling of the vein which the
statute requires to be “in place.” When it is said, however, that the
contents of the vein or lode must be in place, it is not meant that they
must be in a solid mass. In Stevens v. Williams, Miller, J., stated that:
“TI want to say that by rock in place I do not mean merely hard rock,
merely quartz rock, but any combination of rock, broken up, mixed
up with minerals and other things, is rock within the meaning of the
statute.”®! So in Tabor v. Dexter, Judge Hallett stated that: “Wheth-
er the ore is loose and friable, or very hard, if the inclosing walls are
country rock, it may be located as a vein or lode. But if the ore is
on top of the ground, or has no other covering than the superficial de-
posit, which is called alluvium, diluvium, drift, or débris, it is not a
lode or vein within the meaning of the act, which may be followed be-
yond the lines of the location. In this bill it is alleged that the over-
lying material is boulders and gravel, which cannot be in place as re-
quired by the act. * * ™* For the decision of this motion [for
preliminary injunction] it is enough to say that where the mass over-
lying the ore is a mere drift, or loose deposit, the ore is not in place
within the meaning of the act. Upon principles recently explained, a
location on such a deposit of ore may be sufficient to hold all that
lies within the lines; but it cannot give a right to ore in other ter-
ritory, although the ore body may extend beyond the lines.”8? So in
Burke v. McDonald the court said: “It must be remembered that every
seam or crevice in the rock, even though filled with clay, earth, or
rock, does not constitute a vein, nor every ridge of stained rock its
cropping; nor, on the contrary, is it required that well-defined walls
shall be developed or paying ore found within them. But something
must be found in place, as rock, clay, or earth, so colored, stained,
changed, and decomposed by the mineral elements as to mark and
distinguish it from the inclosing country.” ®?
It was in regard to the blanket deposits at Leadville, Colo., that the
question about lodes being in place became important; and even there
“in place” was not important because of that statutory provision, but
because a vein, to be a vein at all, as contrasted with a placer deposit,
must be in place. In Leadville Mining Co. v. Fitzgerald,’* Judge
81 STEVENS v. WILLIAMS, 1 McCrary, 480, Fed. Cas. No. 138,413.
82 TABOR v. DEXTER 9 Morr. Min. Rep. 614, Fed. Cas. No. 13,723.
83 Burke v. McDonald, 2 Idaho (Hasb.) 679, 33 Pac. 49.
84 LHADVILLE MIN. CO. vy. FITZGERALD, 4 Morr. Min. ae 3880, 381,
386, Fed. Cas. No. 8,158.
134 DEFINITIONS OF MINING LAW TERMS. . (Ch.9
Hallett indirectly shows that the idea that a vein or lode must be em-
braced in the mass of the mountain, an idea which he originated **
and which certainly seems thoroughly sound, arose from his miscon-
ception that the words “in place” referred to vein or lode, instead of
referring to the contents of the vein or lode. He said, when discus-
ing the motion for an injunction: “Until the discovery of mineral
deposits near Leadville, no controversy had arisen in this state as to
whether a lode or vein is in place within the meaning of the act of Con-
gress. The mines opened in Clear Creek, Gilpin, Boulder, and other
counties descend into the earth so directly that no question could arise
as to whether they were inclosed in the general mass of the country.
Whatever the character of the vein, and whatever its width, it was sure
to be within the general mass of the mountain; but the Leadville de-
posits were found to be of a different character. In some of them, at
least, the ore was found on the surface, or covered only by the super-
ficial mass of slide, débris, detritus, or movable stuff, which is dis-
tinguishable from the general mass of the mountain, while others
were found beneath an overlying mass of fixed and immovable rock
which could be called a wall as well as that which was found below
them. It then becomes necessary to consider very carefully the mean-
ing of the words “in place” in the act of Congress, in order to deter-
mine whether these deposits were of the character described in that
act. Section 2320 of the Revised Statutes (U. S. Comp. St. 1901, p.
1424) refers to veins and lodes in ‘rock in place,’ and of course no
other can be brought within the terms of the act. After careful con-
sideration, it was thought that a vein or lode could not be in place with-
in the meaning of the act unless it should be within the general mass of
the mountain. It must be inclosed by or held within the general mass
of fixed and immovable rock. It is not enough to find the vein or lode
lying on the top of fixed or immovable rock; for that which is top
is not within, and that which is without the rock in place cannot be
said to be within it.”** And again in charging the jury he said:
“As to the first question, if the lode is in the general mass of the
mountain, as distinguished from the slide, débris, or ‘tumble stuff,’ of
the surface, it is in place within the meaning of the act of Congress.
If the rock above the lode is in its original position, although some-
what broken and shattered by the movement of the country or other
cause, it is in place. And in this kind of deposits it may be said that
85 STEVENS v. WILLIAMS, 1 Morr. Min. Rep. 558, 559, 560, Fed. Cas.
No. 18,413; Stevens v. Gill, 1 Morr. Min. Rep. 576, 580, Fed. Cas. No. 13,398 ;
Iron Silver Min. Co. v. Cheesman (C. C.) 8 Fed. 299. 301.
86 LEADVILLE MIN. CO. vy. FITZGERALD, 4 Morr. Min. Rep. 380,
3881. Fed. Cas. No. 8,158.
§ 34) A PLACER. 135
the lode is in place wherever the rock above is in place. * * * If
the principal part of the rock above the mineral is in its original posi-
tion according to the present structure of the mountain, the lode is in
place, although some masses of rock or boulders may be associated
with the ore.’ 87
’ Even though the misconception of the statute caused the holding
that the vein must be in the mass of the mountain to be a vein, that
holding is well established and certainly furnishes the only sound
way in which to distinguish between veins and placers.®* It is also
highly important in the working out of extralateral rights; for, be-
cause of the great interference of extralateral rights with common-
law notions of ownership of land, only well-defined and continuous
veins are deemed within the statute awarding extralateral rights to the
owner of an apex.*® Before we define “apex” and “extralateral ©
rights,” however, we must distinguish between “lodes” and “placers.”
A PLACER.
34. A placer is any form of mineral deposit other than a vein or lode.
Now what is a placer? Messrs. Morrison and De Soto have this to
say about the matter: “As commonly and properly understood, a
‘placer claim’ means a location in which gold is found loose in sand or
gravel, and not in the vein or in place. It includes gulch claims, old
channels, cement, and drift diggings. But the United States Mining
acts make an arbitrary division of all minerals into two classes, to
wit, ‘lodes’ and ‘placers.’ All deposits of (metallic) minerals in place
are called, when located, ‘lode claims,’ and all deposits of other min-
erals, in place or not in place, are ‘placers.’” °° Under the United
States mining acts, therefore, a placer is any form of mineral deposit
“excepting veins of quartz or other rock in place.” ®* And by the
87 Leadville Min. Co. v. Fitzgerald, 4 Morr. Min. Rep. 386, Fed. Cas. No.
8,158. Compare Iron Silver Min. Co. v. Cheesman (C. C.) 8 Fed. 297, 2
McCrary, 191. :
8s ‘A lode is a zone, belt, or body of quartz or other rock lodged in the
earth’s crust, and presenting two essential and inherent characteristics,
namely: (1) It must be held ‘in place’ within or by the adjoining country
rock; and (2) it must be impregnated with some of the minerals or valuable
deposits mentioned in the statute.” Meydenbauer v. Stevens (D. C.) 78
Fed. 787.
89 GRAND CENT. MIN. CO. v. MAMMOTH MIN. CO., 29 Utah, 490, 83
Pac. 648; Butte & B. Min. Co. v. Societe Anonyme des Mines de Lexington,
23 Mont. 117, 58 Pac. 111, 75 Am. St. Rep. 505.
90 Morrison’s Mining Rights (13th Ed.) 210. The idea here expressed, that
only metallic deposits in place are lodes, seems unsound. Webb y. American
Asphaltum Min. Co., 157 Fed. 203, 84 C. C. A. 651.
91Rey. St. U. S. § 2829 (U. S. Comp. St. 1901, p. 14382); Gregory v.
136 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
term “placer claim,” as used in the section of the statutes in regard
to patenting lodes in placer claims,®? “is meant ground within defined
boundaries which contains mineral in its earth, sand, or gravel; ground
that includes valuable deposits not in place—that is, not fixed in rock
—but which are in a loose state, and may in most cases be collected by
washing or amalgamation without milling.” %*
Ordinarily there is little difficulty in discriminating veins from placer
deposits,* yet the case of Gregory v. Pershbaker °* is an instance of a
troublesome situation. This case had to deal with what are known
in California as “deep placers,” namely, the sandy or gravelly beds or
bottoms of ancient streams long since covered over by lava. “These
gravel beds,” said Mr. Lindley, “lie upon a ‘bed rock,’ which at some
period of geological history formed the bed of an ancient river. They
are usually immediately overlain by a formation of clay gouge, and
on this clay covering is a capping of lava, sometimes hundreds of feet
in thickness. These subterranean deposits are reached by means of
tunnels to the bed rock, and thence following the meanderings of the
channel. These deposits certainly occupy a fixed position in the mass
of the mountain, although they do not fall within the popular defini-
tion of lodes or veins. The land department at an early period classi-
fied them as ‘placers,’ and patents have uniformly been issued upon
location of this class of deposits made under the placer laws.” 95 The
California court, being called upon to deal with such a deposit, said
that the definition of a lode in the Eureka Case®* (namely, that the
term is applicable to any zone or belt of mineralized rock lying within
boundaries clearly separating it from neighboring rock) would not
include a bed of gravel from which particles of gold may be washed.
“The words ‘mineralized rock,’” said the court, “were evidently in-
tended to qualify the * * * sentence. That which in the Eureka
Case was declared to be a ‘lode’ was a zone of limestone lying between
a wall of quartz and a seam of clay or shale; the ore having a dip of
Pershbaker, 73 Cal. 109, 14 Pac. 401; Webb v. American Asphaltum Min.
Co., 157 Fed. 203, St C. C. A. 673.
92 Rey. St. U. S. § 2333 (U. S. Comp. St. 1901, p. 14383).
93 United States vy. Iron Silver Min. Co., 128 U. S. 678, 679, 9 Sup. Ct.
195, 82 L. Ed. 571.
*Yet recently a United States court has had to decide that gilsonite
and the harder forms of asphaltum in veins or lodes of rock in place may
be located as lodes, and may not be located as placer deposits. Webb v.
American Asphaltum Min. Co., 157 Fed. 208, 84 C. CG. A 651.
9473 Cal. 109, 14 Pac. 401.
951 Lindley on Mines (2d Ed.) § 427,
964 Sawy. 302, Fed. Cas. No. 4,548,
§ 35) APEX OF A VEIN. 137
45° and the other of 80°.”°7 And the court therefore insisted that
a bed of gravel from which particles of gold may be washed, even
though that bed is between an underlying bed of slate rock and an
overlying bed of lava rock,®* and even though the gravel is of a hard
nature, and in mining and extracting the same has to be detached from
its position by the use of picks and gads,®® is not a lode, because it
is not mineralized rock in place, and is within the definition of placers
in section 2329, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1432) which
declares all forms of deposit, excepting veins of quartz or other rock
in place, to be placers. The court added: “Referring to the common
use of the word by miners, to the dictionaries, and to the adjudications
of courts, the gravel bed with gold therein as described in the finding
is a placer.” 1°°
The deposit in Gregory v. Pershbaker was so hard as to require
the use of a pick and gad to extract, so could properly be called min-
eralized rock, and it certainly occupied a fixed position in the mass of
the mountain. But for the peculiar geological formation noted above,
and which properly governed the California court, the deposit should
have been held to be a lode. That is clear from Jones v. Prospect
Mountain Tunnel Co. 1°! In that case,1°? a ledge, consisting of “broken
limestone, boulders, low-grade ore, gravel, and sand, which appear-
ed to have been subjected to the action of the water,” and “found
at a depth of several hundred feet, and where there seems to have been
no question that it was within the original and unbroken mass of the
mountain,” was held by the court to be mineral matter “in place.”
THE APEX OF A VEIN.
35. The apex of a vein is the width and length—i. e., the surface—of
its upper edge.
In connection with veins it is important to define the apex of a
vein, its dip, and its course or strike. Though there is a controversy
as to whether the law of the apex was properly applied in Duggan v.
Davey,’°* there is no question that “apex” was clearly defined in that
97 GREGORY v. PERSHBAKER, 73 Cal. 109, 114, 14 Pac. 401.
9873 Cal. 109, 111, 14 Pac. 401.
9973 Cal. 113, 14 Pac. 401, 402.
10073 Cal. 115, 14 Pac. 401, 403.
10121 Ney. 339, 31 Pac. 642.
102 JONES v. PROSPECT MOUNTAIN TUNNEL O©O., 21 Nev. 339, 351,
381 Pac. 642.
1034 Dak. 110, 26 N. W. 887.
138 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
case.1°* It need only be premised that under the federal statutes the
owner of a claim which has the apex of a vein or lode inclosed within
the parallel end lines of the claim has the right to follow the vein down
in the earth as far as it goes, even if in going down it departs from his
common-law boundaries and enters what at common law would be his
neighbor’s grounds, so long as he does not go beyond planes drawn
through the extralateral right end lines and extended in their own
direction. As the apex right is only to go outside one’s side bound-
aries, it has come to be called the “extralateral right.” The extra-
lateral right depending on the ownership of the apex of the vein or
lode, the question is: What is the apex of a vein or lode? Duggan
v. Davey has this to say about it:
“Secondly. Is the top or apex of this vein or lode within the lines
of the Sitting Bull location? The definition of the top or apex of a vein
usually given is: ‘The end or edge of a vein nearest the surface.’
And to this definition the defendants insist we must adhere with ab-
solute literal and exclusive strictness, so that wherever, under any
circumstances, an edge of a vein can be found at any surface, regard-
less of all other circumstances, that is to be considered as the top or
apex of the vein. The extent to which this view was carried by the
defendants, and, I must confess, its logical results, were exhibited
by Prof. Dickerman, their engineer, who, replying to an inquiry as
to what would be the apex of a vein cropping out at an angle of one
degree from the vertical on a perpendicular hillside, and cropping out
also at a right angle with that along the level summit of the hill, stat-
ed that in his opinion the whole line of that outcrop from the bottom
clear over the hill, as far as it extended, would be the apex of the
vein. Some other witnesses had a similar opinion. The definition
given is no doubt correct under most circumstances, but, like many
other definitions, is found to lack fullness and accuracy in special
cases; and I do not think important questions of law are to be de-
termined by a slavish adherence to this letter of an arbitrary defini-
tion. It is, indeed, difficult to see how any serious question could have
arisen as to the practical meaning of the terms ‘top’ or ‘apex’; but it
seems in fact to have become somewhat clouded. I apprehend, if any
intelligent person were asked to point out the top or apex-of a house,
_a spire, a tree, or hill, he would have no difficulty in doing so; and
I do not see why the same common sense should not be applied to a
104 Mr. Snyder says that in DUGGAN vy. DAVEY, 4 Dak. 110, 26 N. W.
887, the court misapplied the law through faultless reasoning from false
premises. 1 Snyder on Mines, § 802. Mr. Lindley, however, with what
seems to the writer sound exposition and argument, approves the decision.
1 Lindley on Mines (2d Ed.) § 310.
§ 35) APEX OF A VEIN. 139
vein or lode. Statutory words are to receive their ordinary meaning
and interpretation, except where shown to have a special meaning;
and, as I think the testimony shows that these terms were unknown
to miners in their application to veins before the statute, the ordinary
tule would seem to apply to them. Justice Goddard, a jurist of ex-
perience in mining law, in his charge to the jury in the case of Iron
Silver v. Louisville, defines ‘top’ or ‘apex’ as the highest or terminal
point of a vein, where it approaches nearest the surface of the earth,
and ‘where it is broken on its edge, so as to appear to be the beginning
or end of the vein.’ Chief Justice Beatty of Nevada, who is men-
tioned in the report of the Public Land Commission of 1878-80, as
‘one of the ablest jurists who has administered the mining law,’ in his
letter to that commission says, after defining dip and course of strike:
‘The top or apex of any part of a vein is found by following the line
of its dip up to the highest point at which vein matter exists in the fis-
sure.’ According to this definition the top or apex of a vein is the
highest part of a vein along its entire course. If the vein is supposed
to be divided into sections by vertical planes at right angles to the
strike, the top or apex of each section is the highest part of the vein
between the planes that bound that section; but, if the dividing planes
are not vertical or not at right angles to a vein which departs at all
from the perpendicular in its downward course, then the highest part
of the vein between such planes will not be the top or apex of the
section which they include.’
“T am aware that in several adjudged cases ‘top’ or ‘apex’ and
‘outcrop’ have been treated as syonymous, but never, so far as I am
aware, with reference to a case presenting the same features as the
present. The word ‘apex’ ordinarily designates a point, and, so con-
sidered, the apex of the vein is the summit, the highest point in the
vein in the ascent along the line of its dip or downward course, and
beyond which the vein extends no further, so that it is the end, or,
reversely, the beginning, of the vein. The word ‘top,’ while including
‘apex,’ may also include a succession of points—that is, a line—so
that by the top of a vein would be meant the line connecting a succes-
sion of such highest points or apices, thus forming an edge.’
Conceiving a vein or lode to be an intrusive sheet of mineralized
matter of varying thickness found in the mass of the mountain, the
apex of a vein is thus seen to be that edge of the sheet which shows
on the surface of the location, or is nearest to the surface. It is not
a point, though apex naturally suggests point. It is not a line, though
105 DUGGAN vy. DAVEY, 4 Dak. 110, 139-148, 26 N. W. 887.
140 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
it has the full extension of the upper edge of the lode.*°* It is the
whole surface of the upper edge of the vein, with all the width and
length which that edge has. That is what the Dakota court means
when it says that “the top or apex of a vein is the highest part of a
vein along its entire course.*°?
THE “COURSE” OR “STRIKE” OF A VEIN.
36. The course or strike of a vein means either the length of the apex
or the direction taken by the length of the apex.
The “course” or “strike” of a vein is its continuous apex; that is,
the path of the apex across the country, if the apex outcrops, or the
wandering direction taken by that apex underground, if it does not
outcrop. The mining law acts are not concerned with the true strike
of a vein or lode—i. e., with the direction which would be taken by the
apex if the vein were cut along its entire length by a horizontal
plane?°’—for they are talking about that “course of the vein” (the
word “strike” does not appear in the mining acts at all) which a miner
can have some hope of ascertaining.t They mean by the “course”
of a vein either the length of that upper part of the vein which is
known as the apex, or else the direction in which that length lies.
THE “DIP” OF A VEIN.
37. The dip of a vein is its departure from either the perpendicular
or the horizontal in its descent into the earth, and is usually
computed in its variation from the horizontal.
106 But see LARKIN v. UPTON, 144 U. 8S. 19, 12 Sup. Ct. 614, 86 L. Ed.
330, stating that the apex is often a line of great length. A mathematical
line is not meant, however.
107 DUGGAN v. DAVEY, 4 Dak. 110, 141, 26 N. W. 887. See Stevens v.
Williams, 1 McCrary, 480, Fed. Cas. No. 13,418; Id., Fed. Cas. No. 13,414;
Iron Silver Mining Co. v. Murphy (D. C.) 3 Fed. 368.
108 See Duggan v. Davey, 4 Dak. 110, 143, 26 N. W. 887; Flagstaff Silver
Mining Co. v. Tarbet, 98 U. S. 463, 25 L. Ed. 253; Grand Cent. Min. Co. v.
Mammoth Min. Co., 29 Utah, 490, 83 Pac. 648.
7 “Perhaps the true course of a vein should correspond with its strike,
or the line of a level through it; but this can rarely be ascertained until
considerable work has been done, and after claims and locations have be-
come fixed. The most practical rule is to regard the course of the vein
as that which is indicated by surface outcrop, or surface explorations and
workings. It is on this line that claims will naturally be laid, whatever be
the character of the surface, whether level or inclined.” Flagstaff Silver
Min. Co. v. Tarbet, 98 U. S. 463, at pages 469, 470, 25 L. Ed. 253.
§ 387) THE ‘“‘DIP” OF A VEIN. 141
The “dip” of a vein is the extent to which the vein, in its de-
scent into the earth, departs from the perpendicular, and it departs
from that perpendicular whenever it has any departure from the hor-
izontal plane other than the direct perpendicular. In Stevens v. Wil-
liams Judge Hallett said: “Now it was said, with reference to the
' lode which is now in litigation here, that whenever, in its departure
from the vertical course, it reaches an inclination which is greater
than forty-five degrees, that then it is no departure from the perpen-
dicular, but from a horizontal plane, and therefore it is not within
the terms of the act. That position, gentlemen, is merely a verbal
distinction, which goes for nothing at all. Of course, in its departure,
it may depart in any degree up to the horizontal plane, and it is still
a departure from the perpendicular throughout the whole course, un-
til it comes to a right angle from the perpendicular. * * * It ap-
pears to be exactly within the provisions of this act, if the vein clearly
extends outside of the limits of the surface in any angle between the
perpendicular and horizontal. J agree that if we should ever find a lode
which in its course extends precisely on the plane of the horizon, and it
is extremely doubtful whether we shall ever find one in that position,
but if we should ever find a lode which is precisely in that position,
there may be some difficulty in locating it under this act.” 1°°
“Dip” is therefore the direction taken by the vein as it goes down
into the earth, where there is a departure from either the perpen-
dicular or the horizontal. It also seems to be applicable to a case
where the vein has dipped beneath another’s mining claim and then
goes down straight; the owner of the apex being still regarded as
going down on the dip when he is going down straight. However
that may be, there is no legal dip unless there is at some time in the
vein’s descent a departure both from the horizontal and from the per-
pendicular. That explains why there is no uniformity in the method
of calculating the degree of dip. Miners generally figure the degree
of dip from the perpendicular, but surveyors calculate it from the
horizontal.1?° “A vein or ore deposit will not infrequently begin with
a gentle dip, and increase rapidly in steepness with depth. The angle
of dip is usually taken from its variation from a horizontal, not a
perpendicular, line. Thus, a dip of 75° means one that is very steep,
while one of 10° is a gentle inclination.” +++
109 Stevens v. Williams, 1 Morr. Min. Rep. 557, 563, Fed. Cas. No.
13,4138.
110 See Morrison’s Mining Rights (18th Ed.) 185.
111 Lakes’ Prospecting for Gold and Silver (8d Ed.) 87.
142 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
“MINING CLAIM”? OR “LOCATION.”
‘
38. While, strictly, location is the act of creating a mining claim,
the word “location”’ is ordinarily used as a synonym of ‘‘min-
ing claim’’. A mining claim is a part of the public mineral
domain appropriated in accordance with the mining law for
mining purposes.
“Mining Claim” or “Location.”
There are some other terms needing preliminary definition, namely,
“mining claim,” “location,” and “mine.” “Mining claim” and “loca-
tion” may be considered together. In St. Louis Smelting & Refining
Co. v. Kemp the court said: “The difficulty with the court below, as
seen in its charge, evidently arose from confounding ‘location’ and
‘mining claim,’ as though the two terms always represent the same
thing, whereas they often mean different things. A mining claim is
a parcel of land containing precious metal in its soil or rock. A loca-
tion is the act of appropriating such parcel according to certain estab-
lished rules. It usually consists in placing on the ground, in a con-
spicuous position, a notice setting forth the name of the locator, the
fact that it is thus taken or located, with the requisite description of the
extent and boundaries of the parcel, according to the local customs,
or, since the statute of 1872, according to the provisions of that act.
Rev. St. § 2324 (U. S. Comp. St. 1901, p. 1426). The location, which is
the act of taking the parcel of mineral land, in time became, among the
miners, synonymous with the mining claim originally appropriated.
So now, if the miner has only the ground covered by one location, ‘his
mining claim’ and ‘location’ are identical, and the two designations
may be indiscriminately used to denote the same thing. But if by
purchase he acquires the adjoining location of his neighbor—that is,
the ground which his neighbor has taken up—and adds it to his own,
then his mining claim covers the ground embraced by both locations,
and henceforth he will speak of it as his ‘claim.’ Indeed, his claim
may include as many adjoining locations as he can purchase, and the
ground covered by all will constitute what he claims for mining pur-
poses, or, in other words, will constitute his ‘mining claim,’ and be so
designated. Such is the general understanding of miners and the
meaning they attach to the term.” 112, So in McFeters v. Pierson the
court said: “The term ‘mining claim,’ meaning a parcel of mineral
land containing precious metals, is often used in mining parlance as
syonymous with the term ‘location,’ which means the act of appro-
112 ST. LOUIS SMELTING & REFINING CO. vy. KEMP, 104 U. 8S. 636,
648, 649, 26 L. Ed. 3138.
§ 39) “MINE.” 143
priating a mining claim upon the public domain according to law or
established rules. St. Louis Smelting & Refining Co. v. Kemp, 104
Uz. S. 648, 26 L. Ed. 313,” 218
While, strictly and literally, location is the act of locating, rather
than the result of doing so, it still remains true that in the mining
statutes “location” and ‘“‘mining claim” are treated as synonymous.***
The term “claim” as applied to mining, means either a lode or placer
location.11® Still, as the court, in St. Louis Smelting & Refining Co.
v. Kemp, supra, recognized, “mining claim” often means to miners
a group of mining claims,?® a point in which it resembles the word
“mine.” 117 Technically “a ‘mining claim’ is the name given to that
portion of the public mineral lands which the miner for mining pur-
poses takes up and holds in accordance with mining laws, local and
statutory. It must, under the law of Congress of 1872, be located up-
on at least one known vein or lode; but the vein or lode is not the
whole claim.” 118 It is also used sometimes to mean an unpatented
location, as distinguished from the patented location, called by con-
trast a “mine.” 11°
“MINE.”’
39. The word ‘“‘mine,’’ because of the various meanings given to it, is
to be avoided.
The word “mine” is a word to be avoided, because of its complex
meaning. It is used so variously that it cannot be used safely with-
out coupling with it each time a statement of the sense intended. The
following are a number of meanings attached to the word:
(1) The word “mine,” in its primary meaning, seems to mean an
113 McFETERS v. PIERSON, 15 Colo. 201, 208, 24 Pac. 1076, 22 Am. St.
Rep. 388.
114 DEL MONTE MINING & MILLING CO. v. LAST CHANCE MIN-
ING & MILLING CO., 171 U. S. 55, 74, 18 Sup. Ct. 895, 43 L. Ed. 72. A
contract to convey a mining claim implies a located claim. La Grande
Iny. Co. v. Shaw, 44 Or. 416, 72 Pac. 795, 74 Pac. 919.
115 Sweet v. Weber, 7 Colo. 448, 449, 4 Pac. 752. The word “lode” is
often used in the sense of “lode mining claim.” See Buckeye Min. & Mill.
Co. v. Carlson, 16 Colo. App. 446, 66 Pac. 168.
116 See Hamilton vy. Delhi Min. Co., 118 Cal. 148, 50 Pac. 378.
117 Tredinnick v. Red Cloud Consolidated Min. Co., 72 Cal. 78, 13 Pac.
152; Idaho Min. & Mill. Co. v. Davis, 123 Fed. 396, 59 C. C. A. 200; Phil-
lips vy. Salmon River Min. & Development Co.. 9 Idaho, 149, 72 Pac. 886.
See, also, “locations,” Leet v. John Dare Silver Min. Co., 6 Nev. 218.
118 Mt. Diablo Mill. & Min. Co. v. Callison, 5 Sawy. 489, 454, Fed. Cas.
No. 9,886; La Grande Inv. Co. v. Shaw, 44 Or. 416, 72 Pac. 795, 74 Pac. 919.
119 See Bewick v. Muir, 83 Cal. 868, 373, 23 Pac. 389, 390.
144 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
underground excavation, or, rather, all the underground workings, as
distinguished from superficial workings or quarries;*?° but that
meaning is not the one prevalent in the United States, where placer
workings, which, except in the case of deep placers, are on the sur-
face, are always called “mines,” 1+ and where, under the act of Con-
gress of August 4, 1872, building stone lands may be taken up as
placers.
(2) The word “mine,” as the meaning just given has suggested, may
mean any excavation or working to get out minerals.*??
120 “According to the ordinary sense of the term ‘mine,’ does it mean a
quarry? JI apprehend clearly not. The meaning of the term does not
depend on the nature of the fossil body obtained. It depends on the nature
of the mode of working it. Some mines may be worked by means of min-
ing, others by means of quarrying, and upon the case here shown the lime-
stone was worked by quarrying. They were not limestone mines, but lime-
stone quarries. That which is worked by mines is by a means of working
in which the surface is not disturbed; and, when limestone is so worked,
then it is a limestone mine. It is clear that in the popular, and I think in
the just and accurate, sense of the distinction between mines and quarries,
the question is whether you are working so as to remove the surface, in-
cluding, perhaps, portions of the lateral surfaces, so as not to leave a
roof. Mining is when you begin only on the surface, and by sinking shafts,
or driving lateral drifts, you are working so that you make a pit or a tun-
nel, leaving a roof overhead.” Sir R. T. Kindersley, V. C., in Darvill y.
Roper, 3 Drewry, 294, 298, 299. See Rex v. Sedgley, 2 Barn. & Adol. 65;
Rex vy. Brettell, 3 Barn. & Adol. 424. See also Marvel v. Merritt, 116 U.
S. 11, 12, 6 Sup. Ct. 207, 29 L. Ed. 550, approving Webster’s definition, dis-
tinguishing between mines and quarries.
12127 Stat. 348, c. 875 (U. S. Comp. St. 1901, p. 1434).
122 “But the position is assumed that the business of obtaining this ore
is not mining, as it is not conducted underground, but on the surface. It
has been held in England, under their tax laws, that a slate work is not a
mine. So of a lime work. But where a shaft was sunk, and limestone
worked out underground, held to be a mine. So, where a peculiar clay
was obtained in like manner, held to be a clay mine. And it is said that
the expense of sinking a shaft will much exceed £5,000. In coming to these
‘conclusions, the English courts doubtless had in view the customs of their
country. Few, if any, of their valuable minerals are now found on the
surface of the earth, and probably never were, but are obtained from great
depths, and are generally under the water level. On the contrary, in most
parts of the United States, the iron ore is obtained on or near the surface,
above the water level, and is worked by sunlight. Such is also the case
in regard to coal in many places, whilst in others shafts are sunk to a
considerable depth, and the mineral obtained by drifting, as mines are
worked in England. But few, if any, of these shafts cost £5,000 to sink.
Our idea of mining is derived from our own habits and customs. Hence
our most approved lexicographer, Webster, says that a mine is a ‘pit or
excavation in the earth from which metallic ore, mineral substances, and
other fossil bodies are taken by digging” * * ™* And Jacob’s Law Dic-
tionary, by Tomlin, says that ‘mines are quarries or places whereout any-
§ 39) “MINE.” 145
(3) The word “mine” may also mean the veins or deposits of min-
eral, rather than the workings to get at them, or than the land in
which they are found.1?*
(4) The word “mine” is used to designate a deposit of mineral which
has been opened or worked, as distinguished from one which has been
untouched.??4
(5) The word “mine” is also used as synonymous with that sense
of the word “mining claims” which embraces either one or more lo-
cations.*?®
(6) The word “mine” has also been used to designate patented min-
eral land, as distinguished from an unpatented location.1?*
thing is dug” * * * Barber’s Law Dictionary says: ‘It is held to have
the sense of quarry. * * * We bave dwelt more particularly on this
branch of the case, because the counsel seemed to consider that much de-
pended on establishing that taking the ore from the mine holes described
in the bill and answers was not mining, within the decisions which require
an account. It certainly is not mining under the Hnglish tax laws; but
to us it appears that it clearly is such, under the decisions requiring an
account between tenants in common.” Coleman vy. Coleman, 1 Pears. (Pa.)
470, 474, 475.
123 Bullion Beck & Champion Min. Co. v. Hureka Hill Min. Co., 5 Utah,
8, 51, 11 Pac. 515, 523 (defining “mine,” as used in the act of 1866, as
“synonymous in its meaning with the terms ‘vein’ or ‘lode’’”); Shaw v.
Wallace, 25 N. J. Law, 453, 469.
124 Westemoreland Coal Co.’s Appeal, 85 Pa. 344, where the question was
as to waste by purchaser from a tenant for life.
125 Phillips v. Salmon River Min. & Development Co., 9 Idaho, 149, 72
Pac. 886; Tredinnick v. Red Cloud Consol. Co., 72 Cal. 78, 81, 18 Pac. 152,
153; Hamilton v. Delhi Min. Co., 118 Cal. 148, 50 Pac. 378; Idaho Min.
& Mill. Co. v. Davis, 123 Fed. 396, 59 C. O. A. 200. See Smith v. Sherman
Min. Co., 12 Mont. 524, 31 Pac. 72.
126 FORBES v. GRACEY, 94 U. S. 762, 766, 24 L. Ed. 313, where, in
speaking of a Nevada taxation statute, the court said: “The use of the
words ‘mines or mining claims’ is evidently intended to distinguish be-
tween the cases in which the miner is the owner of the soil, and therefore
has perfect title to the mine, and those in which the miner does not have
title to the soil, but works the mine under what is * * * recognized by
the act of Congress as a mining claim. In the first case the statute makes
the tax a lien on the mine, because the title to the mine is in the person
who owes and should pay the tax. In the other, the tax is a lien only
on the claim of the miner; that is, on his possessory rights to explore and
work the mine under the existing laws and regulations on the subject.”
But see Bewick v. Muir, 83 Cal. 368, 372, 23 Pac. 389, where it is said:
“The words ‘mining claim,’ as used in the law [a mechanic’s lien statute]
have no reference to the different stages in the acquisition of the govern-
ment title. In our opinion, it includes all mines, whether the title is in-
choate, as in the case of a mining claim in its strict sense, or perfect, as
in the case of a fee-simple title.”
Cost.Min.L.—10
146 DEFINITIONS OF MINING LAW TERMS. (Ch. 9
(7) The word “mine” is also used among miners to mean a paying
mining location, as contrasted with a location not yet demonstrated
to be paying, and hence known as a “prospect.”
Upon the whole, it will be safer and better always to use the term
“mining claim,” rather than “mine,” and, when it is necessary to dis-
criminate an unpatented claim from a patented one, to use ii words
“unpatented” and “patented.”
§§ 40-41) DISCOVERY OF LODE AND PLACER CLAIMS. 147
CHAPTER X.
THE DISCOVERY OF LODP AND PLACER CLAIMS.
40-43. The Discovery of Lode Claims.
44. Pedis Possessio.
45. The Relation Between Discovery and Location.
46. The Discovery of Placer Claims.
“No location of a mining claim shall be made until the discovery
of the vein or lode within the limits of the claim located.” Rev.
St. U. S. § 2320 (U. S. Comp. St. 1901, p. 1424).
THE DISCOVERY OF LODE CLAIMS.
40. Discovery in mining is essentially the same thing as discovery
elsewhere. In lode mining a discovery is the finding of a vein
or lode in land of the United States which is unappropriated
and which may be located under the mining law. It exists as
effectually where a prospector notes and claims a vein or
lode uncovered by a previous locator and abandoned or for=
feited by the latter as it does where the prospector is the
original discoverer.
41. Whether a genuine vein has actually been discovered tis a ques=
tion of fact for the jury. The law for the guidance of the
jury varies slightly, however, according as the dispute over
the lode arises (a) between a lode claimant and a subsequent
lode claimant; (b) between a lode claimant and a subsequent
placer claimant; (c) between a placer claimant and a subse=
quent lode claimant; (d) between a placer claimant and a
subsequent placer claimant; (e) between mineral claimants
and townsite claimants; or (f) between mineral claimants and
agricultural claimants.
What ts a Discovery.
In lode mining, discovery is the finding of a vein or lode which
may be located. Extracting tons of float from the claim will not
make a discovery. A genuine vein or lode must be found.? If only
1 Waterloo Min. Co. v. Doe (C. ©.) 56 Fed. 685. See Overman Silver
Min. Co. v. Corcoran, 15 Nev. 147; Copper Globe Min. Co. v. Allman, 23
Utah, 410, 64 Pac. 1019. But see Score v. Griffin (Ariz.) 80 Pac. 331; Reiner
v. Schroeder, 146 Cal. 411, 80 Pac. 517. The discovery must be within the lim-
its of the claim. Michael v. Mills, 22 Colo. 489, 45 Pac. 429. A mere guess
will not serve as a discovery. Copper Globe Min. Co. v. Allman, supra. ‘“Dis-
covery 1s the all-important fact upon which the title to mines depends.”
LAWSON v. UNITED STATES MINING CO., 207 U. S. 1, 28 Sup. Ct. 15, 19,
52 L. Hd. —.
148 DISCOVERY OF LODE AND PLACER CLAIMS. (Ch. 10
the ore exists in appreciable quantities, the value of the ore is relatively
immaterial. “When the locator finds rock in place containing mineral,
he has made a discovery, within the meaning of the statute, whether
the rock or earth is rich or poor, whether it assays high or low. It
is the finding of the mineral in the rock in place, as distinguished
from float rock, that constitutes the discovery, and warrants the
proprietor in making a location of a mining claim.” ?
It is not necessary that the locator should be the original discov-
erer,® but simply that he should find the vein or lode when it is in
unappropriated land of the United States.* A discovery on the
dip of a vein, the apex of which has already been located, will not
support a location of the dip belonging to such located apex.® Noting
and claiming a vein or lode discovered and disclosed to view by a
2BOOK y. JUSTICE MIN. CO. (C. C.) 58 Fed. 106, 120. See Jupiter
Min. Co. v. Bodie Consol. Min. Co., 11 Fed. 666, 675, 676; Moore v. Steel-
smith, 1 Alaska, 121; Meydenbauer v. Stevens (D. C.) 78 Fed. 787; Mc- -
Shane v. Kenkle, 18 Mont. 208, 44 Pac. 979, 33 L. R. A. 851, 56 Am. St.
Rep. 579; Fox v. Myers (Nev.) 86 Pac. 793; Score v. Griffin (Ariz.) 80 Pace.
831. The vein need not contain ore in paying quantities, as long as enough
ore is found to warrant a prudent man in spending time and money on it.
MULDRICK v. BROWN, 37 Or. 185, 61 Pac. 428; Charlton v. Kelly, 2
Alaska, 582. Where there is evidence that gold has been found within
a claim, and the question is whether such finding amounts to a discovery,
the locator is entitled to show the situation, character, value, and miner-
alogical conditions of adjacent claims, and to follow that evidence up with
expert testimony to show that he is justified in expending time and money
in prospecting, developing the ground, and so has made a discovery. Cas-
caden v. Bortolis (C. C. A.) 162 Fed. 267.
3 JUPITER MIN. CO. v. BODIE CONSOL. MIN. CO. (C. CG.) 11 Fed.
666, 7 Sawy. 96; BOOK v. JUSTICH MIN. CO. (C. C.) 58 Fed. 106; Wen-
ner v. McNulty, 7 Mont. 30, 14 Pac. 648; Hayes v. Lavagnino, 17 Utab,
185, 53 Pac. 1029; Willeford v. Bell (Cal.) 49 Pac. 6.
4Lands below ordinary high tide on the ocean, arms of the sea, and
navigable rivers in Alaska are not subject to location under the mining
laws. Alaska Gold Min. Co. v. Barbridge, 1 Alaska, 311; Heine v. Roth,
2 Alaska, 416. James W. Logan, 29 Land Dec. Dep. Int. 395. For a sim-
ilar holding as to land below the high-water mark of the Missouri river,
see Argillite Ornamental Stone Co., 29 Land Dec. Dep. Int. 585.
5 Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Min.
Co., 33 Land Dec. Dep. Int. 142. That a discovery and location only on
the dip of the vein, but made prior to discovery and location of the apex,
will be upheld, is stated in VAN ZANDT v. ARGENTINE MIN. CoO. (C. C.)
8 Fed. 725. Compare Hope Min. Co. v. Brown, 7 Mont. 550, 19 Pac. 218.
But “it is unquestioned law that the top or apex of a vein must be within
the boundaries of the claim in order to enable the locator to perfect his
location and obtain title’ LARKIN v. UPTON, 144 U. S. 19, at page 21,
12 Sup. Ct. 614, 36 L. Ed. 330. Unless a location is on the apex of a vein,
it is, of course, without extralateral right. IRON SILVER MIN. CO. vy.
MURPHY (D. C.) 3 Fed. 368.
§§ 40-41) DISCOVERY OF LODE CLAIMS. 149
previous prospector, who has abandoned or forfeited it, and adopting
the discovery as one’s own, is making a discovery.° That the dis-
covery is underground and secret is immaterial, if it is followed in
proper time by the requisite acts of location on the surface ;’ and,
as we shall see later, a discovery of a blind vein in a statutory tun-
nel probably need not be followed by acts of location on the surface
unless a patent is desired,® or unless questions of extralateral rights
are sought to be simplified by a surface location.® Whether a vein
or lode has actually been discovered is a question of fact for the ju-
ry.1° Only one location can be based on one discovery."
Discovery as Affected by Parties Between Whom Question Arises.
What is a vein or lode for discovery purposes often depends some-
what upon the situation of the parties between whom the question
6 Hayes v. Lavagnino, 17 Utah, 185, 53 Pac. 1029. But there can be no
location on a discovery within the limits of an existing valid location,
GWILLIM v. DONNELLAN, 115 U. S. 45, 5 Sup. Ct. 1110, 29 L. Ed. 348;
except where the new location is made after forfeiture of the old, Russell
v. Dufresne, 1 Alaska, 486. See Nevada Sierra Oil Co. v. Home Oil Co.
(C. C) 98 Fed. 673; Fleming v. Daly, 12 Colo. App. 489, 55 Pac. 946; Mc-
Millen v. Ferrum Min. Co., 32 Colo. 38, 74 Pac. 461, 105 Am. St. Rep. 74.
7“In Little Gunnell Co. v. Kimber, 1 Morr. Min. Rep. 536, Fed. Cas. No.
8,402, a secret underground working from an old claim was not allowed
to hold as a valid basis for relocation of an adjoining claim; but that de-
cision was upon the letter of the Colorado statute concerning relocations,
which in terms requires a shaft to be sunk or other new opening to be made,
nor had such secret discovery been followed by proper surface notice.’ Mor-
rison’s Mining Rights (13th Ed.) p. 44. See Reiner v. Schroeder, 146 Cal.
411, 80 Pac. 517. An offer to prove a secret underground discovery was
properly rejected, where a previous discovery and location thereon by the
adverse party were shown. McMillen v. Ferrum Min. Co., 32 Colo. 38, 74
Pac. 461, 105 Am. St. Rep. 74. A tunnel discovery was held to support
surface location in BREWSTER v. SHOEMAKER, 28 Colo. 176, 63 Pac.
309, 53 L. R. A. 793, 89 Am. St. Rep. 188, though the tunnel was not located
under the tunnel site act of Congress.
8 Chapter XIV, §§ 65, 66, infra.
9 Id.
10 Columbia Copper Min. Co. v. Duchess Mining, Milling & Smelting Co.,
18 Wyo. 244, 79 Pac. 385; Charlton v. Kelly, 2 Alaska, 532. Locators,
who recorded a location certificate reciting discovery and sold an interest
on the faith of the record, were held estopped to deny that there had been
a discovery in McCarthy v. Speed, 11 8. D. 362, 77 N. W. 590. See Eberle
vy. Carmichael, 8 N. M. 169, 42 Pac. 95. On evidence of a discovery, see
Conway v. Hart, 129 Cal. 480, 62 Pac. 44; Ormund v. Granite Mt. Min. Co.,
11 Mont. 303, 28 Pac. 289; Davidson v. Bordeaux, 15 Mont. 245, 38 Pac.
1075; Walsh v. Mueller, 16 Mont. 180, 40 Pac. 292.
11 See McKinstry v. Clark, 4 Mont. 370, 1 Pac. 759; Reynolds v. Pascoe,
24 Utah, 219, 66 Pac. 1064; Reiner v. Schroeder, 146 Cal. 411, 80 Pac. 517;
Poplar Oreek Consol. Quartz Mine, 16 Land Dec, Dep. Int. 1.
150 DISCOVERY OF LODE AND PLACER CLAIMS. (Ch. 10
arises. If we put to one side the question of extralateral rights,
it seems to be true that “there are four classes of cases where the
courts have been called upon to determine what constitutes a lode
or vein, within the intent and meaning of different sections of the
Revised Statutes: (1) Between miners who have located claims on
the same lode. * * * (2) Between placer and lode claimants.
* * %* (3) Between miner! claimants and parties holding townsite
patents to the same ground. (4) Between mineral and agricultural
claimants of the same land. The mining laws of the United States
were drafted for the purpose of protecting the bona fide locators of
mining ground, and at the same time to make necessary provisions as
to the rights of agriculturists and claimants of townsite lands. The
object of each section and of the whole policy of the entire statute
should not be overlooked. The particular character of each case
necessarily determines the rights of the respective parties, and must
be kept constantly in view, in order to enable the court to arrive at
a correct conclusion. What is said in one character of cases may or
may not be applicable in the other.” *”
In case (1), supra, very slight evidence of a lode will suffice. As
between two conflicting lode claimants the question must be which
first discovered such a vein as the ordinary reasonable miner would
concede might justify the discoverer in expending time and money
to develop. Above all it should be remembered that “it was never
intended that the court should weigh scales to determine the value
of mineral found as between a prior and subsequent locator of a min-
ing claim on the same lode.” 78 Even in such a case, though it is true
that “the rule respecting the sufficiency of a discovery of mineral is
more liberal than when it is between a mineral claimant and one seek-
ing to make an agricultural entry, for the reason that where land is
sought to be taken out of the category of agricultural lands the evi-
dence of its mineral character should be reasonably clear, while in re-
spect to [mineral] lands in a controversy between [mineral] claimants
the question is simply which is entitled to priority,” yet “there must be
stich a discovery of mineral as gives reasonable evidence of the fact
either that there is a vein or lode carrying the precious mineral or, if it
be claimed as placer ground, that it is valuable for such mining.” 1+
In case (2), supra, if the attempted lode location preceded the
12 MIGEON v. MONTANA CENT. R. CO., 77 Fed. 249, 254, 283 C. CO. A. 156.
13 BONNER v. MEIKLE (C. C.) 82 Fed. 697, 703. See Fox v. Myers
(Nev.) 86 Pac. 793. The court will view the evidence of the senior locator’s
prior discovery in the most favorable light possible) AMBERGRIS MIN.
CO. v. DAY, 12 Idaho, 108, 85 Pac. 109.
14CHRISMAN vy. MILLER, 197 U. S. 318, 323, 25 Sup. Ct. 468, 49 L,
§ 42) DISCOVERY OF LODE CLAIMS. 151
placer in point of time, the same test should be applied;*® but, if
the placer preceded the lode, then a “known lode” in the placer should
be recognized by the courts only on clear proof that a vein has been
discovered which it will pay to work.?®
What is true in case (2), supra, is also true in case (3), supra.
In case (4), supra, the land must be more valuable for mining than
for agriculture before it can be located. Where no homestead en-
try has been made, less evidence will justify a mining location than
will do so where the first claimant seeks to hold it as agricultural
land.*?
42. While a mining claim, based upon a discovery within the limits
of an already existing patented or unpatented claim, is void,
it is believed that, under a logical extension of the doctrines of
Lavagnino v. Uhlig and of Farrell v. Lockhart, an abandon-
ment by the senior locator of the junior locator’s discovery
will make valid the void junior location, if prior to the aban-
donment the junior ground has not been included in another
valid location.
The discovery must be made within the limits of the claim lo-
cated, and must be upon unappropriated lands of the United States,*®
and therefore, if it is made within the limits of a prior valid loca-
Ed. 770; Charlton v. Kelly, 156 Fed. 433, 84 C. C. A. 295. Compare, how-
ever, Ambergris Min. Co. v. Day, 12 Idaho, 108, 85 Pac. 109.
15 LANGE v. ROBINSON, 148 Fed. 799, 79 C. C. A. 1.
16 See Brownfield v. Bier, 15 Mont. 403, 39 Pac. 461. The same test
should be applied, it seems, where a placer is located over an abandoned
lode claim. MecCONAGHY v. DOYLE, 32 Colo. 92, 75 Pac. 419. But a
recent case takes the apparently indefensible position that any vein “which
would support a location on the public domain is, when known to exist as
a clearly ascertained vein, such a vein as is excepted from the operation
of the placer patent.” Noyes v. Clifford (Mont.) 94 Pac. 842, 848.
17 Steele v. Tanana Mines R. Co., 148 Fed. 678, 78 C. C. A. 412.
18 Behrends v. Goldsteen, 1 Alaska, 518; Porter v. Tonopah North Star
Tunnel & Development Co. (C. C.) 183 Fed. 756; Michael v. Mills, 22 Cole.
439, 45 Pac. 429; Tartar v. Spring Creek Water & Mining Co., 5 Cal. 395;
McPherson vy. Julius, 17 S. D. 98, 95 N. W. 428; Kirk v. Meldrum, 28 Colo.
453, 65 Pac. 633; Peoria & Colorado Mill. & Min. Co. v. Turner, 20 Colo.
App. 474, 79 Pac. 915; Shattuck v. Costello, 8 Ariz. 22, 68 Pac. 529; M-
Williams v. Winslow, 34 Colo. 341, 82 Pac. 538. See Conway v. Hart, 129
Cal. 480, 62 Pac. 44; Risch v. Wiseman, 36 Or. 484, 59 Pac. 1111, 78 Am.
St. Rep. 783. Where discovery and location by a citizen are proven, a prima
facie showing that the land was unoccupied mineral land of the United
States is made out. Goldberg v. Bruschi, 146 Cal. 708, 81 Pac. 23. But
see McWilliams v. Winslow, 34 Colo. 341, 82 Pac. 588; semble contra in
adverse suits. Where public land has been granted to private parties with-
152 DISCOVERY OF LODE AND PLACER CLAIMS. (Ch. 10
tion, it is not a valid discovery. It is not such a discovery unless
the lode is within or below a surface that is unoccupied public do-
main.?® Indeed, a discovery within the limits of a valid prior location
has uniformly been treated as making the junior attempted location
absolutely void, even though the senior location be unpatented.”°
Effect of Lavagnino v. Uhlig and of Farrell v. Lockhart.
It is believed, however, that the prevailing notion is erroneous,
and that a location based on a discovery in a prior unpatented claim
is voidable merely, not absolutely void. The question to ask is
whether, on an application to patent the junior attempted location,
protest would be proper. It has been assumed by the courts and
mining law writers that a location made on a discovery within the
limits of a prior location is void for all purposes, and, if it is, then
protest would seem proper. But is it? As against third persons,
who make a discovery on unappropriated public domain and validly
throw the lines of their location so as to include the ground of this
ineffectual location while it remains such, a location based on a
discovery within a prior location undoubtedly is void. But if the
out reservations or exceptions, third persons have no right to prospect
thereon. Francoeur v. Newhouse (C. C.) 40 Fed. 618; Henshaw y. Clark,
14 Cal. 460. See Pacific Coast Min. & Mill. Co. v. Spargo (C. C.) 16 Fed.
348. Where a judgment was entered that neither of the parties to the ac-
tion had any possessory right in certain claims, and the plaintiff in the
action at once relocated them and did the required assessment work, a
finding that the relocations were made on unoccupied public land was up-
held in Lauman v. Hoofer, 37 Wash. 382, 79 Pac. 958.
19 TRAPHAGEN v. KIRK, 30 Mont. 562, 77 Pac. 58, and cases cited; Mi-
chael v. Mills, 22 Colo. 489, 45 Pac. 429. See Girard v. Carson, 22 Colo. 345, 44
Pace. 508; Heil v. Martin (Tex. Civ. App.) 70 S. W. 430; Gleeson v. Martin
White Min. Co., 18 Nev. 442. For case on the validity of location on the dip of
a vein, see note 5, supra.
20 LOCKHART vy. FARRELL, 31 Utah, 155, 86 Pac. 1077; Atkins v.
Hendree, 1 Idaho, 95; Moyle v. Bullene, 7 Colo. App. 308, 44 Pac. 69 (pat-
ented); Tuolumne Consol. Min. Co. v. Maier, 134 Cal. 583, 66 Pac. 863;
Sierra Blanca Mining & Reduction Co. v. Winchell, 85 Colo. 18, 83 Pac.
628; Anderson v. Caughey, 3 Cal. App. 22, 84 Pac. 228; Sullivan v. Sharp,
83 Colo. 346, 80 Pac. 1054; Hoban v. Boyer, 37 Colo. 185, 85 Pac. 837;
Watson v. Mayberry, 15 Utah, 265, 49 Pac. 479; Russell v. Dufresne, 1
Alaska, 486; Fisher v. Seymour, 23 Colo. 542, 49 Pac. 80; Molina v. Luce
(Ariz.) 76 Pac. 602. This is so, even though the senior and junior claims
are both owned by the same locator, Reynolds v. Pascoe, 24 Utah, 219, 66
Pac. 1064; Erwin v. Perego, 93 Fed. 608, 35 C. C. A. 482; and though the
second location was made on the suggestion of one of the two locators of
the first, Russell v. Dufresne, 1 Alaska, 486. A location based on a dis-
covery on the dip of a vein of which the apex has already been located is
void. Bunker Hill & Sullivan Mining & Concentrating Co. y. Shoshone
Min. Co., 38 Land Dec. Dep. Int. 142.
§ 42) DISCOVERY OF LODE CLAIMS. 153
senior location is abandoned, so that the discovery place becomes open
to location and the rights of third persons have not intervened, will
not the location become good, just as it would to the part not in con-
flict if a discovery had been made outside the conflict area? If so—
and a logical extension of the doctrine announced in Lavagnino v.
Uhlig,? that on the abandonment of the senior location the conflict
area inures, without more, to the junior location,* seems to require
us to say that it does?2—then only an adverse instead of a protest, will
suffice to keep the junior location from getting a patent; and such is the
land department rule.2* Of course, in Lavagnino v. Uhlig, so far as
the published opinion shows, the junior location was at the start good
against all the world except as to the conflict area, while in the situa-
tion being discussed it is good at the start against nobody ;?* but,
since a location good against nobody for want of any discovery may
be perfected by a discovery anywhere within the claim limits,*® just
as in some states a claim which has allowed a junior claim to patent
its discovery may be,?* why may it not also be perfected as against
third persons by the senior locator abandoning the discovery area
or failing to adverse, and so the discovery finally turning out to be
within the claim limits? While the latest expression of the United
States Supreme Court is impliedly against the doctrine here contend-
ed for,?7it is believed that, prior to the attaching of intervening
21198 U. S. 448, 25 Sup. Ct. 716, 49 L. Ed. 1119.
*The case of Moorhead v. Erie Min. & Mill. Co. (Colo.) 96 Pac. 2538, is
contra to Lavagnino v. Uhlig, 198 U. S. 448, 25 Sup. Ct. 716, 49 L. Ed. 1119,
and therefore cannot be supported until that case is expressly overruled
The Colorado opinion does not even mention Lavagnino v. Uhlig.
22 But see, contra, LOCKHART vy. FARRELL, 31 Utah, 155, 86 Pac. 1077.
See, also, Sullivan vy. Sharp, 33 Colo. 846, 80 Pac. 1054.
28 Gowdy v. Kismet Gold Min. Co., 22 Land Dec. Dep. Int. 624; Ameri-
can Consolidated Mining & Milling Co. v. De Witt, 26 Land Dec. Dep. Int.
580; MUTUAL MINING & MILLING CO. v. CURRENCY CO., 27 Land
Dec. Dep. Int. 191; Burnside v. O’Connor, 30 Land Dec. Dep. Int. 67.
24 Wrom the brief of counsel for plaintiff in error in FARRELL y. LOCK-
HART, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —~, it appears that the
record in LAVAGNINO vy. UHLIG showed a location based on a discovery
in a prior claim.
23CREEDD & COC. CO. MIN. & MILL. CO. v. UINTA TUNNEL, MINING
& TRANSPORTATION CO., 196 U. S. 337, 25 Sup. Ot. 266, 49 L. Ed. 501;
SILVER CITY GOLD & SILVER MIN. CO. v. LOWRY, 19 Utah, 334, 57
Pac. 11; TONOPAH & S. L. MIN. CO. v. TONOPAH MIN. CO. (GC. G.) 125
Fed. 408; Whiting v. Straup (Wyo.) 95 Pac. 849.. GOLDEN TERRA MIN.
CO. v. MAHLER, 4 Morr. M. Rep. 390. And see cases in Note 51, infra.
26 TREASURY TUNNEL, MINING & REDUCTION CO. vy. BOSS, 32
Colo. 27, 74 Pac. 888, 105 Am. St. Rep. 60.
27 FARRELL v. LOCKHART, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ea.
154 DISCOVERY OF LODE AND PLACER CLAIMS. (Ch. 10
rights of third parties, the supposed void location may be thus per-
fected.; In one view it is giving a retroactive effect to the abandon-
ment; but in the more exact view it is allowing the junior claim,
which was ineffective because of no proper discovery, to become ef-
fective by the acquisition of such a discovery through the senior lo-
cator’s abandonment of the discovery ground. The doctrine contend-
ed for protects the junior claim only when its locator is diligent in
preserving it,t and does so only against subsequent parties who know-
ingly seek to get a technical advantage over him, and it is difficult to
see why he is not entitled to that protection. Until the federal Su-
preme Court actually decides the point, however, a prudent miner who
has such a precarious location will promptly make a complete relo-
cation to include the abandoned discovery place.?®
43. The discovery must be discriminated from the discovery shaft,
which in some states must disclose a vein.
The discovery must be distinguished from the discovery shaft
required by state statute as part of the location. The discovery shaft
is one of the acts of location which normally follows discovery. As
Messrs. Morrison and De Soto point out, a drill hole will suffice for
discovery, but, of course, will not answer for a discovery shaft.?°
Yet in Colorado a discovery and a discovery shaft are very closely
connected, because the state statute requires the discovery shaft “to
show a well-defined crevice,” °° and, as “crevice” there means “min-
eral-bearing vein,” *1 that is held to make a discovery in the discovery
shaft essential to a valid location.2?. In other states a discovery other
—. For cases of premature relocation involving a similar question, see
chapter XVII, § 95b.
+ Compare Tonopah & S. L. Min. Co. v. Tonopah Min. Co. of Nevada (C.
C.) 125 Fed. 408, where the second claim was validated both because the
senior locator changed the lines of the claim so as to give the junior claim
its original discovery, and because new discoveries were made in the junior
claim. To the same effect, see Golden Link Mining, Leasing & Bonding
Co., 29 Land Dee. Dep. Int. 384.
+ Adams y. Polglase, 32 Land Dec. Dep. Int. 477, 33 Land Dec. Dep. Int. 30.
28 That relocation by amendment will not do was held in Sullivan v.
Sharp, 33 Colo. 346, 80 Pac. 1054.
29 Morrison’s Mining Rights (18th Ed.) p. 33.
30 Mills’ Ann. St. Colo. § 3152.
81 Beals v. Cone, 27 Colo. 473, 62 Pac. 958, 83 Am. St. Rep. 92.
32 McMILLEN v. FERRUM MIN. CO., 32 Colo. 38, 74 Pac. 461, 105 Am.
St. Rep. 64; Beals v. Cone, 27 Colo. 478, 62 Pac. 958, 83 Am. St. Rep. 92.
See Van Zandt v. Argentine Min. Co. (C. C.) 8 Fed. 725, 2 McCrary, 159;
§ 44) PEDIS POSSESSIO. 155
than in the discovery shaft is sufficient.8* But even in Colorado one
need not make the first place of work the discovery shaft, but may
try one place after another until he makes a discovery, and then put
the shaft there.**
PEDIS POSSESSIO.
44, Pending a discovery by anybody, the actual possession of the prior
prospector will be protected to the extent needed to give him
working room and to prevent probable breaches of the peace;
but this pedis possessio must yield to an actual location, bas-
ed on a valid discovery, and made peaceably and openly. There
is an apparent conflict in the cases on the latter point, how-
ever.
But the difficult question is how far Erhardt v. Boaro extends, for
that case seems to say that one who has discovered sufficient
‘float’? to justify a reasonable belief in the proximity of a
vein, and who prosecutes diligently discovery work which
finally uncovers the vein, will have priority over one who
makes an intermediate discovery. It is believed, however,
that Erhardt v. Boaro will ultimately be construed simply to
permit a discovery by a prior prospector, who acts diligent-
ly and in good faith, to be predicated on very slight evidence.
A difficult question in regard to discovery is that of how long one’s
possession will be protected in the making of a discovery. That
question is involved in difficulty because of the established doctrine
that a valid location cannot be made by one who forcibly dispossesses
another to do it, and because of some definitions of a lode which
make the word mean anything which will lead a miner to ore. In
Crossman v. Pendery, Mr. Justice Miller said: “A prospector on the
public mineral domain may protect himself in the possession of his
pedis possessionis while he is searching for mineral. His possession
Terrible Min. Co. v. Argentine Min. Co. (C. C.) 89 Fed. 583; Argentine Min.
Co. v. Terrible Min. Co., 122 U. S. 478, 7 Sup. Ct. 1856, 30 L. Ed. 1140.
33 HARRINGTON v. CHAMBERS, 3 Utah, 94, 1 Pac. 362; Chambers vy.
Harrington, 111 U. S. 350, 4 Sup. Ct. 428, 28 L. Ed. 452; North Noonday
Min. Co. v. Orient Min. Co. (C. ©.) 1 Fed. 522; Tonopah & S. L. Min.
Co. v. Tonopah Min. Co. (C. C.) 125 Fed. 408; O’Donnell v. Glenn, 8 Mont.
284, 19 Pac. 302. See McShane v. Kenkle, 18 Mont. 208, 44 Pac. 979, 33
L. R. A. 851, 56 Am. St. Rep. 579.
34 TERRIBLE MIN. CO. v. ARGENTINE MIN. CO. (C. CG.) 89 Fed.
583; Argentine Min. Co. v. Terrible Min. Co., 122 U. S. 478, 7 Sup. Ct.
1356, 830 L. Hd. 1140. If the discovery is made in the discovery shaft be-
fore the rights of others intervene, the location will be upheld. McGin-
nis v. Egbert, 8 Colo. 41, 5 Pac. 652.
156 DISCOVERY OF LODE AND PLACER CLAIMS. (Ch. 10
so held is good as a possessory title against all the world, except the
government of the United States.” *°
But, though this dictum makes the whole ground staked out as
one claim pedis possessio, that certainly is too broad for our notions
to-day.*® ‘“Pedis possessio” means actual possession, and pending
a discovery by anybody the actual possession of the prior arrival will
be protected to the extent needed to give him room for work and to
prevent probable breaches of the peace.*’ He will also be protected
against mere trespassers.2® But, while the pedis possessio is thus
protected, it must yield to an actual location on a valid discovery made
by one who has located peaceably and neither clandestinely nor
through fraudulent purposes.*® “It is true,” said the court in
85 CROSSMAN v. PENDERY (C. C.) 8 Fed. 693. See Cowell v. Lam-
mers (CO. C.) 21 Fed. 200. For rule prior to 1872, see Rush v. French, 1 Ariz.
99, 25 Pac. 816.
36 Becker v. Pugh, 9 Colo. 589, 13 Pac. 906. See Gemmell v. Swain, 28
Mont. 331, 72 Pac. 662, 98 Am. St. Rep. 570.
87 FIELD vy. GREY, 1 Ariz. 404, 25 Pac. 793; Whiting v. Straup (Wyo.)
95 Pac. 849. See Meydenbauer v. Stevens (D. C.) 78 Fed. 787; Weese v.
Barker, 7 Colo. 178, 2 Pac. 919.
38 Brandt vy. Wheaton, 52 Cal. 480; Aurora Hill Consol. Min. Co. v. Eigh-
ty-Five Min. Co. (C. C.) 34 Fed. 515; Bulette v. Dodge, 2 Alaska, 427;
Whiting v. Straup (Wyo.) 95 Pac. 849; Phillips v. Brill (Wyo.) 95 Pac
856. See Malecek v. Tinsley, 73 Ark. 610, 85 S. W. 81; Ware v. White,
81 Ark. 220, 108 S. W. 831.
39 BELK vy. MHAGHER, 3 Mont. 65, 104 U. S. 279, 26 L. Ed. 735; Hop-
kins v. Noyes, 4 Mont. 550, 2 Pac. 280; Noyes v. Black, 4 Mont. 527, 2
Pac. 769; Whiting v. Straup (Wyo.) 95 Pac. 849; Thallmann v. Thomas, 111
Fed. 277, 49 C. C. A. 817; Malone v. Jackson, 137 Fed. 878, 70 C. C. A. 216;
COPPER GLOBE MIN. CO. v. ALLMAN, 23 Utah, 410, 64 Pac. 1019; Charl-
ton v. Kelly, 2 Alaska, 582. See Horswell v. Ruiz, 67 Cal. 111, 7 Pac. 197.
So a peaceable relocation for failure to do annual labor will be upheld, al-
though the claim at the time of the relocation is occupied by the original
locator, if the latter have not resumed work in time. DU PRAT v. JAMES,
65 Cal. 555, 4 Pac. 562. Compare Walsh vy. Henry, 38 Colo. 393, 88 Pac.
449. But there are cases which hold that no location can be made within
the lines of a claim in the actual possession of another, no matter how
defective the location invaded may be. Hilers v. Boatman, 3 Utah, 159, 2
Pac. 66; Phenix Mill. & Min. Co. v. Lawrence, 55 Cal. 143; Weese v. Bar-
ker, 7 Colo. 178, 2 Pac. 919; Rush y. French, 1 Ariz. 99, 25 Pac. 816; Craig
vy. Thompson, 10 Colo. 517, 16 Pac. 24. Compare Omar v. Soper, 11 Colo.
380, 18 Pac. 448, 7 Am. St. Rep. 246; Phillips v. Smith (Ariz.) 95 Pac. 91;
Ware v. White, 81 Ark. 220, 108 S. W. 831; New England & Coalinga Oil
Co. v. Congdon (Cal.) 92 Pac. 180. A complete answer to those cases would
seem to be found in the following passage:
“A valid claim to unappropriated public land cannot be instituted while
it is in the possession of another, who has the right to its possession un-
der an earlier lawful location. Nor can such a claim be initiated by forci-
ble or fraudulent entry upon land in possession of one who has no right
§ 44) PEDIS POSSESSIO. 157
Nevada Sierra Oil Co. v. Home Oil Co., “that upon mineral land of
the United States upon which there is no valid existing location any
competent locator may enter, even if it is in the actual possession of
another, provided he can do so peaceably and in good faith, in order
to initiate a location for himself; but no right upon any govern-
ment land, whether mineral or agricultural, which is in the actual
possession of another, can be initiated by a forcible, fraudulent, sur-
reptitious, or clandestine entry thereon. Such entry must be open
and aboveboard, and made in good faith. One who is in the actual
possession of a mining claim, working it for the mineral it contains
and claiming it under the laws of the United States, whether the lo-
cation under which he so claims is valid or invalid, cannot be forcibly,
surreptitiously, clandestinely, or otherwise fraudulently intruded upon
or ousted, while he is asleep in his cabin or temporarily absent from
his claim.” #°
If the location is peaceable, it is hard to see why the fact that it is
clandestine or accomplished by strategy should make it objection-
able; ** but the theory seems to be that such a course will naturally
lead to a breach of the peace, and so should be discountenanced.
Where several competing locators are in possession by common con-
sent, the first one to make a discovery and to follow it up in due
time with the acts of location gets the claim.**
Effect of Erhardt v. Boaro.
The real difficulty, however, in regard to the efficacy of a pros-
pector’s possession prior to discovery is created by Erhardt v. Boaro,*?
which says, in effect, that one who has discovered sufficient “float”
to justify a reasonable belief in the proximity of a vein, and who
either to the possession or to the title. But every competent locator has the
right to initiate a lawful claim to unappropriated public land by a peace-
able adverse entry upon it while it is in the possession of those who have
no superior right to acquire the title or to hold the possession. Any other
rule would make the wrongful occupation of public land by a trespasser
superior in right to a lawful entry of it under the acts of Congress by a
competent locator.” THALLMANN vy. THOMAS, 111 Fed. 277-279, 49 ©. G
A. 317.
40 NEVADA SIERRA OIL CO. v. HOME OIL CO. (OC. ©.) 98 Fed. 673,
680. See Miller v. Chrisman, 140 Cal. 440, 73 Pac. 1083, 74 Pac. 444, 98
Am. St. Rep. 63; Traphagen v. Kirk, 30 Mont. 562, 77 Pac. 58; Clipper
Min. Co. v. Bli Mining & Land Co., 194 U. S. 220, 24 Sup. Ct. 632, 48 L. Ed.
944. Compare Phillips v. Smith (Ariz.) 95 Pac. 91.
41 A clandestine completion of part of the acts of location by the first dis-
coverer was upheld in ERHARDT v. BOARO, 113 U. S. 527, 5 Sup. Ct.
560, 28 L, Ed. 1118.
** Johanson v. White (C. C. A.) 160 Fed. 901.
42 Hrhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 1113.
158 DISCOVERY OF LODE AND PLACER CLAIMS. (Ch. 10
prosecutes diligently discovery work which finally uncovers the vein,
will be protected in his location as against one who has made a dis-
covery pending the first prospector’s uncovering of the vein.*® In
view of the express wording of’ section 2320, Rev. St. U. S. (U. S.
Comp. St. 1901, p. 1424), it seems certain that this doctrine proper-
ly applies only to those cases where the one having possessio pedis can
be said to have actually discovered a vein at the time the second man
tries to locate.t# In Erhardt v. Boaro, however, the court said:
“And whenever preliminary work is required to define and de-
scribe the claim located, the first discoverer must be protected in
the possession of the claim until sufficient excavations and develop-
ment can be made, so as to disclose whether a vein or deposit of such
richness exists as to justify work to extract the metal.” And the court
added: “This allowance of time for the development of the character
of the lode or vein does not, as intimated by counsel, give encourage-
ment to mere speculative locations. * * * ‘There must be some-
thing more than a mere guess on the part of the miner to authorize
him to make a location which will exclude others from the ground,
such as the discovery of the presence of the precious metals in it, or in
such proximity to it as to justify a reasonable belief in their existence.
* * * Tt would be difficult to lay down any rules by which to
distinguish a speculative location from one made in good faith, with
a purpose to make excavations and ascertain the character of the
lode or vein, so as to determine whether it will justify the expend-
itures required to extract the metal; but a jury from the vicinity of
the claim will seldom err in their conclusions on the subject.” 45
It is believed that the above language will be qualified so as to
compel a discovery before protection is given beyond the mere pedis
possessio, but yet to permit a discovery to be predicated upon very
slight evidence, “because,” as the court in Bonner v. Meikle points
out, “it never was intended that the courts should weigh scales to
determine the value of the mineral found [or the extent of the find]
43 Erhardt v. Boaro, 118 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 1113. See
Copper Globe Min. Co. v. Allman, 23 Utah, 410, 64 Pac. 1019; Redden v.
Harlan, 2 Alaska, 402. Compare Biglow v. Conradt (C. C. A.) 159 Fed. 868.
44 Compare Waterloo Min. Co. v. Doe (C. C.) 56 Fed. 685.
45 ERHARDT vy. BOARO, 113 U. S. 535, 5 Sup. Ct. 560, 28 L. Ed. 11138.
Of course, the “float” found actually belongs to the finder. One finding
and taking possession of gold on public land may recover it from any one
taking it from him. Burns v. Clark, 133 Cal. 634, 66 Pac. 12, 85 Am. St.
Rep. 233; Burns vy. Schoenfeld, 1 Cal. App. 121, 81 Pac. 718. See Sulli-
van v. Schultz, 22 Mont. 541, 57 Pac. 279; Robertson vy. Smith, 1 Mont.
410. But see Brown v. 249 & 256 Quartz Min. Co., 15 Cal. 152, 76 Am.
Dec. 468.
§ 45) RELATION BETWEEN DISCOVERY AND LOCATION. 159
as between a prior and subsequent locator of a mining claim on the
same lode.” *® Moreover, despite the dictum of Miller, J., in Cross-
man v. Pendery,*’ it seems that the possessio pedis of a prospector
“could not be enlarged to include the entire 20-acre [placer] tract,
or [even] the whole amount of ground which he might have claimed
under one or more quartz locations,” because until discovery “the pros-
pector’s rights are confined to the ground in his actual possession.” **
THE RELATION BETWEEN DISCOVERY AND LOCATION.
45. Discovery should precede the acts of location, but it often follows
them. In the latter case, if no rights of third persons inter-
vene pending discovery, the claim is as valid as if discovery
had preceded the acts of location. In any case the location
dates only from the discovery.
The local mining codes allow varying times within which to perfect
the location after discovery, and mining custom and common
prudence both call for the posting of a dated notice of dis-
covery to evidence to the world the fact and time of discovery.
Except in Oregon, no limit seems to be placed on the number
of lode locations, each based on a valid discovery, that may
be made by one person.
After discovery the states allow varying times for the completion
of location. Immediately upon finding the vein, the discoverer should
place at the point of discovery a notice that he has made a discovery,
and in it should claim the statutory time to perfect location. Unless
he does this, or otherwise continuously indicates to the world his claim,
he runs the risk of being held to have abandoned his discovery. In
46 BONNER v. MEIKLE (C. C.) 82 Fed. 697, 703. Compare Burke vy. Mc-
Donald, 3 Idaho, 296, 29 Pac. 98, where as between two lode claimants the
court approved the requested instruction that “a valid location of a min-
ing claim may be made whenever the prospector has discovered such in-
dications of mineral that he is willing to spend his time and money in fol-
lowing with the expectation of finding ore,” and held that the lower court
erred in substituting the words ‘justified in spending” for the words “will-
ing to spend.”
478 Fed. (C. C.) 693. /
48 GEMMELL v. SWAIN, 28 Mont. 331, 72 Pac. 662, 663, 98 Am. St. Rep.
570; Lacey v. Woodward, 5 N. M. 583, 25 Pac. 785; Zollars v. Evans (C.
C.) 5 Fed. 172. See Hess v. Winder, 30 Cal. 349; Hamilton v. Huson, 21
Mont. 9, 53 Pac. 101. See, also, Burns v. Clark, 133 Cal. 634, 66 Pac. 12,
85 Am. St. Rep. 2338, where a similar rule was applied in the case of a mill
site. But see Charlton v. Kelly, 2 Alaska, 532; Bulette v. Dodge, 2 Alaska,
427. Compare Lorenz v. Waldron, 96 Cal. 248, 31 Pac. 54, where the claim-
ant of a right of way for a ditch with vertical and lateral support for it
was not allowed to object to the location of a mining claim subject to the
right of way.
160 DISCOVERY OF LODE AND PLACER CLAIMS. (Ch. 10
Idaho, by statute, this preliminary notice is required. Then in some
states the discoverer has 60 days in which to sink a discovery shaft,
in others 90, and a reasonable time or a fixed statutory time in which
to stake boundaries, etc. Whatever the time allowed, the party who
makes the first discovery, and who within the time allowed follows
it up with the remaining acts necessary to a valid location, will prevail
over a subsequent discoverer who is more expeditious in completing
the required acts of location.*®
Discovery after Location.
Discovery should precede the acts of location, as the federal statute
expressly provides that “no location of a mining claim shall be made
until the discovery of the vein or lode within the limits of the claim
located.” 5° But discovery often follows, instead of preceding, the
acts of location, and, if no rights of third parties have been acquired
pending discovery, the location is made good by the subsequent dis-
covery.*t In any event the location dates from discovery.*? The
49 PELICAN & DIVES MIN. CO. v. SNODGRASS, 9 Colo. 339, 12 Pac.
206; Barnette v. Freeman, 2 Alaska, 286. See Gregory v. Pershbaker, 73
Cal. 109, 14 Pac. 401; Sierra Blanca Mining & Reduction Co. v. Winchell,
85 Colo. 18, 83 Pac. 628.
50 Rey. St. U. S. §-2320 (U. S. Comp. St. 1901, p. 1424).
51 CREEDE & CRIPPLE CREEK MIN. & MILL. CO. v. UINTA TUNNEL,
MINING & TRANSP. CO., 196 U. S. 337, 25 Sup. Ct. 266, 49 L, Ed. 501; North
Noonday Min. Co. v. Orient Min. Co. (C. C.) 1 Fed. 522, 6 Sawy. 299; Jupiter
Min. Co. v. Bodie Consol Min. Co. (C. C.) 11 Fed. 666, 7 Sawy. 96; SHARKEY
vy. CANDIANI, 48 Or. 112, 85 Pac. 219, 7 L. R. A. (N. 8S.) 791; Silver City
Gold & Silver Min. Co. v. Lowry, 19 Utah, 334, 57 Pac. 11; Tonopah & §. L.
Min. Co. vy. Tonopah Min. Co. (C. C.) 125 Fed. 408; Brewster v. Shoemaker,
28 Colo. 176, 63 Pac. 309, 53 L. R. A. 793, 89 Am. St. Rep. 188; Fisher v.
Seymour, 23 Colo. 542, 49 Pac. 30; Whiting v. Straup (Wyo.) 95 Pac. 849.
See Nevada Sierra Oil Co. v. Home Oil Co. (C. C.) 98 Fed. 673; Miller v.
Chrisman, 140 Cal. 440, 73 Pac. 1083, 74 Pac. 444, 98 Am. St. Rep. 63;
La Grande Inv. Co. v. Shaw, 44 Or. 416, 72 Pac. 795, 74 Pac. 919. The case
of Upton vy. Larkin, 5 Mont. 600, 6 Pac. 66, 7 Mont. 449, 17 Pac. 728, contra,
is clearly wrong. A discovery will not relate back to cut out intervening
rights. BEALS v. CONE, 27 Colo. 473, 62 Pac. 948, 88 Am. St. Rep. 92.
See Tuolumne Consol. Min. Co. v. Maier, 134 Cal. 583, 66 Pac. 863. In
Merced Oil Mining Co. v. Patterson (Cal.) 96 Pac. 90, the extreme position
is taken that where 40 acres of placer claim of 160 acres is granted away
before discovery, and the grantee later makes'a discovery on the 40 acres
granted, such discovery will not make the location of the other 120 acres
good unless at the time of the grant of the 40 acres, and as part of the
consideration for it, there is an express agreement that the discovery work
shall be for the benefit of the whole claim. It is believed that this case is
unsound, and that a discovery on either the granted or the retained part of
52 HEALEY y. RUPP, 87 Colo. 25, 86 Pac. 1015; Redden v. Harlan, 2
Alaska, 402.
§ 45) RELATION BETWEEN DISCOVERY AND LOCATION. 161
federal statutory provision means nothing more than that no location
shall be considered complete until there has been a discovery.°* No
presumption of a discovery arises from the fact that acts of location,
such as marking boundaries, record, etc., have been performed, ** and
the burden of proving a prior discovery is upon the one relying upon
such discovery.®®
Number of Locations for Each Discoverer.
For each location a distinct discovery is requisite; °* but, except in
Oregon, no limit seems anywhere to be put to the number of lode lo-
cations which may be made on valid discoveries by any one person.°?
The annual labor requirement attached to each location is regarded by
the United States as full protection to it against objectionable monopoly
of the public mineral domain. Even in Oregon, if the statute limiting
the number of locations which one person may make on a given vein®®
be valid, the restriction on the number of locations is imposed for
the benefit of. the United States, and, as in the case of locations by
aliens hereafter discussed, it would seem that on principle no one but
the United States, and then only in direct proceedings brought for
the purpose, could raise the objection of the excessive number of lo-
cations.®®
the claim should make good the whole claim so long as no intervening rights
have been acquired by third parties.
5683 OREEDE & C. C. MIN. & MILL. CO. v. UINTA TUNNEL MIN. &
TRANSP. CO., 196 U. S. 337, 25 Sup. Ct. 266, 49 L. Ed. 501. So interpreted
it is mandatory. Ledoux vy. Forester (C. C.) 94 Fed. 600. See Hayes v.
Lavagnino, 17 Utah, 185, 53 Pac. 1029; Waterloo Min. Co. v. Doe (C. C.)
56 Fed. 685; Tuolumne Consol. Min. Co. v. Maier, 134 Cal. 583, 66 Pac. 863.
Intervening vested rights cannot be cut out by subsequent discovery. BEALS
v. CONE, 27 Colo. 473, 62 Pac. 948, 83 Am. St. Rep. 92. Lack of discovery
may be shown in an action to recover back the purchase price of the claim.
Whitney v. Haskell, 216 Pa. 622, 66 Atl. 101.
64 SMITH v. NEWELL (C. C.) 86 Fed. 56, 60; Fox v. Myers (Nev.) 86
Pac. 798. But see infra chapter XII, p. 220.
66 Sands vy. Cruikshank, 15 S. D. 142, 87 N. W. 589.
56 See note 11, supra. Compare the discussion of whether one discoy-
ery shaft will serve for two contiguous lode locations, infra, chapter XII,
§ 54.
57'fThere is no limitation on the number of mining claims which one may
acquire by purchase. Carson City Gold & Silver Min. Co. v. North Star
Min. Co. (C. C.) 73 Fed. 597; Poire v. Wells, 6 Colo. 406; Poire v. Leadville
Improvement Co., 6 Colo. 418. See English v. Johnson, 17 Cal. 117, 76 Am.
Dec. 574. A miner’s rule restricting the number of claims a person may buy
is void. Prosser v. Parks, 18 Cal. 47.
58B. & C. Comp. Or. § 3974.
69 See Aliens, chapter XI, § 47, infra.
Cost.Min.L.—11
162 DISCOVERY OF LODE AND PLACER CLAIMS. (Ch. 10
THE DISCOVERY OF PLACER CLAIMS.
46. Discovery is as essential to the validity of placer claims as to that.
of lode claims. There must be a discovery for each claim;
but, where a location of 160 acres as a placer is made by an
association of persons, one discovery will hold the whole 160
acres, subject to inquiry by the land department into the
mineral character of the different included acres.
In the case of placers, as in the case of lodes, there must be a dis-
covery, and, as in the case of lode locations, the discovery may fol-
low location.®® Indications of mineral will not do in the case of plac-
ers, any more than “float” will in the case of lode claims.*t As be-
tween two competing locators, the first to make a discovery will be
protected, unless he has done something to estop him from claiming
the benefit of the discovery.*? “Without a valid discovery of mineral
within the limits of the claim, there could be no valid location of the
ground as a placer mining claim. * * * Whether or not the find-
ing of seepages of oil and its residuum upon a given piece of public
land and upon the lands adjoining it on different sides, and the find-
ing thereon of shale and oil-bearing sand rock of a character similar
to that in which petroleum in large and paying quantities had been
found and developed in the vicinity, which veins and strata extend to
and across the ground in question [amounts to a discovery], manifestly
depends upon the application and true construction of the laws of the
United States.” °
While the court in the case just quoted from held that a bill which
pleaded a discovery as above was good on demurrer, the case of Mil-
ler v. Chrisman ** shows what is really needed in the way of discov-
ery. With reference to the discovery of oil, the California court point-
ed out that the testimony was “that Barieau had walked over the land
at the time he posted his notice, and had discovered ‘indications’ of
petroleum. Specifically he says that he saw a spring, and ‘the oil
comes out and floats over the water in the summer time, when it is
60 WEED vy. SNOOK, 144 Cal. 439, 77 Pac. 1023; Barnette v. Freeman,
2 Alaska, 286; New England & Coalinga Oil Co. v. Congdon (Cal.) 92 Pac.
180; Bay v. Oklahoma Southern Gas, Oil & Min. Co., 18 Okl. 425, 73 Pac.
936.
61 See Steele v. Tanana Mines R. Co., 148 Fed. 678, 78 C. C. A. 412;
Charlton v. Kelly, 2 Alaska, 532.
62 Thompson v. Burk, 2 Alaska, 249.
63 NEVADA SIERRA OIL CO. v. MILLER (C. C.) 97 Fed. 681, 688, 689.
64 MILLER v. CHRISMAN, 140 Cal. 440, 73 Pac. 1083, 74 Pac. 444, 98
Am. St. Rep. 63, affirmed Chrisman v. Miller, 197 U. S. 318, 25 Sup. Ct.
468, 49 L. Ed. 770.
§ 46) DISCOVERY OF PLACER CLAIMS. 163
hot. In June, 1895, there was a little water with the oil and a little
oil with the water coming out. It was dripping over a rock about
two feet high. There was no pool. It was just dripping; a little
water and oil, not much water.’ This is all of the ‘discovery’
which it is even pretended was made under the Barieau loca-
tion, and we think it clear that such testimony does not establish a
discovery within the meaning of the law. ‘To constitute a discovery,
the law requires something more than conjecture, hope, or even indica-
tions. The geological formation of the country may be such as
scientific research and practical experience have shown to be likely to
yield oil in paying quantities. Taken with this, there may be other
surface indications, such as ‘seepage’ of oil. All these things combined
may be sufficient to justify the expectation and hope that, upon driving
a well to sufficient depth, oil may be discovered; but one and all they
do not, in and of themselves, amount to a discovery. * * * While,
_ perhaps, it would be stating it too broadly to say that no case can be
imagined where a surface discovery may be made of oil sufficient to
fill the requirements of the statute, yet it is certainly true that no such
case has ever been presented to our attention, and that in the nature
of things such a case will seldom, if ever, occur.” °°
In the same case the Supreme Court of the United States added:
“Tt is true that, when the controversy is between two mineral claim-
ants, the rule respecting the sufficiency of a discovery of mineral is
more liberal than when it is between a mineral claimant and one seek-
ing to make an agricultural entry, for the reason that, where land is
sought to be taken out of the category of agricultural lands, the evi-
dence of its mineral character should be reasonably clear, while in
respect to mineral lands, in a controversy between claimants, the ques-
tion is simply which is entitled to priority.°* ‘That, it is true, is the
65 Miller v. Chrisman, 140 Cal. 440, 445, 446, 73 Pac. 1083, 74 Pac. 444,
98 Am. St. Rep. 68. See Bay v. Oklahoma Southern Gas, Oil & Min. Co.,
18 Okl. 425, 73 Pac. 936. “It is the common experience of persons of or-
dinary intelligence that petroleum in valuable quantities is not found on
the surface of the ground nor is it found in paying quantities seeping from
the earth. Valuable oil is found by drilling or boring into the interior of
the earth, and either flows or is pumped to the surface; and, until some
body or vein has been discovered from which the oil can be brought to the
surface, it cannot be considered of sufficient importance to warrant a loca-
tion under the mineral laws.” Bay v. Oklahoma Southern Gas, Oil & Min.
Co., 18 Okl. 425, 73 Pac. 936, 940.
66 See Bevis v. Markland (C. C.) 180 Fed. 226, where a placer claimant fail-
ed to recover mineral land from a prior lode claimant, because the placer
claimant “failed to prove by a preponderance of the evidence, or any affirma-
tive evidence, that there is not within the disputed ground a vein of metallic
ore such as may be located only as a vein or lode claim.”
164 DISCOVERY OF LODE AND PLACER CLAIMS. (Ch. 10
case before us. But even in such a case, as shown by the authorities
we have cited, there must be such a discovery of mineral as gives
reasonable evidence of the fact either that there is a vein or lode car-
rying the precious mineral, or, if it be claimed as placer ground, that
it is valuable for such mining. Giving full weight to the testimony
of Barieau, we should not be justified, even in a case coming from a
federal court, in overthrowing the finding that he made no discovery.
There was not enough in what he claims to have seen to have justified
a prudent person in the expenditure of money and labor in exploitation
for petroleum. It merely suggested a possibility that the ground con-
tained oil sufficient to make it ‘chiefly valuable therefor.’ If that be
true were the case one coming from a federal court, a fortiori must
it be true when the case comes to us from a state court, whose findings
of fact we have so often held to be conclusive.” °7
It is not necessary to a discovery, however, that it should be shown
with reasonable clearness that for the labor and capital expended in
working the placer it would yield a reasonable profit. **
Pedis Possessio.
With reference to placers, and particularly with reference to oil
and gas locations, the necessity of protecting a prospector in his pos-
session prior to actual discovery is greater even than in the case of
lode claims.*® In Chrisman v. Miller it was stated by the California
court that one who has in good faith fulfilled the various acts of location
of lands as oil lands, but has not yet made a discovery, and remains in
possession, “and with due diligence prosecutes his work toward a dis-
covery, is fully protected against all forms of forcible, fraudulent, sur-
reptitious, or clandestine entries and intrusions upon his possession.” 7°
Upon that as a basis a California commissioners’ decision says: “And
we regard the law as settled that while a locator, who has made his lo-
cation, is engaged in good faith in prospecting it for minerals, and com-
plies with the laws as to expenditures, and is in possession, the land is
not open for location by others. In case of petroleum lands the discov-
ery cannot, in most cases, be made except by considerable labor and ex-
pense in sinking wells. In making the location the locator necessarily
takes into consideration surface indications, geological formations,
67 CHRISMAN v. MILLER, 197 U. S. 318, 323, 25 Sup. Ct. 468, 49 L. Ed. 770.
68 Cascaden v. Bartolis, 146 Fed. 739, 77 C. C. A. 496.
69 See Bay v. Oklahoma Southern Gas, Oil & Min. Co., 13 Okl. 425, 73 Pac.
936. Merely placing a tent, a few tools, and a small supply of provisions up-
on a placer mining claim does not of itself constitute taking actual possession
thereof. Acts of mining are necessary. Charlton v. Kelly, 2 Alaska, 532.
70 MILLER v. CHRISMAN, 140 Cal. 440, 447, 73 Pac. 1083, 74 Pac. 444, 98
Am. St. Rep. 63; Phillips v. Brill (Wyo.) 95 Pac. 856.
§ 46) . DISCOVERY OF PLACER CLAIMS. 165
proximity to known mines or wells producing oil. He must make his
location in good faith, and use proper diligence to make discovery of
oil. If he does not do so, he will lose his rights under his location as
to parties who may afterwards in good faith acquire rights. But where’
the locator is in possession under his location, and is actively at work,
through his lessees or otherwise, and expending money for the purpose
of discovering oil, his rights cannot be forfeited to third parties, who
attempt to make locations under such circumstances. The law must be
given a liberal and equitable interpretation, with a view of protecting
prior rights acquired in good faith.” ™
But while very considerable labor and expense is necessarily ex-
pended in making an oil or gas discovery, and in consequence the oil
or gas prospector should be dealt with liberally on the question of when
a discovery has been made, and should be given as large as possible a
pedis possessio, it still remains true that the first discoverer who can lo-
cate peaceably must be given priority over prior prospectors. 72 What
we found to be true of lode claims in this regard must also be true of
placers. Moreover, it is true in placer mining, as in lode mining, that
a discovery to sustain a location may be made, although what is discov-
_ ered will not pay to work at the start.7? The line must be drawn be-
tween indications disclosing merely a possibility of oil, where, of course,
nothing has really been discovered, and the ascertained presence of oil
in a situation to justify a prudent person in the expenditure of money
and labor in exploitation for petroleum.’* Whether a discovery has
been made in a given case is, of course, a question of fact under all the
circumstances of that case. It is not possible, however, to locate as
placer any lands which are chiefly valuable for ores found in them in
lodes.”®
71 WEED v. SNOOK, 144 Cal. 439, 77 Pac. 1023, 1026; Hanson v. Craig (C.
C. A.) 161 Fed. 861. See New England & Coalinga Oil Co. v. Congdon (Cal.)
92 Pac. 180. /
72 Whiting v. Straup (Wyo.) 95 Pac. 849; Redden v. Harlan, 2 Alaska, 402.
But see Hanson v. Craig (C. C. A.) 161 Fed. 861. Prior to a discovery by the
locator, others may by legal means acquire title from the United States. Olive
Land & Development Co. v Olmstead (C. C.) 103 Fed. 568. But in Biglow v.
Conradt (C. C. A.) 159 Fed. 868, an extension of boundaries not based on a
discovery in the added ground was not allowed to cover land embraced in an
attempted location in the possession of locators who about two months later
made their discovery.
73 See NEVADA SIERRA OIL CO. v. HOME OIL CoO. (C. C.) 98 Fed. 673,
676; Gregory v. Pershbaker, 72 Cal. 109, 14 Pac. 401.
74 CHRISMAN v. MILLER, 197 U. 8. 318, 323, 25 Sup. Ct. 468, 49 L. Ed.
770; New England & Coalinga Oil Co. v. Congdon (Cal.) 92 Pac. 180.
76 Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 525, 69 S. W. 572, 576, 91
Am. St. Rep. 87. See Bevis v. Markland (C. C.) 180 Fed. 226.
166 DISCOVERY OF LODE AND PLACER CLAIMS. (Ch. 10
Number of Acres for One Discovery.
The question of discovery in the case of placers has been complicated
by a question as to the necessity of separate discoveries on each 20 acres
of a joint location of 160 acres. In placers the unit of a placer location
is 20 acres, “and two or more persons, or association of persons, having
contiguous claims of any size, * * * may make joint entry there-
of; but no location of a placer claim * * * shall exceed one hun-
dred and sixty acres for any one person or association of persons.” 7°
The land department for a long time held that, where an association of
eight persons located 160 acres as a placer, there must be a separate dis-
covery for each 20 acres;7"’ but that ruling has been reversed, and one
discovery is now enough for one joint location.7? The land department
still insists, however, that “while a single discovery is sufficient to au-
thorize the location of a placer claim, and may, in the absence of any
claim or evidence to the contrary, be treated as sufficiently establishing
the mineral character of the entire claim to justify the patenting there-
of, such single discovery does not conclusively establish the mineral
character of all the land included in the claim, so as to preclude fur-
ther inquiry in respect thereto.” 7°
Number of Locations for Each Discoverer.
Except where special provision, such as exists in the case of coal
lands, is made by Congress, as many placer claims may be located by
one individual as separate discoveries will warrant.
76 Rey. St. U. S. § 2330 (U. S. Comp. St. 1901, p. 1432).
77 Ferrell v. Hoge, 18 Land Dec. Dep. Int 81; Union Oil Co., 23 Land Dee.
Dep. Int. 222.
78 Union Oil Co. (on review) 25 Land Dec. Dep. Int. 351; Terrell v. Hoge,
27 Land Dec. Dep. Int. 129; Miller v. Chrisman, 140 Cal. 440, 73 Pac. 1083,
74 Pac. 444, 98 Am St. Rep. 63; Whiting v. Straup (Wyo.) 95 Pae. 849.
79 Ferrell v. Hoge (on review) 29 Land Dec. Dep. Int. 12, 15. A discovery
and location on 80 acres will not justify taking in another and adjoining 80
acres as a consolidated claim of 160 acres. Weed v. Snook, 144 Cal. 489, 77
Pac. 1023.
§ 47) WHO MAY LOCATE MINING CLAIMS. 167
CHAPTER XI.
WHO MAY AND WHO MAY NOT LOCATE MINING CLAIMS.
47. Aliens.
48. Land Office Employés.
49. Corporations.
50. Minors,
51. Agents.
“All valuable mineral deposits in lands 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 regula-
tions 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.” Rev. St. U.
S. § 2319 (U. S. Comp. St. 1901, p. 1424).
Before we take up the acts of location, it is desirable to inquire
who may perform those acts. Anybody may make a discovery, but
only citizens of the United States and those who have declared their
intention to be such are expressly authorized to locate mining claims.*
We shall therefore take up first the question of location by an alien,
and then discuss a location by a land office employé, by a corporation,
by a minor, and by an agent.
ALIENS.
47. While aliens are not authorized to locate mining claims, an
alien’s location may be questioned only in an adverse suit
where an alien is applying for patent, or in direct proceed-
ings brought by the United States while the alien still owns
the claim. The question of citizenship is an issue in an ad-
verse suit only because the United States is a silent party to
the suit, and the alien may make his location valid ab initio
by taking out his first naturalization papers after suit is com-
menced.
Effect of Location by an Alien.
Whatever may have been the intention of the framers of the act
of 1872 (Act May 10, 1872, c. 152, § 3, 17 Stat. 91 [U. S. Comp.
1 Rey. St. U. S. § 2319 (U. S. Comp. St. 1901, p. 1424). That certain Filipinos
may now be naturalized, see opinion. 37 Land Dec. Dep. Int. (advance sheets) 86.
Married women who are citizens may, of course, locate mining claims,
168 WHO MAY LOCATE MINING CLAIMS. (Ch. 11
St. 1901, p. 1425]), with reference to the point, it is now well settled
that a location by an alien or the transfer of an existing location to
him is valid except against direct attack by the government while
the alien still owns the land, or except when questioned in an ad-
verse suit where the alien is applying for patent or is adversing.’
Moreover, if pending the trial of the adverse suit the alien takes out
his first naturalization papers, his location becomes valid ab initio.*
Except in adverse suits, and except in direct proceedings brought by
the United States government, the citizenship of the parties need
neither be alleged nor proved,* unless, as in the case of the federal
courts, such allegation and proof are needed to give the court juris-
diction. It seems fair to say that even in adverse suits a presump-
tion exists that a resident locator is a citizen.5 In any event, the citi-
2 McKINLEY CREEK MINING CO. v. ALASKA UNITED MIN. CO., 183
U. S. 563, 22 Sup. Ct. 84, 46 L. Ed. 331; TORNANSES v. MELSING, 109 Fed.
710, 47 C. C. A. 596; Stewart v. Gold & Copper Co., 29 Utah, 443, 82 Pac. 475,
110 Am. St. Rep. 719; BILLINGS v. ASPEN MINING & SMELTING CO.,
51 Fed. 338, 2 C. C. A. 252; Id., 52 Fed. 250, 3 C. C. A. 69; LONE JACK
MINING CO. v. MEGGINSON, 82 Fed. 89, 27 ©. C. A. 63; Providence Gold
Mining Co. v. Burke, 6 Ariz. 323, 57 Pac. 641; Gorman Mining Co. v. Alex-
ander, 2 8S. D. 557, 51 N. W. 346. See Territory v. Lee, 2 Mont. 124. The doc-
trine announced in Wilson v. Triumph Consol. Min. Co., 19 Utah, 66, 56 Pac.
300, 75 Am. St. Rep. 718, and in Golden Fleece Gold & Silver Min. Co. v. Cable
Consol. Gold & Silver Min. Co., 12 Nev. 312, that a citizen may relocate land
located by an alien and still held by the latter, if only the relocation is peace-
able, cannot be supported. TORNANSES v. MELSING, 109 Fed. 710, 47 C. C.
A. 596. Compare a similar ruling in regard to a state statute requiring for-
eigners to pay a license fee for the privilege of mining. People v. Naglee, 1
Cal. 232, 52 Am. Dec. 312; Mitchell v. Hagood, 6 Cal. 148.
3 LONE JACK MINING CO. v. MEGGINSON, 82 Fed. 89, 27 C. C. A. 63;
Ferguson y. Neville, 61 Cal. 356; Gorman Mining Co. v. Alexander, 2 S. D.
557, 51 N. W. 346; Id. 3 S. D. 3, 51 N. W. 349; MANUEL v. WULFF, 152 U.
S. 507, 14 Sup. Ct. 651, 38 L. Ed. 582; Shea v. Nilima, 133 Fed. 209, 66 C. C.
A. 263. See Croesus Mining, M. & 8. Co. v. Colorado Land & M. Co. (©. C.) 19
Fed. 78; Anthony v. Jillson, 88 Cal. 296, 23 Pac. 419.
4 Harris v. Kellogg, 117 Cal. 484, 49 Pac. 708; Buckley v. Fox, 8 Idaho, 248,
67 Pac. 659; Gruwell v. Rocca, 141 Cal. 417, 74 Pac. 1028. In Buckley v. Fox,
supra, the state statute authorized locations by aliens not of Mongolian de-
scent. Such a statute would seem ineffective to prevent direct proceedings by
the United States.
5 JANTZON vy. ARIZONA COPPER CO., 3 Ariz. 6, 20 Pac. 93; Garfield Min.
& Mill. Co. v. Hammer, 6 Mont. 53,8 Pac. 153. The issue of citizenship is prop-
erly raised in an adverse suit, as it is in effect made on behalf of the govern-
ment. MATLOCK v. STONE, 77 Ark. 195, 91 S. W. 553. See McFeters v.
Pierson, 15 Colo. 201, 206, 207, 24 Pac. 1076, 22 Am. St. Rep. 388; Tonopah
Fraction Mining Co. v. Douglass (C. C.) 123 Fed. 936, 941; Wilson v. Triumph
Consol. Min. Co., 19 Utah, 66, 56 Pac. 300, 75 Am. St. Rep. 718.
For a case showing on how slight evidence a court will find citizenship, see
Strickley v. Hill, 22 Utah, 257, 62 Pac. 893, 88 Am. St. Rep. 786.
§ 47) ALIENS. 169
zenship of a locator is immaterial, except where he has not parted
with title prior to the raising of the question in an adverse suit, where
the question of citizenship is involved, or prior to direct proceedings
brought by the United States government.®
Special Acts about Aliens.
What is said above applies only to the requirement of Rev. St.
U. S. § 2319 (U. S. Comp St. 1901, p. 1424). Under the federal
alien act of March 3, 1887,7 as amended by the act of March 2, 1897,°
aliens may acquire and hold by purchase in the United States ter-
ritories possessory as well as patented claims. Whether that permits
an alien to locate in the United States territories a mining claim that
will be valid against the government on direct attack or in adverse
suits is as yet undetermined.® So by the act of May 14, 1898.
native-born citizens of the Dominion of Canada are accorded the same
mining rights and privileges in Alaska as Canada accords in British
Columbia and the Northwest Territory to citizens of the United
States. 1°
Effect of Patent on Rights of Aliens.
After a claim has been patented to a citizen, the question of
whether it may be acquired by an alien depends on the state laws.
A patent issued to a citizen who took in trust for an alien is doubt-
less subject to direct attack by the United States government, except
where prior to the attack title is conveyed to innocent purchasers.*?
éIf a citizen and an alien jointly locate a claim and convey it to a citizen,
the latter gets a valid title. North Noonday Min. Co. v. Orient Min. Co. (C.
C.) 1 Fed. 522, 6 Sawy. 299; Wilson v. Triumph Consol. Min. Co., 19 Utah,
66, 56 Pac. 300, 75 Am. St. Rep. 718; Providence Gold Mining Co. v. Burke,
6 Ariz. 323, 57 Pac. 647; Strickley v. Hill, 22 Utah, 257, 62 Pac. 893, 83 Am.
St. Rep. 786. See Stewart v. Gold & Copper Co., 29 Utah, 448, 82 Pac. 475,
110 Am. St. Rep. 719.
The interest of the citizen co-locator is, of course, valid, even against the
government, unless he colludes with the alien. Golden Fleece Gold & Silver
Min. Co. v. Cable Consol. Gold & Silver Min. Co., 12 Nev. 312. Query as to
the effect of knowledge that one’s co-locator is an alien?
7 24 Stat. 476, c. 340, § 1 (U. S. Comp. St. Supp. 1907, p. 776).
829 Stat. 618, c. 363, § 2 (U. S. Comp. St. Supp. 1907, p. 778).
9 The Jand department thinks that an alien in the territories is given by the
act of March 2, 1897, no right to occupy or purchase from the government any
mining claims. See opinion, 28 Land Dec. Dep. Int. 178.
10 30 Stat. 415, c. 299, § 138 (U. S. Comp. St. 1901, p. 1424). According to the
land department this act “never has been operative for the reason that the
only mining rights and privileges granted to any person by the laws of the
Dominion of Canada are those of leasing mineral lands upon the payment of
a stated royalty, and the mining laws of the United States make no provision
for such leases.” Instructions, 32 Land Dec. Dep. Int. 424, 445.
11 Justice Min. Co. v. Lee, 21 Colo. 260, 40 Pac. 444, 52 Am. St. Rep. 216.
170 WHO MAY LOCATE MINING CLAIMS. (Ch. 11
Where a claim has been located by a citizen, and he dies leaving
an alien heir, the latter is in the situation of an alien locator. His
claim is good against all the world except the United States.*?
LAND OFFICE EMPLOYES.
48. General land officers, clerks, and employés are prohibited by stat-
ute from purchasing or becoming interested in the purchase
of public lands. While one state decision intimates that a
location by such an employé is absolutely void, and hence can
pass no title to an innocent purchaser, it is believed that such
a location is only voidable, and that innocent purchasers will
be protected. Whether deputy United States mineral survey-
ors are covered by the above-mentioned statute is a matter on
which there are conflicting decisions. The better view seems
to be that they are covered by it.
It has been held in a Utah case that under Rev. St. U. S. § 452
(U. S. Comp. St. 1901, p. 257), prohibiting officers, clerks, and em-
ployés of the General Land Office from purchasing or becoming in-
terested in the purchase of public lands, the locating of a mining claim
by a deputy mining surveyor of the government is void, and he can
convey no rights in the claim to another.1# This is but a state deci-
sion, for the United States Supreme Court, when the case came before
it, avoided the point by basing its decision on the ground that the land
was not open to location.1* The whole tenor of the Utah decision
is that the location by the deputy mineral surveyor is absolutely void,
whereas the protection of innocent purchasers requires that a rule
like that applicable to locations by aliens be applied. It is upon this
‘ground only that a recent Nevada decision*® upholding a location by
a deputy mineral surveyor can be supported. While the court seems
to have been in error in the last-mentioned case in saying that deputy
United States mineral surveyors are not covered by the above-mention-
ed statute, nobody but the government could possibly object to a lo-
cation by a deputy mineral surveyor, and the court was therefore
right in its decision, but erred in the reason given for it. The dis-
senting judge in the case being discussed seems right in adhering “to
the broader construction that clerks, officers, and employés in the
General Land Office include officers, clerks and employés in the offices
12 BILLINGS v. ASPEN MINING & SMELTING CO., 51 Fed. 338, 2 ©. C.
A. 252, 52 Fed. 250, 3 C. C. A. 69; LOHMANN v. HELMER (C. C). 104 Fed.
178.
13 LAVAGNINO v. UHLIG, 26 Utah, 1, 71 Pac. 1046, 99 Am. St. Rep. 808.
14 Lavagnino y. Uhlig, 198 U. S. 448, 25 Sup. Ct. 716, 49 L. Ed. 1119.
16 Hand v. Cook (Nev.) 92 Pac. 3.
§ 49) CORPORATIONS. 171
of the surveyors general and the local land offices, which are merely
arms or branches of the General Land Office,” 2° but he also erred
in regarding the location as absolutely void.
The land department properly refused to allow a mineral entry
by a deputy United States mineral surveyor who was interested in
the mining claim at the time of survey or of application for patent,*”
and doubtless will continue to do so until the matter is regulated by
further federal legislation, or settled by a decision of the United
States Supreme Court.28
CORPORATIONS.
49. Mining locations may legally be made by corporations created
under the laws of the United States or of a state or territory
of the United States. Other corporations are aliens, and gov-
erned by those rules in regard to locations by aliens which can
apply to corporations.
It would seem that a corporation is only one person, and not ‘‘an
association of persons,’’ so far as the placer mining laws are
concerned,
A corporation created under the laws of the United States, or of
a state or territory of the United States, and having corporate powers
which, as such, permit it to make a mining location, is competent
to make such a location by itself or to join with others in making
one.t® Even if a location is ultra vires, that fact still leaves the loca-
tion like an ultra vires purchase of land, and therefore it is valid until
assailed in a direct proceeding brought by the state creating the cor-
poration.?2® A corporation organized under the laws of a state or
territory of the United States is a citizen of the United States within
the meaning of the mining statutes, and therefore may locate, pur-
16 Hand v. Cook (Ney.) 92 Pac. 12. Compare Prosser v. Finn, 208 U. S. 67,
28 Sup. Ct. 225, 227, 52 L. Ed. 392, where special agents of the General Land
Office were held to be within the statute because “they have official connection
with the General Land Office and are under its supervision and control with
respect to the administration of the public lands.”
17 Floyd v. Montgomery, 26 Land Dec. Dep. Int. 122; Frank A. Maxwell,
29 Land Dec. Dep. Int. 76; W. H. Leffingwell, 30 Land Dec. Dep. Int. 139.
The deputy mineral surveyor’s appointment was revoked for that reason in
Seymour K. Bradford, 36 Land Dec. Dep. Int. 61.
18 As the matter has been brought to the attention of Congress, it will prob-
ably be settled by legislation.
19 McKINLEY v. WHEELER, 130 U. S. 630, 9 Sup. Ct. 638, 32 L. Ed. 1048;
Thomas v. Chisholm, 13 Colo. 105, 21 Pac. 1019.
20 Rose No. 1 and Rose No. 2 Lode Claims, 22 Land Dec. Dep. Int. 83. See
Union Nat. Bank of St. Louis v. Matthews, 98 U. S. 621, 628, 25 L. Ed. 188.
172 WHO MAY LOCATE MINING CLAIMS. (Ch. 11
chase, and hold a mining claim.21 The only question in regard to
such a corporation has been whether all of the incorporators had to
be citizens of the United States for the corporation to be a citizen.
That question has arisen because in McKinley v. Wheeler *? the Su-
preme Court of the United States said that a state corporation, “all
of whose members are citizens of the United States,’ could hold a
mining claim. That dictum, however, does not say that all must be
citizens, and seems satisfactorily met in Doe v. Waterloo Min. Co.,
where it was held that under the mining laws, as in the case of the
statutes and constitutional provisions governing the jurisdiction of
the federal courts, it will conclusively be presumed that all the stock-
holders of a corporation are citizens of the state chartering the cor-
poration. 7%
Strictly foreign corporations are aliens, of course, and subject to
the rules affecting aliens, except so far as their inability to be natural-
ized necessarily makes a difference.
Corporations and Placer Locations.
With reference to placer mining locations a special corporation
question arises. Doubt exists there because the placer mining stat-
utes allow one person to embrace only 20 acres in one location, while
an association of persons not less than eight in number may include
160 acres in one location. The query has arisen whether under the
placer laws a corporation is merely “one person,” entitled to locate
only 20 acres, or whether, if it has eight or more incorporators, it
is “an association of persons” entitled to locate 160 acres of placer
ground. The query is based on the language of the United States
Supreme Court in McKinley v. Wheeler, where the court held that
a private corporation formed under the laws of a state could lo-
cate a mining claim, but added: “There may be some question raised
as to the extent of a claim which a corporation may be permitted to
locate as an original discoverer. It may perhaps be treated as one
person, and entitled to locate only to the extent permitted to a
21 North Noonday Min. Co. v. Orient Min. Co. (C. C.) 1 Fed. 522, 6 Sawy.
299, 316. Where the complaint in an adverse suit alleges and the answer ad-
mits that plaintiff is a domestic corporation, the citizenship of plaintiff’s stock-
holders need not be proved. Jackson v. White Cloud Gold Min. & Mill. Co.,
86 Colo. 122, 85 Pac. 6389; Doe v. Waterloo Min. Co., 70 Fed. 455, 17 C. C. A.
190.
22130 U. 8. 680, 9 Sup. Ct. 688, 832 L. Ed. 1048.
23 DOD v. WATERLOO MIN. CO., 70 Fed. 455, 17 C. C. A. 190. To the
same effect is Jackson v. White Cloud Gold Min. & Mill. Co., 86 Colo. 122, 85
Pac. 639. Compare opinion, 28 Land Dec. Dep. Int. 178. See Princeton Min.
Co. v. First Nat. Bank of Butte, 7 Mont. 530, 19 Pac. 210.
§ 51) AGENTS. 173
single individual. That question, however, is not before us and does
not call for an expression of opinion.” #4
Considering that it requires at least eight bona fide locators to
make a valid placer location of 160 acres, locators who lend their
names under an agreement to convey without consideration being
regarded as engaging in such a fraud against the government that
the location is void, *° and considering that a corporation is really in
the eyes of the law for most purposes one person, it certainly seems
to be clear that a corporation is only one person, entitled to include
only 20 acres in one placer location, rather than an association of
persons. ?® The placer law must have meant by an “association of per-
sons” a number of individual locators, whether natural or corporate,
or both, joining together to make a common location. At any rate,
until the United States Supreme Court shall determine that a cor-
poration is an association of persons within the meaning of the placer
act, it would be very risky for any intending locators to act as if
it were such. 27
MINORS.
50. Minors may locate mining claims.
Minors may locate mining claims, as well as adults; the statute
saying nothing as to age.?® ‘They may, of course, take mining claims
by descent.
AGENTS.
51. Mining locations may be made for principals by agents.
One may locate a mining claim by his agent.2® The matter is
governed by general agency principles, and, as the authority need
24 McKINLEY v. WHEELER, 130 U. S. 6380, 636, 9 Sup. Ct. 688, 32 L. Bd.
1048.
25 Mitchell v. Cline, 84 Cal. 409, 24 Pac. 164; Gird v. California Oil Co. (C.
C.) 60 Fed. 531. See Durant v. Corbin (C. C.) 94 Fed. 382.
26 But see 1 Lindley on Mines (2d Ed.) § 449. Compare United States v.
Trinidad Coal & Coking Co., 187 U. S. 160, 11 Sup. Ct. 57, 84 L. Ed. 640. |
27 See GIRD v. CALIFORNIA OIL CoO. (C. C.) 60 Fed. 531, 545, where the
court found that an attempted placer location of a little over 48 acres made
by three natural persons was in fact made by them for a private corporation,
and therefore must be limited to 20 acres of land.
28 THOMPSON y. SPRAY, 72 Cal. 531, 14 Pac. 182. This does not apply
to coal lands. Compare Davis v. Dennis, 48 Wash. 54, 85 Pac. 1079.
29 DUNLAP v. PATTISON, 4 Idaho, 473, 42 Pac. 504, 95 Am. St. Rep. 140;
Schultz v. Keeler, 2 Idaho, 333, 18 Pac. 481; Whiting v. Straup (Wyo.) 95 Pac.
174 ' WHO MAY LOCATE MINING CLAIMS. (Ch. 11
not be in writing,?® an orai authorization or ratification is enough.
Moreover, as a locator is presumed to assent to a location when his
assent to a deed of realty would be presumed,*? ratification may often
be proved by the absence of dissent after notice. ** While the legal
title inures to the principal by the location, the authority to locate may
also be accompanied by the authority to abandon, and, if it is, then
the principal will be bound by the abandonment. ** An agent who lo-
cates a mining claim for and in the name of his principal, without any
contract to acquire an interest therein, does not acquire any interest in
the claim. **
In making the location, the correct form is for the agent to act
in the principal’s name, signing all notices “A., by B., Agent.” Yet,
if he simply signs the principal’s name, that should be enough. Since
the authority to act may be oral, the proof that the name was signed
by such authority may well be oral. A careful miner, however, will
take no chances.
If an agent locates for himself claims which he was employed to lo-
cate for his principal, he will be held a trustee for the latter. ®° On re-
locations by agents, see chapter XVII, infra.
849; Moore v. Steelsmith, 1 Alaska, 121; McCulloch v. Murphy (C. C.) 125
Fed. 147; Murley v. Ennis, 2 Colo. 300; Rush v. French, 1 Ariz. 99, 25 Pace.
816; MOORE v. HAMERSTAG, 109 Cal. 122, 41 Pac. 805. See Book v. Jus-
tice Min. Co. (C. C.) 58 Fed. 106.
30 Murley v. Ennis, 2 Colo. 300; MOORE v. HAMERSTAG, 109 Cal. 122,
41 Pac. 805.
31 Gore v. McBrayer, 18 Cal. 582, 588; Kramer v. Settle, 1 Idaho, 485; Van
Valkenburg v. Huff, 1 Nev. 142, 149. But see Thompson v. Spray, 72 Cal. 531,
14 Pac. 182.
32 That ratification will defeat a location subsequent to that ratified, though:
prior to ratification, see RUSH v. FRENCH, 1 Ariz. 99, 25 Pac. 816. Bring-
ing a suit to quiet title is sufficient ratification. Thompson v. Spray, 72 Cal.
528, 14 Pac. 182.
38 KINNEY v. FLEMING, 6 Ariz. 263, 56 Pac. 723. See, also, Sharkey v.
Candiani, 48 Or. 112, 85 Pac. 219, 7 L. R. A. (N. 8.) 791.
34 McMahon v. Meehan & Larson, 2 Alaska, 278.
35 Copper River Mining Co. v. McClellan, 2 Alaska, 134.
§ 52) "LOCATION OF LODE CLAIMS. 175
CHAPTER XII.
THB LOCATION OF LODE CLAIMS,
52. Definition of Location.
58. The Discovery or Prospector’s Notice.
54. The Discovery Shaft or its Equivalent.
55. Marking the Location upon the Ground.
55a. Excessive Locations.
55b. Changing Boundaries.
56. Posting of Notices of Location.
57. Recording.
57a. Amendments of Record.
57b. Adding and Dropping Names of Locators.
DEFINITION OF LOCATION.
52. By location is meant both (1) the act or acts required to appro-
priate a mining claim, and (2) the mining claim itself. In
this chapter meaning (1) is intended.
Location is sometimes used to include discovery, but here the word is
used to cover all acts of location following discovery. These
acts of location include: (a) The discovery notice; (b) the
discovery shaft, or its equivalent; (c) the marking of the lo-
cation upon the ground; (d) the posting of notices of location;
and (e) record.
“Location is the act or series of acts by which the right of exclusive
possession of mineral veins and the surface of mineral land is vested
in the locator.” In its more restricted sense the word “location” ex-
cludes discovery,? and it is used in that restricted sense here. It may,
perhaps, exclude record, which in one sense may only proclaim the fact
of location; * but it is used here to include record. “The location of a
mining claim is the act of appropriating a parcel of public mineral
land in accordance with the provisions of the mining laws. The term
is also applied to the parcel of land so appropriated.” ¢
Land to be embraced in one location must be parcel of the land
where discovery is made, and must be embraced within one set of
1 Creede & C. C. Min. & Mill. Co. v. Uinta Tunnel, Min. & Transp. Co., 196
U. S. 337, 346, 25 Sup. Ct. 266, 49 L. Ed. 501.
2 Uinta Tunnel, Min. & Transp. Co. v. Ajax Gold Min. Co., 141 Fed. 563,
73 C. OC. A. 85.
3 See Morrison’s Mining Rights (18th Ed.) pp. 25, 26.
4Tomera Placer Claim, 33 Land Dec. Dep. Int. 560. For the property
nature of a location, see chapter XX, § 108.
176 LOCATION OF LODE CLAIMS. (Ch. ‘12
boundary lines.® The acts of location normally follow discovery
and in general consist of (1) the posting of a discovery notice; (2)
the sinking of a discovery shaft or its equivalent; (3) the marking of
boundaries; (4) the posting of a location notice; (5) the record-
ing of the proper papers. If only the acts of location are complet-
ed before the rights of third persons intervene, the order in which
the acts are performed is immaterial. The validity of the location
is to be tested, of course, by the law in force at the time the location
is made."
THE DISCOVERY OR PROSPECTOR’S NOTICE.
53. Custom and prudence everywhere, and statutes in some states,
call for the posting of a notice of discovery, giving the date of
discovery and containing a statement that the statutory time
to complete location is claimed. This notice should be posted
or written on a stake, called the “discovery stake,’’ or on the
discovery monument prescribed by statute, and placed at the
point of discovery. In Idaho the distance claimed along the
vein each way from the discovery mcnument must be stated in
the notice.
The Discovery Notice.
It has been the universal custom in the mining region for pros-
pectors to put up a temporary notice at the point of discovery, so
as to apprise all comers that a discovery has been made on which a
location is to be perfected. In Idaho such a temporary notice is re-
quired by statute. In that state the discoverer, at the time of discov-
ery, must erect a discovery monument and give notice of discovery,
by placing on the monument his name, the name of the claim, the
date of discovery, and the distance claimed along the vein each way
from the monument.* In New Mexico a discovery notice is unknown
to the local law; but it is held that the discovery and the posting of the
regular notice of location must be practically contemporaneous,® and
the regular notice of location, therefore, fully answers the purpose of a
discovery notice. The same is probably true under the Montana
statute of 1907,2° and is certainly true in Utah, where the statute re-
5 Id.
6 PERIGO vy. ERWIN (C. C.) 85 Fed. 904; Thompson v. Spray, 72 Cal. 528,
14 Pac. 182; Strepey v. Stark, 7 Colo. 614, 5 Pac. 111; Heman v. Griffith, 1
Alaska, 264; Charlton v. Kelly, 2 Alaska, 532.
7 WILSON v. FRBEMAN, 29 Mont. 470, 75 Pac. 84, 68 L. R. A. 833,
82 Ann. Codes Idaho (Civ. Code) 1901, § 2557.
9 Deeney v. Mineral Creek Milling Co., 11 N. M. 279, 67 Pac. 724.
10 Laws Mont. 1907, p. 18.
§ 53) DISCOVERY OR PROSPECTOR’S NOTICE. 177
quires the location notice to be posted at the time of making discov-
ery.
Reason for Discovery Notice.
The purpose of the discovery notice is to show that there has
been no abandonment of location rights, and it would seem that
a discovery notice, or something equivalent, is absolutely essential
where one is seeking to locate a vein which outcrops so fully that all
who go by may see it with the naked eye. A written notice would
seem not to be essential, in the absence of a statute like that in Idaho,
provided work is already begun and any prospector could see, from
tools on the ground and the state of the work, that the acts of loca-
tion were in process of completion; but some’ kind of notice cer-
tainly would seem to be vital.11 The whole spirit of American min-
ing law, as evidenced in the practically uniform custom to post a dis-
covery notice, calls for a notice of discovery, and preferably a written
notice. But a notice which is not followed by a marking of the lo-
cation on the ground, and which does not contain a description identi-
fying the claim by reference to some natural object or permanent
monument, does not create a location.1?
Contents of Discovery Notice.
The particularity required by the Idaho statute need not, of course,
be observed elsewhere, yet fairness requires everything called for
by that statute. Taking the names contained in Erhardt vy. Boaro,}8
a proper discovery notice would be:
“Hawk Lode.
“The undersigned have discovered this lode, and claim 750 feet on
it each way from discovery. They also claim the statutory time to
complete location.
“Date of discovery, June 17, 1907.
“Joel B. Erhardt.
“Thomas Carroll.”
Except in Idaho, the number of feet each way from discovery need
not be stated, and almost any kind of informal notice will do. The
Idaho discovery notice is required to be as full as the posted loca-
11 See 1 Snyder on Mines, § 375. On the value of discovery notice, see
Omar v. Soper, 11 Colo. 380, 18 Pac. 443, 7 Am. St. Rep. 246. In Washington
ft gives a reasonable time in which to mark boundaries. Union Min, & Mill.
Co. v. Leitch, 24 Wash. 585, 64 Pac. 829, 85 Am. St. Rep. 961.
12 Malececk vy. Tinsley, 73 Ark. 610, 85 8S. W. 81.
18113 U. S. 527, 5 Sup. Ct. 560, 28 L. Hd. 1113.
Cost.M1n.L.—12
178 LOCATION OF LODE CLAIMS. (Ch. 12
tion notice is in Colorado.14 For Colorado the following would
answer for discovery:
“Hawk Lode.
“The undersigned claim the statutory time to complete location of
this lode, discovered June 17, 1907.
“Joel B. Erhardt.
“Thomas Carroll.”
DISCOVERY SHAFT OR ITS EQUIVALENT.
54. A discovery shaft, sunk on unappropriated public land embraced
within the claim sought to be located, or the statutory equiv-
alent of a discovery shaft, is by local statutes in most juris-
dictions made essential to a lode location. The discovery
shaft must comply with the local statutory requirements as
to width, depth, disclosure of vein, etc. The equivalents of
a discovery shaft are an adit, a cross cut, an open cut, and a
tunnel, disclosing the length of vein, or cutting the vein at
the depth, and excavating the number of cubic feet, prescribed
by the local statute.
Alaska, California, and Utah leave the question of requiring a
discovery shaft to district rules. In the other mining law states and
territories the shaft, in addition to disclosing a well-defined vein,
must be at least 10 feet deep; the depth being measured from the low-
est part of the surface rim.*® No width is usually prescribed; but,
of course, such size of opening must be made as ordinary miners
could reasonably regard as a shaft. A drill hole would not suffice.*®
In Nevada the shaft must be 4 feet by 6 feet and sunk to at least 10
14 See Mills’ Ann. St. Colo. § 3152.
16 “In the instance of a shaft sunk, not vertical, but following a vein with
a heavy pitch, it is obvious that a slight difference would exist between a
vertical measurement and a measurement following the pitch of the shaft;
the latter measurement being the shorter distance and favoring the pros-
pector. And although usually the measurement is taken vertically, yet in
such case we do not see but that the measure following the dip would
strictly conform to the law, unless, as in Montana, the statute mentions verti-
cal depth specifically. * * * After a shaft has been sunk ten feet, the
ground at the collar may cave, or the shaft may become filled with débris,
or the making of a platform or raised collar may make it difficult to ascer-
tain the exact line of the original rim of the shaft, or to ascertain its original
bottom. In view of these facts, and of the essential importance of the shaft
being full ten feet deep, it is always advisable to sink it two or three feet
deeper, and remove all ground for cavil or contention.” Morrison, Mining
Rights (13th Ed.) p. 40. :
16 Morrison, Mining Rights, p. 33.
§ 54) DISCOVERY SHAFT OR ITS EQUIVALENT. 179
feet in depth;?” while in Montana the shaft must be sunk vertically
10 feet, or as much more as is necessary to disclose the vein or de-
posit located, and the cubical contents of such shaft must be not less
than 75 cubic feet, if the vein is found short of 10 feet, and at least
150 cubic feet otherwise, and any deficiency of the 150 cubic feet
above 75 may be made up by other excavations.1® ‘The Montana re-
quirement is likely to be adopted in other states,
Reason for Discovery Shaft Requirement.
The chief purpose of requiring a discovery shaft is to demonstrate
the presence of a vein; but it also serves another purpose, namely,
“to compel the discoverer to manifest his intention to claim the
ground in good faith under the mining laws.” + It is this latter
purpose that causes perplexity when we ask whether, by laying out
two locations with a common end line, which bisects one discovery
shaft in such a way as to disclose the vein as existing in each location,
the locator has a discovery shaft for both.
Two Locations Claimed through One Discovery Shaft.
FiGuRe No. 4.
GLAIM A CLAIM B
J _Discoveny Vein —t
Disco,
Apa,
The chief purpose of a discovery shaft has been fulfilled for both
locations in the case illustrated by Figure No. 4; but the locator is
endeavoring to get by one exertion twice what the law intended him
to have thereby. The fact that a discovery shaft sunk by a junior
locator is good, even though it be cut in two by the line of the senior
location,?° may be disregarded, because in that case only one location
is.predicated upon one discovery and one discovery shaft. To claim
two locations through one discovery shaft of only the depth required
for one claim is clearly to act in bad faith, and in such bad faith that
17 Laws Nev. 1907, p. 419, c. 194, § 2.
18 Laws Mont. 1907, p. 20.
191 Lindley on Mines (2d Ed.) § 344. In Colorado, prior to the act of
1866, development work was required by miners’ rules and customs. Con-
solidated Rep. M. M. Co. v. Lebanon M. Co., 9 Colo, 348, 12 Pac, 212.
20 See UPTON v. LARKIN, 7 Mont. 449, 17 Pac. 728; Id. 144 U. S. 19,
12 Sup. Ct. 614, 36 L. Ed. 330; Phillips v. Brill (Wyo.) 95 Pac. 856 (placer) ;
Healey v. Rupp, 28 Colo. 102, 63 Pac. 319.
i80 LOCATION OF LODE CLAIMS. (Ch. 12
both locations should be held void.24 It is a case of excessive lo-
cation, where the whole is bad because of fraud.??
But if the one shaft is sunk twice the required depth for a dis-
covery shaft, and the vein is disclosed in both claims, the requisite
good faith to sustain both locations might be held to exist, though a
prudent miner would not take the risk. The chief objection to let-
ting one shaft of twice the ordinary discovery shaft depth serve to
perfect two locations seems to be the uncertainty as to the real situa-
tion which it would leave in the mind of a subsequent prospector, but
that objection is not overpowering. The question is often regarded
as one of insufficient discovery for two claims; but, if the vein is
disclosed in both claims, it is clearly only one of a sufficient or in-
sufficient discovery shaft.**
Relation of Discovery Shaft to the Location.
The discovery shaft must, of course, be upon land not already tak-
en properly for other purposes by other parties. A known lode within
a townsite patent ** may be, and a known lode within a placer certainly
is, exceptional; but apart from them the discovery shaft must be out-
side the boundaries of any previously located mining claim or patent-
ed mine, or else the location is void.2° Moreover, if a senior locator
permits a junior locator to patent the ground covering the senior’s
discovery shaft, the senior location is thereby rendered invalid; for
a claim must include the discovery shaft, and without it is not a
valid location.2® In most states, however, where the lode has been
21 McKINSTRY v. CLARK, 4 Mont. 370, 1 Pac. 759; Poplar Creek Consol.
Quartz Mine, 16 Land Dec. Dep. Int. 1. See REYNOLDS v. PASCOE, 24
Utah, 219, 221, 66 Pac. 1064, 1065. Compare Reiner v. Schroeder, 146 Cal.
411, 80 Pace. 517.
22 Compare the case of an attempt to claim two mill sites by one mill or
reduction works. Hecla Consol. Min. Co, 14 Land Dec. Dep. Int. 11. But
see 1 Snyder on Mines, § 351.
23 See Phillips v. Brill (Wyo.) 95 Pac. 856.
24 Moyle v. Bullene, 7 Colo. App. 308, 44 Pac. 69.
25 GWILLIM v. DONNELLAN, 115 U. S. 45, 5 Sup. Ct. 1110, 29 L. Hd.
848; Peoria & Colorado Mill. & Min. Co. v. Turner, 20 Colo. App. 474, 79
Pae. 915; Armstrong v. Lower, 6 Colo. 3938; Id. 581; Tuolumne Consol.
Mining Co. v. Maier, 134 Cal. 583, 66 Pac. 863; REYNOLDS vy. PASCOE, 24
Utah, 219, 66 Pac. 1064; Watson v. Mayberry, 15 Utah, 265, 49 Pac. 479:
Moyle v. Bullene, 7 Colo. App. 308, 44 Pac. 69; Little Pittsburgh Consolidated
Min. Co. v. Amie Min. Co. (C. ©.) 17 Fed. 57, 5 McCrary, 298; Upton v.
Larkin, 5 Mont. 600, 6 Pac. 66. See McGinnis v. Egbert, 8 Colo. 41, 5 Pac.
652.
26 McGinnis v. Egbert, 8 Colo. 54, 5 Pac. 652; Michael v. Mills, 22 Colo.
439, 45 Pac. 429; McMillen v. Ferrum Min. Co., 32 Colo. 88, 74 Pac. 461,
105 Am. St. Rep. 64; Girard v. Carson, 22 Colo. 345, 44 Pac. 508; Miller
v. Girard, 3 Colo. App. 278, 33 Pac. 69. But where the junior claim goes to
§ 54) DISCOVERY SHAFT OR ITS EQUIVALENT. 181
validly located, the location would be good despite the subsequent
loss of discovery shaft, if only a new discovery is made within the
remaining portion of thé located ground prior to any intervening
rights of third persons.27 That is because the locator may make any
shaft his discovery shaft.2® It is a question, however, whether in
Colorado anything would answer in such case except a relocation based
upon the new discovery which would involve an abandonment of the
original location.2® The reason for the doubt on that question will
be found in the Colorado cases and statutes compelling a discovery
in the discovery shaft.
The discovery shaft may be anywhere upon the claim, except, it
seems in Wyoming, where by statute it must be half way between
the side lines of the claim.
Essentials of the Discovery Shaft.
The depth of the discovery shaft need not be the statutory number
of feet before the other acts of location are completed, if only the
required depth is reached before adverse rights intervene.*° The
depth, of course, is estimated from the lowest rim of the surface,
patent under an agreement to deed to the owners of the senior the discovery
shaft as soon as patent is received, and the agreement is actually carried
out, the land department has held the senior location not to be invalidated.
Duxie Lode, 27 Land Dec. Dep. Int. 88. And see LITTLE PITTSBURGH
CONSOLIDATED MIN. CO. v. AMIE MIN. CO. (C. C.) 17 Fed. 57, which
held that a locator may sell the ground containing the discovery shaft with-
out invalidating the rest of the location. The last case was decided prior to
GWILLIM v. DONNELLAN, 115 U. S. 45, 5 Sup. Ct. 1110, 29 L. Hd. 348,
with which it would seem to be inconsistent in principle. See, also, Tono-
pah & S. L. Min. Co. v. Tonopah Min. Co. of Nevada (C. ©.) 125 Fed. 408.
A late case holds that a locator may patent the part of his claim containing
his discovery shaft without losing his right to retain and by annual labor
hold the rest. Miller vy. Hamley, 31 Colo. 495, 74 Pac. 980.
27See SILVER CITY GOLD & SILVER MIN. CO. v. LOWRY, 19 Utah,
334, 57 Pac. 11; TONOPAH & S. L. MIN. CO. v. TONOPAH MIN. CO. OF
NEVADA (C. C.) 125 Fed. 408.
28 O'DONNELL v. GLENN, 8 Mont. 248, 19 Pac. 302. But query under
the Montana statute of 1907 (Laws Mont. 1907, pp. 21, 22). A loss of dis-
covery shaft would seem, under that statute, to call for a complete re-
location.
29 BEALS v. CONE, 27 Colo. 473, 62 Pac. 948, 83 Am. St. Rep. 92. But
see Terrible Min. Co. v. Argentine Min. Co. (C. C.) 89 Fed. 583 (affirmed
Argentine Min. Co. v. Terrible Min. Co., 122 U. S. 478, 7 Sup. Ct. 1856, 30
L. Ed. 1140); Treasury Tunnel Mining & Reduction Co. v. Boss, 32 Colo. 27,
74 Pac. 888, 105 Am. St. Rep. 60; McMillen v. Ferrum Min. Co., 32 Colo.
38, 74 Pac. 461, 105 Am. St. Rep. 64.
30 McGINNIS v. EGBERT, 8 Colo. 41, 5 Pac. 652. So a shaft need only
disclose the lode required by statute before other parties acquire interven-
182 LOCATION OF LODE CLAIMS. (Ch. 12
even though that surface be slide rock.?! While the discovery shaft
must disclose a vein or lode, that vein need not contain pay ore,*?
or anything except sufficient vein matter on which to base a discov-
ery.22. Though at one time in Montana the state statute required
at least one wall of the vein to be disclosed by the discovery shaft,**
the provision was of doubtful validity and has been repealed. There
may be veins or lodes sufficient when discovered to support a loca-
tion, yet showing no well-defined walls after months or years of
development, and in the absence of a statute it is not essential that
the discovery shaft disclose a vein with a wall.#® In the Colorado
statute requiring the shaft to show a well-defined crevice, the term
“crevice” means a mineral-bearing vein.2® The discovery shaft need
not be sunk at the precise point where the prospector first discovers
the lode.*”
Equivalents of Discovery Shaft.
Nearly all the mining codes permit certain other development work
to be substituted for a discovery shaft. ‘The Colorado statute is typi-
cal, and provides that “any open cut, cross cut or tunnel which shall
cut a lode at a 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.” ®® We have already defined these different terms.*® Under
the wording of this statute the Colorado court has held that an adit
need not be 10 or any other specified number of feet deep, though
it must be 10 feet in length along the vein,*® and that an adit need
ing rights. Strepey vy. Stark, 7 Colo. 614, 5 Pac. 111; Zollars v. Evans,
(C. C.) 5 Fed. 172, 2 McCrary, 39: McGinnis v. Egbert, 8 Colo. 41, 5 Pac.
652.
31. Van Zandt v. Argentine Min. Co. (C. C.) 8 Fed. 725, 2 McCrary, 159;
Waterloo Min. Co. v. Doe (C. C.) 56 Fed. 685.
82 Muldrick v. Brown, 37 Or. 185, 61 Pac. 428.
33 COPPER GLOBE MIN. CO. v. ALLMAN, 23 Utah, 410, 64 Pac. 1020;
Terrible Min. Co. v. Argentine Min. Co. (C. C.) 89 Fed. 583.
34 Foote v. National Min. Co., 2 Mont. 402; O’Donnell vy. Glenn, 8 Mont.
248, 19 Pac. 302.
35 Fleming v. Daly, 12 Colo. App. 489, 56 Pac. 946.
36 BEALS v. CONE, 27 Colo. 478, 62 Pac. 948, 83 Am. St. Rep. 92.
37 Harrington v. Chambers, 3 Utah, 94, 1 Pac. 362, 875; Terrible Min.
Co. v. Argentine Min. Co. (C. C.) 89 Fed. 583.
38 Mills’ Ann. St. Colo. § 3154.
39 Chapter VIII, § 30 (a).
40 Gray v. Truby, 6 Colo. 278; ELECTRO-MAGNETIC M. & D. CO. v.
VAN AUKEN, 9 Colo. 204, 11 Pac. 80.
§ 54) DISCOVERY SHAFT OR ITS EQUIVALENT. 183
not be under cover for the 10 feet to comply with the statute.*? As
Messrs, Morrison and De Soto point out, “the effect of the latter de-
cision is to confuse all the distinctions between an adit and an open
cut, so that, if the hole or stripping discloses 10 feet in length of the
vein, it may be styled an adit, although in fact an open cut. It is
not safe to rely on this construction, and no prospector should con-
sider his discovery complete until he has 10 feet in depth at the breast
of his cut, or a covered adit at least 10 feet in along the vein.” 4?
The Montana statute wisely avoids the words “adit” and “open
cut,” and makes the equivalent of a discovery shaft any cut or tunnel
which discloses the vein lode or deposit located at a vertical depth of
at least 10 feet below the natural surface of the ground and which
constitutes at least 150 cubic feet of excavation.*?
The Time to Complete Discovery Work.
The time for sinking a discovery shaft is controlled by statute,
or else is a reasonable time.** In the absence of a statute, 90 days
has been held an unreasonable time.*® In Colorado, Idaho, Montana,
North Dakota, Oregon, South Dakota, and Wyoming 60 days is
the statutory period. In Arizona, Nevada, New Mexico, and Wash-
ington it is 90 days. In Alaska, California, and Utah discovery shafts
41 BLECTRO-MAGNETIC M. & D. CO. vy. VAN AUKEN, 9 Colo. 204, 11
Pac. 80. But the development must be such in dimensions and character
as to make it fairly the equivalent of a discovery shaft. Id.
42 Morrison’s Mining Rights (18th Ed.) 48. In speaking of the difference
between cuts and shafts, Messrs. Morrison and De Soto say: “It is obvious
that, a cut being equivalent to a shaft and the pitch of the vein varying
to any degree between true vertical and the horizontal, it is impossible to
say at which angle the cut would be so flat as to be no longer in strictness
a shaft. But a pit dug on a blanket vein reaching in ten feet being in com-
pliance with the law, and no more work being required on a blanket vein
than on a fissure, the pit or shaft following the vein by measurement along
the vein would be a compliance with the law, without regard to its relation
to the vertical.’”’ Morrison’s Mining Rights (18th Ed.) 40. But this is not
true of the new Montana statute, as that calls for vertical measurement.
Laws Mont. 1907, p. 20.
43 Laws Mont. 1907, p. 20. That the cut, cross-cut, or tunnel which is the
equivalent of a discovery’shaft must not be concealed or reached by some
secret means of ingress beneath the surface, but must be run from some
opening on the claim itself, is held in Butte Consol. Min. Co. v. Barker,
35 Mont. 327, 89 Pac. 302, 90 Pac. 177.
44. Doe v. Waterloo Min. Co. (C. C.) 55 Fed. 12; Murley v. Ennis, 2 Colo.
300. The state statute, requiring a discovery shaft or equivalent within 90
days, is not in conflict with the federal statute, giving a longer time for the
performance of annual labor. Sisson v. Sommers, 24 Nev. 379, 55 Pac. 829,
77 Am. St. Rep. 815.
45 Patterson v. Hitchcock, 3 Colo. 533.
184 LOCATION OF LODE CLAIMS. (Ch. 12
are not required unless district rules so provide, and, if required,
are governed by those rules. In Colorado the time runs from the
date of the discovery of mineral and the erection of the discovery
notice, and a renewal of the notice of discovery will not extend the
time.*®
Effects of Failure to Do Discovery Work.
Where plaintiffs are kept from completing a discovery shaft, be-
cause by the fraud and violence of the defendants they have been
ousted, and by threats intimidated from returning, the defendants can
take no advantage from the failure? Where, for other reasons, the
discovery work has not been done, a peaceable relocation will be up-
held.*8
MARKING THE LOCATION UPON THE GROUND.
“The location must be distinctly marked on the ground so that its
boundaries can be readily traced.” Rev. St. U. S. § 2324 (U. S.
Comp. St. 1901, p. 1426).
55. By the federal statute the “location must be distinctly marked
upon the ground so that its boundaries can be readily traced,’”’
and by the state statutes and district rules the boundaries
themselves must be marked in designated ways. The federal
requirement is far less exacting than are the local require-
ments, but all must be complied with.
All corners and angles of the claim should be marked by posts of the
size required by the local rules and statutes, and these posts
should be numbered and marked with the name of the claim,
the date of location, and a reference to the discovery stake.
Care should be taken to tie the claim to natural objects or
permanent monuments.
Such marking should be done within the time fixed by statute; but
where there is no statute the jurisdictions differ on the ques-
tion whether the marking must follow discovery immediately
or may take place within a reasonable time.
48 Ingemarson y. Coffey (Colo.) 92 Pac. 908.
47 MILLER v. TAYLOR, 6 Colo. 41. But nothing short of prevention
from such cause will serve as an excuse for not perfecting the location.
Lockhart v. Wills, 9 N. M. 344, 54 Pac. 336.
48 Walsh y. Henry, 38 Colo. 393, 88 Pac. 449.
‘It is a very common notion among prospectors in this country that if
they sink a shaft, which they call a ‘discovery shaft,’ to a depth of more than
ten feet, and put up their stakes, they acquire thereby some sort of an in-
terest in the public domain, although within the limits of their shaft or cut
there may be no indications whatsoever of a vein or mineral deposit and
work has ceased. Whatever may be the comity in respect of this matter
§ 55) MARKING THE LOCATION UPON THE GROUND. 185
The federal statute of 1872 requires all claims to be marked on
the ground, so that their boundaries can readily be traced. That stat-
ute has been supplemented in most mining law states by statutes
requiring a specific kind of marking; but in Alaska, California, and
Utah, where there are no local statutes requiring the marking, only the
federal statute and district rules need be complied with. Though all the
local mining codes should be repealed, the requirement of marking the
location would still exist because of the federal statute. The require-
ment is mandatory.*® And a failure to mark the location is fatal.*
In the marking of boundaries the first requisite is to designate
the corners and angles of the claim by stakes or posts. The mining
law contemplates that a mining claim shall be a parallelogram, not
exceeding 1,500 feet in length nor 600 feet in width; but a departure
from that ideal may be made if the location is not excessive. The
statute specifically says, too, that “the end lines of each claim shall
be parallel to each other; *1 but that provision is merely directory.5?
An ideal location would be laid out lengthwise along the strike of the
vein, with the end lines at right angles to that strike,°? and with
only four corners, viz.:
Figure No.5. ‘
Discovery VEIN
Ors
C,
VER , 4
4A pp
among miners and prospectors, as a matter of law such a location is ab-
solutely worthless for any purpose.” McLaughlin v. Thompson, 2 Colo. App.
185, 29 Pac. 816, 817. See Erhardt v. Boaro, 113 U. 8. 527, 535, 536, 5 Sup. Ct.
560, 28 L. Ed. 1113, Bulette v. Dodge, 2 Alaska, 427.
49 Ware v. Smith (Ark.) 108 S. W. 8381.
*In Neuebaumer v. Woodman, 89 Cal. 310, 36 Pac. 900, the plaintiffs, who
had been in the possession of an unmarked claim until put out by defendants,
who attempted to make a location, but did not mark the location, were al-
lowed to recover in ejectment. As the plaintiffs had bought and were in
under deeds which doubtless described the ground which they claimed, they
probably came under the rule as to constructive possession announced in
Hess v. Winder, 30 Cal. 349.
50 See DEL MONTE MINING & MILLING CO. v. LAST CHANCE MIN-
ING & MILLING CO., 171 U. S. 55, 84, 18 Sup. Ct. 895, 48 L. Ed. 72.
51 Rev. St. U. S. § 2320 (U. S. Comp. St. 1901, p. 1424).
52“There is liberty of surface from under the act of 1872.” WALRATH
vy. CHAMPION MIN. CO., 171 U. S. 312, 18 Sup. Ct. 909, 48 L. Ed. 170.
68 DAGGETT v. YREKA MIN. & MILL. CO., 149 Cal. 357, 86 Pac. 968.
186 LOCATION OF LODE CLAIMS. (Ch. 12
In the absence of state legislation, such a location would ordinarily
be marked on the ground, so that its boundaries could readily be trac-
ed, if posts or other monuments were erected at each of the four
corners with notices on them, or marks cut in them, sufficiently definite
to enable them readily to be found from the discovery or location
notice.**
The Purpose of Marking the Location.
The marking is to give full notice to other prospectors of the extent
of the claim, and such marking as will give that kind of notice is re-
quired.** As has well been said: “The law is equally mandatory in re-
quiring that mining claims must be so marked upon the ground that
the boundaries thereof can be readily traced. This requirement is not
fulfilled by simply setting a post at or near the place of discovery and
setting stakes at each of the corners of the claim and at the center of
the end lines, unless the topography of the ground is such that a per-
son accustomed to tracing the lines of mining claims can, after reading
the description of the claim in the posted notice of location, by a rea-
sonable and bona fide effort to do so, find all of the stakes, and thereby
trace the lines. Where the country is broken, and the view from one
corner to another is obstructed by intervening gulches and timber and
brush, it is necessary to blaze the trees along the lines, or cut away
the brush, or set more stakes at such distances that they may be seen
from one to another, or dig up the ground in a way to indicate the
lines, so that the boundaries may be readily traced.” °°
In Willeford v. Bell the Supreme Court of California approved the
following instructions as to marking boundaries: ‘The jury are in-
structed by the court that the mining claim of the defendant, in order
to be valid, must have been distinctly marked upon the ground, so that
54 Stakes and stone monuments put at each corner of the claim and at
the center of each of the end lines were held a sufficient marking in South-
ern Cross Gold & Silver Min. Co. v. Europa Min. Co., 15 Nev. 383, and in
Howeth v. Sullenger, 113 Cal. 547, 45 Pac. 841. Compare Marshall v. Har-
ney Peak Mfg. Co., 1 S. D. 350, 47 N. W. 290.
55 Where writings on corner and center stakes identify them with the claim,
a posted notice of location is not essential to a proper marking of the lo-
cation on the ground. HAWS v. VICTORIA COPPER MIN. CO., 160 U.
S. 303, 16 Sup. Ct. 282, 40 L. Ed. 486. .
56 LEDOUX vy. FORESTER (C. ©.) 94 Fed. 600, 602. This decision was
rendered May 22, 1899, and the language used was doubtless influenced by
the state statute of March 8, 1899, still in force, which provided that, if a
mining claim “be located on ground that is covered wholly or in part with
brush or trees, such brush shall be cut and trees be marked or blazed along
the line of such claim to indicate the location of such lines.” Laws Wash.
1899, p. 70, c. 45, § 2. See Charlton v. Kelly, 2 Alaska, 532, 156 Fed. 433,
84 C. CO. A. 295.
§ 55) MARKING THE LOCATION UPON THE GROUND. 187
its boundaries could be readily traced, on or before the 28th day of
February, 1895. The law requires this marking of the claim upon the
ground to be done in such a manner that any person of reasonable in-
telligence may go upon the ground and readily trace the claim out,
and readily find the boundaries and limits of the claim, without in-
structions, advice, or information from any one or thing other than
the marking upon the ground; and it is not necessary or required that
such person shall have a copy of the notice of location or necessarily
use it in the tracing the boundaries of the claim, but where such notice
is posted upon the claim, and constitutes a part of the marking of the
claim, it may [and should] be used as a part of the means by which
the boundaries of the claim can be traced. And if you believe from
the evidence that the defendant, prior to the 28th day of February,
1895, failed to so mark his claim upon the ground so that any person
of reasonable intelligence could go upon the ground, either with or
without a copy of the notice of location, and readily trace the claim
out, and find its boundaries and limits, your verdict should be that the
claim was not so marked on the ground that its boundaries could be
readily traced.” 57
Another way of stating the matter is the following: “Marking the
boundaries of the surface claim as required by statute is one of the
first steps towards a location. It serves a double purpose. It operates
to determine the right of the claimant as between himself and the
general government and to notify third persons of his right. Another
seeking the benefits of the law, going upon the ground, is distinctly
notified of the appropriation and can ascertain its boundaries. He may
thus mark his own location with certainty, knowing that the boundaries
of the other cannot be changed so as to encroach on grounds duly ap-
propriated prior to the change. The prevention of fraud by swinging
or floating is one of the purposes served.” °°
The Minimum Marking under the Federal Statute.
Even less marking than having a post at each of the four corners
has on occasion sufficed; ®® but while less marking may be justified,
where the nature of the ground makes it impossible to get at some of
the corners to mark them,*° it certainly would seem on principle that
57 WILLEFORD v. BELL (Cal.) 49 Pac. 6, 8.
68 POLLARD v. SHIVELY, 5 Colo. 309, 317.
58 NORTH NOONDAY MIN. CO. v. ORIENT MIN. CO. (C. GC.) 1 Fed. 522,
6 Sawy. 299, 311; Gleeson v. Martin White Min. Co. 138 Nev. 442, 463;
Oregon King Min. Co. v. Brown, 119 Fed. 48, 55 C. C. A. 626. See Mt.
Diablo Mill. & Min. Co. v. Callison, 5 Sawy. 489, 449, Fed. Cas. No. 9,886.
60 Kilers v. Boatman, 3 Utah, 159, 2 Pac. 66; Id, 111 U. S. 356, 4 Sup.
Ct. 432, 28 L. Ed. 454, :
188 LOCATION OF LODE CLAIMS. (Ch. 12
ordinarily the federal requirement could not properly be complied with
unless at least three corners of the claim were marked.** It has to be
admitted, however, that the federal Supreme Court has announced with
reference to the marking of placer claims a rule which would make
far less marking do.*? While the question of whether the markings
are such that the boundaries can be readily traced is one of fact for
the jury,®* the court must decide whether there is or was enough to go
to the jury; but the federal Supreme Court has been exceptionally
liberal in its holdings about markings.
State Statutory Requirements for Markings.
The state statutes usually require at least six stakes, posts, or monu-
ments—one at each of the four corners, and one in the center of each
side line, or in the center of each end line. Colorado, Nevada, North
Dakota, South Dakota, and Wyoming require posts at the center of
each side line; Idaho requires posts at each angle of the side lines;
and Arizona, North Dakota, Oregon, and South Dakota require posts
61 See WALSH v. ERWIN (C. C.) 115 Fed. 531.
62 McKINLHY CREEK MIN. CO. v. ALASKA UNITED MIN. CO., 183
U. S. 563, 22 Sup. Ct. &, 46 L. Ed. 331. See Loeser v. Gardiner, 1 Alaska,
641. Any marking on the ground whereby the boundaries can readily be
traced is all that is required. The federal statute does not prescribe the
marks, nor point out where they shall be placed. North Noonday Min. Co. v.
Orient Min. Co., 1 Fed. 522, 6 Sawy. 299; Jupiter Min. Co. v. Bodie Consol.
Min. Co., 11 Fed. 666, 7 Sawy. 96; OREGON KING MIN. CO. v. BROWN,
119 Fed. 48, 55 C. C. A. 626.
That it is not enough to put a single stake on the claim, and post notices
on that, see DOE v. WATERLOO MIN. CO., 70 Fed. 455, 17 C. ©. A. 190.
That case, however, was decided before the McKinley Creek Case, supra.
Two stakes, set one at each end of the lengthwise center line of the loca-
tion, were held sufficient, where one bore a written notice that the length
from stake to stake and a specified number of feet in width on each side of
that line was claimed. NORTH NOONDAY MIN. CO. v. ORIENT MIN.
Co. (GC. C.) 1 Fed. 522, 6 Sawy. 299. See Gleeson v. Martin White Min. Co.,
18 Nev. 442. Merely posting a notice on a tree at each end of the claim
was held not a sufficient marking in HOLLAND v. MT. AUBURN GOLD
QUARTZ MIN. CO., 53 Cal. 149. That case, also, of course, long antedates
the McKinley Creek Case, supra. Posting notice on a house, with no ground
markings and no reference to objects or monuments which would identify the
claim, was held insufficient in Malececk v. Tinsley, 73 Ark. 610, 85 S. W.
81. The posting of a notice on a tree, and having the four corners marked
by stakes referred to in the notice, was held sufficient in Baton v. Norris,
131 Cal. 561, 63 Pac. 856.
63 Taylor v. Middleton, 67 Cal. 656, 8 Pac. 594; Farmington Gold Min.
Co. v. Rhymney Gold & Copper Co., 20 Utah, 363. 58 Pac. 832, 77 Am. St.
Rep. 918; Fissure Min. Co. v. Old Susan Min. Co., 22 Utah, 488, 63 Pac. 587;
MEYDENBAUER vy. STEVENS (D. C.) 78 Fed. 787.
§ 55) MARKING THE LOCATION UPON THE GROUND. 189
at the center of each end line—i. e., at each end of the lode.** Montana
now calls, under the Act of 1907, for a monument at each corner or
angle of the claim, but leaves the effectiveness of a lesser marking to
the jury.
The state statutes also often prescribe the kind of posts or stakes.
In Arizona stone monuments will do, if 3 feet high; but posts must be
4 feet above ground. In Colorado, New Mexico, North Dakota, South
Dakota, Washington, and Wyoming the posts must be “substantial”
and sunk in the ground.*® That doubtless means that the land office
requirement at least should be met, namely, each post to be at least
3 feet long by 4 inches square, set 18 inches in the ground, or, if of
stone, to be at least 24 inches long, set 12 inches in the ground.*® In
Idaho monuments must be 4 feet above ground, and posts or trees
must be 4 inches in diameter, or, if square, 4 inches square. In Mon-
tana and Nevada trees and rocks in place of specified size will serve.
In both states posts must be at least 4 inches square by 4 feet 6 inches
in length, set 1 foot in the ground, with a mound of stone or earth 4
feet in diameter by 2 feet in height around the post;*®’ and when a
stone is used, not a rock in place, it must be at least 6 inches square
and 18 inches in length, which in Montana must be set two-thirds of
its length in the ground, with a mound alongside 4 feet in diameter by
2 feet in height, and in Nevada must be set two-thirds of its length in
a mound 4 feet in diameter by 2% feet in height. In Colorado, if bed
rock prevents the sinking of posts, they may be placed in a pile of
stones; and where the proper placing of a post is impractical, or dan-
gerous to life or limb, the post, called in such case “a witness stake,”
may be placed at the nearest practicable point and suitably marked to
designate the proper place.°* Similar provisions exist in Idaho, Ne-
vada, North Dakota, South Dakota, and Wyoming.
64 On the necessity of conforming to these requirements, see WRIGHT
v. LYONS, 45 Or. 167, 77 Pac. 81. Under the Montana statute of 1907, where
lesser monuments than those called for by statute are used, the question of
whether the location is so marked that its boundaries can be readily traced
becomes one of fact for the jury or for the court trying the case without a
jury. Laws Mont. 1907, p. 18. Query whether, under that statute, the slight
marking which will suffice to meet the federal requirement will do in Mon-
tana.
65 That a stake was bound to a tree by twigs, instead of sunk in the ground,
was held to be immaterial in McPHERSON v. JULIUS, 17 S. D. 98, 95 N.
W. 428.
66 Land Office Rule No. 143.
67 In Montana a squared stump of the requisite size will do in place of
a post, and both are to be surrounded by the proper mound. Laws 1907,
p. 19.
68 The witness stake must indicate by course or distance, or both, where
190 LOCATION OF LODE CLAIMS. (Ch. 12
The state statutes often prescribe the markings on the stakes or posts,
In Colorado the post must be hewn or marked on the side or sides in
towards the claim. In Idaho the monuments at the corners and at
the angles of side lines must be marked with the name of the claim and
the corner or angle the monument represents, and, if a post or tree,
it must be hewn or marked upon the side facing the discovery. In
Montana and Nevada the trees, stakes, or monuments must be marked
so as to designate the corners, and in Montana they are to be marked
with the name of the claim. In North Dakota and South Dakota the
posts must be hewn or blazed on the side facing the claim, and marked
with the name of the lode and the corner, end, or side of the claim
that they respectively represent. In Washington the posts or monu-
ments must bear the name of the lode and the date of location. In
Wyoming the requirement is the same as in Colorado.
‘Lying the Claim to Natural Objects or Permanent Monuments.
In addition to requiring the boundaries to be marked, the United
States statute provides that, if state legislation or local rules compel
a record to be made, that record shall contain, among other things,
“such a description of the claim or claims located by reference to some
natural object or permanent monument as will identify the claim.” °°
As record seems everywhere to be required, it becomes essential to
consider, in connection with the marking of boundaries, how such a
“natural object or permanent monument” is to be ascertained and the
claim referred to it in such a way as to identify the claim. Among
natural objects and permanent monuments are big stones,’° cliffs of
rock,” trees,7* mountain peaks,’* cafions,’* lakes and rivers,’® the con-
the true corner may be found. BEALS v. CONE, 27 Colo. 473, 62 Pac. 948,
S38 Am. St. Rep. 92. Where the correct place for a stake is on a railroad em-
bankment, it must be placed there, even under the Colorado statute, unless
it appears that it is impracticable to place it there, or that it would be in-
terfered with by the passage of trains. Id.
69 Rey. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426).
70 Russell v. Chumasero, 4 Mont. 309, 1 Pac. 713; Gamer y. Glenn, 8 Mont.
871, 20 Pac. 654. See Land Office Rule No. 1438, recognizing for survey
corner stones and rock in place.
71 Warmington Gold Min. Co. v. Rhymney Gold & Copper Co., 20 Utah,
363, 58 Pac. 832, 77 Am. St. Rep. 913.
72 Quimby v. Boyd, 8 Colo. 194, 6 Pac. 462; Carter v. Bacigalupi, 83 Cal.
187, 28 Pac. 361; Hansen v. Wletcher, 10 Utah, 266, 87 Pac. 480.
78 Craig v. Thompson, 10 Colo. 517, 16 Pac. 24; Jackson y. Dines, 13 Colo.
90, 21 Pac. 918; Vogel v. Warsing, 146 Fed, 949, 77 C. C. A. 199; Bismark
Mountain Gold Min. Co. v. North Sunbeam Gold Co. (Idaho) 95 Pace. 14.
74 Vlavin v. Mattingly, 8 Mont. 242, 19 Pac. 884; Dunean vy. Fulton, 15
76 Credo Mining & Smelting Co. v. Highland Mining & Milling Co. (C. C.)
95 Fed. 911.
§ 55) MARKING THE LOCATION UPON THE GROUND. 191
fluence of streams,7* a neighboring shaft,77 a mining claim,’® posts
firmly fixed in the ground,’® a town,®® a road,®? and houses.®? The
business of the locator is, of course, to select the most prominent natu-
ral object or permanent monument possible under the circumstances,
and, if more than one is accessible, to have at least two such objects
or monuments to tie the claim to. The whole purpose of the law,
namely, to enable other prospectors to identify the claim, should be
met in the best available way.*®
Time in Which Boundaries must be Marked.
There are conflicting views as to the time when the boundaries must
be marked, where the state legislation and district rules fail to provide
Colo. App. 140, 61 Pac. 244; McKinley Creek Min. Co. y. Alaska United Min.
Co., 183 U. 8. 563, 22 Sup. Ct. 84, 46 L. Ed. 331; Wells v. Davis, 22 Utah,
322, 62 Pac. 3.
76 Carter v. Bacigalupi, 83 Cal. 187, 23 Pac. 361.
77 Jupiter Min. Co. v. Bodie Consol. Min. Co. (C. C.) 11 Fed. 666; North
Noonday Min. Co. v. Orient Min. Co. (C. C.) 1 Fed. 522; Wilson vy. Triumph
Consol. Min. Co., 19 Utah, 66, 56 Pac. 300, 75 Am. St. Rep. 718.
78 HAMMER v. GARFIELD MIN. & MILL. CO., 180 U. S. 291, 9 Sup. Ct.
548, 32 L. Ed. 964; Butler v. Good Enough Min. Co., 1 Alaska, 246; Book
v. Justice Min. Co. (C. C.) 58 Fed. 106; Seidler v. Lafave, 4 N. M. 369, 20
Pac. 789 (overruling Baxter Mountain Gold Min. Co. v. Patterson, 3 N. M.
{Gildersleeve] 269, 3 Pac. 741); Morrison v. Regan, 8 Idaho, 291, 67 Pac. 955
(explaining, yet impliedly overruling, Brown v. Levan, 4 Idaho, 794, 46 Pac.
661; but see Clearwater Short-Line Ry. v. San Garde, 7 Idaho, 106, 61 Pac.
137); Londonderry Min. Co. v. United Gold Mines Co., 38 Colo. 480, 88 Pac.
455; Dunean v. Fulton, 15 Colo. App. 140, 61 Pac. 244 (but see Gilpin Co.
Min. Co. vy. Drake, 8 Colo. 586, 9 Pac. 787; Drummond v. Long, 9 Colo.
538, 18 Pac. 543); Carlin v. Freeman, 19 Colo. App. 334, 75 Pac. 26; Kinney
v. Fleming, 6 Ariz. 263, 56 Pac. 723; Riste v. Morton, 20 Mont. 139, 49 Pac.
656; Bramlett v. Flick, 23 Mont. 95, 57 Pac. 869; Shattuck v. Costello, 8
Ariz. 22, 68 Pac. 529; Russell vy. Chumasero, 4 Mont. 309, 1 Pac. 713; South-
ern Cross Gold & Silver Min. Co. v. Europa Min. Co., 15 Nev. 383; Wilson
vy. Triumph Consol. Min. Co., 19 Utah, 66, 56 Pac. 300, 75 Am. St. Rep. 718;
McCann vy. McMillan, 129 Cal. 350, 62 Pac. 31; Wells v. Davis, 22 Utah,
822, 62 Pac. 3. But see Baxter Mountain Gold Min. Co. v. Patterson, 3 N.
M. (Johns.) 179, 38 Pac. 741.
79 Jupiter Min. Co. v. Bodie Consol. Min. Co. (C. C.) 11 Fed. 666; Russell
v. Chumasero, 4 Mont. 309, 1 Pac. 713; Hansen v. Fletcher, 10 Utah, 266, 37
Pac. 480; Duncan v. Fulton, 15 Colo. App. 140, 61 Pac. 244; Credo Mining &
Smelting Co. v. Highland Mining & Milling Co. (C. C.) 95 Fed. 911; Bram-
lett v. Flick, 23 Mont. 95, 57 Pac. 869.
80 Fissure Min. Co. v. Old Susan Min. Co., 22 Utah, 488, 68 Pac. 587.
81 McCann vy. McMillan, 129 Cal. 350, 62 Pac. 31.
82 Farmington Gold Min. Co. v. Rhymney Gold & Copper Co., 20 Utah,
363, 58 Pac. 832, 77 Am. St. Rep. 9138.
83 A claim’s own permanent stone corner and other boundary monuments
were held sufficient reference in TALMADGE v. ST. JOHN, 129 Cal. 430,
62 Pac. 79. See cases cited in note 181, infra. Parol evidence is admissible
192 LOCATION OF LODE CLAIMS. (Ch. 12
a specific period. The proper interpretation of the federal and state
requirements in such case would seem to be to allow the locator a
reasonable time for the marking, and such time thereafter as there
may be prior to the location of the ground by other prospectors. This
proper interpretation has been adopted by a number of courts; ®* but
in California and in Oregon the rule is adopted that the marking must
follow the discovery “immediately.” ** The California and Oregon
cases would seem clearly to lay down an erroneous rule. The reason-
able time rule is the proper one. What is a reasonable time in which
to mark boundaries depends upon the nature of the ground, the means
of marking, etc.; but the sickness of the locator is not, it seems, a cir-
cumstance to be taken into account.®*
The statutory periods fixed for the marking of boundaries vary con-
siderably. In Arizona and Washington 90 days are allowed. In
Montana and Oregon 30 days are allowed. In Nevada 20 days are
allowed. In Idaho only 10 days are allowed.
The location is marked in time if the boundaries are fixed before
a location by third parties is attempted.§?
How to Mark Boundaries.
It is desirable at this point to indicate what the locator should do to
mark his boundaries. For a perfectly rectangular claim he should pro-
vide at least eight posts, so as to meet the most rigid statutory require-
ments, and for other claims he should provide an additional post for
each additional angle. These posts should comply with the state law
as to size, depth set in ground or mound of rock, etc. If, as is true in
a number of states, the state statute merely requires the posts to be
to show that a monument referred to in the recorded paper is in fact per-
manent. Metcalf v. Prescott, 10 Mont. 283, 25 Pac. 1037; Seidler v. Lafave, 4
N. M. (Johns.) 369, 20 Pac. 789; Seidler v. Maxfield, 4 N. M. (Johns.) 374, 20
Pac. 794. See Russell v. Chumasero, 4 Mont. 309, 1 Pac. 713.
84 DOE v. WATERLOO MIN. CoO. (C. C.) 55 Fed. 11, 70 Fed. 455, 17 C.
C. A. 190; Burke v. McDonald, 2 Idaho, 679, 33 Pac. 49; Sanders v. Noble,
22 Mont. 110, 55 Pac. 1037; Union Min. & Mill. Co. v. Leitch, 24 Wash. 585,
64 Pac. 829, 85 Am. St. Rep. 961; Gleeson v. Martin White Min. Co., 13 Nev.
442; North Noonday Min. Co. v. Orient Min. Co. (C. C.) 1 Fed. 522, 6 Sawy.
299; Jupiter Min. Co. v. Bodie Consol. Min. Co. (C. C.) 11 Fed. 666, 7 Sawy.
96. See Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, 28 L. Hd. 1113;
Funk v. Sterrett, 59 Cal. 613.
85 NEWBILL v. THURSTON, 65 Cal. 419, 4 Pac. 409; PATTERSON vy.
TARBILL, 26 Or. 29, 37 Pac. 76. In Oregon 30 days is now allowed by stat-
ute. Laws Or. 1901, p. 140.
86 DOE v. WATERLOO MIN. CO., 70 Fed. 455, 460, 17 ©. ©. A. 190.
87 Crown Point Min. Co. v. Crismon, 39 Or. 364, 65 Pac. 87; Sharkey v.
Candiani, 48 Or. 112, 85 Pac. 219, 7 L. R. A. (N. S.) 791. The last Mon-
tana statute expressly so provides. Laws Mont. 1907, pp. 22, 23.
§ 55) MARKING THE LOCATION UPON THE GROUND. 193
“substantial,” it would be well to have them meet at least the test re-
quired of posts when set by the deputy mineral surveyor in an author-
ized survey, viz.: “Second. The taking
in of a new locator without the omission of any of the old may well
be regarded as estopping the old from denying an interest to exist in
the new. In any event, the facet that a second or amended notice or
certificate of location of a mining claim contains names other than those
set forth in the original cannot be taken advantage of by the other par-
ties; but as to the persons whose names appear therein for the first time
it may be treated as an original notice or certificate, and as a supple-
mental or amended notice or certificate as to those whose names appear
on both.?8¢
238 See Strang v. Ryan, 46 Cal. 53.
234'Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Doe v. Waterloo Min.
Co., 70 Fed. 485. See Weill v. Lucerne Min. Co., 11 Nev. 200.
235 Query whether a relocation would answer. See Van Valkenburg v.
Huff, 1 Nev. 142; and see § 96, infra.
236 TONOPAH & S. L. MIN. CO. v. TONOPAH MIN. CO. OF NEVADA
(C. C.) 125 Fed. 389; Thompson yv. Spray, 72 Cal. 528, 14 Pac, 182. See
Gleeson v. Martin White Min. Co., 13 Nev. 442.
§ 58) LOCATION OF MILL SITES. 225
CHAPTER XIII.
THE LOCATION OF MILL SITES.
»
58. The Two Kinds of Mill Sites.
59. Mill Sites Located by the Proprietor of a Vein or Lode.
59a. Use Necessary to Hold Such Mill Sites.
60. Mill Sites Claimed by Mills.
61. The Acts of Location of Mill Sites.
THE TWO KINDS OF MILL SITES.
58. Nonmineral unappropriated public land of the United States may
be acquired as a mill site (1) where it is not contiguous to
the vein or lode with which the claimant wants to use it, and
(2) where, without owning a mine in connection therewith,
the claimant has put a quartz mill or reduction works on the
site.
By section 2337, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1436),
mill sites may be acquired in two ways: (1) “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”; (2) where, with-
out Owning a mine in connection therewith, the claimant has put a
quartz mill or reduction works on the site. A mill site acquired in the
second way is both technically and actually a mill site; but one acquired
in the first way may be devoted to nonmilling purposes, and so may be
called a mill site only because that is the name given to it in the statute.
Mill sites acquired in these two ways must be nonmineral,? must not
exceed five acres, and must be located in the manner required by the
local statutes.
When it is said that the land must be nonmineral, that means that
an affirmative answer must be given to the question: ‘Has the land
greater value for mill purposes, or for surface use in connection with a
mining claim, than it has as mineral land?” ? As between a prior mill
site claimant and a subsequent lode claimant, the mill site claimant will
be given the benefit of the doubt as to mineral values, if he acted bona
fide, and the lode claimant will be defeated if he does not show that the
land will pay to work. A bona fide prior location of the land for agri-
1Cleary v. Skiffich, 28 Colo. 362, 65 Pac. 59, 89 Am. St. Rep. 207.
21d. Compare Tinkham v. McCaffrey, 13 Land Dec. Dep. Int. 517.
8 CLEARY y. SKIFFICH, 28 Colo. 362, 65 Pac. 59, 89 Am. St. Rep. 207.
If, as seems true, this case stands for the proposition that a mill site located
in good faith as nonmineral land is valid, even though before application for
Cost.M1n.L.—15
226 LOCATION OF MILL SITES. (Ch. 13
cultural purposes will defeat the mill site;* while, of course, a prior
mill site location, if it conforms to the statutory requirements, will de-
feat an agricultural entry of the land.
MILL SITES LOCATED BY THE PROPRIETOR OF A VEIN OR
LODE.
59. To acquire a mill site for use with a lode to which it is not con-
tiguous, any mining use to which the land is bona fide put
will justify the mill site.
The requirement that the land acquired as a mill site by the proprie-
tor of a vein must not be contiguous to the vein is intended to prevent
any increase in the vein-containing area of a mining claim on the pre-
tense that it is wanted as a mill site for those legitimate mining pur-
poses for which the law allows land so acquired to be used. While the
land department formerly held that mill sites might abut upon the side
lines of the claim, ® and in cases where it was clear that the vein de-
parted through the side lines of the claim, and that the land abutting
the end lines was nonmineral, the latter land might be selected as the
mill site,° the presumption was against such a mill site’s validity,” and
the department has finally decided against the validity of mill sites
adjacent to the lode claims with which they are to be used. The final
ruling applied the old doctrine to mill sites made and perfected prior
to January 1, 1904, where mill site patents were applied for and either
carried to entry before July 1, 1906, or without fault of the applicant
prevented from being carried to entry before that date, while it makes
the new construction apply to all other mill sites.*
The mining purposes which will be accepted as the equivalent of
milling purposes to sustain a mill site located by the proprietor of
patent, it is shown clearly to contain the apex of a very valuable vein, it can-
not be supported beyond the point stated in the text. See 1 Lindley on Mines
(2d Ed.) § 525. Where land was being graded for a mill site, but the occupants
bad not complied with any of the requirements of the federal act for acquir-
ing title thereto, the occupants were held not to be entitled to gold found by
others beyond the limits of the graded space. BURNS v. CLARK, 133 Cal.
634, 66 Pac. 12, 85 Am. St. Rep. 233.
4 Hamburg Mining Co. v. Stephenson, 17 Ney. 450, 30 Pac. 1088; Adams v.
Simmons, 16 Land Dec. Dep. Int. 181.
5 In re Freeman, 7 Copp’s L. O. 4.
6 National Mining & Exploration Co., 7 Copp’s L. O. 179; In re Long, 9
Copp’s L. O. 188.
7Id. See Mabel Lode, 26 Land Dec. Dep. Int. 675; Paul Jones Lode, 31
Land Dec. Dep. Int. 359.
* Brick Pomeroy Mill Site, 34 Land Dec. Dep. Int. 320; Alaska Oopper Co.,
82 Land Dec. Dep. Int. 128.
§ 59) MILL SITES NOT CONTIGUOUS TO A VEIN. 227
a vein or lode as such are pretty well settled. Any mining use to which
it is bona fide put would. comply with the statute,® and hence it may be
used for the erection of miners’ bunk houses and boarding houses and
for ore houses,® for pumping works to get water to the mining claim,*°
for a dumping place for waste rock from the claim, etc. It has, how-
ever, been held by the land department that land cannot be located as
a mill site simply to get the timber on it to use in the mine.*?_ It would
seem unquestionable that, where the ground is located by the proprie-
tor of a lode, its use as a dumping place for waste rock thrown away in
excavating and sorting the ore is a proper mill site use.
It has been supposed by some that there is nothing to prevent one
who owns several lode claims from acquiring a separate mill site for
each claim so long as the ground acquired is actually used for the stat-
utory purposes in connection with the lode for which it was located ;**
but the land department has decided that, where a group of contigu-
ous lode claims are held and worked under a common ownership, only
a reasonable number of mill site locations can be made for use there-
with. The department says: ‘Whilst no fixed rule can well be es-
tablished, it seems plain that ordinarily one mill site affords abundant
facility for the promotion of mining operations upon a single body of
lode claims.” 14
8 SILVER PEAK MINES v. VALCALDA (C. C.) 79 Fed. 886; VALCALDA
v. SILVER PEAK MINES, 86 Fed. 90, 29 C. C. A. 591; HARTMAN v. SMITH,
7 Mont. 19, 14 Pac. 648.
® Charles Lennig, 5 Land Dec. Dep. Int. 190. See Satisfaction Extension
Mill Site, 14 Land Dec. Dep. Int. 173. But see Alaska Copper Co. 32 Land
Dec. Dep. Int. 128, where it was held that “a boarding house, store, sawmill,
and wharf” did not sufficiently evidence mining or milling use or occupation,
within the meaning of the mill site statute. So far as the report shows, how-
ever, these structures were not used in connection with the mining claim for
mining purposes. If they were, they should have been held sufficient to sup-
port the mill site. See VALCALDA vy. SILVER PEAK MINES, 86 Fed. 90,
29 C. C. A. 591.
10 Sierra Grande Mining Co. v. Crawford, 11 Land Dec. Dep. Int. 338.
11 Two Sisters Lode & Mill Site, 7 Land Dec. Dep. Int. 557. But see Tartar
y. Spring Creek Water & Mining Co., 5 Cal. 395.
12 See 1 Lindley on Mines (2d Ed.) § 520.
13 Alaska Copper Co., 32 Land Dec. Dep. Int. 128; Hard Cash and Other
Mill Site Claims, 34 Land Dec. Dep. Int. 325.
14 Alaska Copper Co., 32 Land Dec. Dep. Int. 130.
228 LOCATION OF MILL SITES, (Ch. 13
SAME—USE NECESSARY TO HOLD SUCH MILL SITES.
59a. A mill site acquired by the proprietor of a lode is retained by its
reasonable use in good faith for a mining purpose in connec-
tion with the mining claim.
With reference to the use for mining purposes necessary to hold a
mill site acquired in connection with a lode, the following language of
the Montana court is important: ‘We cannot say, under this statute,
what shall be the extent of the use—whether much or little—or the
particular character of the use. The phrase ‘mining purposes’ is very
comprehensive, and may include any reasonable use for mining pur-
poses which the quartz lode mining claim may require for its proper
working and development. This may be very little, or it may be a_
great deal. The locator of the quartz lode mining claim is required to
do only $100 worth of work each year until he obtains a patent there-
for. But if he does only this amount, and uses the mill site in connec-
tion therewith, is not this the use of a mill site for mining purposes in
connection with the mine? Who shall prescribe what shall be the kind
and extent of the use under this statute, so long as it is used in good
faith in connection with the mining claim for a mining purpose?” 1®
15 HARTMAN v. SMITH, 7 Mont. 19, 28, 14 Pac. 648. That a use which
would justify one mill site may be inadequate to sustain four mill sites, and so
none be allowed, was held in Hard Cash and Other Mill Site Claims, 34 Land
Dec. Dep. Int. 325. In that case the land department said: “The statute clear-
ly contemplates that at the time the application for patent is made the land
included in the mill site claim is used or occupied for mining or milling pur-
. poses. Some step in or directly connected with the process of mining or some
feature of milling must be performed upon, or some recognized agency of oper-
ative mining or milling must occupy, the mill site at the time application for
patent is filed. Alaska Copper Company, 32 Land Dec. Dep. Int. 128, 131. So
far as the record in this case shows, aside from the digging of three wells,
nothing has been done on the mill sites. The design to use all of them for the
purpose of a reservoir for water, and the building of a reduction works, is not
the present active employment of any mining agency upon the land or the di-
rect use of it for milling purposes. Neither is the storing of ore upon each mill
site, under the circumstances of this case, such a use of the land as to warrant
the entry and patent of the four mill sites. It was stated in the Alaska Cop-
per Company Case, supra, p. 180, that ‘whilst no fixed rule can well be estab-
lished, it seems plain that ordinarily one mill site affords abundant facility for
the promotion of mining operations upon a single body of lode claims.’ It fol-
lows that, if more than one mill site is applied for in connection with a group
of lode claims, a sufficient and satisfactory reason therefor must be shown.
The storage of a quantity of ore upon each of the four mill sites in this case,
where there is nothing to show but that the area embraced in one of them
would be ample for such storage, is but a mere colorable use of the mill sites,
§ 60) MILL SITES CLAIMED BY MILLS. 229
And as showing what is an actual possession and use of a mill site,
justifying ejectment because of ouster, the following language of the
United States Circuit Court of Appeals, Ninth Circuit, may be quoted:
“It would seem that a tract of five acres claimed for a mill site, as this
was, may in general be said to be in the possession of the locator when
its corners are marked with painted posts, as is the custom and rule in
locating such mill sites, and as required by the regulations of the gen-
eral land office. In a mining country the presence of the boundary
posts is as significant of occupation as an inclosure would be of
agricultural lands. In the present case there were, in addition to the
boundary posts, the house, the stable, and the springs, together with
the graded wagon road leading from the mill site to the mines of the
plaintiff, all indicating a present and continuous use. * * * Fail-
ure to use a mill site for the purposes for which it is located may, in-
deed, become evidence of abandonment; but there was no evidence, so
far as the record goes, tending to show that the locator had failed or
ceased to use the property for the purposes for which it was claim-
Eder ts
Because lode claims in connection with which mill sites are acquired
may be patented before the mill sites are,t it must not be supposed
that the patented lode claims can be allowed to remain idle and the un-
patented mill site remain valid. Reasonable use of the mill site in.
good faith is always required.
MILL SITES CLAIMED BY MILLS.
60. To acquire a mill site apart from lode ownership, nothing short
of a mill or reduction works on the ground will serve.
With reference to those mill sites acquired because quartz mills or
reduction works are placed on the ground located for a mill site, it
seems clear that as many locations may be made as there are mills erect-:
ed. Nothing short of mills or reduction works will do,17 however, and,.
while both a. water right and a mill site may be located on the same
which does not satisfy the requirements of the statute. It thus appearing
that the mill site claims are not used or occupied for mining or milling pur-
poses in connection with the lode claim as required by law, the entry must
be canceled.” Hard Cash and Other Mill Site Claims, 34 Land Dec. Dep. Int.
825, 327, 328. On dumping as a mining use to hold a mill site, see chapter
XIV, § 64, infra.
16 Valcalda v. Silver Peak Mines, 86 Fed. 90, 94, 95, 29 C. C. A. 591.
+ See chapter XVIII, § 100.
17 Le Neve Mill Site, 9 Land Dec. Dep. Int. 460; Brodie Gold Reduction Co.,
29 Land Dec. Dep. Int. 143. An attempt to locate and hold two mill sites by
230 LOCATION OF MILL SITES. (Ch. 18
tract of land,?® still to hold the mill site it is not enough to convey the
water in pipes to a smelter two miles away,® or to a mill and reduc-
tion works owned by claimant on adjoining ground,?° or to put on the
site a dam and pipes to carry the water for use on nearby lodes.**
THE ACTS OF LOCATION OF MILL SITES.
61. The federal statute prescribes no method of location of mill sites,
and the local rules and statutes must therefore be consulted.
Where there are none applicable to mill sites as such, the
local requirements as to lode locations should be met, except
as regards discovery and discovery work.
The manner of locating mill sites is governed in some states by stat-
ute. The federal statute is silent on the subject, and in the absence of
specific local legislation as to mill sites the requirements as to lode lo-
cations should be fully complied with,?? except, of course, that a dis-
covery shaft need not be dug or other discovery excavation made. A
notice of location should be posted on the ground, the tract should be
marked in such a way that the boundaries may readily be traced, and a
location certificate or declaratory statement should be recorded. Wher-
ever there is local legislation regulating the location of mill sites as
such, a name is required to be given to the mill site. It is important,
therefore, to give the mill site a name. The mill site should also be
described by reference to natural objects and permament monuments
with the same particularity as is used in the case of lode claims. The
record should state the number of feet or acres claimed, and, if the
mill site is located by the proprietor of a lode, the record should give
the name and a brief description of the claim with which the mill site is
to be used, or, if it is to be used for a mill by one who does not own a
lode in connection with it, the name of the mill or reduction works up-
building one mill on the division line between them will not be allowed. Hec-
la Consol. M. Co., 14 Land Dec. Dep. Int. 11.
18 Charles Lennig, 5 Land Dec. Dep. Int. 190. That the water right be
comes appurtenant to the mill site, and not to the claim the ores of which are
treated, see North American Exploration Co. v. Adams, 104 Fed. 404, 45 C. C.
A. 185.
19 Charles Lennig, 5 Land Dec. Dep. Int. 190.
20 Brodie Gold Reduction Co., 29 Land Dec. Dep. Int. 148. A mill site can-
not be acquired as an addition to an existing mill site. Hecla Consol. M. Co.,
12 Land Dec. Dep. Int. 75.
21 Le Neve Mill Site, 9 Land Dec. Dep. Int. 460. This would seem, however,
to be a perfectly proper mining purpose to sustain the location of a mill site
by the proprietor of a lode. See Silver Peak Mines v. Valcalda (C. C.) 79 Fed.
886.
22 Fencing is not required. Silver Peak Mines v. Valcalda (C. C.) 79 Fed.
886. 889.
§ 61) ACTS OF LOCATION OF MILL SITES. . 231
on the mill site. With these additions, the acts of location are just
like those for lode claims, except, of course, that no discovery shaft
is required. The building of the mill in the one situation, and the actu-
al user of the land for mining or milling purposes in connection with
the lode in the other, takes the place of the discovery shaft and the
subsequent annual labor.
A mill site is so far like a mining claim that it has been held to be
within the phrase “any mining claim or possession held under existing
laws,” and hence to be excepted from a town site patent.” 78
28 HARTMAN v. SMITH, 7 Mont. 19, 14 Pac. 648. Compare language in
Cleary v. Skiffich, 28 Colo. 362, 65 Pac. 59, 89 Am. St. Rep. 207.
232
LOCATION OF TUNNEL SITES, (Ch. 14
CHAPTER XIV.
THE LOCATION OF TUNNEL SITES AND OF BLIND LODES CUT BY
TUNNELS.
62. The Location of Tunnel Sites.
638. The Nature of Tunnel Sites.
64. Dumping Ground for Tunnel Sites.
65, 66. The Location of Blind Veins.
67. Rights of Way through Prior Claims.
68. Tunnels and Annual Labor.
THE LOCATION OF TUNNEL SITES.
62. By the federal statute the tunnel site owner acquires the right to
“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.’’ While that statute does
not prescribe the method of locating tunnel sites for the dis-
covery of such ‘‘blind veins,’’ the land department has a rule
which prescribes the posting and recording of notices and
the marking of boundary lines, and that rule should be com-
plied with.
By the ‘‘face’’ of the tunnel is meant the first working face when
the tumnel enters cover, and by the ‘‘line’’ of the tunnel
seems to be meant the space bounded by 1,500 feet on either
side of the bore of the tunnel, projected 3,000 feet in from
the face of the tunnel; but, because the land department
early defined the ‘‘line’’ of the tunnel to mean the bore of the
tunnel, a prudent locator of a tunnel site will mark on the
surface both the projected bore of the tunnel and the larger
area now seemingly known as the Jine of the tunnel.
The act of Congress provides for the acquisition of tunnel sites
for the discovery and location of veins not previously known to ex-
ist, but found on the line of the tunnel within 3,000 feet from its
face;* but the act does not prescribe the method of locating such
tunnel sites. Acting under secticn 2478, Rev. St. U. S. (U. S. Comp.
St. 1901, p. 1586), however, the land office has made the rule that
the tunnel locators, as soon as their tunnel actually enters cover,
shall “give proper notice of their tunnel location by erecting a sub-
stantial post, board, or monument at the face or point of commence-
ment thereof, upon which should be posted a good and sufficient no-
tice, giving the names of the parties or company claiming the tun-
1 Rev. St. U. S. § 2323 (U. S. Comp. St. 1901, p. 1426).
§ 62) LOCATION OF TUNNEL SITES. 233
nel right, the actual or proposed course or direction of the tunnel, the
height and width thereof, and the course or 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 location of veins or lodes; and at the
time of posting such notice they shall, in order that miners or pros-
pectors may be enabled to determine whether or not they are within
the lines of the tunnel, establish the boundary lines thereof by stakes
or monuments placed along such lines at proper intervals, to the ter-
minus of the 3,000 feet from the face or point of commencement of
the tunnel; and the lines so marked will define and govern as to spe-
cific boundaries within which prospecting for lodes not previously
known to exist is prohibited while work on the tunnel is being pros-
ecuted with reasonable diligence.” 2 The land office also requires that
at the time of posting notice and marking the lines “a full and correct
copy of such notice of location defining the tunnel claim must be
filed for record with the mining recorder of the district, to which no-
tice must be attached the sworn statement or declaration of the own-
ers, claimants, or projectors of such tunnel, setting forth the facts in
the case, stating the amount expended by themselves and their pred-
ecessors 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.”
In the foregoing discussion no mention has been made of state
provisions, because they are all covered by the land office require-
ments. For instance, the Colorado statute provides that, “if any per-
son 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.” *
But, as we have just seen, that and more is required by the land depart-
ment.®
2 Land Office Regulations, rule No. 17.
3 Land Office Regulations, rule No. 18.
4 Mills’ Ann. St. Colo. § 3140.
5In CREEDE & C. C. MIN. & MILL. CO. v. UINTA TUNNEL MIN. &
TRANSP. CO., 196 U. S. 337, 855, 25 Sup. Ct. 266, 49 L. Ed. 501, there is the
following dictum: ‘Nothing is said in section 2323 as to what must be done
to secure a tunnel right. That is left to the miners’ customs or the state stat-
utes, and the statutes of Colorado provide for a location and the filing of a
certificate of location.” The land office rules were overlooked by the court,
but they are none the less to be complied with. See 1 Lindley on Mines (2d
Ed.) § 472.
234 LOCATION OF TUNNEL SITES. (Ch. 14
The Face of the Tumnel.
The face of the tunnel has been defined by the land department as
follows: “The term ‘face,’ as used in said section, is construed and
held to mean the first working face formed in the tunnel, and to sig-
nify the point at which the tunnel actually enters cover.” ® That
seems sound doctrine.
The Line of the Tunnel.
The line of the tunnel has been a matter of controversy. The
tunnel locator is given the right of possession of all “blind veins”
(that is, veins which do not outcrop)’ within 3,000 feet of the face
of the tunnel “on the line thereof,’ and the subsequent location by
others of blind veins “on the line of such tunnel” is declared to be in-
valid. The land office rules also require “the boundary lines” of the
tunnel to be established; and the question is: What is “the line of
the tunnel,” and what are these “boundary lines”?
In Corning Tunnel Co. v. Pell? the Colorado Supreme Court re-
fused to hold that “the line of the tunnel” meant a space 3,000 feet
into the mountain by 1,500 feet wide, but instead declared that in
the federal statutory phrase “line of the tunnel” the word “line”
“designated a width marked by the exterior lines or sides of the tun-
nel.”2° The reason why the court took this narrow view was that,
under the view that the line of the tunnel embraced 1,500 by 3,000
feet,? “the tunnel site would withdraw from the explorations of pros-
pectors over 100 acres of mineral lands. A very limited number of
such locations would cover and monopolize in most cases an entire
mining district; giving to a few tunnel owners all its mines, not
upon the condition of discovery and development, but upon the easy
condition of commencement of work on the tunnel, and its prosecu-
tion with reasonable diligence.” 1?
6 Land Office Regulations, rule No. 16.
7 Larkin v. Upton, 144 U. S. 19, 23, 12 Sup. Ct. 614, 36 L. Ed. 330; Enter-
prise Min. Co. v. Rico-Aspen Consol. Min. Co., 167 U. S. 108, 118, 17 Sup. Ct.
762, 42 L. Hd. 96.
8 Rev. St. U. S. § 2323 (U. S. Comp. St. 1901, p. 1426). That means invalid
as to blind veins and as against the tunnel site owner.
94 Colo. 507.
10 See, also, Hope Min. Co. v. Brown, 7 Mont. 550, 557, 19 Pac. 218, 11 Mont.
3870, 379, 28 Pac. 732.
11 This was estimated 1,500 by 3,000 feet on the erroneous idea that the
blind lode could be followed only 750 feet on each side of the center of the
bore of the tunnel. As it is established that the tunnel owner may take the
whole 1,500 feet of the blind vein on one side only of the tunnel, and it igs un-
certain on which side he will elect to take it, the real figures are 3,000 feet
by 3,000 feet.
12 Corning Tunnel Co. v. Pell, 4 Colo. 511.
§ 62) LOCATION OF TUNNEL SITES. 235
This construction placed upon the phrase by the Colorado court in
1878 prevailed until 1897, when the Supreme Court of the United
States, in the cases of Enterprise Min. Co. v. Rico-Aspen Consol.
Min. Co.?* and Campbell v. Ellet,* adopted the broad meaning of the
words. In Enterprise Min. Co. v. Rico-Aspen Consol. Min, Co., the
court said: “We hold, therefore, that the right to a vein discovered in
the tunnel dates by relation back to the time of the location of the
tunnel site, and also that the right of locating the claim to the vein
arises upon its discovery in the tunnel, and may be exercised by locat-
ing that claim the full length of 1,500 feet on either side, as the lo-
’ cator may desire.” 15
A location, therefore, is on the line of the tunnel, so as to make
it invalid as against a previous tunnel site, where the location is
above the plane bounded by 1,500 feet on either side of the projected
bore of the tunnel and within 3,000 feet from the face of the tunnel
on the projected extension thereof.*
The Lines of the Tunnel. .
What, then, are “the lines of the tunnel,” within the meaning of the
land office rules? They would seem to be the exterior surface mark-
ings to represent the plane within which prospecting for blind lodes
is by statute made ineffective as against the tunnel claimant. They
are the warnings to the prospector that he locates at his peril, be-
cause he is subject to the tunnel site owner’s rights. But since the
markings are called for only by the land department, and since the
land department early defined the line of the tunnel in the way the
Colorado court interpreted it,** the custom has been to mark on the
surface, by parallel lines showing its width, nothing but the projected
bore of the tunnel.t7 Since the decision in Enterprise Min. Co. v.
Rico-Aspen Consol. Min. Co.'® it would seem as if that is no longer
a permissible interpretation of the land department regulations, and
as if the area within which prospecting for blind lodes may not be
carried on under the statute must also be marked. The land depart-
ment rule states that the boundary lines of the tunnel, marked at prop-
13 167 U. S. 108, 17 Sup. Ct. 762, 42 L. Bd. 96.
14167 U. S. 116, 17 Sup. Ct. 765, 42 L. Hd. 101.
15 ENTERPRISE MINING CO. v. RICO-ASPEN CONSOL. MIN. CO., 167
U. S. 108, 113, 17 Sup. Ct. 762, 42 L. Ed. 96.
* See Hope Min. Co. v. Brown, 11 Mont. 370, 28 Pac. 732; Hllet v. Camp-
bell, 18 Colo. 510, 33 Pac. 521.
16 In re David Hunter, 5 Copp’s L. O. 180; In re John Hunter, Copp’s Min.
Lands, 239; In re J. B. Chaffee, Copp’s Min. Lands, 119,
171 Lindley on Mines (2d Ed.) § 475.
18167 U. S. 108, 17 Sup. Ct. 762, 42 L. Ed. 96.
236 LOCATION OF TUNNEL SITES. (Ch. 14
er intervals by stakes or monuments, “will define and govern as to
the specific boundaries within which prospecting for lodes not previ-
ously known to exist is prohibited while work on the tunnel is being
prosecuted with reasonable diligence.” *°
It may, of course, be contended that the lines of the tunnel are so
marked by the marking of the projected tunnel bore, since It 1s easy
to ascertain from such marking the area affected by the tunnel, and the
federal decisions in regard to placers seem to justify the contention ;*°
but in a matter of this kind, where a survey has to be made anyway,
and the additional marking is almost as readily made as not, the fol-
lowing advice of Mr. Lindley seems eminently sound: “As a matter
of caution the line and width of the projected tunnel bore, as well as
the exterior boundaries of the parallelogram [3,000 feet square],
should be marked at the surface.” 21 Until the “lines of the tunnel,”
as these words are used in the departmental regulations, receive defini-
tion, this is the only wise course.
Excessive Tunnel Site Locations.
The rule about excessive locations applies to tunnel sites. A claim
for one 5,000 feet in length, if made in good faith, is void only as
to the excess over 3,000 feet.2? Probably an attempted second tun-
nel location, made at the end of the first 3,000-foot tunnel location,
would be wholly void, so far as the acquisition of any inchoate right
to blind veins is concerned ;7* but there seems to be no decision on
the point. The question is whether the breast of the old tunnel can
be the face of the new, within the meaning of the federal statute.
THE NATURE OF TUNNEL SITES.
63. A tunnel site is not a mining claim, and cannot be patented. It
is merely a means for the discovery and location of blind
veins, and an inchoate right to the unlocated blind veins on
the line of the tunnel attaches upon the location of the tun-
nel, and is lest by an abandonment of the tunnel site, evi-
denced by a failure to prosecute the work for six months and
in other ways.
A tunnel or tunnel site is a peculiar thing. It is strictly a means
provided by statute for the discovery of blind veins in unlocated
19 Land Office Rules, rule No. 17.
20 McKINLEY CREEK MIN. CO. vy. ALASKA UNITED MIN. CO., 183 U.
8. 568, 22 Sup. Ct. 84, 46 L. Ed. 331.
211 Lindley on Mines (2d Eid.) § 475.
22 Glacier Mountain Silver Min. Co. v. Willis, 127 U. S. 471, 8 Sup. Ct. 1214,
2 L. Ed. 172.
23 See Morrison’s Mining Rights (13th Ed.) 258.
§ 63) NATURE OF TUNNEL SITES. 237
ground,?* and the means is made attractive to miners by giving to
the tunnel owner, upon the acquisition of the tunnel site, an inchoate
right to such blind veins as the bore of the tunnel will cut,?° and by
letting that inchoate right ripen into the full right when the veins
actually are cut and appropriated. While the tunnel lines must be
marked on the surface under the land department requirements, the
tunnel owner as such has no rights on the surface. Moreover, “a
tunnel is not a mining claim, though it has sometimes been inac-
curately called one,’ 2° and cannot be patented. “As the claimant of
the tunnel, he [the tunnel owner] takes no ground for which he is
called upon to pay and is entitled to no patent.” 27
By the express provisions of the federal statute a “failure to prose-
cute work on the tunnel for six months shall be considered as an aban-
donment of the right to all undiscovered veins on the line of such tun-
nel.” ?5 To retain complete tunnel rights, the tunnel owner must, by
the express terms of the statute, prosecute work on the tunnel with
“reasonable diligence.” If he does not do so, or if for six months
he fails to work the tunnel, he loses his right to blind veins, though
he may continue the bore of the tunnel to its projected end.2® Of
course, the whole tunnel site may be abandoned; but that is a matter
dependent on intention.
24CREEDE & C. C. MIN. & MILL. CO. v. UINTA TUNNEL MIN. &
TRANSP. CO., 196 U. S. 337, 25 Sup. Ct. 266, 49 L. Ed. 501. The tunnel own-
er’s right “reached only to blind veins, as they may be called—veins not
known to exist, and not discovered from the surface before he commenced his
tunnel.” ENTERPRISE MIN. CO. v. RICO-ASPEN CONSOL. MIN. CO., 167
U. S. 108, 118, 17 Sup. Ct. 762, 42 L. Ed. 96.
26 See Hope Min. Co. v. Brown, 11 Mont. 370, 383, 28 Pac. 732.
26 CREEDE &C.C. MIN. & MILL. CO. v. UINTA TUNNEL MIN. & TRANSP.
CO., 196 U. S. 387, 357, 25 Sup. Ct. 266, 49 L. Ed. 501. For a case where it was
called a mining claim, see Back v. Sierra Nevada Consol. Min. Co., 2 Idaho,
420, 17 Pac. 83.
27 Creede & C. C. Min. & Mill. Co. v. Uinta Tunnel Min. & Transp. Co., 196
U. S. 358, 25 Sup. Ct. 266, 49 L. Bd. 501.
28 Rev. St. U. 8S. § 2323 (U. S. Comp. St. 1901, p. 1426).
29 FISSURE MIN. CO. v. OLD SUSAN MIN. CO., 22 Utah, 488, 63 Pac.
587. “Any party running a tunnel would probably hold the tunnel itself (i. e.,
the bore as far as actually run) without any record whatever. This is done
every day in the case of cross-cuts, which are simply tunnels on a small scale.
But to claim any rights for its line or otherwise under the act of Congress it
must be staked and recorded.” Morrison’s Mining Rights (138th Ed.) 256.
238 LOCATION OF TUNNEL SITES. (Ch. 14
DUMPING GROUND FOR TUNNEL SITES.
64. A reasonable amount of surface ground around the mouth of the
tunnel is always claimed for dumping purposes by the tun-
nel site location notice; the number of feet claimed and
the situation of the ground being stated. Wise precaution
dictates that the dumping ground be located also as a mill
site.
Ground for Dumping Purposes.
It is customary in tunnel site location notices to claim a specified
number of feet of ground for dumping purposes. In a Utah case
it was assumed that the tunnel site owner was entitled “to a space of
surface ground 50 feet on each side of the mouth of the tunnel and
100 feet extending in front thereof for dumping purposes.” °° And
the form in Morrison’s Mining Rights calls for a tract 250 feet square
for dumping purposes. Unless the dumping ground may be re-
garded as a mill site, there is no express statutory authorization for
its acquisition by the tunnel site claimant. The very nature of a tun-
nel site calls, however, for the acquisition of a reasonable amount of
ground around the face of the tunnel for the deposit of waste rock,
and no doubt such ground may be acquired. Prior to the tunnel
site act the California court declared that, “when a place of deposit
for tailings is necessary for the fair working of a mine, there can be
no doubt of the miner’s right to appropriate such ground as may be
reasonably necessary for this purpose, provided he does not interfere
with pre-existing rights. His intention, however, should be clearly
manifested by outward acts.” ®?
Although since then the mill site acts have provided a method for
the acquisition of dumping ground for a mining location, this Cal-
80 Fissure Min. Co. v. Old Susan Min. Co., 22 Utah, 488, 63 Pac. 587.
81 Morrison’s Mining Rights (13th Hd.) 252.
32 Jones v. Jackson, 9 Cal. 237, 244; Lincoln v. Rodgers, 1 Mont. 217. But
see Miser v. O’Shea, 37 Or. 231, 62 Pac. 491, 82 Am. St. Rep. 751. In Hard
Cash and Other Mill Site Claims, 34 Land Dec. Dep. Int. 325, the land depart-
ment said that under the circumstances of that case the storing of ore on four
mill site claims would not sustain any on an application to patent the four, be-
cause, since one mill site was enough in that case, the use as to all four was
“eolorable.” The department is not to be understood, however, as saying that
the storage of ore or the dumping of waste rock on one mill site claim is not
a mining use of it. In Charles Lennig, 5 Land Dec. Dep. Int. 190, 192, the
Secretary of the Interior said that if the proprietor of a lode should use a mill
site ‘for depositing ‘tailings’ or storing ores * * * I think it clear that he
would be using it for mining or milling purposes.” As to ground for tailings,
see note 25, chapter XXVIII, infra.
§§ 65-66) LOCATION OF BLIND VEINS. 239
ifornia case’s doctrine would doubtless apply to a tunnel site prior to
the discovery of a lode in it, unless the tunnel site location would sup-
port a mill site location. The safest thing for a tunnel site claimant
to do to acquire dumping ground would seem to be to claim the ground
in his tunnel site location notice and also to locate the ground as a
dumping “mill site” in connection with the lodes to be discovered in
the tunnel. In the latter case the cutting of a single blind vein
would doubtless make it clear either that the mill site always had
been good, because used for mining purposes by the owner of a lode
whose ownership was inchoate at the time of the location of the mill
site, or that it was good by relation from the moment of the discovery
of the blind vein. If all other reasoning failed, the dumping ground
could be upheld as necessarily authorized by implication by the tunnel
site act itself.*s
THE LOCATION OF BLIND VEINS.
65. The tunnel owner who discovers a blind vein which he is entitled
to claim may make a surface location thereof; but, despite
a troublesome dictum in a recent United States Supreme Court
opinion, there seems to be no necessity for him to make one.
Apparently he need not do more to acquire blind veins than to
post at the mouth of the tunnel and to record a notice suffi-
ciently designating the extent and situs of the vein claimed.
To get patent, however, a surface location is requisite.
66. Only those blind veins seem to be acquired which are cut by the
bore of the tunnel, which do not apex in ground located or pat-
ented prior to the acquisition of the tunnel site, and which
do apex within the space 1,500 feet on each side of the 3,000-
foot projected bore of the tunnel.
88 Compare the holding that a dumping right is an “appurtenance” of a tun-
nel right because “necessary for the full and free enjoyment of the tunnel
right.” Scheel v. Alhambra Min. Co. (C. C.) 79 Fed. 821. Since the mining
law acts, and particularly since the provision for the acquisition of dumping
ground under the mill site sections of those acts, it seems clear that a mining
locator does not acquire priority for dumping purposes by depositing tailings
on public land. In a proper case the land used for dumping purposes may be
located by others, whose rights then become prior. Miser v. O’Shea, 37 Or.
231, 62 Pac. 491, 82 Am. St. Rep. 751. Even before these acts, the California
court stated that “the place of deposit must be claimed as such, or as a min-
ing claim, and the intention of the claimant must be manifested by outward
acts.” Jones v. Jackson, 9 Cal. 237, 245. By “mining claim” the California
court may have meant a mill site. Hartman v. Smith, 7 Mont. 19, 14 Pac. 648.
While the Idaho court, in holding that a tunnel site is a mining claim within
the meaning of the statute about adversing (Back v. Sierra Nevada Consol.
Min. Co., 2 Idaho, 420, 17 Pac. 83), seems to have gone too far (CREEDE &
CG. GC. MIN. & MILL. CO. v. UINTA TUNNEL MIN. & TRANSP. CO., 196 U. S.
240 LOCATION OF TUNNEL SITES. (Ch. 14
The federal tunnel statute is really an incongruous part of the act
of 1872. It was based on the old notion that the lode was every-
thing and the surface only a necessary incident, and it clearly contem-
plated that, as the tunnel owner would not need any surface for his
workings, since he would mine through his tunnel, only the blind
lodes discovered in the tunnel should be acquired, and that no right out-
side the blind lodes themselves should be acquired, except the right
of way in the country rock, along the dip or along the rise of the vein,
needed to follow and work the vein where it was too small for the
owner to stay within it. For many years it was supposed, and the case
of Campbell v. Ellet,?* decided in 1897, fully sustained that supposi-
tion, that because the blind veins discovered in the tunnel were the only
things intended to be given to the tunnel owner, and only 1,500 feet
along their strike, surface locations need not be made by the tun-
nel owner. “Indeed,” the Supreme Court of the United States
well said in Campbell v. Ellet, “the conditions surrounding a vein or
lode discovered in a tunnel are such as to make against the idea or
necessity of a surface location. We do not mean to say that there
is any impropriety in such a location, the locator marking the point
of discovery on the surface at the summit of a line drawn perpendic-
ularly from the place of discovery in the tunnel and about that point
locating the lines’ of his claim in accordance with other provisions of
the statute. * ™* * But, without determining what would be the
rights acquired under a surface location based upon a discovery in
a tunnel, it is enough to hold, following the plain language of the stat-
ute, that the discovery of the vein in the tunnel, worked according to
the provisions of the statute, gives a right to the possession of the
vein to the same length as if discovered from the surface, and that a
location on the surface is not essential to a continuance of that right.
We do not mean to hold that such right of possession can be main-
tained without compliance with the provisions of the local statutes
in reference to the record of the claim, or without posting in some
suitable place, conveniently near to the place of discovery, a proper
notice of the extent of the claim—in other words, without any prac-
tical location. For in this case notice was posted at the mouth of
the tunnel, and no more suitable place can be suggested, and a proper
notice was put on record in the office named in the statute.’’35
337, 25 Sup. Ct. 266, 49 L. Ed. 501), there is every reason to believe that the
tunnel site owner, even prior to the discovery of a blind lode in his tunnel, is
sufficiently “the proprietor” of a vein or lode to be entitled to locate and hold
a mill site. Rev. St. U. S. § 2337 (U. S. Comp. St. 1901, -—p. 1436).
34167 U. S. 116, 17 Sup. Ct. 765, 42 L. Ed. 101.
35 CAMPBELL v. ELLET. 167 U. S. 116, 119, 120, 17 Sup. Ct. 765, 42 L. Ed
101. mea
§§ 65-66) LOCATION OF BLIND VEINS. 241
Campbell v. Ellet was a clear recognition that a blind lode discov-
ered in a tunnel was given as such to the tunnel owner, if he ap-
propriated it and gave sufficient notice thereof, even though he did
not make a surface location.** But in Creede & C. C. Min. & Mill.
Co. v. Uinta Tunnel Min. & Transp. Co. the same judge who wrote the
opinion in Campbell v. Ellet, and without referring to that case,
gave utterance to the following dictum: “The owner [of the tunnel]
has a right to run it in the hope of finding a mineral vein. When
one is found, he is called upon to make. a location of the ground
containing that vein, and thus create a mining claim, the protection
of which may require adverse proceedings.” *7 This dictum, so
at variance with the purpose of the tunnel act, and so inex-
plicably overlooking the previous decision of the court, can-
not be regarded as law, if it means that a surface location must
be made. The tunnel owner must locate the vein, but not necessarily
the ground containing the vein. The tunnel owner, who has discover-
ed a blind vein, may be “called upon to make a location of the ground
containing that vein, and thus create a mining claim,” without being
penalized by the loss of that vein if he does not do so, and the dictum
is thus not necessarily in conflict with the earlier case.** A surface
location is requisite, however, if the locator wishes a patent.
A surface location is, of course, essential if one wishes to acquire
title to veins discovered in tunnels not located and run in accordance
86 The unreasonableness of any other rule is well set forth in the following
guotation from the opinion of the Colorado court: “Little encouragement would
the act give if the discoverer of a lode in a tunnel were bound also to find the
apex and course of such vein, uncover the same from the surface, erect his
location shaft thereon, mark the boundaries thereof, and record his certificate
of such surface location, the same as if he had made the original discovery
from the surface. The location of a lode from the surface is always attend-
ed with more or less difficulty and uncertainty. Mistakes occur in the loca-
tion of boundary lines, even where the apex and course of the vein lie com-
paratively near the surface. These difficulties and uncertainties are liable to
be greatly increased where a lode is discovered by means of a tunnel driven
hundreds and thousands of feet into the heart of a great mountain. To re-
quire the discoverer of a lode in a tunnel to prospect for the vein upon the sur-
face, and uncover and mark its boundaries so as to include its apex and course
within the lines of the surface location, would be to require a work of super-
erogation, for no surface location is necessary for the convenient working of
a lode discovered in a tunnel location already made. Such requirement
would unnecessarily burden the tunnel locator and discoverer.” Billet vy.
Campbell, 18 Colo. 510, 83 Pac. 521, 524.
37 OREEDE & C. C. MIN. & MILL. CO. v. UINTA TUNNEL MIN. &
TRANSP. CO., 196 U. S. 337, 357, 358, 25 Sup. Ct. 266, 49 L. Ed. 501.
38 Campbell v. Ellet, 167 U. S. 116, 17 Sup. Ct. 765, 42 L. Ed. 101. But see
Morrison’s Mining Rights (13th Ed.) 253.
Cost.M1n.L.—16
242 LOCATION OF TUNNEL SITES. (Ch. 14
with the provisions of the federal statute about tunnel sites; the dis-
covery in the tunnel being as effectual as a discovery by shaft from the
surface.*® A statutory tunnel owner who wishes to make a surface
location should so lay out his surface claim as to have some part of it
directly above the point of discovery, and should mark that point on
the surface.*°
Blind Veins Apexing Outside of the Tunnel Site Parallelogram.
The tunnel owner does not necessarily get all blind veins in his
tunnel not embraced in locations made prior to the tunnel site loca-
tion. He gets all such blind veins which could be included in loca-
tions made within the line of the tunnel in the broad sense of the
word, and hence gets all blind veins which apex in that area. Mr.
Lindley seems to think that he gets veins cut by the tunnel which
apex outside that area.44 There seems to be no case on the sub-
ject; but Mr. Lindley’s view would appear to give the statute a far
wider application than its framers intended and to be unfair to pros-
pectors. The provisions of section 2323, Rev. St. U. S. (U. S. Comp.
St. 1901, p. 1426), should be construed together with reference to the
rights of locators under normal conditions; and, so construed, they seem
to show that the tunnel owner was not intended to get blind veins apex-
ing outside of the broadly defined line of the tunnel. He gets, more-
over, only veins discovered in the tunnel,*? and the blind veins which
he can take he may lose by abandonment, or forfeit for failure to give
the requisite notice, or to make the proper record,** or to work an-
nually. 2
Those veins that the tunnel owner does get he has as a whole for
the 1,500 feet of their strike, and may work both up to their apexes
and down to their lowest depth. His rights on the raise or on the
dip are no doubt governed by end line bounding planes extended as in
the case of lode locations made under the act of 1866.
89 BREWSTER v. SHOEMAKER, 28 Colo, 176, 63 Pac. 309, 53 L. R. A.
793, 89 Am. St. Rep. 188.
40 CAMPBELL v. ELLET, 167 U. 8. 116, 119, 17 Sup. Ct. 765, 42 L. Ba.
101. A discovery from the surface in addition to the discovery in the tun-
nel is, of course, not essential to the validity of the surface location, if in
fact it includes the vein. Rico-Aspen Consol. Min. Co. v. Enterprise Min.
Co. (C. C.) 538 Fed. 321; Ellet v. Campbell, 18 Colo. 510, 33 Pac. 521.
411 Lindley on Mines (2d Ed.) § 491. Mr. Shamel, in his recent book, also
takes the view that, wherever the vein wanders or apexes, it belongs to the
tunnel owner for the 1,500 feet of its length, if only it is cut in the tunnel
within 3,000 feet of the face of the tunnel. Shamel’s Mining, Mineral and
Geological Law, 253.
42 Corning Tunnel Co, v. Pell, 4 Colo. 507; Rev. St. U. S. § 2323 (U. S.
Comp. St. 1901, p. 1426).
43 See Campbell v. Ellet, 167 U. S. 116, 17 Sup. Ct. 765, 42 L. Ed. 101.
§ 67) RIGHTS OF WAY THROUGH PRIOR CLAIMS. 248
RIGHTS OF WAY THROUGH PRIOR CLAIMS.
67. The tunnel site owner acquires no right to tunnel through claims
located prior to the acquisition of the tunnel site, but may
acquire such right by condemnation proceedings where the
local statutes permit.
The tunnel owner acquires no rights as against prior patented and
unpatented mining claims, either as to blind veins or as to a right
of way through the claims.** A state statute attempting to confer up-
on a tunnel owner the right to drive his tunnel through prior patented
and unpatented mining claims has been held unconstitutional,*®
though it has since been argued that such a statute is “a perfectly law-
ful exercise of the power granted to the states to regulate easements,
under Rev. St. U. S. § 2338 (U. S. Comp. St. 1901, p. 1486), as to
all locations made since the date the act went into effect, without re-
gard to the date of the location of the tunnel.’’**
It would seem, however, as if section 2338, Rev. St. U. S., was
not intended to enable the states to relieve tunnel claimants from the
necessity of condemning rights of way through prior mining loca-
tions, nor to deprive mining landowners of their property without
just compensation.*7 Condemnation proceedings may be author-
ized. Locations are not prior, however, from the mere fact
that the acts of location have taken place, but will date in any case
only from discovery.*® Subsequent locations, even if they have gone
to patent, must yield up blind veins not yet cut in the tunnel, and
must permit the tunnel to go through their ground without charge.*®
The failure of the tunnel owner to adverse the subsequent locations.
44 CALHOUN GOLD MIN. CO. v. AJAX GOLD MIN. CO., 182 U. S. 499, 21
Sup. Ct. 885, 45 L. Ed. 1200; Richards v. Dower, 64 Cal. 62, 28 Pac. 118;.
Dower v. Richards, 78 Cal. 477, 15 Pac. 105; Amador Queen Min. Co. y.
De Witt, 73 Cal. 482, 15 Pac. 74.
45 Cone v. Roxanna Co., 2 Leg. Adv. 359.
46 Morrison’s Mining Rights (12th Hd.) 235.
47 BAILLID vy. LARSON (C. C.) 188 Fed. 177.
yId. Tanner v. Treasury Tunnel, Mining & Reduction Co., 85 Colo. 593,
83 Pac. 464, 4 L. R. A. (N. S.) 106.
48 Uinta Tunnel, Min. & Transp. Co. v. Ajax Gold Min. Co., 141 Fed.
563, 73 C. C. A. 35; CREEDE & C. OC. MIN. & MILL. CO. v. UINTA TUN-
NEL MIN. & TRANSP. CO., 196 U. S. 337, 25 Sup. Ct. 266, 49 L. Ed. 501.
49 ENTERPRISE MIN. CO. v. RICO-ASPEN CONSOL.. MIN. CO., 167 U.
S. 108, 17 Sup. Ct. 762, 42 L. Ed. 96; CREEDE & C. C. MIN. & MILL. CO.
vy. UINTA TUNNEL MIN. & TRANSP. CO., 196 U. S. 337, 25 Sup. Ct.
266, 49 L. Ed. 501.
244 LOCATION OF TUNNEL SITES. (Ch. 14
does not prejudice his right to veins not yet discovered in the tun-
nel at the time of such failure.°°
TUNNELS AND ANNUAL LABOR.
68. In a proper case work on the statutory tunnel will serve for an-
nual labor.
In closing this discussion of tunnel sites, it should be noted that
a tunnel may be so planned as to serve the purpose of a tunnel to
secure blind lodes, and yet the work on it count as annual labor on
claims which it is so run as to cut and develop.5? It follows, of course,
that the tunnel work will count as development work in making up
the amount needed to patent a claim, each $500 of labor in running
the tunnel thus enabling the tunnel owner to go to patent for one claim
cut or to be cut by the tunnel and benefited by said labor.®?
50 ENTERPRISE MIN. CO. v. RICO-ASPEN CONSOL. MIN. CO., 167
U. S. 108, 17 Sup. Ct. 762, 49 L. Ed. 96.
51Act Feb. 11, 1875, c. 41, 18 Stat. 315 (U. S. Comp. St. 1901, p. 1427),
amendment to Rev. St. U. S. § 23824 (U. S. Comp. St. 1901, p. 1426). See
Hain v. Mattes, 34 Colo. 345, 83 Pac. 127; Kirk v. Clark, 17 Land Dec. Dep.
Int. 190.
62 Zephyr and Other Lode Mining Claims, 30 Land Dec. Dep. Int. 510.
§69) LOCATION OF PLACERS. 245
CHAPTER XV.
THH LOCATION OF PLACERS AND OF LODES WITHIN PLACERS.
69. The Location of Placers.
70. The Discovery Notice.
71. The Discovery Work.
72. The Marking of the Location on the Ground.
73. The Posting of the Location Notice.
74. Record.
75-77. Lodes Within Placers.
THE LOCATION OF PLACERS.
69. A placer is a mineral deposit, which is not a lode, and yet may be
located as mineral ground. The essential acts of location of a
placer claim vary in the different jurisdictions, but, as in
the case of a lode claim, include (1) a discovery notice; (2)
discovery work; (3) marking the location on the ground; (4)
the location notice; and (5) record.
A placer, as we have already seen, means, under the United States
laws, a mineral deposit, which may be located, and yet is not a vein or
lode. Placers were not provided for in the act of 1866, but were by the
act of July 9,1870. They have played an important part in mining op-
erations. What deposits are so mineral as to be possible of location as
placers has been a subject of dispute and of conflicting departmental
rulings, and sometimes statutes have been needed to settle the matter.
Oil Lands.
Lands containing deposits of petroleum, for instance, were originally
treated by the land department and the courts as subject to the placer
laws;1 but finally the land department ruled that oil was not a mineral,
and that oil lands could not be taken up as placers.?. The latter ruling
was at once followed by an act of Congress making “lands containing
petroleum or other mineral oils and chiefly valuable therefor” subject
to entry and patent “under the provisions of the laws relating to placer
mineral lands.” * That act expressly applied to previous as well as to
1 See Roberts v. Jepson, 4 Land Dec. Dep. Int. 60; Samuel E. Rogers, 4
Land Dec. Dep. Int. 284; GIRD v. CALIFORNIA OIL CO. (C. C.) 60 Fed. 532;
Van Horn v. State, 5 Wyo. 501, 40 Pac. 964.
2 Union Oil Co., 28 Land Dec. Dep. Int. 222. See Dunham v. Kirkpatrick,
101 Pa. 36, 47 Am. Rep. 696. But see Gill v. Weston, 110 Pa. 317, 1 Atl. 921.
8 Act Feb. 11, 1897, c. 216, 29 Stat. 526 (U. S. Comp. St. 1901, p. 1484).
246 LOCATION OF PLACERS. (Ch. 15
future locations, and under its influence the land department reversed
the ruling which called forth the statute.*
Stone Lands.
Building stone lands have also been the subject of controversy ;°
but since the act of August 4, 1892,° lands chiefly valuable for build-
ing stone may be located either under the timber and stone act of 1878
or under the placer laws. As the timber and stone act applies only to
surveyed lands, building stone unsurveyed lands must still be entered
under the placer laws.
Salt Lands.
Still another example of diverse usage is found in regard to saline
Jands. Prior to the act of January 31, 1901,’ saline lands were dis-
posed of under land grants to states and under the act of January 12,
1877,® which authorized in a few states the sale of saline lands at pub-
lic auction or private sale at not less than $1.25 an acre. While salt
deposits might in time have been held locatable under the general plac-
er laws, the act of January 31, 1901, settled the matter by enacting
“that all unoccupied lands of the United States containing salt springs
or deposits of salt, in any form, and chiefly valuable therefor, are here-
by declared to be subject to location and purchase under the provi-
sions of the law relating to placer mining claims; provided that the
same person shall not locate or enter more than one claim hereunder.” ®
This saline act is applicable to all the public land states and territories,
except to states, such as Utah, where all saline lands belonging to the
United States were ceded to the state.1° As the saline act makes sub-
ject to location as placers, “deposits of salt in any form,” it would
seem to be certain that salt rock may be located as a placer, and not as
a lode.
The Acts of Location.
In the case of placers, as in the case of lodes, discovery must be
followed by the acts of location, if it has not been preceded by them.
4 Union Oil Co., 25 Land Dec. Dep. Int. 351. See McQuiddy v. State of
California, 29 Land Dec. Dep. Int. 181; Kern Oil Co. v. Clotfeter, 30 Land
Dec. Dep. Int. 583.
5 See Conlin v. Kelly, 12 Land Dec. Dep. Int. 1, holding in 1891 that building
stone lands are not placers, though as early as 1884 it was held that they
were. H. P. Bennet, Jr., 3 Land Dec. Dep. Int. 116. See, also, Wheeler v.
Smith, 5 Wash. 704, 32 Pac. 784.
6 27 Stat. 348, c. 375, § 1 (U. S. Comp. St. 1901, p. 1434).
7 31 Stat. 745, c. 186 (U. S. Comp. St. 1901, p. 1435).
819 Stat. 221, c. 18, § 1 (U. S. Comp. St. 1901, p. 1547).
9 31 Stat. 745, c. 186 (U. S. Comp. St. 1901, p. 1435).
10 The Utah act is Act July 16, 1894, c. 188, § 8, 28 Stat. 107.
§ 70) THE DISCOVERY NOTICE. 247
The acts of location for placers are generally fixed by the local statutes,
and are in the main the same as those for lodes, though only a few
states require discovery work on placers. Where there are no local
statutes or rules on the question, the essential acts of location would
seem to be: (1) Notice of discovery, either posted on the claim or giv-
en to prospectors by the nature of the actual possession; (2) the mark-
ing of the location on the ground, so that the boundaries may readily
be traced. Where record is called for by the local statute, the federal
statute requires the location certificate or declaratory statement to de-
scribe the claim by reference to some natural object or permanent mon-
ument which will identify it.11 The acts of location are as mandatory
in the case of placers as in the case of lodes, and a notice of discovery
is as much a requirement of mining custom in the case of placers as it
is in the case of lodes. As Alaska, California, New Mexico, North
Dakota, Oregon, and South Dakota seem to have no statutes specific-
ally naming placers and providing for them, the above requirements,
including record, would seem to be all that need be complied with in
those states and territories, except where district rules and regulations
which make additional requirements exist.??
THE DISCOVERY NOTICE.
70. The discovery notice required is just like that for lodes, except,
of course, that imstead of distance along the vein being
stated the number of acres should be given.
What has been said as to discovery notices in the case of lode claims
applies to placers.1* This requirement is complicated in the case of placers
by the further requirement that placer claims upon surveyed lands
“shall conform as near as practicable with the United States system of
public land surveys and the rectangular subdivisions of such sur-
veys.”16 Because of this latter requirement it has been contended that
where a placer claim has been located according to subdivisions of the
public surveys, as, for instance, “the N. W. quarter of Sec. No. 1,” etc.,
it is not necessary to mark the boundaries on the ground, but that the
description in the posted or in the recorded notice in words such as
those used above, giving also the township and range, will dispense
with the necessity of marking the boundaries. In the case where the
placer claim covers a whole quarter section there is some sense in this
argument, since the United States government sets stakes at the quart-
er section corners, and the locator may properly be said, therefore, to
15 Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419; Sweet v. Webber, 7 Colo.
443, 4 Pac. 752.
1¢ Rey. St. U. S. § 2331 (U. S. Comp. St. 1901, p. 1432).
250 LOCATION OF PLACERS. (Ch. 15
have adopted those stakes as his own, just as the relocator of a lode
claim who goes about the matter properly may adopt as his own the
stakes of the previous locator.17 An adoption of boundary stakes
should not be allowed, however, where the stakes adopted do not so
mark the boundaries on the ground that the location may readily be
identified, and where a subdivision which the United States does not
stake (and subdivisions of less than a quarter section are not marked
on the ground, but are simply protracted in the surveyor general’s
office on the township plats)18 is located or attempted to be located,
there is no justification for holding that the requirement of marking
the boundaries is dispensed with. Neither is there any justification for
holding that it is dispensed with where the government stakes have
been obliterated.
The whole object of requiring the location to be staked on the
ground is to enable prospectors to find readily the situs and exact area
of the claim, and a description in a notice by reference to imaginary
lines protracted on the township plats in the surveyor general’s office
wholly fails to serve that object. While the land department has
held that a marking of the boundaries is unnecessary where subdivi-
sions as small as 10 acres are taken,!® and those are the smallest sub-
divisions allowed,?° the contrary doctrine would seem on principle to
be the sound one.?4_ As the Supreme Court of California said in
White v. Lee: “The purpose of the requirement that the claimant
shall mark the boundaries of his claim is to inform other miners as to
what portion of the ground is already occupied. The men for whose
information the boundaries are required to be marked wander over the
mountains with a very small outfit. They do not take surveyors with
them to ascertain where the section lines run, and ordinarily it would
do them no good to be informed that a quarter section of a particular
number had been taken up. They would derive no more information
from it than they would from a description by metes and bounds, such
. 17 Brockbank v. Albion Min. Co., 29 Utah, 367, 81 Pac. 868. ‘
18 Donaldson, Public Domain, 184, says that sections “are the smallest tracts
the outboundaries of which the law requires to be actually surveyed.” Quar-
ter sections are, however, actually surveyed and marked on the ground by
stakes.
19 Reins v. Murray, 22 Land Dec. Dep. Int. 409. See Freezer v. Sweeney,
8 Mont. 508, 21 Pac. 20.
20 Rev. St. U. S. § 2330 (U. S. Comp. St. 1901, p. 1482).
21 WHITE v. LEE, 78 Cal. 593, 21 Pac. 363, 12 Am. St. Rep. 115; Anthony
v. Jillson, 83 Cal. 296, 23 Pac. 419; WORTHEN v. SIDWAY, 72 Ark. 215,
79 S. W. 777; Sweet v. Webber, 7 Colo. 443, 4 Pac. 752. See Temescal Oil
Mining & Development Co. vy. Salcido, 187 Cal. 211, 69 Pac. 1010.
§ 72) _ MARKING THE LOCATION ON THE GROUND. 251
as would be sufficient in a deed. For the information of these men it
is required that the boundaries shall be ‘distinctly marked upon the
ground.’ The section lines may not have been ‘distinctly’ marked up-
on the ground, or the marks may have become obliterated by time or
accident; and to say that the mere reference to the legal subdivisions
is of itself sufficient would, in our opinion, defeat the purpose of the
requirement.” 2?
While in Kern Oil Co. v. Crawford the California court expressly
declared the case of White v. Lee “overruled,” because that case pro-
ceeded on the theory that the boundaries must be distinctly marked on
the ground, whereas the federal statute requires simply that “the loca-
tion shall be distinctly marked on the ground, so that its boundaries can
be readily traced,’ ?* the reason given for overruling White v. Lee
leaves its essential doctrine unimpaired, while the facts of Kern Oil Co.
v. Crawford disclosed a staking of the ground which probably apprised
the subsequent locator of the exact location of the claim. Kern Oil Co.
v. Crawford is inconsistent in reasoning with White v. Lee, of course;
for in Kern Oil Co. v. Crawford the court says that, without the stakes
put on the ground by the locator, the notice would have been enough.
“The notice in this case stated to the world that the N. E. 14 of section
32 had been located as a placer claim. The notice did not have to fur-
ther state the boundaries of the quarter section, nor did the locator
have to place stakes or marks upon the ground to show to any one the
lines of the quarter section. He was no more required to do this than
he was to take the defendant around and show her the lines.” 24
It is submitted, however, that the Arkansas court is right in saying:
“So much of section 2331, Rev. St. U. S. (U. S. Comp. St. 1901, p.
1432), as provides that, where the lands have been previously surveyed
by the United States, all placer mining claims located thereon shall
conform to the legal subdivisions of the public lands, is simply a direc-
tion as to where the claimant shall run the exterior lines of his claim.
It is not inconsistent with the requirement of the statute as to how the
lines shall be marked or evidenced; nor does it dispense with, or answer
the purpose of, such requirement. The language of the statute is:
‘The location must be distinctly marked on the ground so that its
boundaries can be readily traced.’ The intention of this statute is that
the boundaries shall be so designated by marks that they can be as-
22WHITE y. LER, 78 Cal. 593, 596, 21 Pac. 363.
28 KERN OIL CO. v. CRAWFORD, 148 Cal. 298, 76 Pac. 1111, 1114, 3 L.
R. A. (N. S.) 993.
24 Kern Oil Co. v. Crawford, 143 Cal. 298, 76 Pac. 1111, 1118, 3 L. R.
A. (N. 8) 998.
252 LOCATION OF PLACERS, (Ch. 15
certained by an inspection of the ground without the aid of a surveyor,
and can be readily traced by such marks.” ?®
But, while the Arkansas court’s reasoning is in thorough accord
with the spirit of the mining statutes, it has to be conceded that the
decision in Kern Oil Co. v. Crawford and the language used by the
court are both justified by the United States Supreme Court decision
in McKinley Creek Min. Co. v. Alaska United Min. Co.?* Because,
however, the Supreme Court of the United States may yet reverse
itself on the point, a prudent locator will not fail to stake the bound-
aries of his placer claim, even though the local statutes or rules do
not call for such staking, and even though the claim does conform to
surveyed subdivisions of the government lands. Moreover, where the
location is upon unsurveyed lands, or upon surveyed land of such a
character that the location cannot be made to conform to the subdivi-
sion of the public land surveys, no one seems ever to have doubted
the need of a proper marking of the boundaries of the location.
Conforming Placer Locations to Survey Subdivisions.
Before the question of a proper marking, in the absence of special
state or district rule requirements, is considered in more detail, a word
is necessary about the statutory provision that the location shall con-
form as nearly as practicable to the rectangular subdivisions of the pub-
lic land surveys. After disregarding this provision for many years, the
land department has decided to enforce it. Whether it is practicable
to make a location conform to the legal subdivisions of the public sur-
veys is a question of fact, which it is the exclusive province of the
land department to determine. “Where the entire placer deposit in
a cafion within certain limits is claimed, and where the adjoining land
on either side is totally unfit for mining or agriculture, the location
need not conform to the subdivisions.” ?* That is because as nearly
as practicable means “as nearly as reasonably practicable.” 28 Yet
the fact that a placer mining location, if made to conform as nearly as
“practicable to the system of public land surveys and the rectangular
subdivisions of such surveys,” would embrace small portions of land
25 WORTHEN v. SIDWAY, 72 Ark. 215, 79 S. W. 777, 780. See Sweet
vy. Webber, 7 Colo. 448, 4 Pac. 752.
26183 U. 8S. 563, 22 Sup. Ct. 84, 46 L. Ed. 331.
27 William Rablin, 2 Land Dec. Dep. Int. 764. 765; WOOD PLACER MIN-
ING CO. (on review) 32 Land Dec. Dep. Int. 363. See Mitchell v. Hutchiu
son, 142 Cal. 404, 76 Pac. 55. For the evidence required to sustain such a
cation or gulch irregularly shaped placer claim, see Wood Placer Mining Co.
(on review) 32 Land Dec. Dep. Int. 401.
28 Pearsall and Freeman, 6 Land Dec. Dep. Int. 227; MITCHELL v.
HUTCHINSON, 142 Cal. 404, 76 Pac. 55.
§ 72) MARKING THE LOCATION ON THE GROUND. 253
not valuable for placer mining and found on river slopes which rise
from 20 to 30 degrees, constitutes no reason for failure to conform the
location to such system and legal subdivisions, “where the lands as a
whole are in fact more valuable for placer mining than for agricul-
tural purposes.” ?® Nor is it any objection to conforming the placer
to surveyed subdivisions that when so conformed it would embrace
part of prior mineral locations,*® though in the case of unsurveyed
subdivisions it appears to be an objection.*+
It should always be remembered that the smallest legal subdivisions
of the public surveys provided for by the mining laws is a subdivision
of 10 acres, in square form, and that there is no authority “for mak-
ing entry and obtaining patent for a placer claim composed of tracts
as small as 5 acres in area, though in rectangular form.” °? More-
over, the rectangular subdivision must be observed on unsurveyed
lands, and as far as possible square 10-acre blocks of unsurveyed
lands must be located to make a valid placer claim.*® As the land
department has stated recently: “That under these sections [of the
Revised Statutes of the United States] placer claims located since May
10, 1872, whether upon surveyed or unsurveyed lands, are required to
conform as nearly as practicable to the United States system of public
land surveys, is settled by numerous decisions of this department.
There is no difficulty in applying the principle to a claim upon unsur-
veyed lands. It is done by locating the claim in rectangular form, of
lawful dimensions, and with east and west and north and south bound-
ary lines.** If the claim be upon surveyed lands, as is the case here, the
matter of conforming the same to the public surveys, where not for
some sufficient physical or other reason impracticable to do so, is ac-
complished simply by locating the claim according to the legal sub-
divisions of such survey.’ *®
But while ordinarily 10-acre squares are the smallest separate parts
of which the 20 acres of placer location by an individual, or the 160
acres or less of placer locations by an association of persons, may be
composed, it should be noticed that section 2330, Rev. St. U. S., spe-
29 Hogan and Idaho Placer Mining Claims, 34 Land Dee. Dep. Int. 42. The
slope of the banks was not precipitous enough. See Wood Placer Mining
Co. (on review) 32 Land Dec. Dep. Int. 363.
30 RIALTO NO. 2 PLACER MINING CLAIM, 34 Land Dec. Dep. Int. 44.
81GOLDEN CHIEF A PLACER CLAIM, 35 Land Dec. Dep. Int. 557.
32 ROMAN PLACER MINING CLAIM, 34 Land Dec. Dep. Int. 260.
83 Miller Placer Claim, 30 Land Dec. Dep. Int. 225; Wood Placer Mining
Co., 832 Land Dec. Dep. Int. 198, on review Id. 363, 401. But that the rule
is contrary in Alaska, see Price v. McIntosh, 1 Alaska, 286.
34 See Laughing Water Placer, 34 Land Dec. Dep. Int. 56.
36 ROMAN PLACER MINING CLAIM, 34 Land Dec. Dep. Int. 260, 262.
254 LOCATION OF PLACERS, (Ch. 15
cifically provides for a joint entry by persons “having contiguous claims
of any size, although such claims may be less than 10 acres each.” The
whole matter of size of tracts is well discussed in the following ex-
tract from a departmental opinion: “The smallest legal subdivision
recognized by the public land laws other than the placer mining laws
is a tract of 40 acres—that is, a tract in square form constituting one-
fourth of a quarter section, or one-sixteenth of a section of land—
except where, by reason of a section being fractional, its subdivision
into smaller tracts may result in the formation of lots of irregular
shape and dimensions, in which event such lots are considered legal
subdivisions, and are known and described with relation to the sec-
tion by the numbers they respectively bear. By the placer mining laws
it is provided that ‘legal subdivisions of 40 acres may be subdivided
into 10-acre tracts,’ and, further, that ‘two or more persons, having
contiguous claims of any size, although such claims may be less than
10 acres each, may make joint entry thereof.’ These provisions are
intended to meet conditions, which not infrequently arise, peculiar to
the assertion of placer claims, where the claimed placer deposits are
limited in extent to tracts of much smaller area than 40 acres. In such
case it is provided: (1) That a regular subdivision of 40 acres may be
subdivided—that is, reduced by subdivision, according to the system
of public land surveys, to form tracts of 10 acres each in square
form; and (2) that in the event of contiguous claims of any size,
though less than 10 acres each,.the persons or associations of persons
asserting the same may make joint entry thereof. Whether under
the latter provision entry and patent may be obtained for a placer
claim or claims aggregating less than 10 acres is a question not now
before the department, and no opinion is expressed with respect there-
to. It is sufficient for the decision of this case to say that the stat-
ute does not contemplate that in the location and entry of placer min-
ing claims rectangular tracts of 5 acres may be recognized and treat-
ed as legal subdivisions of the public surveys. The smallest legal sub-
division provided for by the statute is a subdivision of 10 acres, and
that must be in square form, else it would not be a subdivision accord-
ing to the system of the public land surveys.” 3¢
How to Mark Boundaries under the Federal Statute.
We are now ready for the question of a proper marking of bound-
aries, where only the federal statutes need to be observed. Whether
the claim be one of 20 acres located by one person, or one of 160 acres
located by an association, it is but a single claim. Accordingly,
86 Roman Placer Mining Claim, 34 Land Dec. Dep. Int. 262, 263.
37 MILLER v. CHRISMAN, 140 Cal. 440, 73 Pac. 1083, 74 Pac. 444, 98
Am. St. Rep. 63.
§ 72) MARKING THE LOCATION ON THE GROUND. 255
where the location is of 160 acres by an association of persons, it is
not necessary to mark the boundaries of each 20-acre tract; for the
marking is sufficient if the exterior boundaries of the 160-acre tract
as such are properly marked.*8 With reference to what is a suffi-
cient marking on the ground, in the absence of special state or terri-
torial requirements, we have the authority of the United States Su-
preme Court that it may be practically nothing, if only the notice post-
ed will enable the boundaries to be figured out accurately. That
court held in the case of McKinley Creek Min. Co. v. Alaska United
Min. Co.°® that two placer claims were properly marked where the
notices were written on a stump in a creek and each recited that the
locator claimed ‘‘a placer mining claim 1,500 feet running with the
creek and 300 feet on each side from center of creek known as Mc-
Kinley Creek,” etc., and that the claim located was an extension, in
the one case east and in the other west, of the other claim. The
statement of the court was: “These notices constituted a sufficient
location. The creek was identified, and between it and the stump
there was a definite relation which, combined with the measurements,
enabled the boundaries of the claim to be readily traced.” *°
In view of the foregoing decision, it seems apparent that in Kern
Oil Co. v. Crawford,*! where the locators posted a notice claiming a
quarter section as a placer and set stakes, with several laths between,
to mark, the lines, the stakes being marked as quarter section corners,
the location was marked on the ground, so that its boundaries could
readily be traced, within the rule adopted in McKinley Creek Min.
Co. v. Alaska United Min. Co., even though the corner stakes were
really some distance from the real quarter section corners. As the
departmental opinion adopted by the court in bank in that case stated:
“The United States had surveyed and marked the quarter section by
monuments, and an unintentional mistake in retracing the lines should
not be held to be a waiver by the locators of the claim to the whole
quarter section.” 4?
But it cannot be that the Supreme Court of the United States will
adhere to a rule so inconsistent with the object of notice to prospectors
88 McDONALD v. MONTANA WOOD CO., 14 Mont. 88, 35 Pac. 668, 43
Am. St. Rep. 616.
89 183 U. S. 563, 22 Sup. Ct. 84, 46 L. Ed. 331.
40Id. See, also, Moore v. Steelsmith, 1 Alaska, 121, where, however, it
is stated that the notices must be posted where an honest prospector would
look, and Loeser v. Gardiner, 1 Alaska, 641, where the side lines of the
claim were computed in the manner called for by Alaskan mining custom.
41143 Cal. 298, 76 Pac. 1111, 3 L. R. A. (N. 8S.) 993.
421d.
256 LOCATION OF PLACERS, (Ch. 15
which is a basic principle of the mining law. To say, as the court in
Kern Oil Co. v. Crawford said, that “any person seeing the notice
could, by employing a surveyor or otherwise, find the boundaries as
easily as could the locator, and it evidently is the duty of such person
to do so, in case he is interested in knowing where they are,” ** is
to cast an undue burden on the second locator. The whole spirit of
the mining law requires that the locator shall, as nearly as may be
practicable and necessary to give notice to other prospectors, approx-
imate the staking used in Temescal Oil Mining & Development Co. v.
Salcido, where the section corner was found with the survey monu-
ments still on it, and the other three corners of the quarter section
were then marked by stakes two or three inches in diameter and
standing a foot above ground.**
It has to be admitted, however, that where state or territorial stat-
utes or district rules do not require specific acts, the authorities seem
to require practically nothing, except that on a stake on the located
ground shall be posted a description from which a surveyor could run
the lines. The case of McKinley Creek Min. Co. v. Alaska United
Min. Co. goes far enough, indeed, to make it absolutely immaterial
whether the land located is surveyed public land or not, so long as it
can be said that the lines of the location can be figured out from the
notice posted on the ground.*®
43143 Cal. 298, 76 Pac. 1111, 1118, 3 L. R. A. (N. 8.) 993.
44 TEMESCAL OIL MINING & DEVELOPMENT CO. v. SALCIDO, 137
Cal. 211, 69 Pac. 1010.
45 McKINLEY CREEK MIN. CO. v. ALASKA UNITED MIN. CoO., 183
U. S. 5638, 22 Sup. Ct. 84, 46 L. Ed. 331. See Loeser v. Gardiner, 1 Alaska,
641, for an extreme application of that doctrine. In that case, a suit to
quiet title to a placer claim, the court said: “I am not without doubt upon
the question whether two center stakes, with notices failing to specify the
exact width of the claim, even when supported by a custom that it shall
be a sufficient width to embrace 20 acres, and when the claim is staked by
a number in a regular series, is a sufficiently distinct marking on the
ground, so that its boundaries can be readily traced. Where, however, the
relocator is an intruder upon another location, as in the case at bar, I am
inclined to insist that every reasonable doubt, either of law or fact, shall be
resolved in favor of the protection of the claims of the prior locator. Upon
the principle of the authorities cited, I am of opinion that the location in
question by two center stakes, posted or written notices, and by serial num-
ber, is a sufficient marking of the location; that under such circumstances
the boundaries of the claim are formed by side lines parallel to the center
lines and by end lines at right angles thereto; that the side lines shall be
located equidistant from the center line, and far enough to embrace 20
acres, and no more, in the claim.” Wickersham, J., in Loeser v. Gardiner, 1
Alaska, 641.
§ 72) MARKING THE LOCATION ON THE GROUND. 257
How to Mark Boundaries under the Local Statutes.
The federal requirement about marking boundaries has been added
to in some of the states and territories. In Arizona the boundaries
must be marked by a post or monument of stones at each angle of the
claim, posts to be at least four inches square by four feet six inches
in length, set one foot in the ground and surrounded by a mound of
earth or stones, or if it is impracticable to sink the posts in the ground
they may be placed in piles of stones. If a monument of stones is
used in place of posts, it must be at least four feet in diameter at the
base and three feet in height. Where it is impossible to put up and
keep a post or monument at the proper place, a witness post or mon-
ument may be used. In Colorado the boundaries are to be marked by,
substantial posts sunk in the ground, one at each angle of the claim.
In Idaho, Montana, Nevada, and Utah, the same marking is required
as in the case of lode claims, except that in Nevada, where the loca-
tion is on surveyed land taken by legal subdivisions, nothing except
the location point need be marked.*® In Washington the placer claim
must be distinctly marked on the ground, so that its boundaries may
be readily traced, whether the claim is located by subdivisions of the
public survey or not. In Wyoming the marking must be by substan-
tial posts or stone monuments at each corner of the claim. Whether
the New Mexico, North Dakota, and South Dakota mining location
laws apply to placers is doubtful. If they do, the same marking must
be made for placers as for lodes, and wise precaution would dictate
such marking. In Alaska, California, and Oregon the question of
marking is left to the federal statute, with such additional require-
ments as district rules and regulations may prescribe.
The time of marking is fixed in Colorado by the time for record,
which is within 30 days from the date of discovery. In Idaho the
time of marking is fixed “at the time of making the location.” In
Montana the time for marking is to be within 30 days from the date
of posting notice of location. In Washington it is to be within 30
days after discovery. As in the case of lode claims, it seems that,
except in California and Oregon, a reasonable time to mark the bound-
aries may be taken where no specific time is fixed. In California and
46 If the federal statute requires a marking of corners, this Nevada statute
can be sustained only where the survey markings still remain in place at
the time of the location of the placer and may readily be found. If ap-
plied to other situations, the statute would seem to be repugnant to the
federal statute requiring the location to be marked. Yet it must be re-
membered that the statute requires as much as was furnished in McKINLEY
CREEK MIN. OO. v. ALASKA UNITED MIN. CO., 183 U. S. 568, 22 Sup.
Ot. 84, 46 L. Hd. 331, if that decision is to stand.
Cost.M1n.L.—17
258 LOCATION OF PLACERS. (Ch. 15
Oregon, unless district rules otherwise provide, the marking in the
case of placers, as in the case of lodes, must probably be attended to
immediately. In states and territories where a record is called for,
it is as essential in marking placers as in marking lode claims that
natural objects or permanent monuments be selected to tie the claim
to in the recorded description. These objects or monuments should
be connected by courses and distances with some of the angles of
the claim, and, if a discovery excavation is required, it would be well
to connect them with that also.
Excessive Location.
The question of excessive placer locations requires the same treat-
ment as that of excessive lode locations,+7 except, of course, that there
is no question of excessive location claimed to arise because of the
departure of a vein from a side line.
THE LOCATION NOTICE.
73. The location notice requirements vary in the different jurisdic-
tions, but are much like those in the case of lode claims.
In Arizona the notice of location must contain the name of the claim,
the name of the locator, the date of location, the number of acres
claimed, and the locality of the claim with reference to natural objects
or permanent monuments. In Colorado the notice must contain the
same, with the exceptions that the date of discovery, instead of date of
location, must be given, and that, instead of the number of acres, the
number of feet claimed may be given. In Idaho the notice must contain
the name and dimensions of the claim, the name of the locator, the
date of the location, the mining district, if any, the county, and the
distance and direction from the corner post on which the notice is
posted to such natural object or permanent monument as will fix and
describe in the notice itself the location of the claim. In Montana
and Nevada the requirements are the same as in Colorado, except that,
instead of the date of discovery, the date of the location, which in
Montana is fixed as the day of posting the notice, is to be given. In
Utah the requirement is practically that of Arizona. In Washington
the notice must contain the name of the claim, the name of the loca-
tor, the date of discovery and posting of notice, which shall be con-
sidered the date of location, a description of the claim by reference to
legal subdivisions if made on surveyed public lands, and if not a
47 McINTOSH v. PRICE, 121 Fed. 716, 58 C. C. A. 186; Pratt v. United
Alaska Min. Co., 1 Alaska, 95; Zimmerman v. Funchion (C. GC. A.) 161 Fed.
859. ;
§ 74) RECORD. 259
description with reference to natural objects or permanent monuments.
In Wyoming the notice is like that in Colorado.
Where the statute does not, as in Idaho, direct just where the
notice shall be posted, it should be put in a conspicuous place
near the discovery workings, if any, and, if none, near the center
of the located ground. The placer statutes contemplate the post-
ing of the location notice within a reasonably short time after
discovery. Even the statutes requiring the notice to state the date of
location are susceptible of the interpretation of date of discovery,
though “date of location” normally means “the date when the posting
and staking are completed,” *® and marking the location on the ground
would therefore seem to be the date of location for location notice pur-
poses, except in Montana, where by statute the date of posting the
notice is fixed as the date of location.
A notice of location that would serve, except in Idaho and states
requiring a description, would be as follows:
“Laughing Water Placer Claim.
“The undersigned claims 20 acres as staked, 1,320 feet in length
along this Willow creek by 660 feet in width, for placer mining pur-
poses. Discovered and located January 2, 1908. Richard Black.”
For states and territories where a description is required, the form
for a recorded location certificate should be followed.
RECORD.
74. Record requirements for placer claims vary in the different
jurisdictions, and are much like those governing the case of
lode claims. Prudence dictates the making of a record, even
where the local rules or statutes do not require it.
In the case of placer claims, as in the case of lode, the act of Con-
gress does not compel a record; **® but, if a record is required by a
local rule or statute, it must contain the description and details re-
quired by Rev. St. U. S. § 2324 (U. S. Comp. St. 1901, p,
1426).5° No record is called for in Oregon, and, unless the lode claim
acts apply to placers,®* no record is required in New Mexico, North
48 Morrison’s Mining Rights (13th Ed.) 217.
49 McINTOSH v. PRICE, 121 Fed. 716, 58 C. C. A. 136.
5s0If the land is properly designated by reference to adjoining tracts and
number of acres, the insertion in the recorded notice of the wrong quarter
section number will not invalidate it. Duryea v. Boucher, 67 Cal. 141, 7
Pac, 421.
51 That they may not do so, see Moxon v. Wilkinson, 2 Mont. 421,
260 LOCATION OF PLACERS. (Ch. 15
Dakota, and South Dakota. Where a record is required for mining
claims, that, of course, includes placers.°? As a precaution a record
should always be made. Where an association of persons locates a
160-acre placer claim, a separate recording for each 20-acre tract in-
cluded in it is unnecessary.>?
In Arizona, Idaho, Utah, and Washington the location certificate is
substantially a copy of the posted notice. In Colorado and Wyoming
it is the same as the posted notice, except that the date of location,
instead of the date of discovery, is given in the recorded certificate,
and a description of the claim by reference to natural objects or per-
manent monuments is added. In Montana what is in the posted no-
tice of location must be in the location certificate, and there must be
added a description of the claim with reference to natural objects or
permanent monuments, and the dimensions or area of the claim
and location thereon of the work done. In Nevada the statements in
the posted notice must be repeated, with the addition of a descrip-
tion of the claim by reference to natural objects or permanent monu-
ments, and the kind and amount of work done, and the place on the
claim where done. In Idaho and Montana the copy of the location
notice recorded has to be verified as in the case of lode claims.
Amended Location Certificate.
In Colorado an amended location certificate may be filed for placers,
as well as for lodes;** and in general it may be expected that rules
in regard to lodes will apply to placers, except so far as the essential
differences in the two classes of claims necessarily prevent such
application,
LODES WITHIN PLACERS.
75. Known lodes within placers, not located as lodes by the placer
claimant, may probably be located by third parties prior to
the application for placer patent, and clearly may be so lo-
cated after an application for placer patent in which the
known lodes are not claimed by the applicant for a placer pat-
ent. But third parties, who enter upon an unpatented placer
against the protest of the placer owner to prospect for lodes,
cannot make a valid location of the lodes discovered.
76. A known lode is one which, at the time of the application for
placer patent, is known to the applicant for placer patent, or
to the community generally, to exist and to earry ore in
quality and quantity to justify its working, or which would
52 Sweet v. Webber, 7 Colo. 448, 4 Pac. 752.
583 McDONALD v. MONTANA WOOD CO., 14 Mont. 88, 35 Pac. 668, 48
Am. St. Rep. 616.
54 KIRK v. MELDRUM, 28 Colo. 453, 65 Pac. 633.
§§ 75-77) LODES WITHIN PLACERS. 261
have been so known to the applicant if he had made a rea-
sonable and fair inspection of the premises.
77. A “known lode”? in a placer is located in the same way as any
other lode, except that, if the placer location is valid, third
parties cannot claim more of the lode in the placer than 50
feet in width by 1,500 feet in length.
It often happens that land taken up as placer includes a lode; and
that is, of course, still more likely to happen under the present ruling
of the land department that placers must be composed, if practicable,
of not less than 10-acre squares. The possibility of lodes existing in
placer ground was recognized in the act of 1872, and by it provision
was made whereby the patentee of the placer ground should own all
veins or lodes not known to exist at the time of the application for
patent, and might acquire at that time if he saw fit those then known,
and whereby other persons might acquire known lodes which the
patentee of the placer did not make an application to patent.°* Lodes
not known at the date of application for placer patent, of course, pass
by that patent.°*
Definition of “Known Lodes.”
A known vein in a placer is “‘one known to exist at the time of the
application for patent for such placer,°’ and to contain minerals in such
quantity and quality as to justify expenditure for the purpose of ex-
tracting them. Mere outcroppings or other indications of a vein
within the limits of a placer, or evidence of the existence of a vein
which might be sufficient to support a lode location as against a con-
flicting lode claim, or sustain a lode location as against a subsequent
placer location in an adverse proceeding, are not sufficient to estab-
lish the existence of a known vein or lode within the boundaries of a
placer prior in point of time and which has been patented.” °§ That
is because “the burden of proof in such circumstances is upon the
55 Rev. St. U. S. § 2333 (U. S. Comp. St. 1901, p. 1483).
56 Montana Copper Co. v. Dahl, 6 Mont. 131, 9 Pac. 894; Raunheim y.
Dahl, 6 Mont. 167, 9 Pac. 892.
57 DAHL v. RAUNHEIM, 132 U. S. 260, 10 Sup. Ct. 74, 33 L. Ed. 324;
IRON SILVER MIN. CO. v. MIKE & STARR GOLD & SILVER MIN. Co.,
1438 U. S. 394, 430, 12 Sup. Ct. 543, 36 L. Ed. 201.
58 McCONAGHY v. DOYLE, 32 Colo. 92, 96, 97, 75 Pac. 419, 420, 421.
To the same effect are MONTANA CENT. RY. CO. v. MIGEON (C. C.) 68
Fed. 811; Migeon v. Montana Cent. Ry. Co., 77 Fed. 249, 23 C. ©. A. 156;
Brownfield v. Bier, 15 Mont. 403, 89 Pac. 461; Casey v. Thieviege, 19 Mont.
841, 48 Pac. 394, 61 Am. St. Rep. 511; Mutchmor v. McCarty, 149 Cal. 603,
87 Pac. 85. But a recent case takes the peculiar position that any lode
which will support a location and was known to be such is a “known lode,”
within the placer patent exception. Noyes v. Clifford (Mont.) 94 Pac. 842.
262 LOCATION OF PLACERS. (Ch. 15
lode claimant to establish by clear and convincing testimony that the
vein or veins which he claims are exempted from the placer applica-
tion by operation of law are of the character which will render them
known veins as above defined.” ®*® And the court in the case just
quoted from added: “There may be a vein within this tract which
shows mineral in appreciable quantities, but it does not appear that
it is of such quantity or quality as would justify expenditures for
the purpose of extracting it.” °°
For that reason an allegation that lands “never contained, and do
not now contain, known minerals in lode deposits of any value suffh-
cient to justify expense of exploitation or expenditure in the effort
to extract the same,” is a statement of fact that the lands are nonmin-
eral.*t_ Where it is proven that land contains a lode of the right size
and quality for it to be excepted from the placer patent if it was known
to exist, then it is a known vein, within the intent of the statute, if
prior to the location of the placer a valid lode location was made on
it and the lode location continued to exist as such until after the
application for placer patent, although personal knowledge of the vein
and of the lode location may not be possessed by the applicant for
placer patent.°? The fact, however, that after a placer patent a lode
patent issues for part of the ground patented to the placer is not
conclusive evidence that the lode was a known lode at the time of the
application for placer patent.®* Where the lode has not been located,
59 McCONAGHY v. DOYLE, supra; MONTANA CENT. RY. CO. v. MIG-
EON, 68 Fed. 811. See United States v. Iron Silver Min. Co., 128 U. S.
678, 9 Sup. Ct. 195, 82 L. Ed. 571.
60 Id.
61 O’Keefe v. Cannon (C. C.) 52 Fed. 898.
62 NOYES v. MANTLE, 127 U. S. 348, 8 Sup. Ct. 1132, 32 L. Ed. 168.
63 IRON SILVER MIN. CO. v. CAMPBELL, 1385 U. S. 286, 10 Sup. Ct. 765,
34 L. Ed. 155. Considering that the land office will not grant a patent for
a lode within a placer without a hearing on the question of whether or not
it was a known lode within the meaning of the statute (South Star Lode, 20
Land Dec. Dep. Int. 204; Cape May Mining & Leasing Co. v. Wallace, 27
Land Dec. Dep. Int. 676), this case allows the placer patentee to go behind
the findings of fact of the land department in the lode patent case. The
reason seems to be that, unless the lode was ‘‘a known lode,” the land de-
partment has no jurisdiction to issue the lode patent, since the control of
the. government over the title to the placer land ceased when the placer pat-
ent was issued. The lode patent, however, “may possibly be such prima
facie evidence of the facts named as will place the parties in a position to
contest the question [of the reservation of the vein as a known lode under
the law] in a court.” IRON SILVER MIN. CO. v. CAMPBELL, 1385 U.
8. 286, 293, 10 Sup. Ct. 765, 34 L. Ed. 155. Of the earlier case of DAHL v.
RAUNHEIM, 132 U. S. 260, 10 Sup. Ct. 74, 33 L. Ed. 324 and of the case
of Butte & B. Min. Co. v. Sloan, 16 Mont. 97, 40 Pac. 217, Messrs Morrison
§§ 75-77) LODES WITHIN PLACERS. 263
then, for it to be a known vein or lode, “it must either have been
known to the applicant for the placer patent, or known to the com-
munity generally, or else disclosed by workings and obvious to any
one making a reasonable and fair inspection of the premises for the
purpose of obtaining title from the government.” °4
Whether a vein of sufficient value to justify working exists and
was known to exist at the time of the application for placer patent is
for the jury to say. As the United States Supreme Court has said:
“Tt is, after all, a question of fact for the jury. It cannot be said, as
a matter of law in advance, how much of gold or silver must be found
in a vein before it will justify exploitation and be properly called a
‘known’ vein.” ®
The mere fact that a lode location was marked on the ground and
location certificate recorded, etc., does not prove that there really was
a vein that was known to exist,°* though no doubt it will have weight
with a jury in connection with other facts. Nor does the discovery of
a lode 200 or 300 feet outside of the placer boundaries create any
and De Soto say: “There are expressions in both these opinions which, tak-
en by themselves, would read that the [placer] patent was conclusive proof
that no lode existed; but to so decide on consideration of the whole case
was evidently not the intention of the court.” Morrison’s Mining Rights (13th
Ed.) 227. And it is well to bear in mind the warning which they give, namely:
“The practical conclusion from this vexed state of the title, arising from the
unwise reservation from a government grant of a piece of land with no
defined bounds, and even without acknowledged existence, is that a lode with-
in placer lines should assert itself by adverse against placer application
at the outstart, so as to avoid subsequent departmental inquiry. And where
the application is by the lode claimant over a prior placer patent, the safe
course is for the placer to adverse if the facts exist upon which to contest
the title of the lode claimant.” Id.
64 TRON SILVER MIN. CO. v. MIKE & STARR GOLD & SILVER MIN.
CO., 143 U. S. 394, 402, 403, 420, 12 Sup. Ct. 548, 36 L. Hd. 201. See Sulli-
van v. Iron Silver Min. Co., 143 U. S. 431, 12 Sup. Ct. 555, 36 L. Ed. 214;
Montana Cent. R. Co. v. Migeon (C. C.) 68 Fed. 811; Brownfield v. Bier, 15
Mont. 408, 39 Pac. 461, ‘A vein known to exist within the boundaries of a
placer claim at the date of the application for patent, and not included in
the application, may be located by an adverse claimant after the issuance
of the patent; and a vein is known to exist within the meaning of the stat-
ute (1) when it is known to the placer claimant; (2) when its existence is
generally known; (3) when any examination of the ground sufficient to en-
able the placer claimant to make oath that it is subject to location as such
would necessarily disclose the existence of the vein.” MUTCHMOR v. Mc-
CARTY, 149 Cal. 603, 87 Pac. 85, 88.
66 Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co., 148 U. S.
394, 404, 405, 480, 12 Sup. Ct. 543, 36 L. Hd. 201; Noyes v. Clifford (Mont.)
94 Pac. 842. See Butte & B. Min. Co. v. Sloan, 16 Mont. 97, 40 Pac. 217.
66 BUTTE & B. MIN. CO. v. SLOAN, supra; McCONAGHY v. DOYLE,
82 Colo. 92, 75 Pac. 419.
264 LOCATION OF PLACERS. (Ch. 15
presumption of the existence of a vein or lode within the placer.*’
Even where “quite a number of shafts sunk elsewhere in the district
had disclosed horizontal deposits of a particular kind of ore, which it
was argued might be merely parts of a single vein of continuous exten-
sion through all that territory,” and it was commonly believed that a
blanket vein did underlie the whole territory, still as there had been
no discovery in the placer tract, and no tracing of the vein or lode
“adjacent thereto,” it was held that the common belief would not
make knowledge within the meaning of the statute.°*
If a vein is made known by a trespassing prospector, the latter
cannot, of course, locate; ®® but the vein, if it be of sufficient value
to do so, forthwith becomes a “known lode,” with all that the term
implies.
Location of Known Lodes by Third Persons Prior to Application for
Placer Patent.
There is still room to doubt whether, as against a placer locator
who does not consent to a lode location, a known lode in a placer can
be located prior to the application for patent on the placer. Certainly
a fair construction of Rev. St. U. S. § 2333 (U. S. Comp. St. 1901, p.
1433), would seem to show that Congress intended that the placer owner
should have the first right to all lodes within the placer, and that an elec-
tion to take or leave known lodes should not be forced upon him prior to
the application for patent of the placer. The serious thing to be said
against a construction of the statute which would give the placer own-
er the first right to all lodes discovered down to the time of application
for patent is the practical one that it would result in too many veins
being withdrawn from exploration and purchase.7® Perhaps, too,
67 DAHL v. RAUNHEIM, 132 U. S. 260, 263, 10 Sup. Ct. 74, 83 L. Ed. 824.
Compare Michael v. Mills, 22 Colo. 439, 45 Pac. 429.
68 SULLIVAN v. IRON SILVER MIN. CO., 143 U. S. 481, 12 Sup. Ct.
555, 386 L. Ed. 214.
69 CLIPPER MIN. CO. v. ELI MINING & LAND CO., 194 U. 8. 220, 24
Sup. Ct. 6382, 48 L. Ed. 944. In REYNOLDS vy. IRON SILVER MIN. CO.,
116 U. S. 687, 6 Sup. Ct. 601, 29 L. Ed. 774, it was held that placer patentees
could not maintain ejectment against adjoining lode claimants who were
following the vein on its dip outside that part of the dip belonging to them,
because included within their side lines, which for extralateral right pur-
poses were the end lines, as extended. The part of the dip beneath the
placer was a known lode in a placer, and so did not belong to the placer
patentee, and it was a part to which the lode claimants had no right, since
it was beyond their extralateral right boundaries; but since plaintiff could
recover only on the strength of his own title, and not on the weakness of de-
fendant’s title, the court thought that the facts above did not justify a re
covery. But see infra, pp. 408, 409.
70 See Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 Land Dec.
Dep. Int. 95, 102.
88 75-77) LODES WITHIN PLACERS. 265
fraudulent placer locations might be made; but those could be at-
tacked on that ground and may be disregarded.
The practical reason has appealed to the land department, which
has announced that a placer location 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.71 The same rea-
son has also appealed to the Colorado Supreme Court, which in the
following language, that was dicta, since the court was dealing with
the case of a placer that had been patented without the patentee asking
for known lodes, favored the view of the land department: ‘On the
other hand, those provisions of the statute that give the locator of a
placer the right to locate and patent all other forms of mineral de-
posits included within the surface boundaries of his claim expressly
excepts therefrom veins of quartz or other rock in place, known to
exist within its limits. Rev. St. U. S. §§ 2329, 2333 (U.S. Comp. St.
1901, pp. 1432, 14383). Such lodes, therefore, are not the subject of a
placer grant, and a placer location does not operate to confer the title
or possession thereof upon the placer claimant, or withdraw them
from subsequent location by others. In other words, the placer loca-
tion gives a qualified possession of the ground located; that is to
say, it confers upon the owner the exclusive right of possession of the
surface area for all purposes incident to the use and operation of the
same as a placer mining claim, and all unknown lodes or veins, but does
not give right of possession to known lodes or veins within its limits.
The right to the possession of such lodes or veins can be acquired only
by locating them as lode claims.” 7?
The citation of section 2329, Rev. St. U. S., is immaterial; for that
section simply defines placers as including everything except lodes.
Unknown lodes concededly pass by placer patents, however, and it is
perfectly rational to say that they become part of the placer upon its
location. Indeed, in Clipper Min. Co. v. Eli Mining & Land Co.,"*
the Supreme Court of Colorado so recognized; for, while stating as a
dictum that known lodes in placer unpatented claims were subject to
location by prospectors, it said that, if the lodes were unknown at the
time of prospecting, “the placer owner was entitled to their exclusive
possession, and entry upon them by others constituted a trespass, and
could not initiate title.’ This recognizes a right in the placer locator
to the veins as well as the surface, a right which may, of course,
later be divested. Lodes known to exist when the placer is located
711d.
72 Mt. Rosa Mining, Milling & Land Co. v. Palmer, 26 Colo. 56, 56 Pac.
176, 50 L. R. A. 289, 77 Am. St. Rep. 245.
73 29 Colo. 377, 386, 68 Pac. 286, 64 L. R. A. 209, 93 Am. St. Rep. 89
266 LOCATION OF PLACERS. (Ch. 15
never become part of the placer, as that would be a fraud on the
government; but why do not lodes not then known to exist become
part of the location, with the qualification that, if their presence be-
comes known before application for patent, the placer claimant must
either ask to patent them, when he applies for placer patent, or lose
them? The placer locator has a qualified possession; but is his pos-
session qualified by the right of a third person to locate a known
lode within the limits of the placer? It would seem, on principle, so
far as the statutes are concerned, to be qualified only by the fact that
his possession ceases as to a lode which becomes known before he
applies for placer patent, and which he fails to ask to patent along with
the placer.
It is curious that no judicial decision actually decides that prior to
the placer claimant’s application for placer patent a stranger may locate
within a placer a lode unknown when the placer was located, but now
known to exist, and thus end the placer locator’s right to patent that
known lode. All the cases about known lodes concern locations made
after placer patent, except Clipper Min. Co. v. Eli Mining & Land
Co.,74 which held that a third party cannot enter the lines of a placer
location to prospect for lodes, and that if he does so enter he is a
trespasser, and as such cannot make a valid location of any vein he
discovers. That case throws little light on the question here, as it
was based primarily on the placer locator’s right to the surface, and
not at all on his right to the unknown lodes. The practical reason
above mentioned, however, makes it reasonably certain that the courts
will allow a location of a known vein in a placer location, where such
location can be accomplished peaceably, and not clandestinely, and
perhaps even where clandestinely, if peaceably. Force, of course, could
not be used in the making of such a location, any more than in any
other. A placer claimant should not, however, be allowed to play the
part of a dog in a manger, and for his own protection should take
pains to locate any veins within his placer that he wishes to hold.
Whatever may be true of lode locations made in placer location
limits without the consent of the placer claimant, it is undoubtedly true
that the owner of an unpatented placer claim, or another with his
consent, may locate a lode claim within the boundaries of the placer
claim.7® So, though a location of previously unknown veins may not
be made on his unpatented placer against his will, he may waive the
trespass, or perhaps be estopped to set it up to defeat the lode location.
“Perhaps, if the placer owner, with knowledge of what the [tres-
74194 U. S. 220, 24 Sup. Ct. 632, 48 L. Ed. 944.
76 McCarthy v. Speed, 11 S. D. 362, 77 N. W. 590; Collins v. McKay, 36
Mont. 123, 92 Pac. 295.
§§ 75-77) LODES WITHIN PLACERS. 267
passing] prospectors are doing, takes no steps to restrain their work,
and certainly if he acquiesces in their action, he cannot, after they have
discovered a vein or lode, assert right to it; for generally a vein be-
longs to him who has discovered it, and a locator, permitting others to
search within the limits of his placer, ought not thereafter to appro-
priate that which they have discovered by stich search.” 7°
The Location of Known Lodes in Patented Placers.
But it is with reference to patented placers that the question of
known lodes has arisen in practice. Since the statute provides that
the applicant for placer patent must ask to patent known lodes, or else
the application “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,” 77 that statute must be given full effect; and hence, un-
der patents issued on entries since May 10, 1872, though not on those
before that date,"* the patentee gets no title to lodes known to exist
in the placer at the time of his application, and they may be located by
others.79
How to Locate Known Lodes in Placers. ;
It remains only to discuss the manner of locating a known lode
within a placer and the size of the claim. The manner of locating is
just the same as that in the case of any other lode; but the width
of the claim is less. No trespass: must be committed in making dis-
covery and location, and the location must be made peaceably, and
perhaps not clandestinely. Assuming that the placer location is valid,
the subsequent location of a known vein in the placer must under the
statute be restricted to 50 feet in width.*° Since a placer patent con-
76 Clipper Min. Co. v. Eli Mining & Land Co., 194 U. S. 220, 230, 24 Sup.
Ct. 632, 48 L. Ed. 944.
77 Rey. St. U. S. § 2333 (U. S. Comp. St. 1901, p. 143883).
78 Cranes Gulch Min. Co. v. Scherer, 184 Cal. 350, 66 Pac. 487, 86 Am.
St. Rep. 279.
79 Reynolds v. Iron Silver Min. Co., 116 U. S. 687, 6 Sup. Ct. 601, 29 L.
Ed. 774; Iron Silver Min. Co. v. Reynolds, 124 U. S. 374, 8 Sup. Ct. 598,
31 L. Ed. 466; Iron Silver Mining Co. v. Mike & Starr Gold & Silver Min.
Co., 148 U. S. 394, 430, 12 Sup. Ct. 543, 36 L. Ed. 201; Sullivan v. Iron
Silver Min. Co., 143 U. S. 431, 12 Sup. Ct. 555, 36 L. Ed. 214; Clary v. Haz
litt, 67 Cal. 286, 7 Pac. 701; Noyes v. Clifford (Mont.) 94 Pac. 842. Al-
though two adverse suits brought against a placer applicant by lode claim-
ants were determined in the placer applicant’s favor, that fact was not deem-
ed an adjudication that there was “no known lode” within the conflict area
affected by those suits, as against third parties who did not claim under
the adversers. Butte Land & Investment Co. v. Merriman, 32 Mont. 402,
80 Pac. 675, 108 Am. St. Rep. 590.
80 MT. ROSA MINING, MILLING & LAND CO. v. PALMER, 26 Colo.
56, 56 Pac. 176, 50 L. R. A. 289, 77 Am. St. Rep. 245; Noyes v. Clifford
268 LOCATION OF PLACERS, (Ch. 15
fers no title to known lodes within its limits, one who subsequently
locates such lodes cannot be deemed a trespasser within the rule that
a trespasser on a lawful possession can acquire no rights.*+ But what
if he cannot get on the 50-foot excepted strip without a trespass? Is
there any way to locate a known vein which cannot be shown to ap-
proach any boundary line of the placer? For such a situation see
figure No. 11.
FiqurRe Noll.
ie VEIN
KEYSTONE PLACER
FIGURE No.(2.
LAUGHING WaTER PLACER
om,
Stove,
>
HAPPY Day Looe Cia
If in figure No. 11 the placer patentee posts a notice to all pros-
pectors to keep off his placer, it is difficult to see how a valid location
of the vein can be made without a trespass. In Figure No. 12 how-
ever, the Happy Day claim, based on a discovery outside of the placer,
is valid for the full claim width of 600 feet or less claimed outside
the placer and for 50 feet in width claimed in the placer on the
(Mont.) 94 Pac. 842. Mr. Lindley points out that the record in the case of
Noyes v. Mantle, 127 U. S. 848, 8 Sup. Ct. 1182, 32 L. Ed. 168, as filed,
shows that the lode location in that case preceded the placer, and that there-
fore the court rightly held that the lode location was entitled to be of the
regulation lode location size. See 1 Lindley on Mines (2d Ed.) p. 748.
81 MT. ROSA MINING, MILLING & LAND CO. v. PALMER, 26 Colo. 56,
56 Pac. 176, 50 L. R. A. 289, 77 Am. St. Rep. 245; MUTCHMOR v. Mc-
CARTY, 149 Cal. 608, 87 Pac. 85; Noyes v. Clifford (Mont.) 94 Pae. 842.
§§ 75-77) LODES WITHIN PLACERS. 269
“known lode” not patented as such to the placer owner. In that figure
the boundaries of the Happy Day lode claim would be beginning at
point No. 1, thence to point No. 2, thence to point No. 3, thence to
point No. 4, thence to point No. 5, thence to point No. 6, thence to
point No. 7, thence to point No. 8 and thence to point No. 1, the place
of beginning. The Happy Day lode claim, thus located, can extend
of course, only 1,500 feet in length.
270 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
CHAPTER XVI.
THE ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS.
78. Claims Subject to Annual Labor Requirement.
79. What is Annual Labor.
80-81. Place of Performance and Kind of Annual Labor.
82. Amount of Annual Labor.
83. Excuses for Annuai Labor.
84. Proof of Annual Labor.
85. Annual Labor Pending Patent Proceedings.
86-88. Resumption of Work.
89-90. Forfeiture to Co-Owner.
CLAIMS SUBJECT TO ANNUAL LABOR REQUIREMENT.
78. Annual labor is held to be required on placer claims as well as
on lode claims. It is required only on unpatented claims.
The federal statute attaches to a lode location an express require-
ment that each year following the location and prior to the proper
stage in patent proceedings a certain amount of labor shall be per-
formed upon the claim or improvements be made upon it. By a
process of judicial oversight, or perhaps by traditional error, it has
become settled in several states that annual labor must be performed
on placers as well as on lodes;? and the doctrine has the support of
a dictum of the Supreme Court of the United States.2, The land de-
partment has reversed its previous holding to the contrary in favor of
the rule “that the annual expenditure to the amount of $100 required
by section 2324, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1426), must
be made upon placer claims as well as lode claims.” ® The result is
that, while probably the act of 1872 did not contemplate annual labor
on anything but lode claims, the cases requiring it upon placers will
probably always be followed.* Mr. Lindley, indeed, argues that they are
1CARNEY v. ARIZONA G. M. CO., 65 Cal. 40, 2 Pac. 734; Morgan v.
Tillottson, 73 Cal. 520, 15 Pac. 88; Sweet v. Webber, 7 Colo. 443, 4 Pac. 752.
See, also, Chapman v. Toy Long, 4 Sawy. (U. S.) 28, Fed. Cas. No. 2,610;
Gird vy. California Oil Co. (C. C.) 60 Fed. 531. Separate work need not be
performed on each 20 acres of a 160-acre tract, however. McDonald y. Mon-
tana Wood Co., 14 Mont. 88, 35 Pac. 668, 48 Am. St. Rep. 616.
2 Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990. See St.
Louis Smelting & Refining Co. v. Kemp, 104 U. 8. 686, 26 L. Ed. 875.
3 Land Office Regulations, rule 25. See Circular, 8 Land Dec. Dep. Int. 505.
4 In the short act of February 12, 1903, passed to change a land department
ruling which required annual labor on each oil location, even though sev-
§ 79) WHAT IS ANNUAL LABOR. 271
right, because by section 2329, Rev. St. U. S. (U. S. Comp. St. 1901, p.
1432), “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 claims;” but
it does not seem that the language of that section means anything
more than that $500 worth of labor must be expended or improve-
ments made on placers before they can be patented. Its terms may be
fully met without the doing of annual labor. By the settled interpreta-
tion of the statutes, however, annual labor on placers is required.
WHAT IS ANNUAL LABOR.
79. Annual labor is otherwise known as “‘assessment work’ and “‘re-
presentation work,’’ and these terms cover the annual ex-
penditure in labor or improvements required to prevent the
forfeiture of an unpatented mining claim. Amnual labor is
required for each year, beginning with the Ist of January
succeeding the date of location of the claim. The federal
statute requires the expenditure of at least $100 a year in la-
bor or improvements where the claim has been located since
the act of 1872.
Annual labor is sometimés known as “assessment work” and some-
times as “representation work.” Such labor was required by district
rules and regulations prior to the federal legislation, though such rules
more often required monthly or quarterly labor. The reason for the
miners’ rules and regulations as to labor is thus stated: “It was soon
discovered that the same person would mark out many claims of dis-
covery and then leave them for an indefinite length of time, without
further development and without actual possession, and seek in this
manner to exclude others from availing themselves of the abandoned
mine. To remedy this evil a mining regulation was adopted that
some work should be done on each claim in every year or it would
be treated as abandoned.” ® By the lode mining act of 1866 and the
placer act of 1870 no attempt was made to legislate about annual
labor. It was in the act of 1872, therefore, that the first federal legis-
lation on the subject was enacted, and by that act two different re-
quirements were made, depending on whether the claims were located
before or located after the passage of the act.
eral constituted a group, Congress recognizes annual labor as a requisite in
oil placer locations. Act Feb. 12, 1908, c. 548, 32 Stat. 825 (U. S. Comp. St.
Supp. 1907, p. 478).
5 Chambers v. Harrington, 111 U. S. 350, 353, 4 Sup. Ct. 428, 28 L. Ed.
452. Annual labor is required of the locator to test his good faith. McCUL-
LOCH vy. MURPHY (C. C.) 125 Fed. 147.
272 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
Annual Labor Requirement on Claims Located Prior to the Act of
1872.
With regard to previously located claims the act provided that “$10
worth of labor shall be performed or improvements made each year
for each 100 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.” ® It is apparent that
“each -year” means here each year after the passage of the act, and
that no expenditure prior to the passage of the act could count.?. That
act as it stood would have required the first annual labor to be done
by May 10, 1873; but by several amendments it was finally provided
that the first annual labor on such claims was to be performed or im-
provements made by January 1, 1875.°
As Mr. Lindley® and Messrs. Morrison and De Soto*® agree that
very few claims located prior to May 10, 1872, remain in existence un-
patented, such claims either having gone to patent, or been relocated,
or else having been entirely abandoned, the subject of annual labor on
such claims may be dismissed with the following practical advice by
Messrs. Morrison and De Soto: “Where the lode consists of un-
divided.claims of 100 or 200 feet each, as in the case of most locations
made before May 10, 1872, any one or-more claims may be saved
by the expenditure of $10 worth of labor to each 100 feet which the
owner desires to segregate and hold, leaving the remainder to for-
feiture, or, when the series of claims are held in common, the full
amount may be expended on any one claim, whether they were orig-
inally recorded as joint or as several locations; but, in all cases where
less than the amount required to hold the entire lode is expended, the
owner, in his proof of labor, should state the work as done for the
purpose of holding only so many feet, designating where they lie upon
the lode.” *4
Annual Labor Requirement on Claims Located after the Act of 1872.
With regard to claims located after the act of May 10, 1872, the
act provided that “until a patent shall have been issued therefor, not
less than $100 worth of labor shall be performed or improvements made
6Act May 10, 1872, c. 152, § 5, 17 Stat. 92; Rev. St. U. S. § 2324 (U. S.
Comp. St. 1901, p. 1426). :
7 Thompson yv. Jacobs, 3 Utah, 246, 2 Pac. 714.
8Id. The compilers of the Revised Statutes of the United States over-
looked Act June 6, 1874, c. 220, 18 Stat. 61. So, instead of January 1, 1875,
the date printed in section 2324, Rev. St. U. S. (U. S. Comp. St. 1901, p.
1426), appears as June 10, 1874.
92 Lindley on Mines (2d. Ed.) § 623.
10 Morrison’s Mining Rights (18th Ed.) 96. 11 Id.
§ 79) WHAT IS ANNUAL LABOR. 273
during each year.” 1? Because this work was to be done “on each claim
located after the passage of this act,” the favorite construction of the
act seems to have been that the first annual work must be done in
the year dating from the location of the claim; but the doubt was
set at rest by the act of January 22, 1880, which amended Rev. St.
U. S. § 2324 (U. S. Comp. St. 1901, p. 1426), by providing, as to all
claims located since May 10, 1872, that the annual labor should “com-
mence on the 1st day of January succeeding the date of location of
such claim.” 1% While this statute did not act retrospectively, so as to
save a claim from a forfeiture incurred before its passage,’* nor so as
to make a locator perform labor before the act went into effect.*®
nor so as to allow credit for such prior labor,** it did make the calendar
year the period for the performance of labor on all claims located
after May 10, 1872.17 “The object of the amendment of the law was
to render the annual periods uniform as to all mining claims, and the
exemption of claims from the performance of labor for a portion of
a year in certain cases was a necessary result of the amendment.” *8
Since the passage of the amendment no annual labor has been
required during the year in which the location is made,’® so far as the
federal statutes are concerned,?° though a district rule or state stat-
ute, it seems, may require annual labor during the location year.??
Indeed, it has been contended that a state statute may not only do
that, but may also require more annual labor than the federal stat-
12Act May 10, 1872, c. 152, § 5, 17 Stat. 92; Rev. St. U. S. § 2324 (U.S.
Comp. St. 1901, p. 1426).
13 Act Jan. 22, 1880, c. 9, § 2, 21 Stat. 61 (U. S. Comp. St. 1901, p. 1427).
14 Slavonian Min. Co. v. Perasich (C. C.) 7 Fed. 331.-
15 Hall v. Hale, 8 Colo. 351, 8 Pac. 580.
16 Thompson vy. Jacobs, 3 Utah, 246, 2 Pac. 714.
171Id., where it extended the period from June 8, to December 31, 1880.
See McGinnis v. Egbert, 8 Colo, 41, 51, 5 Pac. 652.
18 McGinnis v. Egbert, 8 Colo. 41, 51, 52, 5 Pac. 652.
19 There may be a question in what year a location really is made. “If
a discovery be made in the latter part of the year, but the staking and record
are not completed until some time in the early part of the following year,
the latter year would be, in our opinion, the location year, and there could
be no forfeiture for neglect to do the annual labor during that year; but
we find no case where the point has been in terms decided. A location is
not complete until all its several parts have been perfected. McKay vy.
McDougall, 25 Mont. 258, 64 Pac. 669, 87 Am. St. Rep. 395; Hickey vy. Ana-
conda Copper Min. Co., 33 Mont. 46, 81 Pac. 811.” Morrison’s Mining Rights
(13th Ed.) 99.
20 MALONE v. JACKSON, 137 Fed. 878, 70 C. ©. A. 216.
21 NORTHMORE v. SIMMONS, 97 Fed. 386, 38 C. C. A. 211. But see
ORIGINAL CO. OF THE WILLIAMS & KELLINGER vy. WINTHROP MIN.
CO., 60 Cal. 631, and 1 Lindley on Mines (2d Ed.) § 250.
Cost.M1n.L.—18
274 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
ute does, and may fix the time for its completion earlier than the end
of the year. In Sisson v. Sommers the Nevada Supreme Court said:
“The contention that, although the Legislature may properly re-
quire a greater amount of work than Congress has prescribed, it can-
not limit the time in which to do it, does not strike us with any great
force of reason. Congress has made the $100 worth of labor the
minimum amount to be done, and the time named [the year] is the
maximum time for the performance of the work without the risk of
forfeiture. We think the Legislature may require a reasonable addi-
tional amount of work to be done annually, and a reasonable amount
of work to complete the location (Erhardt v. Boaro, 113 U. S. 527, 5
Sup. Ct. 560, 28 L. Ed. 1113), or, after location, a reasonable addi-
tional amount of work within a reasonable time, less than the time
named by Congress for the annual expenditure, as a condition to the
continuance of the right acquired by location of the mine.” ??
Annual labor is required in order to keep prospectors from monopo-
lizing the public mineral domain, and its performance is essential to
prevent the location from being open to relocation.?? While, in the
absence of local legislation to the contrary, the claimant has the whole
of each year to do his $100 worth of work or put on that amount of
improvements, the fact that he does more work in any one year than
is required for that year will not enable him to count it toward the
next year’s work. Each year can receive credit for that year’s work
only. Despite the fact that a year’s work came at the first of the
year, the work for the succeeding year may come at the end of that
year,?* and hence more than 20 months may intervene between times
of working on the property. All that the government cares is that
the $100 worth comes each year, or, if it is omitted for any year, that
annual work shall be resumed before a relocation is made by third
parties.
22 SISSON v. SOMMERS, 24 Nev. 379, 388, 55 Pac. 829, 77 Am. St. Rep.
815. See NORTHMORE v. SIMMONS, 97 Fed. 387, 38 C. C. A. 211. But,
contra, as to time of doing work, see Sweet v. Webber, 7 Colo. 443, 4 Pac.
752, and as to district rules, ORIGINAL CO. OF THE WILLIAMS & KEL-
LINGER v. WINTHROP MIN. CO., 60 Cal. 631, and Johnson v. McLaughlin,
1 Ariz. 493, 500, 4 Pac. 180.
23 See BHALS v. CONE, 27 Colo. 473, 62 Pac. 948, 83 Am. St. Rep. 92.
24 See MILLS v. FLETCHER, 100 Cal. 142, 34 Pac. 6837; Belk v. Meagher,
3 Mont. 65.
§§ S0-81) PLACE OF PERFORMANCE AND KIND OF LABOR. 275
PLACE OF PERFORMANCE AND KIND OF ANNUAL LABOR.
80. The work done as annual labor may be done (1) within the bound-
aries of a single claim; (2) within the boundaries of one or
more claims of a group held in common, if the work done
is really for the benefit of all; or (3) outside the boundaries
of the claim or claims worked, if the work done is really for
the benefit of the claim or claims.
81. Work intended to develop the claim will count as annual labor,
if it is actually performed within the boundaries of the claim;
but work done outside the boundaries cannot count, unless it
is found by the jury, or the court sitting as a getyy actually
to be of benefit to the claim.
The time when annual labor must be performed having been ascer-
tained, the next question is where it may be performed. ‘The federal
statute speaks of annual labor on each claim, meaning thereby on each
piece of located mineral ground; and the intent of the statute seems
to have been that $100 worth of work must be performed, or that
amount of improvements made * on each location, unless several claims
are held in common, when the work may be done on one for all, or
unless a tunnel is run to develop several lode locations. But a broader
interpretation has been given to the act. A claim or location within the
act about annual labor consists of a lode mining claim or of a placer
located by one or more persons; and under the broad interpretation
of the statute, the work claimed as annual labor may be done: (1)
Within the boundaries of a single claim; (2) within the boundaries
of one or more claims of a group; (3) outside of the boundaries of a
single claim, or of the various claims of a group.
Work Done within the Claim’s Boundaries.
Work done within the boundaries of a single location, whether up-
on the surface or below, if only done so as clearly to be intended to
develop the claim, will satisfy the statute, and the court will not be
allowed to question the wisdom and expediency of the method em-
ployed.25 Excavating on the vein, and putting upon the claim ma-
*“The word ‘improvement,’ as thus used, evidently means such an arti-
ficial change of the physical conditions of the earth in, upon, or so reason-
ably near a mining claim as to evidence a design to discover mineral there-
on or to facilitate its extraction, and in all cases the alteration must rea-
sonably be permanent in character.” Fredricks v. Klauser (Or.) 96 Pac.
679, 682.
25 MANN v. BUDLONG, 129 Cal. 577, 62 Pac. 120; McGarrity v. Byington,
12 Cal. 426; Mt. Diablo Mill & Mining Co, v. Callison, 5 Sawy. (U. 8.) 439,
Fed. Cas. No. 9,886; Stone v. Bumpus, 46 Cal. 218; Gear v. Ford, 4 Cal.
App. 556, 88 Pac. 600. Extracting ore without doing development work is
sufficient. Wailes v. Davies (C. C.) 158 Fed. 667.
276 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
chinery and other works for mining, will serve to satisfy the statute.*°
It has even been held that work done on placer claims to reveal
whether or not there are lodes within them is annual labor,?? though
that may well be doubted, in view of the decision that picking down
from a vein samples of rock and assaying them in an attempt to find
pay ore will not count as annual labor.*® It has been said that work
done within the common-law boundaries of the claim, though perform-
ed on a lode apexing outside, is still work on the claim within the
meaning of the federal statute; ?® but that may well be doubted. A
building will be an improvement, so as to count toward the $100 ex-
penditure, only if it is, and is intended to be, of benefit to the claim.*°
Services of superintendence will count as annual labor; ** but it is
questionable how far, if at all, the employment of a watchman for an
idle mine will count. The earlier cases said that the watchman’s serv-
ices will count as annual labor; *? but the late California cases and
an Oregon case throw doubt upon the proposition.*® In Hough v.
Hunt the court says that the cases must be rare indeed where employ-
ing a watchman will serve for annual labor, because only occasionally
can such expenditures justly be said to have been made “in prospect-
ing or working the mine. There may be cases where work has been
temporarily suspended, and there are structures which are likely to
be lost if not cared for, and it appears that the structures will be re-
quired when work is resumed, and that the parties do intend to re-
sume work, in which money expended to preserve the structures will
be on the same basis as money expended to create them anew. But
this could not go on indefinitely. As soon as it should appear that
this was done merely to comply with the law and to hold the prop-
erty, without any intent to make use of such structure within a reason-
able period, such expenditure could not be said to have been made
26 Lockhart v. Rollins, 2 Idaho, 540, 21 Pac. 413. But see Packer v. Hea-
ton, 9 Cal. 568.
27 United States v. Iron Silver Min. Co. (C. C.) 24 Fed. 568.
28 BISIIOP vy. BAISLEY, 28 Or. 119, 41 Pae. 926.
29 Mt. Diablo Mill & Mining Co. v. Callison, 5 Sawy. (U. 8.) 489, Fed. Cas.
No, 9,886.
30 BRYAN v. McCAIG, 10 Golo. 309, 15 Pac. 413. See Remmington y.
Baudit, 6 Mont. 138, 9 Pac. 819, and sce note *, supra.
31Rara Avis G. & S. M. Co. v. Bouscher, 9 Colo. 385, 12 Pac. 433.
82 Lockhart v. Rollins, 2 Idaho, 540, 21 Pac. 413; Altoona Quicksilver
Min. Co. v. Integral Quicksilver Min. Co., 114 Cal. 100, 45 Dac. 1047; Tripp
vy. Dumphy, 28 Land Dee. Dep. Int. 14.
88 TIOUGIL v. HUNT, 188 Cal. 142, 70 Pac. 1059, 94 Am. St. Rep. 17; Gear
v. Ford, 4 Cal. App. 556, 88 Pac. 600; Fredricks y. Klauser (Or.) 96 Pae.
679. Compare New England & Coalinga Oil Co. v. Congdon (Cal.) 92 Pac
180; Williams v. Hawley, 144 Cal. 97, 77 Pac. 762.
§§ 80-81) PLACE OF PERFORMANCE AND KIND OF LABOR. 277
in work upon the mine. Much less could the mine owner bring picks,
shovels, and things of that kind upon the claim, and have some one to
watch them to prevent their being stolen, and have such cost of watch-
ing considered as work upon the mine.” **
‘Work done by a stockholder of a corporation for the benefit of the
company will count as annual labor.} The cost of sharpening tools on
the premises may be a legitimate item of expenditure, or may not, ac-
cording to circumstances,?* and so may the expense of unwatering a
mine; ** but the expense of taking tools, lumber, etc., to a mine, and
then taking them away after slight or no use, will not count.*7 So
depositing waste on a claim from an adjoining claim is not annual
labor on the claim used as a dump, nor is the building of a flume
over such claim for the carriage of such waste, for they clearly
do not tend to develop that claim.?8 For the same reason bath
houses and appurtenances at salt springs are not mining improve-
ments.°® The same is true of storing water on a placer to be us-
ed elsewhere.*° So work done by third parties for themselves
and then purchased by the claimant, after suit has been brought
to recover possession from the claimant, cannot inure to the benefit
of such claim for annual labor purposes,*? though work performed
by the claimant’s grantor, of course, will; #® and so will work done by
a corporation, the superintendent of which has a contract to purchase
the claim, if the superintendent can be considered to hold the con-
tract in trust for the company.** While the value of powder, fuse,
candles, etc., used in development work, the value of rails laid on
34 Hough v. Hunt, 138 Cal. 142, 70 Pac. 1059, 94 Am. St. Rep. 17; Fred-
ricks v. Klauser (Or.) 96 Pac. 679. That payment to a watchman will serve
as annual labor expenditure, where the services of the watchman are rea-
sonably necessary to guard ore and valuable improvements on the claim
against theft and injury, is held in Kinsley v. New Vulture Min. Co. (Ariz.)
90 Pac. 438.
+ Wailes v. Davies (C. C.) 158 Fed. 667.
85 HIRSCHLER v. McKENDRICKS, 16 Mont. 211, 40 Pac. 290,
36 See Emerson vy. McWhirter, 183 Cal. 510, 65 Pac. 1086.
37 HONAKER vy. MARTIN, 11 Mont. 91, 27 Pac. 397.
38 Jackson v. Roby, 109 U.S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990.
39 Lovely Placer Claim, 85 Land Dec. Dep. Int. 426.
40 Robert 8. Hale, 3 Land Dec. Dep. Int. 536; William S. Chessman, 2
Land Dec. Dep. Int. 774.
41 LITTLE GUNNEL GOLD MIN. CO. v. KIMBER, 1 Morr. Min. Rep.
5386, Fed. Cas. No. 8,402.
42 Tam y. Story, 21 Land Dec. Dep. Int. 440.
483 GODFREY vy. FAUST, 18 8. D. 567, 101 N. W. 718. So, it seems, will
work intended as a present. Anderson v. Caughey, 3 Cal. App. 22, 84 Pac.
223. Where the same ground has been properly located, and then an invalid
relocation made by the same locator, work done by him will count as annual]
278 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
-ties in a tunnel on the claim, and the reasonable value of meals fur-
nished the miners as part of their wages, will count as annual ex-
penditure, it seems that the value of work horses, tools, bedding,
kitchen utensils, and cutlery will not, though the reasonable value of
the use of such things may be counted.f
Work Done on One Claim for a Group.
But it may happen that a group of claims may best be worked through
work done on one of them, and the statute expressly permits that to
be done by providing that, “where such claims are held in common,
such expenditure may be upon any one claim.” ** Even in such case,
however, the work on one claim cannot count as work on another
claim, or the group, unless the work done is really for the benefit of
that other as one of the group.*® “Labor and improvements, within
the meaning of the statute, are deemed to have been had on a mining
claim, whether it consists of one location or several, when the labor is
performed or the improvements are made for its development—that is,
to facilitate the extraction of the metals it may contain—though in
fact such labor and improvements may be on ground which originally
constituted only one of the locations, as in sinking a shaft, or be at a
distance from the claim itself, as where the labor is performed for
the turning of a stream or the introduction of water, or where the im-
provement consists in the construction of a flume to carry off the
débris or waste material. It would be absurd to require a shaft to be
sunk on each location in a consolidated claim, when one shaft would
suffice for all the locations.” *®
The question of whether the work done on one claim is really for
the benefit of the rest of the group is for the jury.47 The burden
of proof is on the owner to show that the work done or improvment
made does in fact develop the claims as a whole.*® The work done
on the group must, of course, aggregate as much as if done on each
labor on the valid location. Temescal Oil Mining & Development Co. v.
Salcido, 187 Cal. 211, 69 Pac. 1010.
t Fredricks v. Klauser (Or.) 96 Pac. 679.
44 Rey. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426).
45 LITTLE DORRIT GOLD MIN. CO. v. ARAPAHOE GOLD MIN. CO.,
80 Colo. 481, 71 Pac. 389; McCormick v. Baldwin, 104 Cal. 227, 87 Pac. 903;
Axiom Min. Co. v. White, 10 S. D. 198, 72 N. W. 462; Justice Min. Co. v.
Barclay (C. C.) 82 Fed. 554; Fissure Min. Co. v. Old Susan Min. Co., 22
Utah, 438, 63 Pac. 587.
46ST. LOUIS SMELTING & REFINING CO. v. KEMP, 104 U. 8S. 636,
655, 26 L. Ed. 875; Klopenstine v. Hays, 20 Utah, 45, 57 Pac. 712.
47 WILSON v. TRIUMPH CONSOL. MIN. CO., 19 Utah, 66, 56 Pac. 300,
75 Am. St. Rep. 718; Yreka Min. & Mill. Co. v. Knight, 183 Oal. 544, 65
Fac. 1091; Eberle v. Carmichael, 8 N. M. 169, 42 Pac. 95.
48 HALL v. KEARNY, 18 Colo. 505, 33 Pac. 8783; SHERLOCK y. LEIGH-
§§ 80-81) PLACE OF PERFORMANCE AND KIND OF LABOR. 279
claim separately, and it seems that where several contiguous claims
held in common are given a common improvement the development
of each is figured pro rata.*® So, in a case where the annual expend-
iture on one claim of a group of four amounted only to $132, it was
held that the claim upon which the expenditure was made was safe
from forfeiture, but that the other three claims were subject to re-
location.**
The statute speaks of claims held in common, which means, of
course, common ownership. This does not necessarily mean, however,
legal, as distinguished from equitable, ownership. Where three lo-
cations were made, each in the name of a different locator, under an
oral agreement that they should be owned in common by all three
locators, the equitable interest which each locator had in the other
locations, together with the legal interest which he had in the location
which he perfected, caused the locations to be owned in common within
the meaning of the federal statute.5°
It has been said that several different locators may combine to
work their separate locations together under this statute. “It often
happens that, for the development of a mine [lode?] upon which sev-
eral claims have been located, expenditures are required exceeding
the value of a single claim, and yet without such expenditures the claim
could not be successfully worked. In such case it has always been the
practice for the owners of the different locations to combine and to
work them as one general claim; and expenditures which may be nec-
essary for the development of all the claims may then be made on one
of them.” 51
The statute says nothing about any necessity for the claims to be con-
tiguous, in the sense of having their boundaries touching,®? for work
on one to count for all. While in several cases such contiguity is de-
clared to be essential,®* the California case which holds contiguity not
TON, 9 Wyo. 297, 63 Pac. 580, 934; Dolles v. Hamberg Consol. Mines, 23 Land
Dec. Dep. Int. 267; Copper Glance Lode, 29 Land Dec. Dep. Int. 542.
49 James Carretto and Other Lode Claims, 85 Land Dec. Dep. Int. 361;
Aldebaran Mining Co., 36 Land Dec. Dep. Int. 551.
** Fredricks v. Klauser (Or.) 96 Pac. 679.
50 BBERLE v. CARMICHAEL, 8 N. M. 169, 42 Pac. 95. See Yarwood vy.
Johnson, 29 Wash. 643, 70 Pac. 123.
51 JACKSON v. ROBY, 109 U. S. 440, 445, 3 Sup. Ct. 301, 27 L. Ed. 990.
52“Contiguous means touching sides, adjoining, adjacent. Two tracts of
land touching only at a point are not contiguous.” Hidden Treasure Consol.
Quartz Mine, 35 Land Dec. Dep. Int. 485, 488.
53GIRD vy. CALIFORNIA OIL CO. (C. C.) 60 Fed. 581; ROYSTON v.
MILLER (C. C.) 76 Fed. 50. See CHAMBERS v. HARRINGTON, 111 U. 8.
350, 353, 4 Sup. Ct. 428, 28 L. Ed. 452; Jupiter Min. Co. v. Bodie Consol.
Min. Co. (C. C.) 11 Fed. 666.
280 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
to be necessary would seem to be sound. As the court in that case
said: “Mines may be conceived of as so situated that the same work
may be, and appear to be, expended in opening or developing both
mines, although they are not actually contiguous.” °*
The fact that the act in regard to annual labor on oil placers requires
them to be contiguous ** should not cause the same requirement to be
read into the general sections applicable to all kinds of claims, and, if
it has any significance, tends rather to show that contiguity is essen-
tial only in the case of oil placers.
IVork Done Outside of a Claim or of a Group of Claims.
While the statute says that the work shall be done and improve-
ments made on the claim, and specifically authorizes work outside
both of the claim and of the group owned in common of which the
claim is a part, only where a tunnel is run,®° the rule is well settled that
work done outside of a claim, or of a group of claims, and not in a
tunnel, will count as annual labor if it is for the benefit of the claim.
‘Work done outside of the claim, or outside of any claim, 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 as if done within the boundaries of the claim itself.” °7 Even
work done on a patented claim may count as annual labor on an un-
patented claim.°® The test is whether the work done has some direct
relation to the claim, or is in reasonable proximity to it,®® and actually
benefits the claim to the extent of the $100 required.
On the kind of work outside of a tunnel which will count there are
a number of decisions. Constructing a flume to carry away waste from
the claim,®° though not to bring it to the claim,* and building a road
54 ALTOONA QUICKSILVER MIN. CO. v. INTEGRAL QUICKSILVER
MIN. CO., 114 Cal. 100, 107, 45 Pac. 1047. In that case there seems to have
been a narrow strip of land between the locations.
55Act Feb. 12, 1908, c. 548, 82 Stat. 825 (U. S. Comp. St. Supp. 1907, p. 478).
s6Act Feb. 11, 1875, ce. 41, 18 Stat. 315 (U. S. Comp. St. 1901, p. 1427),
amendment to section 2324, Rev. St. U. 8. See Godfrey v. Faust (S. D.)
105 N. W. 460; Book v. Justice Min. Co. (C. GC.) 58 Fed. 106. Work on 2
tunnel will count as assessment work, although the claimant does not own
a continuous strip of territory from the portal of the tunnel to the bound-
ary of the claim. HAIN v. MATTRHS, 34 Colo. 345, 83 Pac. 127.
57 Mt. Diablo Mill & Mining Co. vy. Callison, 5 Sawy. (U. S.) 439, 457,
Fed. Cas. No. 9,886; Book v. Justice Min. Co. (C. C.) 58 Fed. 106. See
Packer v. Heaton, 9 Cal. 568; Kramer v. Settle, 1 Idaho, 485.
58 HALL v. KEARNY, 18 Colo. 505, 33 Pac. 873; SHERLOCK vy, LEIGH-
TON, 9 Wyo. 297, 63 Pac. 580, 934.
59 McGarrity v. Byington, 12 Cal. 426, 432.
60 Packer v. Heaton, 9 Cal. 568.
61 St. Louis Smelting & Refining Co. v. Kemp, 104 U. 8. 636, 26 L. Ea.
875; Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990.
§§ 80-81) PLACE OF PERFORMANCE AND KIND OF LABOR. 281
to the claim when that is necessary to its working,*®? will serve as
types. It must always be remembered that, where work is done out-
side the claim or group of claims, the burden of proof is upon the own-
er to show that the work has actually benefited the claim the required
amount.*® ‘Where the work is not done within the surface boundaries
of the location, the law undoubtedly casts the burden upon the party
claiming to have done the work, not only to show that the work done
outside of such boundary was intended as the annual assessment work
on the claim, but that it was of such a character as that it would in-
ure to the benefit of such claim. But, when such facts are clearly
established, then it is wholly immaterial whether the work to ac-
complish such purpose was performed off the ground upon a patented
or unpatented mining claim,” ** or upon an agricultural claim.**
Work in a Tunnel as Annual Labor.
With reference to working one or more claims through a tunnel
it should be noted that there are two kinds of tunnels, namely: (1)
The statutory tunnel site tunnel; and (2) the ordinary crosscut tunnel.
The statutory tunnel site tunnel work may be credited as assessment
work on claims owned by the tunnel site claimant and benefited there-
by, even though as a matter of fact the right to blind veins cut by said
tunnel has been lost.°° The other kind of tunnel was probably a prop-
er means of doing assessment work prior to the amendment of 1875,
made to Rev. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426); but
that amendment removes all room for controversy over whether the
annual labor on a claim or claims can be performed by a tunnel run
to develop the claim or claims.** Not only may the work be performed
through or by such a tunnel, but it seems plain that such a tunnel,
owned and worked in common by several claim owners, whose claims
62 DOHERTY v. MORRIS, 17 Colo. 105, 28 Pac. 85; Mt. Diablo Mill &
Mining Co. v. Callison, 5 Sawy. (U. 8.) 489, Fed. Cas. No. 9,886.
68 HALL v. KEARNY, 18 Colo. 505, 33 Pac. 873; SHERLOCK vy. LEIGH-
TON, 9 Wyo. 297, 63 Pac. 580, 9384. See DU PRAT v. JAMES, 65 Cal. 555,
4 Pac. 562. In Remmington vy. Baudit, 6 Mont. 188, 9 Pac. 819, a building
erected outside of the boundaries of the claim was not allowed to count.
64 JUSTICE MIN. CO. v. BARCLAY (C. C.) 82 Fed. 554, 560. In saying
that work done outside the boundaries of the location is done on the claim,
the courts are giving a common-sense construction to the statute.
65 RICHARDS v. WOLFLING, 98 Cal. 195, 32 Pac. 971.
66 FISSURE MIN. CO. v. OLD SUSAN MIN. CO., 22 Utah, 488, 63 Pac.
587.
67 Kirk v. Clark, 17 Land Dec. Dep. Int. 190. See HALL v. KEARNY, 18
Colo. 505, 88 Pac. 873; SHERLOCK yv. LEIGHTON, 9 Wyo. 297, 63 Pac.
580, 934.
282 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
are to be cut thereby, can serve as the assessment work on all the
claims, if enough is done each year to make up $100 for each claim.°*
AMOUNT OF ANNUAL LABOR.
82. The requirement of $100 worth of labor or improvements must
be met by work or improvements reasonably worth that
amount, and local rules or statutes to the effect that so many
days’ labor shall be regarded as equivalent to $100 worth of
labor must be disregarded.
It being conceded that $100 worth of the right kind of labor within
the right time and at the right place is desired, the question arises
whether any artificial standard can be fixed by state statute or by dis-
trict rules to measure the $100 worth of work by. In Penn v. Old-
hauber a custom of miners in a given district that 20 days’ work
should constitute $100 worth of work was not allowed to be proved,
because “the value of work done or improvement made is to be meas-
ured, not in days, but in dollars.” ®° The same argument will render
invalid the Nevada and New Mexico statutes of the same kind.7°
It is a question of fact in each case whether the work done or im-
provements made are reasonably worth $100, and it does not matter
what the contract price was, nor whether the value of the claim was
enhanced by the work.?2 The contract price is, however, proper evi-
dence, because it bears on the good faith of the claim owner.’? If
$100 worth of labor is actually performed for the claim owner, it
is immaterial, so far as compliance with the annual labor statute is
concerned, whether he has paid for it,” though until the claim owner
68 JACKSON v. ROBY, 109 U. 8S. 440, 445, 3 Sup. Ct. 301, 27 L. Hd. 990;
FISSURE MIN. CO. v. OLD SUSAN MIN. CO., 22 Utah, 438, 63 Pac. 587.
69 PENN v. OLDHAUBER, 24 Mont. 287, 61 Pac. 649; Woody v. Bernard,
69 Ark. 579, 65 S. W. 100; Wright v. Killian, 182 Cal. 56, 64 Pac. 98. Com-
pare McKay v. Neussler, 148 Fed. 86, 78 C. C. A. 154.
70 See Sweet v. Webber, 7 Colo. 443, 4 Pac. 752.
71 MATTINGLY v. LEWISOHN, 13 Mont. 508, 35 Pac. 111. For deci-
sions where there was conflicting evidence of value of work, see Crown
Point Min. Co. v. Crisman, 39 Or. 364, 65 Pac. 87; Wagner v. Dorris, 43 Or.
392, 73 Pac. 318; Wright v. Killian, 182 Cal. 56, 64 Pac. 98; Yarwood v. John-
son, 29 Wash. 6438, 70 Pac. 123; Stolp v. Treasury Gold Min. Co., 38 Wash.
619, 80 Pac. 817; Dibble v. Castle Chief Gold Min. Co., 9 S. D. 618, 70 N. W.
1055; McGrath v. Bassick, 11 Colo. 528, 19 Pac. 462; Hirschler v. McKen-
dricks, 16 Mont. 211, 40 Pac. 290.
72 QUIMBY v. BOYD, 8 Colo. 194, 208, 6 Pac. 462; Floyd v. Montgomery,
26 Land Dee. Dep. Int. 122; Whalen Consol. Copper Min. Co. v. Whalen
(C. C.) 127 Fed. 611; McCormick v. Parriott, 33 Colo. 882, 80 Pac. 1044.
73 LOCKHART vy. ROLLINS, 2 Idaho, 540, 21 Pac. 4183; COLEMAN vy,
§ 83) EXCUSES FOR ANNUAL LABOR. 283
pays for the annual labor he may be unable to make the statutory
affidavit of labor performed.?* Where the claim owner performs the
labor himself, the market value of the labor and materials is its
measure of value.75
One who relies upon a forfeiture for want of annual labor must
negative the expenditure of $100 in improvements, as well as negative
its expenditure in work and labor,7* and where the $100 worth of
work has been done on a claim belonging to co-owners, and there is no
showing that they did not do it, the presumption is. that some of them
did it.77
EXCUSES FOR ANNUAL LABOR.
83. Congress has several times for special reasons permitted the fil-
ing of certificates of intention to hold a mining claim to take
the place of annual labor. At all times a forcible adverse
possession will excuse the performance of annual labor as
against the wrongdoer.
Annual labor has been excused in some years in favor of certain
classes of claimants, who in lieu of annual labor filed certain certifi-
cates. In 1893 and 1894 Congress, because of business depression,
suspended for those years the annual labor requirements in favor
of those who filed certificates prescribed by the statutes.7® The re-
quired certificates amounted practically only to a notice of bona fide
intention to hold the claims; the act of filing the certificates being
the equivalent of the performance of the work.7® In 1898 a similar
act was passed relieving Spanish War volunteers from assessment
work during the period of enlistment on filing similar certificates.®°
The filing of the certificate under such acts has been held to be the
CURTIS, 12 Mont. 301, 80 Pac. 266. See Godfrey v. Faust, 18 S. D. 567,
101 N. W. 718.
74 See COLEMAN v. CURTIS, supra, where the statute required the ac-
tual amount paid for the work to be stated.
75 See QUIMBY v. BOYD, 8 Colo. 194, 6 Pac. 462.
76 POWER v. SLA, 24 Mont. 248, 61 Pac. 468.
77 Yarwood v. Johnson, 29 Wash. 643, 70 Pac. 123.
78Act Nov. 3, 1893, c. 12, 28 Stat. 6; Act July 18, 1894, e. 142, 28 Stat.
114. In 1907 a bill for a similar act passed the United State Senate, but
too late in the year for the House to concur in it.
79 A certificate filed by one who reasonably supposed himself a co-owner,
and who acted at the instance of one of the real owners, was upheld in
Nesbitt v. De Lamar’s Nevada Gold Min. Co., 24 Nev. 273, 52 Pac. 609, 53
Pac. 178, 77 Am. St. Rep. 807. See Dibble v. Castle Chief Gold Min. Co.,
9S. D. 618, 70 N. W. 1055.
s0Act July 2, 1898, c. 563, § 1, 80 Stat. 651 (U. S. Comp. St. 1901, p. 1428).
284 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
equivalent of annual labor, where previous work has been kept up,
and also to be sufficiently equivalent to such work to save the claim
from forfeiture for previous delinquencies.*?
Even apart from statute, the nonperformance of annual labor will
be excused as against one who wrongfully puts the claim owner out
of possession and holds adversely to him.*? The same is true where
another by threats prevents the claim owner or his servant from do-
ing the work on the claim to which the threats applied, provided the
threats are made under circumstances making their execution rea-
sonably to be dreaded.**
PROOF OF ANNUAL LABOR.
84. The doing of annual labor may be proved in the same way as
other overt acts; but in some jurisdictions by statute the
filing of an affidavit of annual labor within a given time after
the labor is done makes out a prima facie case of its perform-
ance. In a few jurisdictions the failure to file the affidavit is
prima facie evidence that the work has not been done. In
drawing and filing the affidavit, the statutes of the given ju-
risdiction should be fully complied with.
Most of the mining law states and territories have enacted statutes
providing for the filing of affidavits that the annual labor has been done,
and making the affidavits prima facie evidence that the work has been
performed. Arizona, Arkansas, Colorado, Idaho, Montana, Nevada,
New Mexico, Washington, and Wyoming have such statutes, and
Congress has provided similar legislation for Alaska. The object of
these statutes is to enable a mining claim owner to preserve in con-
venient form prima facie evidence of the performance of annual la-
bor.8¢ A failure to prepare and file the affidavit, or a mistake in the
affidavit filed, nowhere precludes other evidence of the fact of the per-
81 FIELD v. TANNER, 32 Colo. 278, 75 Pac. 916.
s2 Utah Mining & Mfg. Co. v. Dickert & Myers Sulphur Co., 6 Utah, 183,
21 Pac. 1002,5 L. R. A. 259; FIELD v. TANNER, 32 Colo. 278, 75 Pac. 916;
TREVASKIS v. PEARD, 111 Cal. 590, 44 Pac. 246; Mills v. Fletcher, 100
Cal. 142, 34 Pac. 637.
83 Slavonian Min. Co. y. Perasich (C. C.) 7 Fed. 331; Garvey v. Elder (8.
D.) 109 N. W. 508.
84 Book v. Justice Min. Co. (C. C.) 58 Fed. 106, 118; MeCULLOCH vy.
MURPHY (C. C.) 125 Fed. 147; McGINNIS vy. EGBERT, 8 Colo. 41, 5 Pae.
652; COLEMAN v. CURTIS, 12 Mont. 301, 30 Pac. 266; Davidson v. Bor-
deaux, 15 Mont. 250, 388 Pac. 1075. In Noyes v. Clifford (Mont.) 94 Pac. 842,
affidavits of work done from year to year on defendant’s location of an al-
leged “known lode” in plaintiff's patented placer were admitted in evidence
to show defendant’s good faith and belief that the vein warranted expendi-
ture to develop it.
§ 84) PROOF OF ANNUAL LABOR, 285
formance of the annual labor being given,®® though in Alaska, Idaho,
and New Mexico the statute makes such failure prima facie evidence
that the required labor has not been performed. The statutes differ as
to the time within which the affidavits have to be filed to be effective.
In Alaska it must be not later than 90 days after the close of the
year in which the work is performed. In Arizona it must be within
3 months after the expiration of the period of time fixed for the per-
formance of the labor. In Arkansas it must be on or before Decem-
ber 31st of the year in which the work must be done. In Colorado
it must be within 6 months after any set time or annual period al-
lowed for annual labor.** In Idaho and New Mexico the time is
60 days after the period allowed for performance of the labor. In
Montana the affidavit may be filed within 20 days after the annual
work. In Nevada within 60 days after the performance of labor is
the time fixed. In Utah and in Washington the time fixed for filing
is within 30 days, and in Wyoming it is within 60 days, after the com-
pletion of the work.
It has been held that a single affidavit may well cover the annual
labor on several claims, and that if the work has been done the affidavit
cannot be prematurely filed; *’ but in jurisdictions where the point
has not yet been raised all chance for controversy should be avoided
by filing separate affidavits and coming within the letter of the local
statute as to time. Where, however, the annual labor is done upon a
number of claims by working upon one claim of a group, or by work-
ing outside of the group, it certainly would seem as if everywhere one
affidavit for the group should suffice, and as if, to have any real evi-
dential value, the affidavit should state just how the work done benefits
each claim. Not all of the state statutes permit, as the Colorado stat-
ute does, a statement of the mere conclusion of the affiant. For in-
stance, the Utah statute requires the affidavit to state: “(1) The name
of the claim and where situated. (2) The number of days’ work done
and the character and value of the improvements placed thereon. (3)
The date or dates of performing said labor and making said improve-
85 McCULLOCH v. MURPHY (C. C.) 125 Fed. 147; Book v. Justice Min.
Co. (C. C.) 58 Fed. 106. A failure to file the affidavit does not render the
claim open to relocation. Murray Hill Min. & Mill. Co. v. Havenor, 24
Utah, 73, 66 Pac. 762; Book v. Justice Min. Co. (C. C.) 58 Fed. 106; David-
son vy. Bordeaux, 15 Mont. 245, 38 Pac. 1075; COLEMAN vy. CURTIS, 12
Mont. 301, 30 Pac. 266; Bismark Mountain Gold Min. Co. v. North Sun-
beam Gold Co. (Idaho) 95 Pac. 14. The California act of 1891 did provide,
however, that a failure to file the affidavit rendered the claim open to re-
location. Harris v. Kellogg, 117 Cal. 484, 49 Pac. 708.
86 Under this statute the affidavit may be made and filed as soon as the
work is done, even if it is before the end of the year for the annual labor.
McGinnis v. Egbert, 8 Colo. 41, 5 Pac. 652. 87 Id.
286 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
ments and number of cubic feet of earth or rock removed. (4) At
whose instance or request said work was done or improvements made.
(5) The- actual amount paid for said labor and improvements, and by
whom paid, when the same was not done by the owner or owners of
said claim.” 8* The statute of the given state should be consulted in
each case, and complied with.
ANNUAL LABOR PENDING PATENT PROCEEDINGS.
85. Until entry in patent proceedings annual labor must be kept up.
After entry and until patent issues it is wise to perform the
annual labor, for fear for some reason the entry may be can-
celed. After patent no annual or other labor is required.
Considerable confusion of ideas has existed in regard to the effect
of patent proceedings on the obligation to perform annual labor. The
statute requires the work to be done each year on each claim “until
a patent has been issued therefor.” *®® After a patent actually issues
no work need be done, of course; but will anything short of patent
excuse? It seems perfectly clear that after entry in the land office—
that is, after the patent proceedings have passed the point where the
contract of purchase is complete by the payment of the money for the
land by the applicant—the applicant need perform no more actual
labor if patent ultimately issues to him, or, more accurately, if the en-
try is not canceled by the land department.®® The reason is that in
such case all proceedings in the land department after entry are im-
material, and the receiver’s receipt makes the applicant the equitable,
and for all practical purposes the actual, patentee. But the “if” above
noted causes the trouble. If for any reason the receiver’s receipt is can-
celed by the land department, the applicant finds himself governed
by the general rule that until entry the annual labor must be kept up,®4
and may therefore find himself without a claim because some third
person relocates it on account of the failure to keep up the annual
labor.°2 The land department, to be sure, has ruled that it will not
88 Laws Utah 1899, p. 27, c. 14.
89 Rev. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426).
90 BENSON MINING & SMELTING CO. v. ALTA MINING & SMBLT-
ING CO., 145 U. S. 428, 12 Sup. Ct. 877, 36 L. Ed. 762; Aurora Hill Consol.
Min. Co. v. Highty-Five Mining Co. (C. C.) 34 Fed. 515; Neilson v. Cham-
paigne Min. & Mill. Co. (C. C.) 111 Fed. 655; Deno v. Griffin, 20 Nev. 249,
20 Pac. 308; Southern Cross Gold Min. Co. v. Sexton, 147 Cal. 758, 82
Pac. 423.
91SOUTH END MIN. CO. v. TINNEY, 22 Ney. 19, 35 Pac. 89; Id., 22
Nev. 221, 88 Pac. 401; MURRAY v. POLGLASE, 23 Mont. 401, 59 Pac. 439.
92 South End Min. Co. y. Tinney, 22 Ney. 19, 85 Pac. 89; Id, 22 Ney. 221,
388 Pac. 401; MURRAY v. POLGLASEH, 23 Mont. 401, 59 Pac. 439. See
§ 85) ANNUAL LABOR PENDING PATENT PROCEEDINGS. 287
regard a protest against a patent application based upon the fact that
pending an adverse suit the applicant did not keep up the annual la-
bor ;** but that ruling may well be reversed later. It certainly lacks
the sanction of judicial authority,°* and seems to be altogether too
loose a construction of the statute to make one feel safe in following
it. This is particularly true because, since the foregoing ruling, the
land department has announced that questions “as to the performance
of annual expenditure and as to the alleged relocations are not for de-
termination by the land department, but by the courts.” °° The only
wise course is to perform the annual labor, not only until the receiv-
er’s receipt is issued, but also, for fear of protest on the ground of
laches or fraud, to perform that labor until patent actually issues.¢;f A
recent case has held that a cancellation of the receiver’s receipt issued
on an insufficient published notice of application for patent cannot
be made retroactive, because the applicant had a right to rely on the
entry to excuse the performance of the annual labor,®® and: that cer-
tainly seems sound.
It seems needless to say that the doing of the $500 worth of work
which enables one to apply for patent will not dispense with the ne-
cessity of annual labor thereafter.
Figg v. Hensley, 52 Cal. 299; Swigart v. Walker, 49 Kan. 100, 30 Pac. 162.
The mere mistaken cancellation of an entry does not make the entered
ground subject to relocation. Rebecca Gold Min. Co. v. Bryant, 31 Colo.
119, 71 Pac. 1110, 102 Am. St. Rep. 17.
93 Marburg Lode Min. Claim, 80 Land Dec. Dep. Int. 202; Laughing Wa-
ter Placer, 34 Land Dec. Dep. Int. 56.
#4 Where the applicant allowed his application to sleep for years with-
out paying the purchase money, a relocation based on the failure to perform
annual labor was upheld in GILLIS v. DOWNBY, 85 Fed. 483, 29 C. C. A.
286. The inexcusable delay of an applicant to complete his application for
patent within the calendar year in which the publication ended was held
fatal to the application in the land department on a protest by a relocator,
and a renewed application, with a chance to the relocator to adverse, was
ordered in CLEVELAND v. EUREKA NO. 1 GOLD MIN. & MILL. Co., 31
Land Dec. Dep. Int. 69. See Lucky Find Placer Claim, 32 Land Dec. Dep.
Int. 200.
95 Cleveland v. Eureka No. 1 Gold Min, & Mill. Co., 31 Land Dec. Dep. Int.
69; Lucky Find Placer Claim, 32 Land Dec. Dep. Int. 200.
+7 Id. In Willitt v. Baker (C. C.) 183 Fed. 937, the rule was laid down
that, to entitle either party to an adverse suit to get judgment, he must prove
the performance of the annual labor. While that ruling is questionable, it
emphasizes the importance of continuing the annual labor until entry, at
Jeast.
26 SOUTHERN CROSS GOLD MIN. CO. v. SEXTON, 147 Cal. 758, 82
Pac. 423,
288 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
RESUMPTION OF WORK.
86. After a failure to perform the annual labor the claim owner may
restore the claim to its original validity by resuming work on
it prior to a relocation by third parties; and this seems to be
so, although there was, at the time of the default and after-
wards, an overlapping junior location.
87. Resumption must take place before relocation; but the authorities
are divided on the question whether a resumption is effective
where it comes after the first act, but before the last act, of
relocation. Under the modern statutes, it would seem that
principle requires such resumption to be held to be too late.
85. Resumption of work is the expenditure with reasonable diligence
of the statutory amount in labor and improvements for the
year in which the resumed work is finished.
With reference to annual labor the federal statute provides that,
“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, pro-
vided that the original locators, their heirs, assigns, or legal repre-
sentatives, have not resumed work upon the claim after failure and
before such location.” °7 A forfeiture does not result from the mere
failure to do the annual labor, but from that failure coupled with a
relocation by others before resumption of work by the person whose
interest was forfeitable. No matter how many years intervene be-
tween the doing of the previous annual labor and the resumption of
work, the statute makes the location perfectly valid because of the
resumption, provided the claim has not in the meantime been relocated,
or, if relocated, the relocation does not still exist.°° The original lo-
cator’s “rights after resumption are precisely what they would have
been had no default occurred.” 9°
If there has been in the meantime a relocation which has itself be-
come forfeitable for failure to do annual labor, it is a question whether
the resumption of labor will revive the original claim. The Utah Su-
97 Rey. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1427).
98 JUSTICE MIN. CO. v. BARCLAY (C. ©.) 82 Fed. 554; Crown Point
Mining Co. v. Crismon, 39 Or. 364, 65 Pac. 87; Klopenstine v. Hays, 20
Utah, 45, 57 Pac. 712; Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 525, 69
S. W. 572, 91 Am. St. Rep. 87; Worthen v. Sidway, 72 Ark. 215, 79 S. W.
777; Du Prat v. James, 65 Cal. 555, 4 Pac. 562; Lacey v. Woodward, 5
N. M. 583, 25 Pac. 785; Little Dorrit Gold Min. Co. v. Arapahoe Gold Min.
Co., 30 Colo. 431, 71 Pac. 389.
89 BELK v. MEAGHER, 104 U. S. 279, 26 L. Ed. 735. See Emerson vy.
McWhirter, 133 Cal. 510, 65 Pac. 1036.
§§ 86-88) RESUMPTION OF WORK. 289
preme Court, in a dictum in Klopenstine v. Hays,}°° approves the
syllabus of a federal case 1° to the effect that it will revive the orig-
inal claim; and, while neither case actually decides the point, the view
seems reasonable. The difficulty of having the title relate back to the
original location, and thus antedate the relocation, seems to be very
technical, in view of the fact that the relocation necessarily is forfeit-
ed by the entry to resume work. Those who criticise the dicta above
approved do so on the ground that relocation renders the original loca-
tion just “as if no location of the same had ever been made;” *°
but they overlook the fact that this language does not really state
the statute properly. The provision is that the land shall be open to
relocation as if no location had ever been made. The relocation can-
not be attacked on the ground that the previous location existed; but
neither need a forfeited relocation stand in the way of resumption
of work. The question, however, is an open one.
A much more troublesome question is whether, where there are
overlapping locations, and the owner of the senior location omits to
do the required annual labor in any year, such owner can restore the
senior claim as to the conflict area by resuming work. Until the case
of Lavagnino v. Uhlig 1°? was decided by the Supreme Court of the
United States no one ever doubted that he could. That case, how-
ever, laid down the doctrine clearly that where the senior location is
abandoned or forfeited the conflict area, as between the junior claim-
ant and an attempted relocator, inures to the junior claimant with-
out any act being done by the latter. The question, then, is: Does
the conflict area inure to the junior locator as against the senior lo-
cator, so that the latter cannot by resuming work regain it? It would
seem as if, between the senior locator and the junior, the right of the
senior to resume work cannot be cut off, except by some affirmative
act of the junior prior to the resumption of work. The recording of
an amended location certificate has always been regarded as a suffi-
cient affirmative act;1°* but nothing short of that should cut off the
right to resume. Such record of an amended location certificate is in
effect a relocation by the adoption of the former discovery, location
markings, etc., and as a relocation stands in the way of resumption
10020 Utah, 45, 57 Pac. 712.
101 Justice Min. Co. v. Barclay (C. C.) 82 Fed. 554,
102 See 2 Lindley on Mines (2d Ed.) § 651.
103 198 U. S. 448, 25 Sup. Ct. 716, 49 L. Ed. 1119.
104 See Tonopah & S. L. Min. Co. v. Tonopah Min. Co. (C. ©.) 125 Fed.
889. But Colorado refuses to regard it as sufficient, where the junior loca-
tion is “void” because based on a discovery within the senior claim. Sulli-
van v. Sharp, 33 Colo. 346, 80 Pac. 1054.
Cost. M1n.L.—19
290 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
of work by the senior locator so far as the conflict area is concerned,
but nothing short of that should do so. The case of Lavagnino v.
Uhlig seems, therefore, to leave undisturbed the decision of the United
States Circuit of Appeals, Eighth Circuit, that the mere failure of
the owner of a senior location to perform the annual labor for one
year does not divest his title to the conflict area in favor of the junior
overlapping location, and that a resumption of work by the senior
locator prior to a relocation by the junior locator, or to the filing of
an amended location certificate by him, is valid.*°®
When Resumption of Work must Take Place.
As between a relocator and one claiming to have resumed work
under the statute, a very close question of fact may arise. tt The Su-
preme Court of Montana early decided and later reaffirmed the doctrine
that the former owner may cut out a relocator by resuming work at any
time before the relocator performs all the necessary acts of location,?°*
and California and New Mexico have held the same way.?°7 The
Montana act of 1907 has recently changed the rule in that state. Op-
posed to the former Montana and to the California view is that of
Judge Hallett, who in 1878 announced the doctrine that resumption
could come only “before another has taken possession of the property
with intent to relocate it.” “It is,’ said Judge Hallett, “the entry of
the new claimant with intent to relocate the property, and not mere
lapse of time, that determines the right of the original claimant.” 1°*
There can be littke doubt that Judge Hallett’s view is the one which
accords with the purpose of the mining laws to encourage the loca-
105 OSCAMP v. CRYSTAL RIVER MIN CO., 58 Fed. 293, 7 C. GC. A.
233. Until SULLIVAN v. SHARP, supra, is declared to be bad law, a
complete relocation should take place. See, however, dictum in Moorhead vy.
Erie Min. & Mill. Co. (Colo.) 96 Pac. 253, to the effect that an amended cer-
tificate will do.
ti Whether resumption precedes relocation or not is a question of fact
for the trial court where the evidence is conflicting, and a decision of the
highest court of the state affirming on that ground the trial court’s finding
that resumption preceded relocation does not amount to a denial of the right
of relocation, so as to permit a review in the Supreme Court of the United
States on writ of error. Yosemite Gold Min. & Mill. Co. v. Emerson, 208
U.S. 25, 28 Sup. Ct. 196, 52 L. Ed. 374.
1o6 Gonu v. Russell, 3 Mont. 358; McKAY yv. McDOUGALL, 25 Mont.
258, 64 Pac. 669, 87 Am. St. Rep. 395.
107 PHARIS v. MULDOON, 75 Cal. 284, 17 Pac. 70; Belcher Consol. Gold
Min. Co. v. Deferrari, 62 Cal. 160; Lacey y. Woodward, 5 N. M. 583, 25
Pac. 785. See, also, Field v. Tanner, 32 Colo. 278, 75 Pac. 916; Worthen v.
Sidway, 72 Ark. 215, 79 S. W. 777.
108 LITTLE GUNNEL GOLD MINING CO. v. KIMBER, 1 Morr. M. Rep.
536, 539. Compare Pelican & Dives Min. Co. v. Snodgrass, 9 Colo. 339, 12
Pac. 206; Slavonian Min. Co. v. Perasich (C. C.) 7 Fed. 331.
§§ 86-88) RESUMPTION OF WORK. 291
tion of claims by those who will develop them. It is to be noticed,
too, that the Montana court at least did not say that Judge Hallett’s
rule is not the right one where development work requirements ex-
ist. In refusing to adopt Mr. Lindley’s view,1°® which accorded and
still accords with Judge Hallett’s, the Montana court, speaking be-
fore the statute of 1907 adopted Judge Hallett’s view, said: “‘What-
ever may be the rule in other jurisdictions, under local statutes re-
quiring work of considerable amount to be done by the relocator in
order to complete his relocation, which is also the case under our
present statute, the rule applicable under the statute in force in this
state until July 1, 1895, is that resumption of labor in good faith prior
to the completion of the acts of relocation defeats the relocation.” **°
That was because under the old statute nothing was requisite to a
location except to post notice, mark the location on the ground, and
record a declaratory statement.111
It should frankly be admitted that under the old Montana statute
the fact that forfeitures are odious to the law justified the above rule
adopted by the Montana court;1?? but, wherever a mining code re-
quires development work as an act of location, the public policy re-
vealed by the statute and contained in the law of estoppel outweighs
the objection to forfeiture.14? Under such a code the correct rule
to be followed is that adopted by the Montana act of 1907, namely:
“The right of a relocator of any abandoned or forfeited mining claim,
hereafter relocated, shall date from the posting of his notice of location
thereon, and while he is duly performing the acts required by law
to perfect his location his rights shall not be affected by any re-entry
or resumption of work by the former locator or claimant.” 144
What Constitutes Resumption.
Doing the full $100 worth of work in any year will be taken to be
resumption in good faith, in the absence of any evidence to the con-
1091 Lindley on Mines (2d Ed.) § 408.
110 McKAY v. McDOUGALL, 25 Mont. 258, 64 Pac. 669, 87 Am. St. Rep.
395.
111 See Gonu v. Russell, 3 Mont. 358.
112 The same applies to the California cases. PHARIS v. MULDOON, 75
Cal. 284, 17 Pac. 70.
113]f relocators have entered and are in actual possession after a for-
feiture, although they have not relocated, the original locators have no
right to make a forcible entry for the purpose of resuming work. SLAVON-
JAN MIN. CO. v. PERASICH (C. C.) 7 Fed. 331.
114 Laws Mont. 1907, p. 21. The possession of the original locator, with-
out the resumption of work by him, will not prevent a relocation, if it is made
peaceably. GOLDBERG v. BRUSCHI, 146 Cal. 708. 81 Pac. 23,
292 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
trary.1!5 This is the rule as against those who seek to relocate after
the work is done; but as against a relocator, who comes in before
the year is over and finds that the resumer has not proceeded with
reasonable diligence to complete the $100 worth of work, but instead
has acted as if resuming and doing some work permitted a postpone-
ment of the rest, no presumption of good faith should be indulged.
As the Montana court said: “The resumption of work by the orig-
inal locator, whose rights are subject to forfeiture, without the ex-
penditure, with reasonable diligence, during the year, of the sum of
$100 for labor or improvements upon the mine, is an evasion of the
statute.” 12 And that court very properly declared that the case of
Belcher Consol. Gold Min. Co. v. Deferrari,!17 which decided that the
expenditure of $24 on two claims in January was such a resump-
tion of work as would defeat a relocation in August following, is
unsound. The Montana court also quoted with approval the often
repeated declaration of Messrs. Morrison and De Soto that “such a
decision” as the California one just mentioned “is only trifling with
the law and the rights of parties based on the law.” 118
The California court has since modified its views, expressed in
Belcher Consol. Gold Min. Co. v. Deferrari, supra, to the extent of
declaring that “to ‘resume work,’ within the meaning of said section
2324, is to actually begin work anew, with a bona fide intention of
prosecuting it as required by said section.” 11° There is every reason
to believe that it will yet hold that resuming work does not mean re-
gaining a year’s time to do the work of the year of resumption by
making a slight expenditure, but instead means beginning in good
faith and finishing with reasonable diligence $100 worth of work as a
condition precedent to the rehabilitation of the claim. The prosecu-
tion of the work to a finish with reasonable diligence is an essential
element of a bona fide resumption.12°
Further consideration of the subject of resumption is deferred to
the next chapter.
115 TEMESCAL OIL MINING & DEVELOPMENT CO. y. SALCIDO, 137
Cal. 211, 69 Pac. 1010.
116 HONAKER v. MARTIN, 11 Mont. 91, 97, 27 Pac. 397. See HIRSCH-
LER vy. McKENDRICKS, 16 Mont. 211, 40 Pac. 290.
117 62 Cal. 160. See, also, Klopenstine y. Hays, 20 Utah, 45, 57 Pac. 712.
118 Quoted in Honaker v. Martin, 11 Mont. 91, 96, 27 Pac. 397. Repeated
in Morrison’s Mining Rights (12th Ed.) 97.
119 McCORMICK v. BALDWIN, 104 Qal. 227, 229, 87 Pac. 903.
120 HIRSCHLER v. McKENDRICKS, 16 Mont. 211, 40 Pac. 290; Honaker
v. Martin, supra. See Bishop v. Baisley, 28 Or. 119, 41 Pac. 936.
§§ 89-90) FORFEITURE TO CO-OWNER. . 293
FORFEITURE TO CO-OWNER.
89. The federal statute authorizes one co-owner, who has had to bear
the whole or a disproportionately large part of the annual
labor expenditure, to acquire by forfeiture the interest of the
delinquent co-owner. The forfeiture takes place by notice
given by the diligent co-owner to the delinquent personally
or by publication, and by the failure of the delinquent co-
owner to contribute his proportion of the expenditure within
90 days after such notice. The local statutes in some juris-
dictions supplement the federal statute by requiring a copy
of the notice and an affidavit of service to be recorded, and by
giving them evidential quality when so recorded.
90. Whether the owner of one partitioned or granted piece of a min-
ing claim is a ‘“‘co-owner,’’ within the meaning of the statute,
with the owner of another partitioned or granted piece of the
same mining claim, query?
The failure of one of several co-owners of an unpatented mining
claim to perform his share of the annual labor requisite to hold the
claim throws the whole burden of performing that labor on his co--
owners. Annual labor only partially performed gives no right,?**
and since, therefore, a performance by one co-owner of his proportion-
ate share of the annual labor will not save his interest, the delin-
quent co-owner really compels the diligent one to work for both. In
the absence of statute, therefore, the delinquent co-owner would have
his interest preserved by the diligent co-owner’s labor.1??, To over-
come the injustice of that situation Congress enacted in 1872 the fol-
lowing 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 improve-
ments may, at the expiration of the year, give such delinquent co-
owner personal notice in writing or notice by publication in the news-
paper 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 writ-
ing or by publication such delinquent should fail or refuse to con-
tribute 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.” +?8
The foregoing statute relates, of course, only to the $100 of neces-
sary annual labor or annual improvement. If any co-owner fails to con-
tribute, and then his other co-owners expend more than $100, the
121 Saunders vy. Mackey, 5 Mont. 523, 6 Pac. 361.
122 FAUBEL v. McFARLAND, 144 Cal. 717, 78 Pac. 261.
128 Rey. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1427).
294 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
delinquent co-owner may save his interest from forfeiture by paying
his proportionate part of the $100. For anything beyond the $100
the co-owner who has made the expenditures must rely upon other
legal rights, if any.12* The remedy given by the statute is extra-
judicial, and is confined, therefore, to the exact situation legislated
about. The statute is one of forfeiture, and should be strictly con-
strued.*?®
Constitutionality of the Forfeiture Statute.
Originally doubts about the constitutionality of this statute were
expressed; but they have been set at rest by a decision of the United
States Supreme Court.12® The co-tenant who is “advertised out”
is not deprived of property without due process of law; but instead
the United States, the real owner of the mining ground at the out-
set, has provided this as an additional “rule of the game” of acquir-
ing title from the United States. On forfeiture under the act, a
statutory proceeding in rem, analogous in some respects to patent
proceedings, takes place, and the defaulting co-owner receives all the
consideration he is entitled to. The mining claimant holds only a
conditional title, and the right which the United States has to pro-
vide for a relocation of the whole claim if the annual labor is not
performed is no more unquestionable than is its right to forfeit the de-
linquent co-owner’s interest for his failure to contribute his share
of the necessary labor or expenditure.1?7
Forfeiture may be by Personal Service or by Publication of Notice.
The statute gives the diligent co-owners the right to resort either
to personal service or to publication at their option, and there is no
saving of the rights of minor heirs.1?* Moreover, the diligent co-
owners may group in one notice the delinquencies of more than one
year.‘*° If the delinquent co-owner has died, then, even though the
estate has vested in minor heirs, it is not necessary to name them;
but a notice addressed to the co-owner by name, “his heirs adminis-
trators, and to whom it may concern,” is sufficient, if it contains the
proper recitation of facts.*®°
124 See Holbrooke v. Harrington (Cal.) 36 Pac. 365.
125 TURNER v. SAWYER, 150 U. S. 578, 14 Sup. Ct. 192, 37 L. Ed. 1189.
Whether or not the-one seeking to forfeit made a bona fide attempt to com-
ply with the law is immaterial McKAY vy. NEUSSLER, 148 Fed. 86, 78
Cc. C. A. 154.
126 ELDER v. HORSESHOE MIN. & MILL. CO., 194 U. 8. 248, 24 Sup.
Ct. 648, 48 L. Ed. 960.
127 Td, 128 Td. 129 Id.
130Td. In other cases, however, the co-owner must be named in the no-
tice, for the forfeiture to take place. BALLARD v. GOLOB, 34 Colo. 417,
§§ 89-90) FORFEITURE TO CO-OWNER. 295
Where publication is resorted to, it is not turned into personal ser-
vice by showing that copies of the paper containing the published
notice were sent to and received by the party in default.t** And,
when the statute says that the notice must be published “in the news-
paper published nearest the claim,” that means the nearest in a di-
rect line, and not by the usually traveled route.1? The requirement
of publication for at least once a week for 90 days is fully met by
publication for 13 weeks, although there may be only 85 days be-
tween the first and the last publication.t%* Since, however, the for-
feiture is not complete until 90 days after notice in writing or by pub-
lication, it would seem as if forfeiture by publication would not be
complete until 180 days after the first insertion of the printed notice.**®
In the case of personal notice in writing, the delinquent co-owner
would be divested of all interest at the end of 90 days from date of
service.
Where several claims are owned by the same co-tenants, and there
is delinquency as to the work on several or all of the claims, there
is nothing in the statute to prevent all the delinquencies from be-
ing covered by one notice; but in such case it seems that the notice
is void if it does not show the amount of money spent upon each
claim, or, if it was spent on one or more of a group for all, or outside
the boundaries of the claim or group, does not state the facts show-
ing that the work done related directly to the claims and obviously
tended to their development.1**
The notice of forfeiture held good by the Supreme Court of the
United States in Elder v. Horseshoe Min. & Mill. Co.18* was as fol-
lows:
“Notice of Forfeiture.
“To Rufus Wilsey, His Heirs, Administrators, and to All Whom It
may Concern:
“You are hereby notified that I have expended $800 in labor and
improvements upon the Golden Sand lode,*** * * 4 as will ap-
83 Pac. 376. To cover the case of a co-tenant dying while notice by publica-
tion is being served on him, it would seem well to address the notice to
him by name and to add the clause approved in ELDER v. HORSESHOE
MIN. & MILL. CO., 194 U. S. 248, 24 Sup. Ct. 648, 48 L. Ed. 960.
181 HAYNES v. BRISCOE, 29 Colo. 137, 67 Pac. 156.
132 Td.
134 BLDER v. HORSESHOE MIN. & MILL. CO., 194 U. S. 248, 24 Sup.
Ct. 648, 48 L. Ed. 960.
135 See Badger Gold Min. & Mill. Co. v. Stockton Gold & Copper Min.
Co. (C. C.) 1389 Fed. 838.
186 HAYNES v. BRISCOE, 29 Colo. 137, 67 Pac. 156.
137194 U. S. 248, 24 Sup. Ct. 643, 48 L. Id. 960.
138 Here was inserted evidently a description of the claim, with a state-
296 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
pear by certificate filed on January 2, 1889, in the office of the reg-
ister of deeds of said Lawrence county, in order to hold said premises
under the provisions of the laws of the United States and of this
territory ; 18° that being $100 per year, the amount required to hold
the claim for the years ending December 31, 1880, December 31, 1881,
December 31, 1882, December 31, 1883, December 31, 1884, Decem-
ber 31, 1885, December 31, 1886, and December 31, 1887. And if, with-
in ninety days after this notice by publication, you fail or refuse to
contribute your proportion ($400, being $50 for each of said years),
your interests in said claim will become the property of the subscrib-
er under section 2324, Revised Statutes of the United States.
“Charles H. Havens.” 1*°
Which Co-Owners Acquire the Delinquent Co-Owner’s Interest.
The statute says that the interest of the delinquent co-owner, when
forfeited, “shall become the property of his co-owners who may
have made the required expenditures.” That would seem unquestion-
ably to mean that if one of several co-owners either performs, or has
performed for him, all the annual labor, and one co-tenant is delin-
quent, the other co-tenants cannot compel the diligent co-tenant to
let them share in the forfeited interest, unless the American doctrine
of the fiduciary relation between tenants in common is consistent
with this particular statute and prevents the diligent co-tenant from
getting this advantage. It would seem, however, that the same rea-
soning which makes the statute constitutional justifies us in saying
that the forfeiture gives the interest forfeited to those only who per-
formed the labor, or had it performed, in place of the delinquent co-
owner.
Forfeitures Not Favored.
With reference to this forfeiture statute it should always be borne
in mind that the proceeding is so summary, and forfeitures are so
odious to the law, that the exact situation contemplated must exist
before the statute can apply, and that the burden of proof is upon the
forfeiting party to establish all necessary facts.1*1 For instance,
a purchaser at execution sale, who has not received a sheriff’s deed,
and therefore is not a co-owner at the time of the delinquency, can-
not forfeit an owner’s undivided part interest under the statute.242
ment of the mining district and county in which it was situated. There
was probably a reference to the recorded location certificate by date of rec-
ord, book, and page.
139 Now, of course, a state.
140 Quoted in Elder v. Horseshoe Min. & Mill. Co., 9 8. D. 636, 70 N. W.
1060, 1061, 62 Am. St. Rep. 895.
141 TURNER v. SAWYER, 150 U. S. 578, 14 Sup. Ct. 192, 37 L. Ed. 1189.
142 TURNER v. SAWYER, 150 U. S. 578, 14 Sup. Ct. 192, 37 L. Ea
§§ 89-90) FORFEITURE TO CO-OWNER. 297
Again, a stockholder in a corporation is not such a co-owner with the
corporation or the other stockholders as to entitle him to forfeit the
corporation’s interest for failure to do or contribute to the doing
of assessment work.1#? So, of course, there can be no forfeiture if
the party is in fact not delinquent,’** or if the party seeking to for-
feit did no work,!*® or not the required work.*** So a co-own-
er, who did the assessment work before the act of 1893, suspend-
ing the annual labor requirement for that year, was passed, could
not forfeit the interest of the previously delinquent co-owner, who
filed the certificate called for by that act.**®
Whether a co-owner who performs labor and acquires a right to
forfeit the delinquent co-owner’s interest loses that right by convey-
ing away his own undivided interest in the mining claim, and whether
his grantee gets the right to forfeit, are undecided questions, though
it has been decided that where both join in the notice there is a for-
feiture.47 The case of Turner v. Sawyer is opposed in reasoning
to allowing the grantee to have the right, as he was not co-owner
at the time the labor was performed, and that would seem to be
sound.14® Whether the grantor, after he ceases to be co-owner,
1189, where, though the forfeiting party got patent in his own name, he
was held in equity a trustee for the delinquent party. The fact that the
parties having a right to forfeit purport to convey full title to the claim to
a corporation in payment for substantially all its capital stock will not it
seems prevent a forfeiture, if they and the corporation join in the notice.
BADGER GOLD MIN. & MILL. CO. v. STOCKTON GOLD & COPPER MIN.
Co. (C. C.) 189 Fed. 838.
143 Repeater and Other Lode Claims, 35 Land Dec. Dep. Int. 54,
144 Brundy v. Mayfield, 15 Mont. 201, 38 Pac. 1067. Whether or not one
claimed to be delinquent has in fact performed or contributed his share
is held to be a question for the jury in Knickerbocker v. Halla (C. C. A.)
162 Fed. 318. Where one who purchases at a void judicial sale the interest
of a delinquent co-owner pays the portion of the assessment work due from
the latter, there can be no forfeiture against the previously delinquent co-
owner, and the purchaser at the void sale is not subrogated to the right
to forfeit, Dye v. Crary (N. M.) 85 Pac. 1038, 9 L. R. A. (N. S.) 1186, affirmed
in Crary v. Dye, 208 U. S. 515, 28 Sup. Ct. 360, 52 L. Ed. 595. An unauthoriz-
ed tender by a friend of the delinquent of the amount due was held, after
ratification by the delinquent, to defeat forfeiture, in Forderer v. Schmidt, 154
Fed. 475, 84 C. C. A. 426. There can be no forfeiture after issuance of re-
ceiver’s receipt in patent proceedings. Southern Cross Gold Min. Co. v. Sex-
ton, 147 Cal. 758, 82 Pac. 423. Nor after patent. See Stephens v. Golob, 34
Colo. 429, 83 Pac. 381.
145 Delmoe v. Long, 85 Mont. 139, 88 Pac. 778.
*** Golden & Cord Lode Mining Co., 31 Land Dec. Dep. Int. 178.
146 ROYSTON v. MILLER (C. C.) 76 Fed. 50.
147 BADGER GOLD MIN. & MILL. CO. v. STOCKTON GOLD & COP-
PER MIN. CO. (C. C.) 139 Fed. 888.
148 See Golden & Cord Lode Mining Co., 31 Land Dec. Dep. Int. 178.
298 ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS. (Ch. 16
could forfeit, depends upon the nature of the right. Treating it as
analogous to a right of entry for condition broken retained by the
grantor of a fee, there would seem to be no reason why the one who
was co-owner when he performed the labor should not forfeit, de-
spite the conveyance of his undivided interest.1#® For the same reason
Messrs. Morrison and De Soto would seem to be right in saying that
“when a co-owner is delinquent, but the party who has made the ex-
penditure afterwards associates with him in developing the claim, it
would probably be considered a waiver of the forfeiture.” *°°
State Statutes on Forfeitures to Co-Owners.
There are a few state statutes on forfeitures to co-owners. The
Colorado statute seems to apply only to placer claims, and has no pro-
visions about recording papers, or designating what shall be evidence
of forfeiture.15! The statutes of Arizona, California, and Nevada,
however, call for the recording of the notice of forfeiture, or a copy,
accompanied by affidavit of service, and provide that the recorded
papers shall be evidence of the acquisition of title by the co-owners.*®?
However ineffectual the main parts of the state forfeiture to co-own-
er statutes may be, because they cover the same ground as the fed-
eral statute, and the latter must control, it seems as if the provisions
calling for record of the notice and affidavit, and giving evidential
force to the recorded papers, are perfectly valid.
It need only be added that in order to keep the record title in prop-
er shape, and to give notice of forfeiture that will bind parties sub-
sequently dealing with the delinquent co-owner, the notice served and
affidavit of personal service or service by publication should every-
where be recorded.*®8
Partitioned Claims.
The courts some day will have to pass on the question of the
effect of this forfeiture statute on claims voluntarily or involun-
tarily partitioned. No matter into how many smaller pieces an un-
patented mining claim is cut by conveyances of the owners or court
decrees, the annual labor for the claims as located must be performed.
Unless it is, the whole claim and the parts of each grantee carved out
149 See Badger Gold Min. & Mill. Co. v. Stockton Gold & Copper Min.
Co. (CO. C.) 189 Fed. 838.
150 Morrison’s Mining Rights (18th Ed.) 116.
151 Mills’ Ann. St. Colo. § 3137.
162 Rey. St. Ariz. 1901, §§ 3245-8249; St. Cal. 1891, p. 219, «. 155; Comp.
Laws Nev. 1900, § 218.
153In the absence of local legislation calling for one, no record of the
forfeiture proceedings need be made or kept. Riste vy. Morton, 20 Mont.
139, 49 Pac. 656.
§§ 89-90) FORFEITURE TO CO-OWNER. 299
of it are open to relocation.15* ‘The grantee, therefore, of a 100x300-
foot piece, say, must see that $100 worth of work is done on the claim
annually, or his own piece can be relocated. Suppose that his gran-
tors and the grantees of other pieces of the claim lie back and make
him perform the labor; can he forfeit their interests in the claim?
Are his grantors, the other grantees, and himself ‘‘co-owners” within
the meaning of this forfeiture to co-owner statute? It certainly seems
as if they should be held to be co-owners within the statutes, but the
matter has never been litigated. One New Mexico case 7®® has been
supposed to bear on this question; +5*® but a careful scrutiny of that
case seems to show merely a decision that under the New Mexico
statutes of the time a locator who granted away parts of his located
ground before he sunk his discovery shaft gave his grantees nothing
but the right to perfect locations of their own within the original
claim’s boundary lines, and hence gave them nothing that would avail
them without the sinking of discovery shafts of their own.1°’ There
would seem to be nothing in reason or authority in the way of constru-
ing the word “co-owners” in the forfeiture statute to cover grantors
and grantees of subdivisions of the original claim, and their case is
certainly within the mischief sought to be remedied by the act.*5®
154 See CONN v. OBERTO, 32 Colo. 313, 76 Pac. 369, where a grantee of
part of a claim was held to be cut out by the abandonment of the rest by
the grantors. See, also, Oberto v. Smith, 37 Colo. 21, 86 Pac. 86.
155 Zeckendorf v. Hutchison, 1 N. M. 476.
156 See 1 Snyder on Mines, § 484.
157 The proposition of Mr. Snyder, supra, that “where several persons,
who have located a claim jointly, afterwards partition it, each taking a
portion thereof, work done thereafter upon one of the segregated pieces
will not be considered as work done upon any of the other pieces,” is not
supported by the New Mexico case, the only one he cites, and must be
wholly wrong. Since the partitioned part of each will be forfeited unless
$100 worth of work is done on the claim as located, the forfeiture, so far as
relocation is concerned, will naturally be avoided if $100 worth of work is
done anywhere on the original location. But compare Merced Oil Min. Co.
v. Patterson (Cal.) 96 Pac. 90.
158 See Morrison’s Mining Rights (13th Ed.) 97. A recent case relating to
discovery (Merced Oil Min. Co. v. Patterson [Cal.] 96 Pac. 90) suggests a
query whether annual work done by the grantee of part of a claim will in-
ure to the benefit of the whole claim. The implication of that case is that
it would not, but it is believed that the better doctrine is that it would.
300 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
CHAPTER XVII.
THE ABANDONMENT, FORFEITURE, AND RELOCATION OF LODE
AND PLACER MINING CLAIMS.
91-92. The Distinction between Abandonment and Forfeiture.
93. The Burden of Proof in Cases of Abandonment and of Forfeiture.
94. The Kinds of Relocation.
95. Relocations by Third Persons,
95a. Resumptions of Work.
95b. Premature Relocations.
96. Relocations by the Forfeiting Owners.
96a. Relocations by Amendment.
97. The Forfeiture of Improvements.
So closely connected with the subject of annual labor as practical-
ly to be part of it is the subject of the relocation of mining claims.
But as relocation may follow an abandonment of a claim, as well as
follow a forfeiture of it, and as the locator may himself desire to re-
locate his own claim, so as to take in ground not forfeited to anybody
else, the subject of relocation deserves a chapter to itself.
THE DISTINCTION BETWEEN ABANDONMENT AND FORFEITURE.
91. An “abandonment” of a mining claim is the voluntary giving up
of the possessory title with the intention not to reclaim it,
while a “forfeiture’’ of a mining claim is the loss of the pos-
sessory title because some third person has located the land
for failure of the forfeiting owner to perform the condition
of annual labor required for its retention.
92. While abandonment is essentially instantaneous, and may take
place despite the performance of the annual labor, abandon-
ment, like forfeiture, requires relocation by a third person to
make it final. Abandonment may not be made a means ta
evade the annual labor requirement.
The first thing to do is to distinguish between abandonment and
forfeiture. The words are often used in the mining cases and stat-
utes as synonyms, but there is a clear distinction between them. ‘The
1In BLACK vy. ELKHORN MIN. CO., 163 U. S. 445, 450, 16 Sup. Ct.
1101, 41 L. Ed. 221, for instance, the court says that a locator’s interest in
the claim may also be “forfeited by his abandonment.” In another case
in which the trial judge, in instructing the jury, used the word “abandon-
ment,” where he meant “forfeiture,” it was held not to be prejudicial er-
ror. LITTLD DORRIT GOLD MINING CO. v. ARAPAHOE GOLD MIN.
CO., 30 Colo. 431, 71 Pac. 389.
§§ 91-92) ABANDONMENT AND FORFEITURE DISTINGUISHED. 301
following statement of the California court expresses that distinction:
“The term ‘forfeiture,’ as used in our mining customs and codes,
means the loss of a right to mine a particular piece of ground, previ-
ously acquired, by neglect or failure to comply with the rules and
regulations of the bar or diggings in which the ground is situated,
prescribing the acts which must be done in order to continue and keep
alive that right after it has been once acquired. As a defense it is
entirely distinct and separate from that of abandonment. It involves
no question of intent, but rests entirely upon the mining rules and
regulations, and involves only the question whether, in point of fact,
those rules and regulations have been observed by the party seeking
to maintain or perpetuate the right, regardless of what his intentions
may have been; whereas the principal question involved in the defense
of abandonment is one of intention. Was the ground left by the loca-
tor without any intention of returning, or making any future use of
it? If so, an abandonment has taken place upon common-law prin-
ciples, independent of any mining rule or regulation, and the ground
has become once more publici juris and open to the occupation of the
next comer.” *
The same distinction is noted in the following language from a
Montana case: “ ‘Abandonment,’ as applied to mining claims held by
location merely, takes place only when the locator voluntarily leaves
his claim to be appropriated by the next comer, without any intention
to retake or claim it again, and regardless of what may become of it
in the future. A ‘forfeiture’ takes place by operation of law, without
regard to the intention of the appropriator, whenever he neglects to
preserve his rights by complying with the conditions imposed by law;
that is, to make the required annual expenditure upon the claim with-
in the time allowed. The former involves an inquiry of fact as to
the intention as well as the act. In regard to the latter the inquiry is:
Has the required expenditure been made as the law commands?” ®
The reason why a mining claim can be abandoned is that the title
is possessory. It is only the legal title that technically may not be
abandoned. “The doctrine of abandonment only applies where there
2 St. John v. Kidd, 26 Cal. 268, 271, 272.
8 McKAY v. McDOUGALL, 25 Mont. 258, 262, 64 Pac. 669, 670, 87 Am.
St. Rep. 395.
4The notion that a patented claim may be abandoned in such a way as to
make the land unappropriated public domain seems to exist in Sharkey v.
Candiani, 48 Or. 112, 85 Pac. 219, 7 L. R. A. (N. 8.) 791, but cannot be sup-
ported. For a case where coal excepted from a deed was held not aban-
doned, see Huss v. Jacobs, 210 Pa. 145, 59 Atl. 991. It seems that a reloca-
tion by the original locator may be abandoned by him without his necessarily
abandoning the original location. See WETZSTHIN v. LARGHY, 27 Mont.
302 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch, 17
has been a mere naked possession without title. The right of the
occupant originating in mere possession may, aS a matter of course, be
lost by abandonment. Where there is title, to preserve it there need
be no continuance of possession, and the abandonment of the latter
cannot affect the rights held by virtue of the former.” °
It may be well to repeat here that the reason why a mining claim
may be forfeited for failure to do annual labor rests on a different
basis. Forfeiture takes place because the United States has a right to
impose what conditions it sees fit upon the disposition of its own prop-
erty to purchasers. It has even been held that the United States,
unlike private persons, may pass the legal fee in land to its grantee,
and yet provide that, while he may devise it, he may not sell or con-
vey it, except for the term of two years from time to time.* In the
case so holding the court said: “The counsel of defendants further
insist that the condition of nonalienation imposed upon the fee sim-
ple contained in the donative act is repugnant to the nature of the
estate and is therefore void. That old and well-settled rule of the
common law does not apply to this legislative grant. The sovereign
power of the Legislature is superior to the immemorial rules and us-
ages of the common law. The legislative power of the state is re-
stricted only by the state and federal Constitutions, and it may change
the rules of the common law whenever such alterations are deemed
best for the general welfare and do not conflict with the constitutional
rights of citizens.” 7
While abandonment is not as common as forfeiture, it is important
to find out what it is. Mr. Lindley is inclined to believe that the Su-
preme Court of the United States never ought to have recognized such
a thing as abandonment, because a mining location has become vested
with so many attributes as to be too like the legal title to real prop-
erty for the doctrine to be desirable. The fact remains, however,
that the Supreme Court of the United States has recognized the doc-
trine, and has declared that “it cannot be doubted that an actual aban-
donment of possession by a locator of a mining claim, such as would
212, 70 Pac. 717. A locator may abandon part of his location without for-
feiting his right to the balance of the claim. TYLER MINING CO. v. SWEE-
NEY, 54 Fed. 284, 4 C. C. A. 329. See Murley v. Ennis, 2 Colo. 300. To patent
the part of one’s claim containing the discovery shaft is not to abandon the un-
patented part. MILLER v. HAMLEY, 31 Colo. 495, 74 Pac. 980. But see
BROWN v. GURNEY, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717.
5 Ferris v. Coover, 10 Cal. 589, 631.
6 Smythe v. Henry (C. C.) 41 Fed. 705.
7 Smythe vy. Henry (C. C.) 41 Fed. 707. See Farrington v. Wilson, 29 Wis.
383.
82 Lindley on Mines, p. 1196, § 642.
§§ 91-92) ABANDONMENT AND FORFEITURE DISTINGUISHED. 303
work an abandonment of any other easement, would terminate all
the right of possession which the locator then had.” ®
Abandonment a Question of Ascertained Intention.
The first thing to notice about abandonment is that whether or
not it has taken place is a question of fact for the jury.*° Where
abandonment occurs, it is because of an ascertained intention to aban-
don, and the abandonment is instantaneous.1 “Abandonment is a
matter of intention, and takes place whenever the claimant of a min-
ing claim goes away with no intention of returning to it, and with the
intention of leaving it open for the next applicant.” ** It may take
place even though the annual labor has been done, or the period for
doing it has not expired,t® and does not depend upon entry by anybody
else, though such entry and a relocation are necessary to prevent re-
vival of the claim by resumption of work. “The question of abandon-
ment can never arise, except where there has been possession, and then
the animus revertendi is the simple test.” 14
Forfeiture, on the other hand, is not dependent upon the intent of
the locator, who loses his interest. It is not complete until there has
been an entry by some one else with intent to relocate the property,*®
and under some state decisions is not complete even then, if the loca-
tor resumes work before the relocation is finished.**
9 BLACK v. ELKHORN MIN. CO., 163 U. 8. 445, 450, 16 Sup. Ct. 1101,
1108, 41 L. Ed. 221.
10 TAYLOR v. MIDDLETON, 67 Cal. 656, 8 Pac. 594; Weill v. Lucerne
Min. Co, 11 Nev. 200; MARSHALL v. HARNEY PEAK TIN MINING,
MILLING & MFG. CO., 1 S. D. 350, 47 N. W. 290; Davis v. Dennis, 43
Wash. 54, 85 Pac. 1079. :
11 Davis v. Butler, 6 Cal. 510; Waring v. Crow, 11 Cal. 366; Derry v.
Ross, 5 Colo. 295. See St. John v. Kidd, 26 Cal. 263; Oreamuno v. Uncle
Sam Gold & Silver Min. Co., 1 Nev. 215.
12 MOFFAT v. BLUE RIVER GOLD EXCAVATING CO., 33 Colo. 142,
148, 80 Pac. 139, 141. See Conn vy. Oberto, 32 Colo. 313, 76 Pac. 369; Buffalo
Zine & Copper Co. v. Crump, 70 Ark. 525, 69 8. W. 572, 91 Am. St. Rep. 87.
Abandonment can be found only on clear and convincing proof of intent to
abandon. Loeser v. Gardiner, 1 Alaska, 641. It is negatived by continuing
work after an ineffectual attempt to patent the claim. PEORIA & COLO-
RADO MILL. & MIN. CO. v. TURNER, 20 Colo. App. 474, 79 Pac. 915. An
abandoned claim becomes part of the public domain, subject to sale and dis-
position by the government. Migeon v. Montana Cent. R. Co., 77 Fed. 249, 23
CG. C. A. 156.
13 Farrell v. Lockhart, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —.
14 Stone vy. Geyser Quicksilver Min. Co., 52 Cal. 315, 318; Davis v. Den-
nis, 43 Wash. 54, 85 Pac. 1079.
15 LITTLE GUNNELL MINING CO. v. KIMBER, 1 Morr. Min. Rep. (U.
S.) 536, 539, Fed. Cas. No. 8,402.
16 See PHARIS v. MULDOON, 75 Cal. 284, 17 Pac. 70; Lacey v. Wood-
ward, 5 N. M. 583, 25 Pac. 785. The doctrine of McKAY v. McDOUGALL,
304 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
The close connection between abandonment and intention is shown
in a Colorado case. There the defendant purchased a mining claim
December 26, 1890, and shortly afterwards abandoned it, because he
could not perform within the year the necessary assessment work.
The defendant’s son thereupon, on January 31, 1891, relocated the
claim as an abandoned lode; but the relocation was invalid, because
he gave the date of discovery as December 20, 1890. Thereafter de-
fendant’s son conveyed to defendant, and still later plaintiff located the
ground. It was held that the defendant could not recall his abandon-
ment by claiming that the relocation was to protect his rights under
the original claim, and thus defeat plaintiff’s location.*’
The question of abandonment is thus one of intent, to be determined
as a fact from the conduct of the mining claim owner. It may be
proved by the testimony of the locator that he abandoned the claim
at the time of the subsequent location,t® and one of several locators
may ratify an abandonment made to a third person by the others.'®
The fact is that, “in order to sustain an allegation of abandonment, it
must appear that there was a leaving of the claim without any inten-
tion of making any further use of it.”?° That is why an abandon-
ment cannot be predicated upon the mere fact of a relocation being
attempted.2*_ Accordingly, where the plaintiffs were driven away
from their claims by hostile Indians, but left their tools at another
mine in the vicinity, and did not return prior to the location by the
defendants, partly because of the supposed continuance of Indian hos-
tilities, and partly because of the required expenditure of money, and
because they thought they had performed sufficient work upon the
claims to entitle them to hold them, it was held that these facts
negatived that intent on the part of the plaintiffs necessary to con-
stitute an abandonment.??
25 Mont. 258, 64 Pac. 669, 87 Am. St. Rep. 395, has been negatived by the
Montana act of 1907. Laws Mont. 1907, p. 21.
17 NILES v. KENNAN, 27 Colo. 502, 62 Pac. 360. See Davis v. Butler,
6 Cal. 510. Where a locator went away to be gone some years, and gave
up all hope of returning to the claim, and did not arrange for the perform-
ance of the annual labor, there was held to be a proper showing of aban-
donment. Harkrader v. Carroll (D. ©.) 76 Fed. 474.
18 Carter v. Bacigalupi, 83 Cal. 187, 23 Pac. 361. a
19 Conn v. Oberto, 82 Colo. 318, 76 Pac. 369; Oberto v. Smith, 37 Colo.
21, 86 Pac. 86.
20 Bell v. Bed Rock Tunnel & Mining Co., 36 Cal. 214. See note 12, supra.
21 Weill v. Lucerne Min. Co., 11 Ney. 200.
22 MORENHAUT v. WILSON, 52 Cal. 263. So abandonment cannot be
charged where a locator in possession is disseised. Lockhart vy. Wills, 9 N.
M. 263, 50 Pac. 318. See Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 525, 69
S. W. 572, 91 Am. St. Rep. 87. On the other hand, a co-owner who attempts to
§§ 91-92) ABANDONMENT AND FORFEITURE DISTINGUISHED. 305
Where the authority and intention to abandon are clear, one locator
may abandon for all the locators. For instance, in an Arizona case a
mining claim was located in the name of four persons. The one who
located it, and who was the only one who had anything to do with it,
testified that after working it awhile he decided that it was no good,
destroyed the location notice monument, and went away, with the
intention of having nothing further to do with the claim. That was
held to be an abandonment for all the locators, and to authorize a
relocation prior to the time a forfeiture could have been made.”*
Abandonment, like forfeiture, seems to require some act of a third
party to make it final; for unless there is a relocation by a third party.
or a conclusive acceptance of an abandonment to a co-owner, it seems
that the one who has abandoned may revive his claim by resuming
work.?* At least, it never has been decided that he may not do so.
The chief difference to-day, therefore, between forfeiture and aban-
donment, would seem to lie in the fact that abandonment may take
place even though the annual labor has been performed.
Abandonment must be Bona Fide.
An abandonment, to be effective, must not be a subtertuge to en-
able those abandoning to get around the annual labor requirement.
Where, to evade the annual labor requirement, and to save competing
with others for a relocation on January Ist, the locators, prior to
January 1st, announced to each other that they abandoned the claims,
and then within ten minutes, and without leaving the ground, went
through the form of locating the ground in the name of an absent
friend in New York, the court refused to recognize that as an aban-
donment, said that the old claim continued, and held that since the
work on the old claim had not been done the claim could be relocated
by others on January 1st.2° The court was probably unconsciously
influenced by the notion put forth by the South Dakota court in decid-
ing that one co-owner attempting to exclude another co-owner from
a mining claim by a relocation, does not thereby abandon the land,
exclude his co-owner by a relocation does not thereby make an abandonment.
Hulst v. Doerstler, 11 8. D. 14, 75 N. W. 270. And an invalid attempted re-
location is not an abandonment of a prior valid location, and so far as subse-
quent locators are concerned is immaterial. TEMESCAL OIL MINING &
DEVELOPMENT CO. v. SALCIDO, 137 Cal. 211, 69 Pac. 1010.
23 KINNEY v. FLEMING, 6 Ariz. 263, 56 Pac. 723. See, also, Sharkey vy.
Candiani, 48 Or. 112, 85 Pac. 219, 7 L. R. A. (N. S.) 791.
24 Compare OSCAMP v. CRYSTAL RIVER MIN. CO., 58 Fed. 298, 7 €. C.
A. 233.
25 McCANN v. McMILLAN, 129 Cal. 350, 62 Pac. 31. For a bona fide aban-
donment, see Roberts v. Date, 123 Fed. 238, 59 C. C. A. 242.
Cost.M1n.L.—20
306 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
namely, that “It is necessary to distinguish between a manifest inten-
tion to abandon one’s rights under any particular location and an in-
tention to abandon the property itself.” **
On the other hand, a conditional abandonment will be treated as
an absolute one, where the one abandoning had the secret intent to
claim a mining location erroneously included in a sale under decree
of court only if development work by the purchaser should render it
profitable to do so.?"
Abandonment of Part of a Location.
It has been held that a locator may abandon part of his claim
without losing his right to the rest,?* and that if he patents even the
part of the claim which includes the discovery shaft he does not there-
by abandon the rest, if he continues to possess and work it.?®
Abandonment by Co-Tenants.
It has been declared that one co-tenant may abandon his interest
in favor of his co-tenants, to whom it will inure,®® but that the bare
lapse of time, short of the statute of limitations in cases of adverse
possession, and unaccompanied by other circumstances, would be
no evidence of such abandonment.*? Such lapse of time, with other
circumstances tending to show abandonment, might, of course, go to
26 HULST v. DOERSTLER, 11 S. D. 14, 75 N. W. 270. See Weill v. Lu-
cerne Min. Co., 11 Nev. 200; Ford v. Campbell (Nev.) 92 Pac. 206. Compare
Omar v. Soper, 11 Colo. 380, 18 Pac. 443, 7 Am. St. Rep. 246. Where a survey-
or omitted a portion of the claim from the survey by mistake, and the survey
was corrected in a few days by a resurvey, the ground omitted from the first
survey was not abandoned. Basin Mining & Concentrating Co. v. White, 22
Mont. 147, 55 Pac. 1049.
27 TREVASKIS v. PEARD, 111 Cal. 599, 44 Pac. 246. See Stone v. Geyser
Quicksilver Min. Co., 52 Cal. 315. But where the purchaser of a mining claim
at a judicial sale has equal means of information with the judgment debtor as
to the invalidity of the sale, the acquiescence of the judgment debtor in the
invalid sale of his interest in the claim cannot be regarded as an abandonment
of the claim and an election to accept the sale as a disposition of his property.
Crary v. Dye, 208 U. 8. 515, 28 Sup. Ct. 360, 52 L. Ed. 595, affirming Dye v.
Crary (N. M.) 85 Pac. 1088, 9 L. R. A. (N. S.) 1186.
28 Tyler Mining Co. v. Sweeney, 54 Fed. 284, 4 C. C. A. 329.
29 MILLER vy. HAMLEY, 31 Colo. 495, 74 Pac. 980.
30 WORTHEN v. SIDWAY, 72 Ark. 215, 79 S. W. 777. But see, contra,
Badger Gold Min. & Mill. Co. v. Stockton Gold & Copper Min. Co. (C. ©.) 139
Fed. 838.
31 Mallett v. Uncle Sam Gold & Silver Min. Co., 1 Nev. 188, 90 Am. Dec. 484.
The interest of a tenant in common cannot be deemed abandoned, and ‘subject
to appropriation by strangers, because he refuses to pay his part of the an-
nual expenditures. Waring v. Crow, 11 Cal. 366; Faubel v. McFarland, 144
Cal. 717, 78 Pac. 261.
lod
§ 93) BURDEN OF PROOF. 307
the jury to establish it? The same is true of failure to contribute
the proportionate share of assessment work.3* In all cases the safest
course is not to claim abandonment, but to proceed under the federal
statute to forfeit the co-owner’s interest.?*
THE BURDEN OF PROOF IN CASES OF ABANDONMENT AND
FORFEITURE.
93. The burden of proof in reference both to abandonment and to for-
feiture is upon the one asserting that the abandonment or the
forfeiture has taken place.
With reference to abandonment and forfeiture it should be noticed
that the burden of proof is upon the one asserting that the abandon-
ment or forfeiture has taken place.2> “A forfeiture cannot be estab-
32 Mallett v. Uncle Sam Gold & Silver Min. Co., 1 Nev. 188, 90 Am. Dec. 484.
38 Oreamuno v. Uncle Sam Gold & Silver Min. Co., 1 Nev. 215, where the
court calls abandonment a mixed question of law and fact. The refusal of
a co-tenant to pay his part is not an abandonment per se. Waring v. Crow,
11 Cal. 366.
34 A recent case holds that, where one co-tenant abandons his interest, the
other co-tenants do not get it. Badger Gold Min. & Mill. Co. v. Stockton Gold
& Copper Min. Co. (C. C.) 189 Fed. 838. But query? See Worthen v. Sidway,
72 Ark. 215, 79 S. W. 777.
35 HAMMER v. GARFIELD MIN. & MILL. CO., 130 U. S. 291, 9 Sup. Ct.
548, 32 L. Ed. 964; McCULLOCH v. MURPHY (C. C.) 125 Fed. 147; Buffalo
Zine & Copper Co. v. Crump, 70 Ark. 525, 69 S. W. 572, 91 Am. St. Rep. 87;
Quigley v. Gillett, 101 Cal. 462, 85 Pac. 1040; HARRIS v. KELLOGG, 117 Cal.
484, 49 Pac. 708; Emerson v. McWhirter, 133 Cal. 510, 65 Pac. 1036; Callahan
v. James, 141 Cal. 291, 74 Pac. 853; Goldberg v. Bruschi, 146 Cal. 708, 81 Pac.
23; Johnson vy. Young, 18 Colo. 625, 34 Pac. 173; Beals v. Cone, 27 Colo. 473,
62 Pac. 948, 83 Am. St. Rep. 92; LITTLE DORRIT GOLD MIN. Co. v. ARA-
PAHOE GOLD MIN. CO., 30 Colo. 431, 71 Pac. 389; Sherlock yv. Leighton, 9
Wyo. 297, 63 Pac. 580, 9384; Axiom Min. Co. v. White, 10 S. D. 198, 72 N. W.
462; South End Min. Co. v. Tinney, 22 Nev. 19, 35 Pac. 89; Wills v. Blain,
5 N. M. 238, 20 Pac. 798; Providence Gold Min. Co. v. Burke, 6 Ariz. 328, 57
Pac. 641; Dibble v. Castle Chief Gold Min. Co., 9 S. D. 618, 70 N. W. 1055.
See Zerres v. Vanina (C. C.) 184 Fed. 610. That this is true, even though the
relocation is put upon the ground that the first location was invalid, is held in
CUNNINGHAM v. PIRRUNG (Ariz.) 80 Pac. 329. See Moffat v. Blue River
Gold Excavating Co., 33 Colo. 142, 80 Pac. 139.
Proof that for two years work was not done on the claim itself shifts the
burden of going forward with the evidence. SHERLOCK v. LEIGHTON, 9
Wyo. 297, 63 Pac. 580, 934. But, if the work be shown to have been done on
the claim, the presumption, in the absence of evidence to the contrary, is that
it was done by the owners or some of them. Yarwood v. Johnson, 29 Wash.
643, 70 Pac. 123. Where defendant was in possession under a location the
validity of which was attacked by the plaintiff only on the ground of a pre-
vious location by plaintiff, the burden was thrown on the plaintiff to establish
308 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
lished, 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.” ** “After a valid location has been made,
the locator need not keep an actual possession of the claim. His right
of possession will continue until he has in fact abandoned it, or has
forfeited it by failure to do the requisite amount of work within the
prescribed time; and the burden of proving such forfeiture or aban-
donment is on him who would attack this right.” **
The burden of proof thus being on the one relying on abandonment
or forfeiture, it would seem on principle that such person should be
required to plead it. The cases, however, are not uniform. In Cali-
fornia the rule seems to be that an abandonment by plaintiff may be
shown by defendant under a general denial, but that a forfeiture must
specially be pleaded.?® It hardly seems desirable, however, to dis-
criminate in that way between an abandonment and a forfeiture, in
view of the fact that each question becomes material only when a
relocation has taken place. That a forfeiture must be specially plead-
ed where it is relied on as a defense, in all cases except in an adverse
suit,?® seems clear.*° ‘The plea of forfeiture is in the nature of a
confession and avoidance. It admits a prior right in the plaintiff,
which would have continued but for the entry and location by the de-
fendant, which under the mining law has terminated it. One who
relies upon such a plea must set forth the facts upon which he relies
to overturn the prior right of his adversary, and establish them by
clear and convincing proof. He assumes the burden of pleading and
proving that the prior owner has done none of the acts which, under
the statute, he may do to preserve his right.” *4
the perfection of his location under the state as well as federal statutes, in
COPPER GLOBE MIN. CO. v. ALLMAN, 23 Utah, 410, 64 Pac. 1019.
36 HAMMER v. GARFIELD MIN. & MILL. CO., 180 U. S. 291, 9 Sup. Ct.
548, 32 L. Ed. 964; Wailes v. Davies (C. C.) 158 Fed. 667; Goldberg v. Bruschi,
146 Cal. 708, 81 Pac. 23; Gear v. Ford, 4 Cal. App. 556, 88 Pac. 600. See Thom-
son v. Allen, 1 Alaska, 636; Loeser v. Gardiner, 1 Alaska, 641; Strasburger
v. Beecher, 20 Mont. 143, 49 Pac. 740.
87 HARRIS v. KELLOGG, 117 Cal. 484, 489, 49 Pac. 708, 709. See Quigley
v. Gillett, 101 Cal. 462, 35 Pac. 1040.
38 MORENHAUT v. WILSON, 52 Cal. 263; Willson v. Cleaveland, 30 Cal.
192; Bell v. Bed Rock Tunnel & Mining Co., 36 Cal. 214; TREVASKIS v.
PEARD, 111 Cal. 599, 44 Pac. 246.
39 As to the rule in adverse suits, see STEEL v. GOLD LEAD M. CO., 18
Nev. 80, 1 Pac. 448; Bryan v. McCaig, 10 Colo. 309, 15 Pac. 413; Campbell v.
- Taylor, 3 Utah, 325, 3 Pac. 445.
40 BISHOP v. BAISLEY, 28 Or. 119, 41 Pac. 936; Renshaw v. Switzer, 6
Mont. 464, 13 Pac. 127; Wulf v. Manuel, 9 Mont. 276, 279, 286, 23 Pac. 723:
Mattingly v. Lewisohn, 13 Mont. 508 35 Pae. 111.
41 POWER v. SLA, 24 Mont. 243, 251, 252, 61 Pac. 468, 471. Where a for-
§ 94) KINDS OF RELOCATION. 809
The foregoing language from Power v. Sla was used in a case
where the defendants were asking in a “cross-complaint” to have
plaintiffs declared trustees of a patented claim because, pending the
patent proceedings, the defendants relocated it. ‘The nature of the
relief asked called for specific allegations; but the language of the
court would seem to suggest the right rule to be applied in all cases.
An adverse suit ought to be made to comply with the same rules of
pleading as other suits; but whether it has to do so, or not, is not
clear.4* In a recent adverse suit a plaintiff, who was relying on an
attempted relocation, was nonsuited because he did not show that the
claim was on unoccupied and vacant public domain at the time sub-
ject to location.**
While the burden of proof is on the one asserting a forfeiture, he
makes out a prima facie case by showing that no work was done
within the limits of the claim, or that $100 worth of work was not
done there, during the year preceding relocation; and the burden
then shifts to the prior locator to show that the required amount of
work entitled to count as annual labor was performed outside of the
claim.**
THE KINDS OF RELOCATION.
94. Relocations may be made (1) by third persons; (2) by the original
locators.
Now we are ready for the relocation cases. We may group them
under two heads, namely, relocations by third persons and relocations
by the original locators. In each case there can be a relocation only
after the rights based upon the original location either have been
extinguished by abandonment or have become forfeitable by a new
entry and a new location.*® “Mining claims are not open to relo-
cation until the rights of a former locator have come to an end. A
relocator seeks to avail himself of mineral in the public lands which
another has discovered. ‘This he cannot do until the discoverer has
feiture for failure to make annual expenditure is claimed, it is necessary to
negative the expenditure of $100 in improvements, as well as to negative its
expenditure in work. Id.
42 See note 39, supra.
43 McWilliams v. Winslow, 34 Colo. 341, 82 Pac. 538. But see Farrell v.
Lockhart, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Bd. —.
44 LITTLE DORRIT GOLD MIN. CO. v. ARAPAHOE GOLD MIN. CoO., 30
Colo. 431, 71 Pac. 389; Sherlock v. Leighton, 9 Wyo. 297, 63 Pac. 580, 934.
46 See McCann y. McMillam, 129 Cal. 350, 62 Pac. 31; Lockhart y. Rollins,
2 Idaho (Hasb.) 540, 21 Pac. 413; Lockhart v. Wills, 9 N. M. 344, 54 Pac. 336.
310 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
in law abandoned [or forfeited] his claim and left the property open
for another to take up.” *°
RELOCATIONS BY THIRD PERSONS.
95. Relocations, made as such by third persons, seem to admit the va-
lidity of the prior location. A new discovery is not necessary,
if only the old be adopted and appropriated, and probably the
same is everywhere true of location markings; but the regu-
lar discovery work must be performed, and notices posted and
recorded, as in the case of original locations. In jurisdictions
having relocation statutes those must be followed in all de-
tails.
The first thing to notice with reference to a relocation by a third
person is that a relocation, made distinctly as such, admits the validi-
ty of the prior location.47 Where the location notice states that
the claim is a relocation of a former claim, it impliedly admits that
the original location was valid,*® and, of course, puts upon the re-
locator the burden of proving the acts of forfeiture of the original
location.*® “A relocator of a mining claim stands in a different atti-
tude from that of an original locator. The original locator of min-
ing ground is a discoverer of the mineral therein contained. A re-
locator is not a discoverer of the mineral, but an appropriator thereof,
and cannot hold the ground, except upon making proof that the
original locator had abandoned or forfeited his right by failure to
comply with the mining laws. All the authorities agree that a re-
location impliedly admits that there has been a valid prior location
because there can be no relocation unless there has been a prior valid
location, or something equivalent thereto.®°° There can be no relo-
cation until there has been an abandonment or forfeiture of the ground
by the first locator. In this class of cases the burden of proving
46 Belk v. Meagher, 104 U. S. 279, 284, 26 L. Ed. 735.
47 Compare Yosemite Gold Min. & Mill. Co. v. Emerson, 208 U. 8. 25, 28
Sup. Ct. 196, 52 L. Ed. 374.
48 Wills v. Blain, 4 N. M. (Johns.) 378, 20 Pac. 798; Jackson v. Prior Hill
Min. Co. (S. D.) 104 N. W. 207; Providence Gold Min. Co. v. Burke, 6 Ariz.
8238, 57 Pac. 641. See Yarwood v. Johnson, 29 Wash. 643, 70 Pac. 128; Slothow-
er v. Hunter, 15 Wyo. 189, 88 Pac. 36.
49 PROVIDENCE GOLD MIN. CO. v. BURKE, 6 Ariz. 323, 57 Pac. 641.
50 On this view the word “relocation” was erroneously used in Lauman v.
Hoofer, 37 Wash. 382, 79 Pac. 953, where there was an adjudication that no
valid location had been made, and yet the new location was called a “reloca-
tion.”
§ 95) RELOCATIONS BY THIRD PERSONS. 311
a forfeiture rests upon the party claiming it, whether it be by the
plaintiff or defendant.” ®+ :
While the cases so far decided have not allowed one who called
his claim a relocation to deny the validity of the prior claim, it is not
believed that he would be estopped thereby to show that the previous
location was absolutely void for want of a discovety or of one of the
necessary acts of location. Indeed, it is hard to see on principle
why calling the relocation by that name should ever imply more than
that an attempted location preceded it. Unless the local statute com-
pels the relocation notice and certificate, or either, to state that it is
a relocation, it would be better not to state it. In Arizona, and per-
haps in Montana and Nevada, the fact that the relocation was such
was once required to be stated, or the relocation was void; but in
Arizona and Montana, at least, this requirement has been repealed.
by the legislation of 1907.
Where third persons relocate, it is not necessary to have a new
discovery, so long as the relocator has actual knowledge of the ex-
istence of the mineral and adopts the discovery,®? provided, of course,
the discovery or discovery shaft has not been patented to a junior
locator, or otherwise lost, without a new discovery elsewhere on the
claim being made.®8
Relocations as Affected by Lavagnino v. Uhlig and Farrell v. Lock-
hart.
Where a relocation is made without a discovery, a subsequent dis-
covery will doubtless validate the relocation as effectually as a subse-
quent discovery validates an original location. Moreover, where the
lines of a junior location are thrown over a senior location, and the
discovery for the junior is on the conflict area, a logical extension
of the doctrine of Farrell v. Lockhartt would seem to show that
an abandonment of the senior location, and a logical extension of the
doctrine of Lavagnino v. Uhlig®* would seem to show equally that
51 ZERRES vy. VANINA (C. C.) 184 Fed. 610, 614.
562 HAYES v. LAVAGNINO, 17 Utab, 185, 53 Pac. 1029; srustruug v. LOw-
er, 6 Colo. 393, 395; Nevada Sierra Oil Co. v. Home Oil Co. (C. C.) 98 Fed.
673. That the relocator bas a reasonable time to verify discovery and com-
plete location, see Murley v. Ennis, 2 Colo. 300.
53 Gwillim v. Donnellan, 115 U. 8S. 45, 5 Sup. Ct. 1110, 29 L. Ed. 348; Miller
vy. Girard, 8 Colo. App. 278, 33 Pac. 69; SILVER CITY GOLD & SILVER
MIN. CO. v. LOWRY, 19 Utah, 334, 57 Pace. 11.
{FARRELL v. LOCKHART, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —.
54 LAVAGNINO v. UHLIG, 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119.
But see Farrell v. Lockhart, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —, which >
throws doubt on this proposition. And see Moorhead vy. Erie Min. & Mill. Co.
(Colo.) 96 Pac. 253.
312 ABANDONMENT, FORFEITURE, AND RELOCATION. = (Ch. 17
a forfeiture of the senior location, will perfect the junior claim as
against a third person who later attempts to relocate. The reason
is that on principle the conflict area inures in each case to the junior
claim, and thus the junior claim acquires a valid discovery. The only
troublesome question is whether under the cases the conflict area
inures to the junior claim without action by the junior claimant, or
whether it will so inure only if he amends his location certificate.
While the decision of Lavagnino v. Uhlig apparently made the sub-
ject of amendment of location certificates unimportant, except where
the original certificates failed to comply with the statute, or it was
sought to cut off the right of the senior to resume work, or the amend-
ment was needed because the claim’s boundaries as stated therein
had been changed by swinging the claim®® or making the end lines
parallel,®* it still left it possible, though certainly not probable, that
in extreme cases a failure to amend would be construed as an aban-
donment, or at least evidence of abandonment, of the conflict area
by the junior locator. Apart from the language of Lavagnino v.
Uhlig itself, what makes an abandonment by the junior locator im-
probable is a decision, such as that of the Colorado case, where,
after a junior locator had patented the senior discovery shaft, the
senior claim was held to be validated by the sinking of a new dis-
covery shaft on unaffected senior ground, although no amended lo-
cation notice was posted at the new discovery and no amended lo-
cation certificate was recorded.5*? The junior locators in the conflict
area ought similarly to be protected as against relocators coming in
after abandonment by the senior locator without the need of an amend-
ment of the record. We have already seen, however, that the fail-
ure of the junior locator to file an amended location certificate or to
make an actual relocation probably enables the senior locator to re-
sume work at any time.®® And since the case of Farrell v. Lock-
hart °° it looks as if the failure of the junior locator to file an amend-
ed location certificate, or to make an actual relocation after aband-
onment by the senior locator, may vet be held by the federal Supreme
Court to leave the junior claimant's ground subject to relocation.*?
55 Dunean y. Fulton, 15 Colo. App. 140, 61 Pace. 244.
56 Tyler Min. Co. v. Last Chance Min. Co. (C. C.) 71 Fed. S48.
57 TREASURY TUNNEL MINING & REDUCTION CO. v. BOSS, 32 Colo,
27, T4 Pace. 888, 105 Am. St. Rep. 60; MeMillen v. Terrum Min. Co., 82 Colo.
38, 74 Pac. 461, 105 Am. St. Rep. 64.
58 See previous chapter. As to the right of the senior locator to resume work
on the conflict area, if the rest of the claim has been relocated by third pare
ties on a discovery outside the conflict area, query?
59210 U. 8. 142, 28 Sup. Ct. 681, 52 L. Ed. —.
60 See Moorhead vy. Erie Min. & Mill. Co. (Colo.) 96 Pac. 253. It has been
ate
¥ 95) RELOCATIONS BY THIRD PERSONS. 313
Until, however, the federal Supreme Court shall hold that abandon-
ment by the senior locator of the ground covering the junior’s dis-
covery cannot be deemed to validate the junior claim either by the
abandonment being given retroactive effect or by the junior locator’s
past acts of location, continuously relied on by him, being given full
force without the need of repetition, the matter will be in doubt.
supposed by many (see, for, instance, Morrison’s Mining Rights [18th Ed.] 38,
108) that LAVAGNINO v. UHLIG, 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119,
is inconsistent with BELK v. MEAGHER, 104 U. S. 285, 26 L. Ed. 735, and
BROWN v. GURNEY, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Hd. 717; and in FAR-
RELL v. LOCKHART, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —. the United
States Supreme Court itself seemed disturbed at the apparent conflict. That LA-
VAGNINO v. UHLIG is inconsistent with BELK v. MHAGHER cannot be
doubted, but that BELK v. MEAGHER was wrongly decided would seem to be
clear. While it is true, as is pointed out in BELK v. MEAGHER, that “a
relocation on lands actually covered at the time by another valid and subsisting
location is void, and this, not only against the prior locator, but all the world,
because the law allows no such thing to be done” (BELK v. MEAGHER, 104
U. S. 279, at page 284, 26 L. Hd. 735), this is just as true of an attempted lo-
cation on unoccupied land, where there has actually been no discovery; and
yet, as we have noticed (chapter X, § 42, supra), the latter becomes perfected
on discovery without a reperformance of the acts of location. In overruling the
misapplication of correct principle by BELK vy. MEAGHER, the case of LA-
VAGNINO v. UHLIG did much for sound mining law doctrine. That BROWN
v. GURNEY, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717, is inconsistent with
LAVAGNINO v. UHLIG cannot be conceded, for BROWN v. GURNEY was
concerned merely with the right rule to apply to the attempted relocation of
mining claims covered by applications for patent pending in the land depart-
ment (see statement of the case in § 95, infra). Such mining claims, while at-
fected by the quasi judicial proceedings in the land department, may well be
governed by a special rule. It is to be regretted that in FARRELL v. LOCK-
HART, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —, the doctrine of LAVAG-
NINO v. UHLIG was not vigorously reaffirmed. While “not doubting the cor-
reetness of the decision in the Lavagnino case,” the Supreme Court in the Far-
rell Case said that it did “not pause to particularly re-examine the reasoning
expressed in LAVAGNINO vy. UHLIG as an original proposition,” and then
proceeded to qualify LAVAGNINO v. UHLIG for supposed reasons of expedi-
ency. It is believed that expediency does not call for a rule which will give
priority to a second relocator, who enters with knowledge of the bona fide at-
tempts of the first relocator, and who relies on a technicality to get that min-
ing property, which true principle, as expounded in LAVAGNINO v. UNLIG,
shows should be held to belong to the first relocator. It is to be hoped that
the Supreme Court of the United States will reaffirm LAVAGNINO vy. UHLIG,
and thereby support the land department ruling that a location based on a dis-
covery within an existing valid location is only voidable if attacked in time,
and is far from being absolutely void. Gowdy v. Kismet Gold Mining Co., 22
Land Dee. Dep. Int. 624; American Consol. Mining & Milling Co. v. De Witt,
26 Lund Dee. Dep. Int. 580; MUTUAL MINING & MILLING CO. v. CUR-
RENCY (CO., 27 Land Dee. Dep. Int. 191; Burnside v. O’Connor, 80 Land Dec.
Dep. Int. 67.
314 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
The Acts of Relocation,
While a new discovery is not requisite to a relocation, the stat-
utes make it necessary for the relocator to do the regular discovery
work by sinking a new discovery shaft, or by sinking the old one 10
feet deeper.** Then, too, under the statutes it is necessary to mark the
location on the ground, so that its boundaries may readily be traced,
and to comply with the state statutes in regard to staking the claim.
A relocator, in “jumping” a claim, is required to do practically all
that the original locator did except make a new discovery; but, un-
der the state statutes, and by virtue of decisions in California °? and
Utah,®*? he may adopt the old boundary markings of the first locator,
so far as they still exist, and still comply with the state statutory re-
quirements.** The location stake should, of course, be replaced, if
lost, and the proper notice posted. The fact of the matter is that,
while the statutes specifically relating to relocation are not as precise
in their requirements as they might be, the relocator must locate and
record in substantially the same manner as the original locator had
to do,°* except that he may adopt the stakes and monuments of the
original location,°* and may sink the old discovery shaft 10 feet deep-
er, instead of sinking a new one.®”
It seems to be assumed, although the relocation statutes do not
always so specify, that the location requirements as to the time of
posting notice, the time of staking the location, the size, placing
and marking of stakes and monuments, and the necessity and time for
record, apply to relocations. That this assumption requires much
to be read into the statute is apparent from an inspection of the
Colorado statute, which reads: ‘“I‘he relocation of abandoned lode
61 A statutory provision that the relocator “may” sink the old shaft ten feet
deeper does not mean that he “must” do so. The discovery work on reloca-
tion may be performed elsewhere on the claim. Carlin v. Freeman, 19 Colo.
App. 334, 75 Pac. 26.
62 CONWAY v. HART, 129 Cal. 480, 62 Pac. 44.
63 BROCKBANK v. ALBION MIN. CO., 29 Utah, 367, 81 Pac. 863.
64 See Miller v. Taylor, 6 Colo. 41.
65 Armstrong v. Lower, 6 Colo. 393. Under the old Montana statute a de-
claratory statement was held invalid where it did not show the depth of the
old shaft at the date of relocation and that it was sunk 10 feet deeper. Wil-
son vy. Freeman, 29 Mont. 470, 75 Pac. 84, 68 L. R. A. 833.
66 Pelican & Dives Min. Co. v. Snodgrass, 9 Colo. 339, 12 Pac. 206.
67 Armstrong v. Lower, 6 Colo. 393. In LITTLE GUNNELL CO. v. KIM-
BER, 1 Morr. Min. Rep. (U. S.) 586, Fed. Cas. No. 8,402, it is said to be insuffi-
cient relocation discovery work to run a tunnel into the claim from an old shaft
upon an adjoining claim, even though ordinarily a tunnel will answer under the
state statute for discovery work. Compare Butte Consol. Min. Co. vy. Barker,
85 Mont. 327, 89 Pac. 302, 90 Pac. 177.
§ 95) RELOCATION BY THIRD PERSONS. 315
claims shall be by sinking a new discovery shaft and fixing new bound-
aries 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 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 cer-
tificate may state that the whole or any part of the new location is lo-
cated as abandoned property.” ®§
In this statute the words “in the same manner” fix the kind of
boundary stakes sufficiently by reference to the location statute, and
perhaps the time for doing the staking is also imported. The erec-
tion of a new location stake, however, does not necessarily show what
the contents of a location notice must be. Indeed, as the Colorado lo-
cation statute does not require a location stake as such to be erected,
but simply requires an act of location “by posting at the point of dis-
covery on the surface a plain sign or notice containing the name
of the lode, the name of the locator, and the date of discovery,” °° a
location stake is in fact a new requirement under the relocation stat-
ute, based on the well-known custom followed in making locations.
So, too, the fact that the location certificate may state that a part or
all of the new location is located as abandoned property clearly per-
mits a record to be made; but the relocation statute does not specifical-
ly require one, nor fix the time for the acts to be done. The fact of the
matter is that time in the relocation statute is treated by the courts
all the way through as governed by the location statute, because all
matters should be governed by that statute, except where explicitly
otherwise provided for in the relocation statute. The relocator of an
abandoned mining claim has the same length of time to perform each
of the acts of location subsequent to discovery as the original locator:"°
The legislature proceeded upon the theory, which the courts, in
recognition of the very nature of relocation, are bound to follow,
that a relocator, in making his relocation on land which under the
federal statute is “open to relocation in the same manner as if no
location of the same had ever been made,” must do all that the orig-
inal locator had to do, except in so far as the Legislature permits
the relocator to take advantage of and utilize the stakes on the ground
and the workings already started. Because of the foregoing assump-
tion, growing out of the very nature of relocation, it is necessary to
68 Mills’ Ann. St. Colo. § 3162.
69 Mills’ Ann. St. Colo. § 3152.
70 Pelican & Dives Min. Co. v. Snodgrass, 9 Colo. 339, 12 Pac. 206.
316 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
notice particularly those relocation statutes which make requirements
not also prescribed for original locations.
In Arizona until recently the statute provided that the location
notice on a relocation should state if the whole or any part of the new
location was located as abandoned property, or otherwise it should be
void. The courts of Arizona, of course, recognized the right of the
Legislature to make that requirement fundamental; 7? but the Legis-
lature itself wisely changed it.72 Washington seems to have a stat-
ute similar to the early Arizona statute."* In Colorado, Nevada, North
Dakota, South Dakota, Washington, and Wyoming the statute reads
that the location certificate or declaratory statement “may” state that
abandoned property is included in the relocation. It seems clear that
in these statutes such “may” does not mean “shall,” or “must,” and
that therefore the insertion of the statement that abandoned property
is included is merely permissive, and not mandatory.7* So, too, it
seems certain that here “abandoned property” includes forfeited as
well as technically abandoned property.7*> In Nevada, if the relocator
sees fit to perform discovery shaft work by sinking the old discovery
shaft 10 feet deeper, he must give the depth and dimensions of the
original discovery shaft at the date of relocation, and in doing so,
71 CUNNINGHAM v. PIRRUNG (Ariz.) 80 Pac. 8329; Matko v. Daley (Ariz.)
85 Pac. 721. In Cunningham y. Pirrung the Arizona statute was held not to
apply where the previous attempted location was invalid, and the relocation
was made for that reason. To the same effect is Paragon Mining & Develop-
ment Co. v. Stevens County Exploration Co., 45 Wash. 59, 87 Pac. 1068. In
Kinney v. Lundy (Ariz.) 89 Pac. 496, it was held that the word “void” in the
statute meant ‘“‘voidable,” and the relocation might be cured by amendment.
72 Laws Ariz. 1907, p. 27.
73 Paragon Mining & Development Co. v. Stevens County Exploration Co., 45
Wash. 59, 87 Pac. 1068. In that case it was held that locators who at an ear-
ly morning hour posted a notice of location and set two corner stakes, and im-
mediately left the claim, and never did any thing more, never proceeded far
enough to acquire any rights to be lost by abandonment or otherwise, and uence
a subsequent locator need not state in his location certificate that he was re-
locating an abandoned claim.
74 Query, however, in Nevada, where the relocator knows that he is locat-
ing abandoned or forfeited ground? The clause in the relocation act in that
state to the effect that, “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,” can-
not refer to the case of sinking an old discovery shaft 10 feet deeper; for,
where there is an old discovery shaft, the relocator must know that the ground
is abandoned or forfeited. Unless the word “may,” in the clause authorizing
the statement in the recorded paper that the property, or part of it, is located
as abandoned property, does really mean ‘‘must,” where the relocator knows
that he is locating abandoned or forfeited property, the clause about the stat-
ute not applying if he does not know would seem to be meaningless,
75 See note 1, supra.
§ 95a) RESUMPTIONS OF WORK. 317
of course, necessarily implies that the property is an abandoned or
forfeited mining claim.
Some of the state relocation statutes specifically allow the relocator
to do his discovery work by an adit, open cut, or tunnel, and by driv-
ing the original adit, open cut, or tunnel 10 feet further along the
course of the vein. Instances of these are the Idaho, New Mexico,
North Dakota, and South Dakota statutes. In Wyoming, on the other
hand, the relocation must be perfected by sinking a new discovery
shaft and by fixing new boundaries in the same manner as is provid-
ed for the location of a new claim. By the Oregon statute “abandoned
claims shall be deemed unappropriated mineral lands, and titles there-
to shall be obtained as in this act specified without reference to any
work previously done thereon.” 7® In Oregon, in other words, there
is no distinction between the manner of making an original location
and that of making a relocation. And everywhere it may be said that
the relocator runs all the risks that the original locator does in fail-
ing to comply on time with essential requirements, such as that about
marking the location on the ground, so that its boundaries can readily
be traced,77 etc. In one case a person who attempted to relocate fail-
ed to sink his discovery shaft deep enough, and was cut out by a
resumption of work on the part of the previous locator.7®
Unless the trespass is waived, or an estoppel is shown, a relocation
based upon a trespass is invalid’® A relocation must be tested by the
rules which govern an original location, and when it is valid con-
fers no greater rights than an original location confers.*°
’
SAME—RESUMPTIONS OF WORK.
95a. Relocations by third persons are often complicated by attempted
resumptions of work by the delinquent owners. In some
jurisdictions resumption may take place at any time before
the last act of relocation is completed, and everywhere a re-
sumption begun in good faith the last day of the year, when it
is too late to complete the $100 required expenditure for that
76 Sp. Laws Or. 1898, p. 17, § 4.
77 BROCKBANK v. ALBION MIN. CO., 29 Utah, 367, 81 Pac. 863.
78 Wield v. Tanner, 32 Colo. 278, 75 Pac. 916.
79 Moffat v. Blue River Gold Excavating Co., 33 Colo. 142, 80 Pac. 1389. That
there can be no relocation where the claim is in the actual possession of per-
sons who have done the requisite amount of assessment work under an insuffi-
cient location is asserted in Ware v. White, 81 Ark. 220, 108 S. W. 831. But
query? Compare Goldberg v. Bruschi, 146 Cal. 708, 81 Pac. 23.
#0 Malone v. Jackson, 137 Fed. 878, 70 ©. C. A. 216; Van Valkenburg v.
Huff, 1 Nev. 142.
318 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
year, and continued in regular working hours the first and
subsequent days of the new year, seems to give the resumer @
title superior to that of one who attempts to relocate in the
early morning hours of the first day of the new year and prior
to any work by the resumer that morning. But query?
The troublesome questions in regard to relocation are usually those
involving a claim of resumption of work by the original locators.
We have already discussed the cases which hold that resumption may
take place at any time prior to the completion of all the requisite acts
of relocation; the resumer’s work, if prosecuted to the statutory
amount with reasonable diligence, being all credited to him as of the
time when he did the first work, but the relocator’s steps being credit-
ed to him only as of the time when he does the last requisite location
act.4_ Such a doctrine, of course, makes relocation practically impos-
sible, except in cases of genuine abandonment, and runs counter to the
prevailing idea of the federal statutes that a locator must periodically
manifest the good faith of his holding by doing annual labor, or
else give way to some other locator, who will live up to the require-
ments of the law.®?
But short of such a case is the troublesome one where a locator
neglects doing the annual labor until the end of the year in which
it must be performed, and then, when it is too late to do the work
for that year, starts to do it, and an attempted relocation is made
January 1st. In the case of Fee v. Durham,®* for instance, locators
commenced their annual assessment work on December 26th, and their
employés worked until the night of December 30th, which was Satur-
day, when they quit until Monday morning, January 1st. They left
their tools on the claim, intending to return to work January Ist,
and did return to work at the usual hour on January 1st. Sunday
night, between 12 and 1 o’clock, the plaintiffs went upon the claim
and relocated it. (This seems to have been in Arkansas, where dis-
covery work is not an essential act of location or of relocation).
The original locators continued their work on Monday morning, and
81 McKay v. McDougall, 25 Mont. 258, 64 Pac. 669, 87 Am. St. Rep. 395;
Lacey v. Woodward, 5 N. M. 583, 25 Pac. 785; Pharis v. Muldoon, 75 Cal. 284,
17 Pac. 70. See, also, Field v. Tanner, 32 Colo. 278, 75 Pac. 916; Worthen v.
Sidway, 72 Ark. 215, 79 S. W. 777. The Montana rule has been changed by
statute, making the relocation date from the posting of notice of location, and
making resumption thereafter ineffective against the relocation. Laws Mont.
1907, p. 21.
82 Even in California a relocation may take place, despite the fact that the
original locator has remained in possession. Goldberg v. Bruschi, 146 Cal. 708,
81 Pac, 23.
83121 Fed. 468, 57 C. C. A. 584.
§ 95a) RESUMPTIONS OF WORK. 319
thereafter, with diligence, until the annual labor for the new year was
completed. It was admitted that when work stopped on Saturday
night the $100 worth of work for the year then ending had not been
done. The United States Circuit Court of Appeals for the Eighth
Circuit held that the resumption of work in December renewed the
original locator’s title so thoroughly that the diligent prosecution of
work over into the next year until that next year’s work was done
rendered the plaintiff’s relocation void ab initio. The court said:
“The defendant’s grantors were in the actual possession of the claim,
actively engaged in doing the annual assessment work thereon, when
the plaintiffs entered upon the claim and made their location. The en-
try and location, under these circumstances, was a trespass, and no
rights were acquired thereby. Inchoate rights to the public lands can-
not in any case be acquired by trespass or by violence. An entry
upon the prior possession of another is a trespass, and tends to pro-
voke violence, homicides, and other crimes, and one making such
entry gains nothing by it. The original locators must be held to have
been in the actual possession of the claim at the time the plaintiffs
made their location. The suspension of work Saturday night, intend-
ing to resume it Monday morning, and leaving their tools on the
ground for that purpose, was not, in any sense, an abandonment
of their possession for the time between Saturday night and Monday
morning. In contemplation of the law, their possession was as com-
plete and actual during that time as if they had remained at work
during the night and on the Lord’s day. * * * The original lo-
cators in this case had not abandoned their claim, but were actually
and continuously at work from the 26th of December until an early
day in January, when they had done $500 worth of work. There was
no suspension of the work during this time, and there was no period
during which the plaintiffs could enter and make a valid location. The
continuity of the work and possession was not broken by the cessa-
tion of labor at night and on the Lord’s day. It must be conceded
that, if the original locators had ‘resumed work’ after the clock
struck 12 on Saturday [Sunday] night, December 31st, that the
plaintiff’s location would have been invalid. We think, upon the facts
in this case, for all legal purposes, the original locators must be held
to have been prosecuting the work for the whole of that night, and
that the plaintiffs could not rightfully enter upon the claim and make
a valid location between midnight and the usual hour of resuming
work on Monday morning.” **
84 FED vy. DURHAM, 121 Fed. 468, 469-470, 57 C. C. A. 584, 585.
320 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
The foregoing argument is not, however, as strong as at first
sight it seems. The question, to begin with, is not one of abandon-
ment, but one of forfeiture. Yet the court treats it as if it were one of
technical abandonment, as distinguished from forfeiture. Moreover,
it is not a question of trespass. If the original locators had not re-
sumed work, constructively, at least, before plaintiffs attempted re-
location, the relocation would have been valid, because the claim would
then have been “open to relocation in the same manner as if no lo-
cation of the same had ever been made,” *® and the entry by plain-
tiffs was certainly peaceable.8° Moreover, in view of the custom
and practice of miners to make most of their relocations between
12 and 1 o’clock on the last night of the year, such a relocation can-
not be deemed clandestine,®? even if the fact that a relocation is clan-
destine should be deemed to vitiate it. It was the original locator’s
business to expect and know of the relocation. The sole question in
the case was whether, when the original locators and their men were
asleep in their cabins, they should be deemed in law to be at work,
because they began work some days before, and were in good faith
intending to go on with the work at the usual hour in the morning.
Considering that the original locators could have gone up at 12 o’clock
that night and resumed, and that, as the dissenting opinion points
out,®® a refusal to recognize the relocation as valid encourages ficti-
tious resumptions of work just to defeat relocations, the decision in
Fee v. Durham that a constructive resumption in the new year can
be based on the actual resumption in the preceding year, so as to de-
feat a forfeiture, would seem to be of doubtful soundness. The only
thing in its favor is the general doctrine that forfeitures are odious
to the law. The decision has since been followed by another case
in the same circuit,*® and is in accord with previous holdings in Ari-
zona °° and in the land department.®* As it furnishes a fair working
rule, it probably will be followed.
85 Rev. St. U. S. § 2824 (U. S. Comp. St. 1901, p. 1426). A peaceable entry
for relocation will be supported, after failure to do annual labor, even though
the claim is occupied by the original locator. Du Prat v. James, 65 Cal. 555,
4 Pac. 562; Goldberg v. Bruschi, 146 Cal. 708, 81 Pac. 23. .
86 Dissenting opinion by Sanborn, J., in FEE v. DURHAM, 121 Fed. 468,
472, 473, 57 C. C. A. 584. See DU PRAT v. JAMES, 65 Cal. 555, 4 Pac. 562;
Brown v. Oregon King Mining Co. (C. C.) 110 Fed. 728.
87 Dissenting opinion by Sanborn, J., in FEE v. DURHAM, 121 Fed. 468,
473, 57 C. C. A. 584, 589.
88121 Fed. 476, 57 C. C. A. 592.
89 WILLITT v. BAKER (C. C.) 183 Fed. 937.
90 JORDAN v. DUKE, 6 Ariz. 55, 53 Pac. 197. In this case, however, the
relocators found some of the owners on the ground when the attempt to re-
locate was made.
91 McNBIL v. PACE, 3 Land Dec. Dep. Int. 267.
§ 95b) PREMATURE RELOCATIONS. 321
SAME—PREMATURE RELOCATIONS.
95b. A relocation is premature (1) if it is attempted before the origi-
nal and perfected location is subject to forfeiture, and (2) if
it is attempted after a prior prospector has made discovery
and begun the acts of location, but before the time allowed
him to finish the acts of location has expired. In case (2) the
relocation is premature, even though the original prospector
does not do discovery work, or record, in time.
Premature relocations have been regarded as void, but Lavagnino
v. Uhlig has thrown doubt upon that doctrine.
A word is necessary about premature relocations. They consist
of two kinds: (1) Those where a perfected location is not yet for-
feitable; and (2) those where a prior locator has not yet exhausted
his statutory time to complete his uncompleted location.
Premature Relocations of Perfected Mining Claims.
It is perfectly well settled that a relocation, which is attempted be-
fore the original locator or his grantee is in default under his exist-
ing valid location, is void.®? But why should “void” mean there that
if the end of the year comes, and the original location is subject to
relocation, the previously attempted relocation must be disregarded?
The question is somewhat like that discussed when we considered
whether under the holding in Lavagnino v. Uhlig,®* a location that
would be validated by the abandonment of a previous and then exist-
ing location might not be permitted on a discovery within the limits of
the previous and existing location. The answer to the question seems
to turn wholly on whether the second location, if it applied for patent,
could be attacked by a protest by third persons, or only by an adverse
claim made by the senior locator. Since Lavagnino v. Uhlig the use
of protest in other ways than to question the mineral or nonmineral
92 BELK v. MEAGHER, 3 Mont. 65; Id. 104 U. S. 279, 26 L. Ed. 735;
Garthe v. Hart, 73 Cal..541, 15 Pac. 98; Moffat v. Blue River Gold Excavating
Co., 33 Colo. 142, 80 Pac. 189. See Slavonian Min. Co. v. Perasich (C. C.) 7 Fed.
331; Aurora Hill Con. Min. Co. v. Highty-Five Mining Co. (C. C.) 34 Fed. 515;
Book v. Justice Min. Co. (C. C.) 58 Fed. 106; Lockhart v. Rollins, 2 Idaho,
(Hasb.) 540, 21 Pac. 413; Renshaw v. Switzer, 6 Mont. 464, 13 Pac. 127. That
a forfeited or abandoned claim is still staked off, of course, will not prevent
n relocation. GOLDEN FLEECE GOLD & SILVER MIN. CO. v. CABLE CON-
SOL. GOLD & SILVER MIN. CO., 12 Nev. 312. A relocator was refused a de-
cree quieting title agaiust a purchaser at an execution sale which took place
prior to relocation, where work had actually been done on some of the claims,
and the attempted relocation of all was to hinder, delay, and defeat the judg-
ment and execution sale. Wailes v. Davies (C. C.) 158 Fed. 667.
93 Lavagnino y. Uhlig, 198 U. 8. 443, 25 Sup. Ct. 716, 49 L. Hd. 1119.
- Cost.M1n.L.—21
322 ABANDONMENT, FORFEITURE, AND RELOcATION. (Ch. 17
character of the land, the citizenship of the applicant, the posting and
publication of the notices of application for patent, and matters of
that kind, may well be doubted.
Messrs. Morrison and De Soto were inclined in the twelfth edi-
tion of their book to support the premature relocation on grounds of
laches or estoppel, for they said of the decision in Belk v. Meagher **
that a relocation begun before the year expires is void: “The case
cited so decides; but it would certainly seem that, if the party whose
claim was taken did not either resume work or take steps to recover
by law until after the expiration of the ensuing annual period, his
laches would operate to validate such a relocation, although begun
before the proper time.” °® The laches theory has received a severe
blow in a recent case,°* and it is believed that Lavagnino v. Uhlig °”
furnishes a simpler way out than that of claiming that laches vali-
dates an absolutely void relocation. Under a logical extension of
Lavagnino v. Uhlig the premature location is ineffective only while
the original location continues in unabated vigor; but, when that
location is abandoned or becomes forfeitable, the relocation springs
into life, subject to the same right of the original owner to resume
work and oust the relocation that exists in a senior locator to resume
work and oust a junior locator from the area in conflict between the
senior and junior claims, and subject, of course, to relocation by
others if the annual labor has not been done on the relocation.* It
is upon the right to resume, therefore, that laches and estoppel have
a bearing. The same rule, however, should apply to the relocator
that applies between the junior and the senior locators of conflicting
mining claims.
It is frankly admitted that the foregoing doctrines are novel, and
are opposed to some earlier cases, as well as to the late case of Malone
v. Jackson, where the continued failure of the original locators to
do the work was held not to validate the relocation; °* but the doc-
943 Mont. 65, 1 Morr. Min. Rep. 522.
95 Morrison’s Mining Rights (12th Ed.) 98.
96 Malone v. Jackson, 187 Fed. 878, 70 C. C. A. 216. There a claim was lo-
cated for one Baker December 6, 1898. The annual labor was not done, but
the claim was not subject to relocation on that account until after December
31, 1899. July 10, 1899, Jackson attempted to relocate, and was in the actual
possession of the claim in 1900, 1901, and 1902. Yet January 1, 1902, Malone
relocated, and the court upheld Malone’s relocation as against Jackson’s.
®7 Lavagnino v. Uhlig, 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119.
* The locator of the void junior claim may of course treat it as absolutely -
void and make a new location on a discovery in unappropriated ground. Wat-
son v. Mayberry, 15 Utah, 265, 49 Pac. 479, 482.
98 See Slavonian Mining Co. vy. Perasich (C. C.) 7 Fed. 881; MALONE vy.
§ 95b)_ PREMATURE RELOCATIONS. 323
trine of Lavagnino v. Uhlig is itself novel and inevitably involves
novel consequences. A late Montana case recognizes this fact.°®
While novel, the decision in Lavagnino v. Uhlig and its logical con-
sequences seem sensible enough. The only difficulty about insisting
upon those consequences is that in Farrell v. Lockhart °° the federal
Supreme Court has so modified Lavagnino v. Uhlig as to leave it
doubtful how much of that decision remains.1°4
Not only may a relocation be premature because it comes before the .
end of the year in which the annual labor may be done, but it may also
be premature because, though the locator did not complete the required
work during the year and the relocation was attempted promptly at 2
a.m. on the following January 1st, the locator has resumed work De-
cember 31st, and continued his work at the regular hour on January
1st. In such case it has been held that the relocation is invalid, al-
though the one who has resumed work abandons the claim five or six
days later.°? It is believed that, since the case of Lavagnino v.
Uhlig, the case just cited cannot be supported. It is always to be
borne in mind, however, that the state of the authorities will not jus-
tify any relocator who has made a premature relocation in failing to
renew his relocation after the original location either is abandoned or
becomes forfeitable. Such renewal of relocation should take place,
not only to cut off all right of the original locator to resume work
and defeat the premature relocation, but also to save all possibility of
the relocation being held invalid as to third persons who also come in
to relocate. Out of excessive caution the renewal of relocation should
be by a complete statutory relocation, though on principle a relocation
by amendment should suffice. In view of the decision in Farrell v.
Lockhart,?°* which is believed to be a backward step, a prudent miner
should take no chances.
Premature Relocation of Unperfected Mining Claims.
Another kind of premature relocation is where one is attempted
during the performance of the acts of location other than record,
and before the time for discovery work or for record has expired.
Such a location remains ineffective as against the original locator,
JACKSON, 137 Fed. 878, 70 C. C. A. 216. The latter case was decided 21 days
before LAVAGNINO v. UHLIG, 198 U. S. 448, 25 Sup. Ct. 716, 49 L. Hd. 1119.
A case since is SIERRA BLANCA MINING & REDUCTION CO. v. WIN-
CHELL, 35 Colo. 18, 83 Pac. 628. ‘
99 HELENA GOLD & IRON CO. v. BAGGALEY, 34 Mont. 464, 87 Pac. 455.
100 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —.
101 See note 60, supra.
102 Jordan v. Duke, 6 Ariz. 55, 53 Pac. 197.
103 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —.
324 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
although the discovery work is not done,°* and although the record
does not come in the time fixed by the statute,?°* and seemingly al-
though the failure to record works a forfeiture in favor of a third
person relocating later.1°* The facts that the original locator is in
possession at the time of the attempted relocation, and continues so,
and that the relocation is premature, combine to create a situation
which keeps the relocation in the state of suspended animation in
. which it started until it is ended by the original locator’s recording,
or by the relocator renewing his relocation and thus ending the orig-
inal location.1°? This suspended animation of the relocation does not
constitute an intervening vested right, which will prevent the orig-
inal locator from correcting a defective location certificate by an ad-
ditional one. As the attempted relocation does not stand in the way
of record by the original locator, it does not stand in the way of an
amendment of record.1°* It has been supposed that such a premature
relocation does not stand in the way of a relocation by others; but
since the case of Lavagnino v. Uhlig that hardly seems sound. It is
believed that the premature relocation if diligently looked after by
the relocatort should have priority over any other relocation, and that
ultimately the courts will so decide.*°®
104 Sierra Blanca Mining & Reduction Co. v. Winchell, 35 Colo. 18, 83 Pac.
628. That merely posting a notice of location and setting two stakes, if fol-
lowed by immediate abandonment, may not initiate a location, see Paragon
Mining & Development Co. v. Stevens County Exploration Co., 45 Wash. 59,
87 Pac. 1068.
105 BRAMLETT y. FLICK, 23 Mont. 95, 57 Pace. 869; Last Chance Min. Co.
v. Bunker Hill & 8S. Mining & Concentrating Co., 131 Fed. 579, 66 C. C. A. 299.
See Craig v. Thompson, 10 Colo. 517, 16 Pac. 24; Omar v. Soper, 11 Colo. 380,
18 Pac. 443, 7 Am. St. Rep. 246; Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037.
106 LOCKHART v. JOHNSON, 181 U. 8S. 516, 21 Sup. Ct. 665, 45 L. Ed. 979.
In that case there was a failure to sink a discovery shaft, as well as a failure
to record.
107 Where the original location is abandoned before being completed, such
abandonment, as distinguished from forfeiture, seems to keep the relocation
from being premature. KINNEY v. FLEMING, 6 Ariz. 268, 56 Pac. 723. If
not abandoned, and the time to record has not expired when suit is brought,
the claim may be shown by acts of location without record. Id.
108 CRAIG v. THOMPSON, 10 Colo. 517, 16 Pac. 24.
y+ Adams y. Polglase, 32 Land Dec. Dep. Int. 477, 83 Land Dec. Dep. Int. 30.
109 Helena Gold & Iron Co. v. Baggaley, 34 Mont. 464, 87 Pac. 455. But see,
contra, Nash v. McNamara (Nev.) 93 Pac. 405. The recent case of FARRELL
v. LOCKHART, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —, of course, throws
doubt upon the proposition; but LAVAGNINO v. UHLIG, 198 U. S. 448, 25
Sup. Ct. 716, 49 L. Ed. 1119, seems so essentially sound on principle that its
rehabilitation ought reasonably to be expected.
§ 95b) PREMATURE RELOCATIONS. 325
Another claim of premature relocation has been raised where the
previous location was completed at the time of relocation except
for record, but at the time of attempted relocation the statutory time
for record of the original location had elapsed. In Zerres v. Van-
ina,1?° indeed, it was held that the fact that the original locator,
who had performed the necessary assessment work for the preceding
year, never had recorded his location certificate, did not render the
claim subject to relocation. In that case it further appeared that the
original locator was absent from the ground at the time of the at-
tempted relocation, and during his absence some of the boundary
stakes had fallen down. The real proposition seems to be that rec-
ord, though required, by the Nevada statute under consideration,
to be within 90 days after the date of posting the location notice on
the claim, was not a necessary act of location, but was merely a dis-
cretionary act, for the failure to perform which no forfeiture was
imposed. This decision, so contrary both to the authorities elsewhere
and to the necessities of the mining law, has been followed by the
state courts in Nevada.*1? It certainly seems to be an erroneous de-
cision. A relocation made under the circumstances of that case can-
not be premature, despite the hardship which doubtless influenced the
court to decide as it did; for record notice is so fundamental a re-
quirement that without it the location is not complete.11? While the
time of record is directory, in the sense that it need only precede the
vesting of intervening rights,***a relocation made after the time
the original locator is given to record, and before he does record,
is clearly valid, if made peaceably and in good faith. Unless complet-
ed within the time prescribed, an attempted location must give way
to a relocation,’1* even though the latter is made with full notice of
the prior asserted claim.**® Record in the mining law is not merely
notice. It is a prerequisite to the genuine existence of the mining
claim which it describes. That is why actual notice is not equivalent
to record notice. ‘The relocation, once started, comes in ahead of
the original location, if its requisite acts of relocation are performed in
110 (0. C.) 184 Fed. 610; Wailes v. Davies (C. C.) 158 Fed. 667.
111 FORD v. CAMPBELL (Nev.) 92 Pac. 206.
112 But see the Montana statute of 1907. Laws 1907, p. 18.
118 McGINNIS v. EGBERT, 8 Colo. 41, 5 Pac. 652; Preston v. Hunter, 67
Fed. 996, 15 C. C. A. 148.
114 LOCKHART v. JOHNSON, 181 U. S. 527, 21 Sup. Ct. 665, 45 L. Ed. 979;
Pelican & Dives Min. Co. v. Snodgrass, 9 Colo. 339, 12 Pac. 206; Lockhart vy.
Wills, 9 N. M. 344, 54 Pac. 336; Copper Globe Min. Co. v. Allman, 23 Utah,
410, 64 Pac. 1019; Thallmann v. Thomas, 111 Fed. 277, 49 C. C. A. 317. But
see Omar v. Soper, 11 Colo. 380, 18 Pac. 443, 7 Am. St. Rep. 246.
115 BROWN v. OREGON KING MIN. CoO. (C. C.) 110 Fed. 728.
326 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
regular course, even though the record of the original location is per-
fected meantime.17®
Too Tardy Relocations.
Analogous to the case of a premature relocation is that of a re-
location made too late. It is well settled that, after entry of the orig-
inal claim in patent proceedings, a relocation for previous default,
made while the entry remains uncanceled, comes too late. The general
rule is that entry cures any failure to keep up the annual labor prior
to entry, where that failure has not been taken advantage of before
entry. Where before entry the annual labor is neglected, and a re-
location takes place, and the entry still is made in the name of ap-
plicant for patent, it has been held that the patentee takes the patent
in trust for the relocator.117 That would certainly seem to be the
right rule where the applicant for patent, after the publication of his
notice of application for patent, voluntarily delays the entry.11® But
in such case a protest would secure the cancellation of the applica-
tion, with a right on the part of the protestant to adverse on a re-
newed application, or to make application for patent himself, and
would seem the most appropriate remedy.11® Where the entry is de-
layed by a protest or an adverse, and the applicant is therefore not
at fault, the land department has held that the annual labor need not
be kept up; +?° but, as the courts are not bound by that departmental
ruling, it is unsafe to neglect the annual labor in reliance upon it.
There is, moreover, a risk in neglecting the annual labor, even after
entry; for the entry may for some reason or other be canceled.
The Case of Brown v. Gurney.
The Supreme Court of the United States has recently decided a
case which involves three attempted relocations of abandoned, not
forfeited, property affected by patent proceedings. ‘The first was
held to be premature, the second just in time, and the third too
late. The facts were that, under an application to patent a lode claim,
the land department refused to issue patent for the whole claim, be-
cause two portions of the claim were separated by a patented placer,
and the department, therefore, required the applicant to elect which
tract he would patent. He elected to take and patent the north end
of the claim as originally laid out. Three different people tried to
116 See note 114, supra.
117 SOUTH END MINING CO. v. TINNEY, 22 Nev. 19, 35 Pac. 89. Com-
pare Power v. Sla, 24 Mont. 243, 61 Pac. 468.
118 GILLIS v. DOWNEY, 85 Fed. 483, 29 C. C. A. 286.
119 Cleveland v. Eureka No. 1 Gold Mining & Milling Co., 31 Land Dee. Dep.
Int. 69; Lucky Find Placer Claim, 32 Land Dee. Dep. Int. 200.
120 Marburg Lode Mining Claim, 30 Land Dec. Dep. Int. 202.
§ 96) RELOCATIONS BY ORIGINAL LOCATORS. 327
locate the other piece. The first prospector (Brown) located im-
mediately after the land office refused patent; the second (Gurney)
located after the applicant had filed written election to take the north
part; and the third (Small) located immediately after the subsequent
final order of cancellation of entry for the other piece was entered
in the land office. It was held that the refusal of a patent did not re-
store the land to the public domain, that the formal order of cancel-
lation merely recorded a pre-existing fact, and that the first pros-
pector to locate after the original entryman had relinquished had
the prior right. The election to retain the north end of the claim
took effect eo instanti as an abandonment of the south end.124
RELOCATIONS BY THE FORFEITING OWNERS.
96. Relocations by the original locators or their grantees, based on the
relocators’ own defaults, are justified by the Utah Supreme
Court; but where the same ground is relocated by the same
parties, the discovery work is less than the annual labor re-
quirement, and relocation is resorted to in order to escape
annual labor, that doctrine seems unsound.
Relocations to cut out delinquent co-owners are questionable, and
the only safe plan is to get rid of the co-owner by forfeiture
under the forfeiture to co-owner statute.
But the relocation may not be made by a third person. It may be
attempted by the claim’s owner himself. Such relocations by the
claim’s owner may be attempted by (1) the same kind of a reloca-
tion that a third person would make, or by (2) a practical reloca-
tion by way of amendment, though without the substitution of dis-
covery work for the annual labor requirement. Where the claim’s
owner attempts to relocate in the same way others would do, it is
usually merely an effort on his part to avoid the doing of annual
labor. That very effort shows that the locator is not in good faith
in retaining his claim; for the right way to show good faith in that re-
121 BROWN v. GURNEY, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717. A
relocation, attempted after entry in the land office and while the entry stands,
cannot sustain a suit to compel a conveyance of the legal title. Neilson v.
Champaigne Min. & Mill. Co. (C. C.) 111 Fed. 655. The mere cancellation of
an entry does not render the ground open to relocation. Rebecca Gold Min.
Co. v. Bryant, 31 Colo. 119, 71 Pac. 1110, 102 Am. St. Rep. 17; Peoria & Colo-
rado Mill. & Min. Co. v. Turner, 20 Colo. App. 474, 79 Pac. 915. Where the
cancellation of entry was without notice and unauthorized, the issuance of a
patent excluding the land as to which entry was canceled did not render the
excluded land subject to a relocation, which would defeat the applicant’s right
to patent taat land. Rebecca Gold Min. Co. v. Bryant, supra.
328 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch, 17
gard is to resume work and to prosecute the resumption work with
vigor. Nothing, then, but the clearest kind of language in the stat-
utes should justify a court in deciding that a man may relocate his
own claim, so as to defeat the real object of the mining laws.**?
That position is further strengthened by the fact that the common
law knows nothing of any right in a man to forfeit his own prop-
erty in favor of himself. “Forfeiture is not complete until some one
else has appropriated the property.” *?°
But, despite this natural attitude of hostility toward a locator who
seeks to avoid the reasonable requirements about annual labor, made
in the mining statutes, the Supreme Court of Utah has decided that
the words of the statute that the mining claim on which the requisite
annual expenditure has not been made “shall be open to location in the
same manner as if no location of the same had ever been made”
require the recognition of the same right in the original locator to re-
locaté that a third person has.1?# That decision seems to be based
upon the idea that forfeiture under the statute is self-executing, and, .
without entry, makes the land as much unoccupied land of the United
States as if it had never been occupied; yet that idea is clearly un-
sound. “It is the entry of a new claimant, with intent to relocate the
property, and not mere lapse of time, that determines the right of the
original claimant.” 1° That the locator can enter upon himself for
no other purpose than to hold the claim by living up to a smaller
development work requirement than the federal requirement of $100.
annual expenditure amounts to is certainly an unnecessary conclusion,
and therefore not to be supported.
The only authorities cited by the Utah court are Hunt v. Patchin 17°
and a land department ex parte ruling,??" in both of which decisions
the question was whether, where several locators owned a mining
claim and all were delinquent as to annual labor, one could relocate
in his own name and cut out the others. In Hunt v. Patchin the re-
location was in the relocator’s name, though with the consent of all
interested in the original claim and to be held for the benefit of all;
but in the land department matter it was seemingly against the protest
122 Where the relocation is made for fear the prior location was defective,
as was the case in Wetzstein v. Largey, 27 Mont. 212, 70 Pac. 717, and the an-
nual labor is kept up, no objection to the relocation can be made. It is only
an attempt to evade the annual labor requirement that is reprehensible.
123 McCarthy v. Speed, 11 S. D. 362, 370, 77 N. W. 590, 593.
124 WARNOCK vy. DE WITT, 11 Utah, 324, 40 Pac. 205.
125 LITTLE GUNNELL CoO. v. KIMBER, 1 Morr. Min. Rep. (U. 8.) 536, 539,
Fed. Cas. No. 8,402.
126 35 Fed. 816. 127 Copp, Min. Lands, 300.
§ 96) RELOCATIONS BY ORIGINAL LOCATORS. 329
of the other owners. The land department proceeding was not a
litigated matter and may be disregarded, while in the case of Hunt v.
Patchin no third person was interested to upset the relocation, but
all the parties to the suit were interested in upholding it. The ex-
cluded co-owners in the original location sought in Hunt v. Patchin,
and sought successfully, to have the relocator held a trustee for them
as to their proportionate shares in the relocation. The case is of no
authority on the question of the validity of the relocation, or against
one whose interest demands that it be declared invalid. This explana-
tion is preliminary to a quotation of all the language in the Utah case
relating to this point. After stating the question as follows: “First,
can the locator of a quartz mining claim, who has allowed his loca-
tion to lapse by a failure to perform the necessary work, make a re-
location, or new location covering the same ground?’—and after
quoting the relocation provision of the federal statute, the court says:
“We have been referred to no decision of any court that has decided
the question here presented. The right of a locator to make a new
location upon mining ground, after his first location has lapsed, is
recognized in Hunt v. Patchin, 35 Fed. 816; and in Copp, U. S. Min.
Laws, p. 300, it is declared that a prior locator has such right. See,
also, 15 Am. & Eng. Enc. Law, p. 551. We fail to see any reason
why such right should be denied. The fact that a prior locator, after
his right has lapsed, may renew it by resuming work, would appear
to be a favor or right granted to such prior locator; but to give the
proviso [about resumption] above quoted the effect claimed by appel-
lant, would be to deny to such prior locator a substantial right al-
lowed to strangers. In other words, such a construction, while it
would allow to a prior locator the right to resume work, would destroy
his right to make a new location. We do not think the proviso to the
act should be construed to mean anything more than that a prior
locator, in addition to the rights of a stranger, should also have the
right to resume work, and thus relieve himself from the forfeiture in-
curred. This was the view taken by the court below, and we think
it correct.” 178
Considering that this language was used in a state where, at the time
of the decision and since, discovery work need not be done by a loca-
tor, except where district rules so require, it seems as if it gives a
delinquent locator or his grantee altogether too much latitude to be
supported. In a state where discovery work on a relocation would
amount to $100 or more, it. is, of course, immaterial whether the new
work (which, if discovery work, must be done within a period which
128 WARNOCK v. DE WITT, 11 Utah, 324, 40 Pac. 205.
330 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch, 17
practically requires diligence, or, if resumption, must be done in about
the same time) is called “discovery work” or “resumption of labor,”
and no real harm is done, or violation of the federal statute takes
place, by letting the locator regard his performance either as reloca-
tion or resumption, if it pleases his fancy to view it as the one rather
than the other; but in a state where no discovery work is required
on a location or relocation it is a very different matter. In Alaska,
California, and Utah such is the case, except as changed by district
rules, and almost everywhere some mining claims may be found where,
owing to the nature of the ground, new discovery work will not
amount to $100.
Wherever new discovery work will not equal or exceed the $100
annual expenditure for labor or improvements required on each loca-
tion by the federal statute, the true rule would seem to be not to
allow the delinquent locator to take advantage of his own delinquency.
A method to redeem his delinquency is pointed out by the statute,
namely, by resuming work and diligently prosecuting it until $100
worth of work is completed for the year in which the last part of
the work of resumption has to be done. If he does not wish to re-
deem his delinquency in the way so pointed out by the statute, then, .
since the expression of one thing in a statute is the exclusion of others,
and since a penalty put upon a locator to be enforced against him by
others cannot properly be regarded as a privilege of his, his claim
should remain subject to relocation by others.1?® This view finds sup-
port in an Arizona case, where a mortgagor locator had a third person
relocate for him, and then took a deed from the third person, and the
court quieted the title against him in favor of the grantee of the pur-
chaser at foreclosure sale.**° While the case was put on the express
ground of breach of trust duty on the part of the mortgagor, it has
been held that a suit to quiet title could lie only on the theory of the
invalidity of the relocation.1*t The true doctrine would seem to be
that of the recent Montana statute that “a locator or claimant may, at
129 Mr. Lindley (1 Lindley on Mines [2d Ed.] § 405) and Messrs. Morrison
and De Soto (Morrison’s Mining Rights [13th Ed.] pp. 124, 125) have already
announced this view; but Mr. Snyder (1 Snyder on Mines, §§ 584, 585) supports
the Utah doctrine.
130 ALEXANDER v. SHERMAN, 2 Ariz. 326, 16 Pac. 45.
181 Saunders v. Mackey, 5 Mont. 523, 6 Pac. 361. But see Duluth & I. R.
R. Co. v. Roy, 173 U. S. 587, 19 Sup. Ct. 549, 48 L. Ed. 820. The case of AL-
EXANDER v. SHERMAN, supra, is opposed to Mr. Snyder’s notion (1 Snyder
on Mines, § 585) that the original locator can evade the statute by getting a
third person to relocate for him and then deed the property back. A subse-
quent relocator seemingly could quiet title against such an evasive relocation.
§ 96) RELOCATIONS BY ORIGINAL LOCATORS. 331
any time, relocate his own claim for any purpose except to avoid the
performance of annual labor.” 14?
Attempted Relocations by Co-Tenants.
Closely connected with the matter just discussed, as the reference
to Hunt v. Patchin shows, is the case of an attempted relocation by
one of several co-tenants of an abandoned or forfeited mining claim.
If the claim has been technically and in good faith abandoned by all,
it would seem as if one could relocate with safety. The only ques-
tion would be whether an abandonment in good faith really took
place.1** But with reference to forfeiture the situation is different.
The whole question, in case of forfeiting for failure to do assessment
work, depends upon the duties owed by one co-tenant to another. “It
is well settled that co-tenants stand in a certain relation to each other
in reference to the joint estate, and that a distinct title acquired by
one will inure to the benefit of all. This principle arises from the
privity subsisting between parties having a common possession of the
same land and a common interest in the safety of the possession of
each, and it only inculcates that good faith which seems appropriate
to their relative position: It has been applied to mining property by
the federal Supreme Court.” 184
That being so, the co-tenant has no more right to take in the claim
for himself by relocation than he would have to get it by buying in a
tax title arising from the failure of his co-tenants and himself to pay
the taxes.185 The relocation is purely a forfeiture, and, as the South
Dakota court points out, “forfeiture is not complete until some one
else has appropriated the property. Plaintiff and Franklin continued
to be co-tenants so long as the Tin Bar claims continued to exist.
They continued to exist until the ground was relocated, and during
every instant of that time the latter was, in law, incapable of per-
forming any act in hostility to his co-tenant in reference to the joint
estate. Franklin was plaintiff’s co-tenant at the time he entered the
boundaries of either Tin Bar claim for the purpose of relocating the
ground. His entry for that purpose was hostile to his co-tenants, un-
less he intended to relocate for the benefit of all the owners of the
Tin Bar claims. It may be that he owed no duty to his co-tenants to
represent the claims. It may be that he was at liberty to refrain from
132 Laws Mont. 1907, p. 22.
188 The interest of a tenant in common connot be deemed abandoned and
subject to appropriation by strangers because he refuses to pay his part of the
annual expenditures. Waring v. Crow, 11 Cal. 366.
134 McCarthy v. Speed, 11 S. D. 362, 369, 77 N. W. 590, 592.
186 But see Strang v. Ryan, 46 Cal. 33.
332 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
performing any act in reference thereto. But, if he elected to act
at all, he was bound to act for the benefit of all the owners. His
acts of relocation did not terminate the fiduciary relation between him-
self and plaintiff, because they were, if done for the purpose of de-
feating the rights of his co-tenants, in hostility to his interests, and if
they were not done for that purpose they of course operated to the
benefit of all the owners. We think the circuit court should have
adjudged the defendants to be trustees and have enforced the trust.”**°
The above language, taken literally, would go to show that the re-
location was absolutely void;17 but the relief granted in the case
was merely to declare the relocator a trustee. The cases seem to
justify the conclusion that one tenant in common may relocate to cut
out the interests of his co-tenants at law, though in equity he will
in a proper case hold in trust for them. The conclusion that the re-
location is good at law seems sound.+*8
It is impossible to agree with Mr. Lindley’s statement that, “if we
are right in the conclusion reached in the preceding section that the
original locator cannot treat his failure to perform or resume work
as the basis of a valid relocation, it must necessarily follow that one
of several locators, seeking to obtain the entire title by reason of the
failure of any of them to fulfill the requirements of the law, is like-
wise prohibited from making such relocation.” 18® Take the case
of one of several locators, who notifies his co-tenants in advance
that, unless they unite with him in the performance of the annual
labor, he will forfeit their interests by relocation. While it is true
that the proper course for him to pursue, to be absolutely safe, is
to perform the whole labor himself and “advertise the others out”
under the forfeiture to co-owner statute, still, if he wants to take the
risk involved in the matter of relocation, why is it inconsistent to say
that the legal title of the interests of the others vests in him by the
relocation? As to his own undivided interest, the same rule ought to
be applied as applies to the case of a locator, who attempts to relocate
a claim owned by him in severalty; but as to the interest of his co-
tenants a different rule may well be applied. A man is not delinquent
as to the part of the annual labor due from his co-tenants in any sense
that should stand in the way of a relocation of their interests by him-
136 McCarthy v. Speed, 11 8. D. 362, 370-871, 77 N. W. 590, 593. See Speed
v. McCarthy, 181 U. 8. 269, 21 Sup. Ct. 618, 45 L. Ed. 855.
137 Compare, also, Royston v. Miller (C. C.) 76 Fed. 50. ;
138 Doherty v. Morris, 11 Colo. 12, 16 Pac. 911; Saunders v. Mackey, 5 Mont.
523, 6 Pac. 361. See Lockhart v. Johnson, 181 U. S. 516, 21 Sup. Ct. 665, 45
L. Ed. 979.
139 1 Lindley on Mines (2d Ed.) § 406.
§ 96) RELOCATIONS BY ORIGINAL LOCATORS. 333
self after a full and fair warning given by him to them in plenty of
time for them to protect themselves fully. It may be that we shall
yet come to the notion of a relocation good in part and bad in part; **°
but, since we have not done so, is there any real reason why the good
part here should not outweigh the bad, and make the whole relocation
good? Certainly the public policy is not as clearly opposed to the
validity of the relocation in the case of co-tenancy as it is in the case
where the relocator owns the entire interest in the claim he attempts
to relocate. In any event, the cases which hold that a relocation by
one of several tenants in common, on default by all, is valid at law,
though subject to equities,1*+ cannot be deemed wrong just because
the Utah case, which permits a single locator to relocate his own
claims, must be deemed erroneous.
It is well settled, however, that one co-tenant, who has made a re-
location which his co-tenants had no reason to expect he would make,
will be held a trustee for his co-tenants.14?, And even if the theory
should be adopted that after an attempted relocation by a co-tenant
the original location still exists, the co-tenant attempting to relocate,
so as to oust his co-owners from title, cannot be deemed to have aban-
doned or forfeited his undivided interest in the original claim.***
Attempted Relocation of Other Fiduciaries.
The cases of relocation by other fiduciaries than co-tenants *** have
some slight bearing on the question of relocation by a co-tenant, and
140 We have reached that stage with reference to the relocation back of
amended location certificates. In the amended certificates there may be re-
lation back as to the names of old locators, yet not as to those of new lo-
cators. Tonopah & S. L. Min. Co. vy. Tonopah Min. Co. of Nevada (C. ©)
125 Fed. 389. Under the last Montana statute, moreover, a relocation by
the original locator is no waiver of the right acquired under the original
location, except as to ground omitted from the relocation, and with that
exception the locator may rely upon either location or upon both locations.
Laws Mont. 1907, p. 22.
141 Saunders v. Mackey, 5 Mont. 527, 6 Pac. 861; Doherty v. Morris, 11 Colo.
12, 16 Pac. 911. Strang v. Ryan, 46 Cal. 33. Where all co-owners abandon
locations, one co-owner may afterwards relocate for himself free from equi-
ties. ROBERTS vy. DATE, 123 Fed. 238, 59 C. C. A. 242.
142 McCARTHY v. SPEED, 11 S. D. 362, 77 N. W. 590; Yarwood v. John-
son, 29 Wash. 643, 70 Pac. 128. See Turner v. Sawyer, 150 U. S. 578, 14 Sup.
Ct. 192, 37 L. Ed. 1189; Lockhart v. Leeds, 195 U. S. 427, 25 Sup. Ct. 76, 49
L. Ed. 263; Lockhart v. Wills, 9 N. M. 344, 54 Pac. 336. So will his grantees,
who take with knowledge of the facts. See Stephens v. Golob, 34 Colo. 429,
88 Pac. 381.
143 HULST v. DOERSTLER, 11 S. D. 14, 75 N. W. 270.
144'The absurdity of calling the relation between tenants in common one
of mutual confidence, where the facts do not show that such confidence
really exists, has been pointed out. 9 Harv. Law Rey. 427,
334 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
should be noted. ‘ake, for instance, the case of an agent or of a
servant. One who had been employed for several years as watchman
and custodian of a mining claim, and who, after the termination of
that employment, undertook to find a purchaser for the claim, was
held not to have properly relocated the claim, because of the fiduciary
relationship.*4® So an agent will not be permitted to acquire title
by adverse possession unknown to the principal, or be allowed to claim
an abandonment by the principal, because of the failure of the prin-
cipal to do assessment work for a number of years.**® So a lessee
in possession will not be allowed during the lease to locate the part
of a claim left by the patenting of the discovery of the leased claim
by a junior location; 1*7 but, as the case so deciding goes clearly on
the ground of the estoppel of a tenant to deny the landlord’s title, it is
uncertain whether the court regards the new location as invalid, as
the suit to quiet title may perhaps imply,?**® or regards it as valid,
except that defendant will not be heard to say that it is so. One who
has been a lessee would seem, however, to be as free to relocate after
the termination of the lease for a cause of forfeiture thereafter hap-
pening as the grantor of a mining claim is free to locate for a subse-
quent delinquency by the grantee,1*® but not, of course, where the
lessee agreed to do the very assessment work which is delinquent.*®*°
A vendor of mining property, who unlawfully dispossesses his ven-
dee, attempts a relocation when the property is not open to relocation,
and then extracts and disposes of a material portion of the ore, has
even been denied a vendor’s lien because of his wrongdoing.1°+ On
the other hand, one who sold a claim to a corporation, and afterwards
became a director in the corporation, was allowed to buy the claim
from a third person, who in good faith and for himself had relocated
145 Lockhart v. Rollins, 2 Idaho (Hasb.) 540, 21 Pac. 418. See, also, Thomp-
son v. Burk, 2 Alaska, 249. In Lockhart v. Rollins the court treated the re-
location as invalid; but on principle it was valid at law, and the relocator
was a trustee for the original locators. LOCKHART v. LEEDS, 195 U. S.
427, 25 Sup. Ct. 76, 49 L. Hd. 263.
146 Utah Mining & Mfg. Co. v. Dickert & Myers Sulphur Co., 6 Utah, 183,
21 Pac. 1002, 5 L. R. A. 259.
147 Lowry v. Silver City Gold & Silver Min. Co., 179 U. 8. 196, 21 Sup.
Ct. 104, 45 L. Ed. 151.
148 Saunders v. Mackey, 5 Mont. 528, 6 Pac. 361. But see Duluth & IL.
R. R. Co. v. Roy, 173 U. S. 587, 19 Sup. Ct. 549, 48 L. Ed. 820.
149 For a case of grant, see BLAKE vy. THORNE, 2 Ariz. 347, 16 Pac.
270. But see Drake v. Gilpin Min. Co., 16 Colo. 231, 27 Pac. 708. Com-
pare Alexander v. Sherman, 2 Ariz. 326, 16 Pac. 45.
150 Stewart v. Westlake, 148 Fed. 349, 78 C. GC. A. 341.
ae MINAH CONSOL. MIN. CO. vy. BRISCOE, 89 Fed. 891, 82 6. C. A.
§ 96a) RELOCATION BY AMENDMENT. 335
the claim.1®? One who had been a miner and shift boss for another,
and in the course of his employment had learned that the employer was
taking ore from unappropriated land adjoining the employer’s land,
was allowed, after his employment ceased, to make a valid location
of such adjoining land.1®* A relocation is legal, where made by one
who conspired with a working partner to have the latter omit to do the
necessary annual work, and the only remedy of the defrauded partner
is in equity.+54
SAME—RELOCATION BY AMENDMENT.
96a. Since the boundaries of the claim may be changed whenever in-
tervening rights of third persons are not injured, and the
name of the claim may be varied so long as third persons are
not misled, the original locators may amend the location no-
tices and the record to show such changes. Relocations by
amendment may be made, therefore, by the original locators;
but they in no way avoid the annual labor requirement.
The term “relocation” has also been applied to the case of such a
change by the locator of the boundaries or name of the claim as re-
quires the recording of an amended location certificate, and in the
case of changed boundaries a remarking of the location on the ground.
By the express terms of the Colorado statute this change by amend-
ment is called a “relocation”; the act, after defining the proper cases
for amendment of the location certificate, adding: “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 such previous loca-
tion.” 155
The Colorado statute is simply declaratory of that right to vary the
boundaries and the name of the claim which exists in the absence of
statute. As was said by the United States Circuit Court for the Dis-
trict of Nevada: “It has always been the policy of the government
to encourage its citizens in searching for, discovering, and develop-
ing the mineral resources of the country; and this policy can always
be best subserved by permitting the discoverer to rectify arfd readjust
152 McDermott Min. Co. v. McDermott, 27 Mont. 143, 69 Pac. 715. .
163 Thallmann vy. Thomas, 111 Fed. 277, 49 C. C. A. 317.
154 LOCKHART v. JOHNSON, 181 U. S. 516, 21 Sup. Ct. 665, 45 L. Ea
979; Lockhart v. Wills, 9 N. M. 344, 54 Pac. 336; Doherty y. Morris, 11
Colo. 12, 16 Pac. 911.
165 Mills’ Ann. St. Colo. § 3160.
336 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
his lines, whenever from any cause he desires to do so, provided he
does not interfere with or impair ‘the intervening rights of others.’
There is no statute, law, rule, or regulation, state or national, which
denies this right. The amended certificate of location, when made,
becomes the completed location of the discoverer, and is just as valid
as if it had been made in the first instance. It necessarily follows that
parties coming upon the mining claim and ground described in the
amended certificate of location, subsequent to the perfection of such
amended location in compliance with the mining laws, can acquire no
rights, because they have not been injured and have no right to com-
plain.” 15* The above was said with reference to the Nevada statute,
expressly permitting relocation and amendment; but it is just as
applicable where there is no state statute.157 As a matter of fact, how-
ever, nearly all the mining law states have express statutes upon the
subject.
In a sense the amendment statute covers things which do not
amount to a relocation, as well as things which do. As was said by
Judge Hallett: “It is, perhaps, unfortunate that the question of
amending a certificate and of changing the boundaries of a claim, which
amounts to a relocation, should be expressed in general terms re-
lating to both subjects and in one section of the law. But the confu-
sion resulting from such an attempt should not obscure the purposes
of the law.” 158 This confusion, however, is more apparent than real.
As a matter of fact the Colorado statute calls the new certificate “an
additional certificate,” **® and we simply term it an amendment of the
old because the doctrine of relation applies. An amendment consti-
tutes a relocation, as contrasted with the completion of the original
location,*®° only where the boundaries of the claim are changed;
but that is too highly technical a distinction to deserve to be empha-
sized. “It is to the end that the prospector may cure any defects in
his location and conserve and protect the results of his industry that
the authority [to file an additional certificate] is given.” 18! Natural-
ly all kinds of cases were grouped in the statute under the name “re-
location.” It is to be regretted that new names were not evolved to
156 TONOPAH & 8. L. MIN. CO. v. TONOPAH MIN. CO. OF NEVADA
(C. C.) 125 Fed. 389, 396. To the same effect is McEvoy v. Hyman (C. C.)
25 Fed. 596, 600.
157 Thompson v. Spray, 72 Cal. 528, 14 Pac. 182.
15£ McHEVOY v. HYMAN (C. C.) 25 Fed. 596, 599, 600.
159 Duncan vy. Fulton, 15 Colo. App. 140, 147, 61 Pac. 244,
160 See Strepey v. Stark, 7 Colo. 614, 5 Pac. 111.
161 Duncan v. Fulton, 15 Colo. App. 140, 148, 61 Pac. 244, 246,
§ 96a) RELOCATION BY AMENDMENT. 337
cover the two classes of cases of amendment, and the term “reloca-
tion’’ kept for cases of forfeiture for failure to perform annual labor.
It has been urged that “amended certificate’ is not a proper term
by which to refer to the new location certificate filed, and that an
“additional certificate,” as the paper is called in the Colorado statute,
is more accurate.1°* That was urged in a case where it was also said
of the original and the additional certificate that “we believe the law
to be that, though neither one as a whole may be absolutely correct
and in perfect conformity to the statute, yet if in both and from both
there may be found and deduced all that the law requires, the statute
being otherwise complied with, the miner’s record is complete, and his
title is perfect.” +** The latter doctrine would seem to be just as con-
sistent, however, with the view that the new certificate is an amend-
ed certificate while the doctrine of relation seems to justify fully the
designation of the new certificate as an amendment of the old. It
has been held, for instance, that the new certificate always relates back
to and takes effect from the filing of the first, if there are no inter-
vening adverse rights to be affected by such relation back.1** It
thus performs the very function of an amendment. “This is the func-
tion and proper office of an amendment—to put the original in per-
fect condition as if it had been complete in the first instance.” 18°
Accordingly, although made and filed after suit has been begun,
an amended certificate is admissible in evidence when accompanied or
followed by an instruction to the jury to disregard it if the other party
to the suit acquired adverse rights prior to the filing of the new cer-
tificate for record.1°* That decision is defensible, in the absence of
supplemental pleadings, only upon the theory of amendment and rela-
tion back.
Relation Back on Amendment.
Despite the express wording of the statutes that relocation by
amendment shall not interfere with the rights of others which exist
16215 Colo. App. 147, 61 Pac. 246.
16815 Colo. App. 148, 61 Pac. 246. Compare Slothower v. Hunter, 15
Wyo. 189, 88 Pac. 36.
164 McGINNIS v. EGBERT, 8 Colo. 41, 5 Pac. 652; Jordan v. Schuer-
man, 6 Ariz. 79, 53 Pac. 579; BUNKER HILL & SULLIVAN MINING &
CONCENTRATING CO. v. EMPIRE STATE-IDAHO MINING & DEVEL~
OPING CO. (C. C.) 1384 Fed. 268; TONOPAH & S. L. MIN. CO. v. TONOPAH
MIN. CO. OF NEVADA (C. C.) 125 Fed. 389.
165 McEVOY v. HYMAN (C. C.) 25 Fed. 596, 600.
166 Strepey vy. Stark, 7 Colo. 614, 5 Pac. 111; Milwaukee Gold Extraction
Co. vy. Gordon (Mont.) 95 Pac. 995. See Butte Consol. Min. Co. y. Barker,
35 Mont. 327, 89 Pac. 302, 90 Pac. 177.
Cost.M1n.L.—22
338 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
at the time of the filing of the new certificate, and despite the property
right doctrine to that effect which exists in the absence of statute, there
have been cases where the relation back was allowed despite the in-
tervention of adverse rights of one kind or another.*** With the ex-
ception of those which go upon the theory that a premature relocation
by a third party is not a vested intervening right,’°* these cases seem
to go upon an artificial reasoning about the difference between a void
and a defective location certificate. On principle the sole question
should be whether the record in the one case of amendment, or the
boundaries and record in the other case of amendment, created a
situation where third persons could locate, and whether the additional
certificate, or the changed boundaries of the original claim and the
additional certificate together, will injuriously affect the new locators
if relation back is allowed. ‘The fact remains, however, that the courts
in general insist in broad language that the intervening rights of others
may be cut out, where there is no change of boundaries, and where the
additional certificate corrects a certificate which is not void.1®® If all
those certificates which admit of a relocation by third persons are
called void, there can be no objection to this way of stating the mat-
ter; but in Colorado, at least, a certificate so void as to permit of re-
location by others has been allowed to be amended after relocation
by others, so as to cut out, by relation back, the interests of those oth-
ers.17° The Colorado law is probably more correctly represented by a
167 McEVOY v. HYMAN (C. C.) 25 Fed. 596; Cheesman v. Shreeve (C. C.) 40
Fed. 787.
168 In CRAIG v. THOMPSON, 10 Colo. 517, 16 Pac. 24, a relocation by a
third person was attempted prematurely, coming before the previous lo-
cator’s time to record was up. Later, and after the time for record had
passed, the original locator recorded a defective location certificate. Four-
teen mouths after that he filed an additional location certificate, and the
relocator was held not to have -acquired intervening rights which would
prevent relation back.
169 Morrison v. Regan, 8 Idaho, 291, 67 Pac. 955; McEvoy v. Hyman
(C. C.) 25 Fed. 596; Frisholm v. Fitzgerald, 25 Colo. 290, 58 Pac. 1109.
170 In FRISHOLM v. FITZGERALD, supra, the record was void under both
the federal statutes and the state statutes, and yet, because the boundaries
of the claim were not changed, the amendment was upheld, though it cut
out an intervening relocation by others. Whether that case will be followed
in Colorado, since SULLIVAN v. SHARP, 33 Colo. 346, 80 Pac. 1054, has
held that a location, void because based upon a discovery within the limits
of a valid existing location, cannot be perfected by amendment, query? In
regard to FRISHOLM v. FITZGERALD, Messrs. Morrison and De Soto say:
“The opinion in the case is peculiar in this: That it is the personal view of
one judge, and both of his associates refused to concur. It is not the opinion
of a court, and therefore has no obligation as a precedent binding the nisi
prius courts of that state. * * * We consider untenable the proposition
§ 96a) RELOCATION BY AMENDMENT. 339
case in the Colorado Court of Appeals, which court has since been
merged in the Supreme Court. The doctrine of the latter case is that
if a location certificate is so defective as to fail absolutely to comply
with statutory requirements and define the claim it is void, and a sec-
ond certificate cannot be considered as amendatory of it, so as to relate
back to the date of the first, but that if the first certificate is not void,
but is only lacking in technical detail, a second certificate may be deem-
ed amendatory, and the doctrine of relation may be deemed to apply.*"*
The Colorado Supreme Court, however, is in the apparent situation
of denying amendment where the location itself is void for some rea-
son other than defective record,17? and allowing it where the lo-
cation is void only because the location certificate is void.17* If the
federal Supreme Court ever has the question before it, surely such a
distinction will be deemed by it to be untenable.
Whether the location is subject to relocation by others because of
no discovery prior to the relocation,t7* or because only a void lo-
cation certificate has been recorded,17* an amendment of the rec-
ord should not be allowed to cure the old location, so as to cut out
intervening rights,**° though there would seem to be no objection
whatever to allowing it to cure the old location, or, more exactly,
to perfect it, where no rights of third persons intervene prior to the
new certificate. That is because the order in which the acts of loca-
tion occur is immaterial, and by supposition the new certificate com-
pletes them.*7” It needs to be repeated that, whatever the party calls
that any amendment can cure a void record as against an intervening loca-
tion.” Morrison’s Min. Rights (18th Ed.) 1384.
171 Moyle v. Bullene, 7 Colo. App. 308, 44 Pac. 69.
172 SULLIVAN v. SHARP, 33 Colo. 346, 80 Pac. 1054.
173 FRISHOLM v. FITZGERALD, 25 Colo. 290, 53 Pac. 1109.
174 Beals v. Cone, 27 Colo. 473, 62 Pac. 948, 83 Am. St. Rep. 92.
175 Tombstone Town Site Cases, 2 Ariz. 272, 15 Pac. 26.
176 BROWN v. GURNEY, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717.
In SULLIVAN v. SHARP, 33 Colo. 346, 80 Pac. 1054, the question was
whether a junior location, void because of a discovery within senior ground,
could be validated by amendment after the senior was forfeitable for failure
to perform annual labor. The case does not disclose the fact; but it seems
a fair inference that the claimants of the senior location resumed work
after the attempted amendment by the junior and before any other acts
of location by the junior. If so, the case, which was an adverse suit by the
senior against the junior in patent proceedings, might possibly be supported
upon the ground that the amendment was not a sufficient renewal of the
old location to amount to the kind of a relocation that will prevent resump-
tion. Principle seems to require, however, that the amendment be deemed
to perfect the old location as a new one, and that, when so perfected, it be
held to be a complete relocation.
177 SULLIVAN vy. SHARP, supra, is contra. See preceding note.
340 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
the paper he files, it is a question of fact whether what has been ac-
complished is an amendment, or is a relocation in a strict sense. The
difficulty arises in part because an additional certificate need not
state the purpose for which it is filed.1"® “If ground once included
within the location of a lode mining claim be abandoned, and a
new location made thereon as abandoned ground, said location dates
only from the relocation thereof as abandoned ground, and does not
relate back to or obtain any rights on account of the location which
has been abandoned, and that the law makes a distinction between
a relocation and an amended location certificate, although both may
be designated as amendments in such location certificates.” **°
Accordingly a relocation “right over the top” of the old location,
made in order to take in more ground, and in order to change the
name of the claim, is practically nothing but an amendment of the
old.1° Not every amendment to change the name of a claim is
certain to be valid, however; for if the new name is adopted to
deceive the co-owner whose interest is being forfeited for his fail-
ure to contribute to annual labor, or to deceive one who would other-
wise adverse in patent proceedings, that is fraud for which appropriate
relief will doubtless be given.184 So where one locator gets con-
veyances from his fellow locators for the purpose of obtaining a
patent for the benefit of all, then files an additional location certifi-
cate taking in further ground in his own name, and afterwards ob-
tains a patent to the claim as described in the amended certificate,
it is held that the additional ground is acquired by him in trust for
all*8? The court said that “the amended location certificate pre-
supposes and is based upon an original. Halleck was only able to
file an amended location certificate by reason of the fact that the
original had been filed by his grantors,” 18% and accordingly he was
seeking to reap a profit out of trust property. So an amended loca-
tion of the major portions of the original location, made by one who
178 JOHNSON v. YOUNG, 18 Colo. 625, 628, 629, 34 Pac. 173.
179 Cheesman v. Shreeve (C. C.) 40 Fed. 787. In BEALS v. CONE, 27
Colo. 473, 62 Pac. 948, 88 Am. St. Rep. 92, a so-called amendment was called
a relocation, and the location dated only from the new certificate. Prior
to that time the ground had been located by others, so the relocation was
ineffective.
180 SHOSHONE MIN. CO. v. RUTTER, 87 Fed. S01, 31 CG. CG. A. 223.
See Richards v. Wolfling, 98 Cal. 195, 32 P. 971; Johnson vy. Young, 18
Colo. 625, 34 Pac. 173.
181 Morrison’s Mining Rights (13th Ed.) 135, 136. See Seymour vy. Fisher,
16 Colo. 188, 27 Pac. 240.
182 HALLACK y. TRABER, 23 Colo. 14, 46 Pac. 110.
18323 Colo. 15, 16, 46 Pace. 110.
§ 97) FORFEITURE OF IMPROVEMENTS. 34t
has parted with title to the claim, cannot be recognized as securing
any right to him, but may secure a benefit for his grantee, if he
acted as the grantee’s agent for the purpose.!*!
Acts Accompanying Relocation by Amendment.
With reference to relocation by amendment, just as with refer-
ence to relocation on forfeiture of the previous location, whatever is
necessary to the success of the relocation must be done. If the
boundaries are changed, then the location notice and markings should
be changed to conform thereto, and all posts and monuments, as
well as discovery workings, etc., made to comply with the local stat-
utory requirements. As the amendment takes effect by relation, the
discovery shaft, if already the required depth, need not be deepened,
and in general, so far as the original location conformed to the law
and is not necessarily altered by the amendment, no change need
be made. Then the new location certificate must, of course, be execut-
ed with the same particularity in every detail that was required in
the original.
THE FORFEITURE OF IMPROVEMENTS.
97. The relocator of a forfeited claim is held to be entitled to all im—
provements made by the original locator which have actually
become a part of the land.
With reference to mining claims relocated in such a way as to
forfeit the right of previous locators, it will often be of considerable
importance to ascertain whether improvements are forfeited with the
land. While the cases on the point are not numerous, the question
is treated by the courts as one of whether the improvements have ac-
tually become a part of the land.t Ever since the early California
case, in which it was held that “an engine and pump became a part:
of the realty, although located upon public land,’ 1**° the identity
of the improvement with the realty has seemed to be the test. The
one who makes an agricultural land entry and the locator of a mining
claim both know, when they annex personalty to the realty, that the
outstanding legal title is in the United States, and consequently they
are to be judged by the same rule of fixtures as is applied against the
mortgagor in a state where the mortgagee has the legal title to the
land. In such a state the secret intent of the mortgagor in putting
184 Gray Copper Lode, 18 Land Dec. Dep. Int. 536.
{Compare the water right case of De Wolfskill v. Smith, 5 Cal. App. 175,
89 Pac. 1001.
185 MERRITT vy. JUDD, 14 Cal. 59.
342 ABANDONMENT, FORFEITURE, AND RELOCATION. (Ch. 17
personalty on the land cuts no figure, and the sole question is wheth-
er, if there had been no mortgage, the courts would presume that
they were improvements on the land.1%* For instance, an engine
house with a 15 horse power engine, with boiler and attachments,
fastened to the realty and used for the development of the mining
claim, were held to be real property, belonging to a relocator, and
not personalty, subject to execution for the previous locator’s debts.*8”
On the other hand, a cabin set on blocks, unattached to the soil, and
a portable fence, resting wholly on the surface of the land, were
held not to be part of the realty.18®
The land department has ruled that old improvements obtained by
relocation do not count as part of the $500 expenditure required be-
fore patent can be obtained.1®® Whether those old improvements will
count for such purpose if the relocator actually pays the old locator
for them, query? One who buys a mining claim may have the
benefit of all expenditures made by his grantor;*®° but a relocator
is not a grantee of the forfeiting locator, and .it is difficult to see
why paying the old locator for the improvements should enable them
to count towards the $500, when paying a third person for work
which he did on the claim for his own benefit does not count as part
of the required annual expenditure.1**
186 Southbridge Savings Bank v. Mason, 147 Mass. 500, 18 N. B. 406, 1
L. R. A. 350; McConnell v. Blood, 123 Mass. 47, 25 Am. Rep. 12.
187 ROSEVILLE ALTA MIN. CO. v. IOWA GULCH MIN. CO., 15 Colo.
29, 24 Pac. 920, 22 Am. St. Rep. 878. See accord as to fixtures on nonmin-
eral public lands. Treadway v. Sharon, 7 Nev. 87; McKiernan v. Hesse, 51
Cal. 594; Collins v. Bartlett, 44 Cal. 371.
188 Pennybecker v. McDougal, 48 Cal. 160.
189 Yankee Lode Claim, 30 Land Dec. Dep. Int. 289; Russell vy. Wilson
Creek Milling Co., 30 Land Dec. Dep. Int. 322. See cases infra, p. 343, note 2.
190 Tam v. Story, 21 Land Dec. Dep. Int. 440.
191 LITTLE GUNNELL CO. v. KIMBER, 1 Morr. Min. Rep. (U. S.) 536.
Fed. Cas. No. 8,402.
§ 98) UNCONTESTED APPLICATION TO PATENT OLAIMS. 343
CHAPTER XVIII.
UNCONTESTED APPLICATION TO PATENT MINING CLAIMS.
98. The Five Hundred Dollars Expenditure.
99. The Patenting of Lode Claims.
99a. The Survey Requirements.
99b. The First Set of Application Papers.
99c. The Final Set of Application Papers.
99d. Entry and Patent.
100. The Patenting of Mill Sites.
101. The Patenting of Placer Claims.
101a. Known Lodes Within Placers.
102. Conflicts of Lodes and Placers with Older Locations,
THE FIVE HUNDRED DOLLARS EXPENDITURE.
98. Any qualified owner of a mining claim upon which he and his
grantors have expended $500 worth of labor or have made
$500 worth of improvements, of a kind that meets the re-
quirements of annual labor or annual improvements, may ap-~
ply for a patent for such claim.
By the express terms of the federal statute any qualified owner of a
mining claim upon which $500 worth of labor has been expended or
$500 worth of improvements has been made by himself or his grant-
ors may apply for a patent therefor: The first thing for an intend-
ing applicant for patent for a mining claim to do is to make sure that
the required expenditure on the claim has taken place, or can be com-
pleted during the period of the publication of notice of the applica-
tion for patent. He must bear in mind that improvements made by a
former locator who has abandoned or forfeited the claim cannot be
included in the amount,? though it seems that the applicant may count
toward the $500 any work performed by himself in good faith on a
placer prior to its location.* By the express terms of the statute a
grantee applicant may count expenditures made by his grantor; * and
1 Rev. St. U. S. § 2825 (U. S. Comp. St. 1901, p. 1429).
2ZLand Office Regulations, rule 158; Yankee Lode Claim, 30 Land Dec.
Dep. Int. 289; Russell v. Wilson Creek Consolidated Mining & Milling Co.,
80 Land Dec. Dep. Int. 322; Tough Nut No. 2 and Other Lode Mining Claims,
36 Land Dec. Dep. Int. 9; Aldeberan Mining Co., 36 Land Dec Dep. Int. 551.
8 Clark v. Taylor, 20 Land Dee. Dep. Int. 455.
4 Rey. St. U. S. § 2325 (U. S. Comp. St 190i, p. 1429).
344 UNCONTESTED APPLICATION TO PATENT CLAIMS. (Ch. 18
he may do this even though he amends the location certificate so as to
change the name of the claim.®
Although the federal statute seems by its terms to contemplate a
separate application for patent for each claim, the land department
has exercised its discretion by permitting one application to embrace
several contiguous locations held in common; * and in the case of the
application for patent for such a group or consolidation of claims the
land department, reversing earlier rulings that $500 in improvements
as a total for the so-called consolidated claim was enough, now re-
quires proof that an amount equal to $500 for each location has been
expended upon and for the benefit of the entire group.* Whatever
work may be counted as part of the annual labor and improvements
will count as part of the $500 expenditure required of an applicant for
patent,” and discovery work will also count. “The expenditures re-
quired may be made from the surface, or in running a tunnel, drifts,
or cross-cuts for the development of the claim. Improvements of any
other character, such as buildings, machinery, or road ways, must be
excluded from the estimate unless it is shown clearly that they are as-
sociated with actual excavations, such as cuts, tunnels, shafts, etc., are
essential to the practical development of, and actually facilitate the
extraction of mineral from, the claim.” ® A stamp mill, used exclusive-
ly in connection with the claim, does not, however, meet this test in
the eyes of the land department.®
The $500 expenditure should be complete before the application for
patent; but a completion before the expiration of the period of pub-
lication of the application for patent will do.*°
5Tam y. Story, 21 Land Dec. Dep. Int. 440.
* A group of contiguous claims may be included in one application, even
though some are lodes and some are placers. Mayflower Gold Mining Co.,
29 Land Dec. Dep. Int. 7. Claims which merely corner on one another are
not contiguous. HIDDEN TREASURE CONSOL. QUARTZ MINE, 385 Land
Dec. Dep. Int. 485.
6 Land Office Regulations, rule 48. See opinion, 27 Land Dec. Dep. Int. 91.
The expenditure of $500 claimed for each location must come after such loca-
tion is made. Aldeberan Mining Co., 36 Land Dec. Dep. Int. 551.
7 Copper Glance Lode, 29 Land Dec. Dep. Int. 542.
8 Land Office Regulations, rule 157.
® Monster Lode Mining Claim, 35 Land Dec. Dep. Int. 493. In case of a
lode claim and of a mill site claim in the same survey, the expenditure of
$500 upon the lode claim must be shown. Land Office Regulations, rule 159.
10 NIELSON v. CHAMPAGNE MINING & MILLING CO., 29 Land Dee.
Dep. Int. 491. Whether $500 has been expended in work or improvements
is for the land department to decide, and cannot be considered in an adverse
suit. Wilson v. Freeman, 29 Mont. 470, 75 Pac. 84, 68 L. R. A. 833; Stolp v.
Treasury Gold Min. Co., 88 Wash. 619, 80 Pac. 817.
§ 99a) SURVEY REQUIREMENTS. 345
THE PATENTING OF LODE CLAIMS.
99. The steps in the patenting of lode claims are: (a) The survey;
(b) the filing of the application papers; (c) the filing of the
final papers; (d) the issuance of patent.
SAME—THE SURVEY REQUIREMENTS.
99a. The order of proceeding for survey consists of (1) the selection
by the applicant of a deputy mineral surveyor, whose appoint-
ment to make the survey the applicant will request; (2) the
application to the surveyor general for an order of survey;
(3) the order of the surveyor general that a survey be made
by the deputy mineral surveyor selected by the applicant; (4)
the survey by the deputy, including the preparation by him
of the field notes and of a preliminary plat of the property;
and (5) the approval of the survey by the surveyor general,
including the preparation and delivery to the deputy mineral
surveyor for the applicant, or to the applicant himself of the
approved field notes and copies of the final plat.
Selection of Deputy Mineral Surveyor.
The next thing for an applicant for patent to do in the case of lode
claims, after finding that the $500 has been expended on the claim, or
will be so expended in the proper time, is to select a deputy mineral
surveyor of his district to make the necessary survey when ordered to
do so by the surveyor general. The applicant and the deputy mineral
surveyor make their own bargain about charges, and the United States
assumes no responsibility for the payment of the charges.
As the deputy mineral surveyor will be ordered to survey according
to the recorded location certificate, he should be consulted as to the
desirability of recording an amended location certificate. Some ex-
pense and considerable delay in the application, and some possibly se-
rious results in adverse suits, may thus be avoided.f .
Application for Order for Survey.
Having arranged with a deputy mineral surveyor, and put the rec-
ord in the right shape by amendment, the claimant makes application to
the surveyor general of his district for an order of survey.1t This ap-
plication must state the name of the claimant in full, the name of each
location for which patent is to be asked, the name of the land and min-
ing districts in which the claim is located, and the name of the United
States deputy mineral surveyor to whom the order of survey is to is-
+ Golden Rule, etc., Co., 37 Land Dec. Dep. Int. 95.
11 Applications for survey of claims in Arkansas must be made to the
Commissioner of the General Land Office. Land Office Regulations, rule 34.
346 UNCONTESTED APPLICATION TO PATENT CLAIMS. (Ch. 18
sue. The application must be accompanied by a certified copy of the
recorded location certificate or amended location certificate. The
signature to this application must be in the hand-writing of the claim-
ant, his agent, or attorney.1? In the application, the applicant should
also notify the surveyor general that he has deposited, for office fees
of the surveyor general, the amount estimated by the latter in the
circular issued by him to applicants.1* This amount of fees must be
deposited to the credit of the treasurer of the United States with
an assistant United States treasurer or with some designated deposi-
tory among the national banks in the district. On making the de-
posit of fees the claimant receives triplicate certificates of deposit.
He sends the original of these certificates to the Secretary of the Trea-
sury in Washington, and the duplicate to the surveyor general to whom
he has applied for a survey, but retains the triplicate himself as a re-
ceipt. The land department for a long time held that the fees would
in no case be refunded, but that, if not expended on the application,
they might be applied on other surveys for the applicant.** Recently,
however, the land department has in part overruled that holding, and
has announced that section 2402, Rev. St. U. S. (U. S. Comp. St. 1901,
p. 1478), authorizes repayment to the depositors of the unearned por-
tion of a mining survey deposit.t
The Order for Survey.
Upon the application, after proof of the deposit of fees, the survey-
or general gives the claim a survey number, and thereafter, unless
events compel its abandonment, the survey is known in his office by
that survey number. Thereupon he issues an order of survey to the
United States deputy mineral surveyor designated by the applicant.
This order of survey is accompanied by a copy of the location or
amended location certificate in conformity with which the survey is to
be made, and issues as a matter of course. The remedy for a refusal
to issue it is by appeal to the Commissioner of the General Land Of-
fice, and from him to the Secretary of the Interior.
The first applicant for survey of the ground has priority of survey.
An order to survey the same ground will not issue until the first sur-
12 Tipton Gold Mining Co., 29 Land Dec. Dep. Int. 718.
13 In the case of group applications, one location pays the regular deposit
fee, and each of the other locations pays a slightly smaller deposit. The
surveyor general’s circular of estimated fees will state the amounts.
14 Flijah M. Dunphy, 8 Land Dec. Dep. Int. 102.
tGOLDEN EMPIRE MIN. CO., 36 Land Dec. Dep. Int. 561. In that case
however the land department, impelled thereto by another statute, refused a
request of the depositor to have the unearned portion of a mining deposit cred-
ited to another applicant for an order of survey.
§ 99a SURVEY REQUIREMENTS. 347
vey is perfected and the plats delivered, unless the first applicant is
shown, after notice to him, to have abandoned the survey or to be de-
ferring it for vexatious purposes.
The Survey.
The United States deputy mineral surveyor must go on the ground
personally and make the survey in accordance with the survey instruc-
tions of the land department.** He is expected to survey according to
the lines of the original survey, and no serious departure from those
lines will be allowed by the surveyor general, unless an amended loca-
tion certificate is recorded and an amended order of survey, based on
a certified copy of the amended certificate, is issued. For such amend-
» ed survey order and the additional work in the office an extra charge
is made by the surveyor general, and if new ground is included by the
amended location: certificate, a new survey number will be given in
the amended survey. It is the business of the surveyor to make the
end lines of the claim parallel, to conform the claim to the legal
limits, and, where the rights of third persons are not injuriously affect-
ed thereby, to swing the claim so that it will lie lengthwise along the
vein. It is for the surveyor general to determine whether the changes
so made are important enough to require an amended location certifi-
cate. Where a group of claims is included in one application, the
boundary lines of each location must be run.*®
The Surveyor’s Field Notes.
The United States deputy mineral surveyor takes notes of his survey,
giving the description of the claim by courses and distances, tying it
to natural objects and permanent monuments, showing its conflict with
other claims, and stating the nature and value of the work done and
improvements made upon the claim. These notes, called his “field
notes,” contain a certificate that the value of the work done and im-
provements made on the claim, or on each claim in the case of a
group, is not less than $500, and are sworn to by the United States
deputy mineral surveyor. These field notes, and a plat of the prop-
erty which helps to explain them, are sent by the cepa surveyor to
the surveyor general.
The Approval of Survey.
The surveyor general reviews the field notes, and compares the depu-
ty surveyor’s plat with the surveyor general’s official connected plat.1®
** The deputy mineral surveyor must execute all surveys in his own proper
person under penalty of having the surveys rejected if he does not do so.
Homer Santee, 36 Land Dec. Dep. Int. 286.
16 ARGILLITE ORNAMENTAL STONE CO., 29 Land Dec. Dep. Int. 585.
16 “The United States surveyor general for each state keeps what is called
348 UNCONTESTED APPLICATION TO PATENT CLAIMS. (Ch. 18
If any error is found, the field notes and the surveyor’s plat are re-
turned to the deputy mineral surveyor for correction.** When, at
last, the field notes and the surveyor’s plat are found to be correct, the
final plat is made up by the surveyor general, and the survey is ap-
proved in writing by him.
The surveyor general prepares four copies of the plat and one copy of
the original field notes.1® He retains in his office one plat and the orig-
inal field notes,?® sends one copy of the final plat to the register of the
local land office in which the patent application must be filed, and sends
two other copies of the plat, with a copy of the approved field notes,
to the deputy surveyor for the claimant, or to the claimant himself.
Attached to each copy of the final plat is the surveyor general’s certifi-
cate that the requisite $500 worth of expenditure for labor and im-
provements has taken place on each location.?° The latter certificate is
not binding on the land department, but establishes prima facie the
the ‘connected plat,’ importing to show every approved survey in relation
to each other on its proper section. Where the first survey on any section
made an erroneous call for a government corner, say 1,300 feet, when the
proper measurement was 1,600 feet, it was platted as 1,300 feet distant. A
second survey, correctly measured, would show a certain distance from the
corner, but, of course, would not tie to the first survey as traced on the
connected plat. Instead of recognizing the error as soon as discovered, the
department persistently for years compelled each successive applicant to
treat the first survey as correct and tie to it accordingly. This resulted in
the issue of patents which really overlapped prior surveys; but the field
notes appeared clear of any overlap. Conversely, an overlap and conse-
quent exclusion would appear where there was in fact no conflict with any
prior survey. It was to remedy this state of affairs that Rev. St. U. S. §
2327 (U. S. Comp. St. 1901, p. 1481), was amended in 1904.” Morrison’s
Mining Rights (18th Ed.) 56, 57.
17 The applicant cannot be prejudiced by the failure of the surveyor to
include all the land called for by the location notice, if, on the discovery of
the mistake, a resurvey promptly takes place. Basin Mining & Concentrating
Co. v. White, 22 Mont. 147, 55 Pac. 1049. For the procedure in case a mineral
surveyor makes an inaccurate survey and after due notice fails to rectify it,
see Golden Rule, etc., Co., 837 Land Dec. Dep. Int. 95.
18 Land Office Regulations, rule 34.
19 Land Office Regulations, rule 34.
20 This certificate may be made within the 60 days’ publication of notice
of application for patent (Land Office Regulations, rule 48; Rev. St. U. Ss.
§ 2325 [U. S. Comp. St. 1901, p. 1429]), and will be accepted in the patent
proceedings, even though not filed until after the expiration of the publica-
tion period (NIELSON v. CHAMPAGNE MINING & MILLING CO., 29 Landa
Dec. Dep. Int. 491). Accordingly the improvements may be completed with-
in the period. Id The surveyor general may obtain his information as to
the value of labor and improvements from his own observations, or those of
his deputy, or from the testimony of persons having knowledge of the sub-
ject. United States v. King, 83 Fed. 188, 27 GC. GC. A. 509.
§ 99b) FIRST SET OF APPLICATION PAPERS. 349
mineral character of the land, the amount of the work, and the cor-
rectness of the survey.??
The transcript of the field notes, which, with the two copies of the
tinal plat, is sent to the deputy surveyor for the claimant, or to the
claimant himself, is known as the “approved field notes.” ‘These copies
of plats and approved field notes the deputy surveyor, who is forbid-
den by statute and by land-office rule from acting as attorney in mineral
claims,** turns over to the applicant’s attorney, who is to take charge of
the actual application for a patent.
Promptly upon the approval of this survey the surveyor general
must advise the land department at Washington and the appropriate
local land office of the fact of survey.??
SAME—THE FIRST SET OF APPLICATION PAPERS.
99b. The first set of papers filed by the applicant includes (6) three
copies of the notice of application for patent posted on the
claim, one copy having attached an affidavit showing that the
notice and a copy of the final plat were posted in a conspicu-
ous place on the claim; (7) a copy of the final plat; (8) a
copy of the approved field notes; (9) the application for pat-
ent; (10) the proof of citizenship by affidavit of the appli-
cant, and, if the applicant is a corporation, by a certified
copy of the corporation’s charter or certificate of incorpora-
tion; (11) the publisher’s agreement, which is the contract
of the proper newspaper publisher to publish the notice of
application for patent and to hold the applicant alone re-
sponsible for the charges of publication; (12) a certified copy
of each location notice; and (13) the abstract of title of each
claim or equivalent evidence of title in the applicant.
The filing of these papers is at once followed by the posting of the
notice and plat in the local land office and by the publication
of the notice of application for patent. The notice of ap-
plication for patent must remain posted on the claim and in
the land office, and must be published for the full period of
60 days, and within that period adverse claims may be filed.
The Notice of Application for Patent.
The first step in the land office proceedings is to prepare and post
on the mining location sought to be patented a notice of the intention
21UNITED STATES v. IRON SILVER MIN CO., 128 U: 8. 673, 685, 9
Sup. Ct. 195, 82 L. Hd. 571; Russell v. Maxwell Land Grant Co., 158 U. 8. 253,
15 Sup. Ct. 827, 39 L. Ed. 971. See United States v. King, 83 Fed. 188, 27
Cc. C. A. 509; United States v. King, 9 Mont. 75, 22 Pac. 498.
22 Rey. St. U. S. § 452 (U. S. Comp. St. 1901, p. 257); Land Office Regula-
tions, rule 128. See Lavagnino v. Uhlig, 26 Utah, 1, 71 Pac. 1046, 99 Am.
St. Rep. 808. But see Hand v. Cook (Nev.) 92 Pac. 12.
28 Land Office Regulations, rule 37.
350 UNCONTESTED APPLICATION TO PATENT CLAIMS. (Ch. 18
to apply for a patent.t This notice, of which at least four copies are
prepared, must give the date of posting, the name of the claimant, the
name of the claim, the number of the survey, the mining district and
county,?4 and the names of adjoining and conflicting claims as shown
by the plat survey.2° Though the rules do not expressly call for it, be-
cause one of the certified final plats must be posted on the claim with
the notice of application for patent, a description of the claim by metes
and bounds will naturally be added.
The posting must be in some conspicuous place upon the claim,**
and must be done in the presence of at least two disinterested credible
witnesses, who make affidavit to the fact. This affidavit constitutes the
proof of posting the notice and plat, and attached to it and made a part
of it is a second copy of the posted notice of application for patent.
The third copy is signed by the applicant, to be posted later in the
land office. The fourth copy is to go to the publisher.
The Application for Patent.
The next thing prepared is the application for patent itself. This is
“the sworn statement of the claimant that he has the possessory right
to the premises therein described in virtue of 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 con-~
tituting such compliance, the origin of his possession, and the basis
of his claim to a patent.” 7°
That statement would call for everything contained in the notice of
application for patent, and, in addition, a short history of the claim,
a description of the improvements thereon, a reference to the approv-
ed field notes for a fuller description of the claim and the improve-
ments, and a statement that the notice and plat were posted.27_ Where
t Because all the copies of the notice are prepared at one time, and be-
cause the one to be published must state that the application for patent has
been made (Rev. St. U. S. § 2825 [U. S Comp. St. 1901, p. 1429]), all the
notices usually read “has applied for patent.” For the notice posted on the
claim “is applying for patent” would seem to be the proper wording.
24 A mistake as to county has been held to be fatal. Wright v. Sioux Con-
solidated Mining Co., 29 Land Dec. Dep. Int. 154, 289.
25 Land Office Regulations, rule 39. Only those shown by the plat need be
given. Lizzie Elison et al., 29 Land Dec. Dep. Int. 250.
** The statute contemplates that the notice and the plat shall be prominently
and openly displayed in such a position that they can, without being removed,
be conveniently inspected and read by the public. Tom Moore consolidated
Mining Co. v. Nesmith, 36 Land Dec. Dep. Int. 199.
26 Land Office Regulations, rule 41.
27 Unless the notice and plat are posted before the application for patent
§ 99b) FIRST SET OF APPLICATION PAPERS, 351
several contiguous claims are covered by one application, the land de-
partment should be fully advised in the application of the total num-
ber of claims, their relative situations, and, where a common improve-
ment is claimed, the place of that improvement. These things should
all be delineated properly on an authenticated map or diagram.?®
Proof of Citizenship,
The application should also state the citizenship of the applicant,?°
though it is usual to furnish a separate affidavit about that. “In case
of an incorporated company, a certified copy of their charter or certifi-
cate of incorporation must be filed,” ®° to prove citizenship. If the ap-
plicant is a corporation of a state other than that where the mining
claim is situated, it must prove that it has complied with the laws of
the latter state as to foreign corporations.*+ In the case of an individ-
ual, his own affidavit of citizenship is enough.?? “In case an appli-
cant has declared his intention to become a citizen, or has been natur-
alized, his affidavit must show the date, place, and court before which
he declared his intention, or from which his certificate of citizenship
issued, and present residence.” ®*
By Whom and before Whom the Oath to the Application may be
Taken,
The application for patent and affidavits required of the applicant
must be verified under oath before an officer authorized to administer
oaths in the land district where the claim is situated. If the application
is not sworn to before such an officer, the local officers do not get ju-
risdiction of the proceedings ** unless the case is one under the amend-
ment of 1882. By the amendment of 1880 to Rev. St. U. S. § 2325 (U.
is filed, the application is held by the land department to be void ab initio.
DE LONG v. HINE, 9 Copp’s L. O. 114.
28 James Carretto and Other Lode Claims, 35 Land Dec. Dep. Int. 361.
Claims which merely corner on one another are not contiguous, and hence
not entitled to be included in one application. HIDDEN TREASURE CON-
SOL. QUARTZ MINE, 35 Land Dec. Dep. Int. 485.
29 A corporation’s notice of application for patent need not, however, des-
ignate the state or territory where it is incorporated. Holman v. Central
Montana Mines Co., 34 Land Dec. Dep. Int. 568.
380 Land Office Regulations, rule 66.
81 Alta Mill Site, 8 Land Dee. Dep. Int. 195, 197. The land department re-
gards a corporation as a citizen of the State in which it is created. Louisville
Gold M. Co. v. Hayman Min, & T. Co., 33 Land Dec. Dep. Int. 680.
32 Rey. St. U. S. § 2821 (U. S. Comp. St. 1901, p. 1425)
33 Land Office Regulations, rule 68.
34 North Clyde Quartz Mining Claim and Mill Site, 35 Land Dec. Dep. Int.
455. The fact that the application is sworn to before a notary who is secre-
tary of the corporation applicant is not enough to require a new application
and affidavit, unless the notary is also a stockholder or otherwise beneficial-
352 UNCONTESTED APPLICATION TO PATENT CLAIMS. (Ch. 18
S. Comp. St. 1901, p. 1429), it is provided that, where the claimant for
a patent is not a resident of or within the land district, the application
and the affidavits may be made by his authorized agent conversant with
the facts.*® Also by the amendment of 1882 to Rev. St. U. S. § 2321,
it is provided that applicants for mineral patents residing out of the
district may make oath of citizenship before the clerk of any court of
record, or before any notary public of any state or territory.** With-
in the district the statute permits affidavits to be verified before any
officer authorized to administer oaths.*’ If they are verified before a
justice of the peace, a county clerk’s certificate of the justice’s official
character should be attached.
Where the application is verified by an agent, his written power of
attorney, reciting the reason for his appointment, should be filed with
the first set of papers.2& Where a corporation applies for patent, the
safest practice is to have it execute a power of attorney to some resi-
dent agent; for the affidavit of its president or other officer authoriz-
ed to make the application may be invalid for various reasons.**® If,
however, an officer acts, a resolution authorizing him to do so should
be passed by the board of directors, and a copy, certified by the proper
corporate officers under the corporate seal, should be sent in with the
first set of application papers.
Where several co-owners are making application for patent, the ap-
plication and all affidavits, except that of citizenship, may be sworn to
by one in behalf of all.*° Each must make his own affidavit of citizen-
ly interested in the corporation. MILFORD METAL MINES INV. CO., 35
Land Dec. Dep. Int. 174. No effect will be given to the subsequent filing of a
properly verified affidavit. El Paso Brick Co., 37 Land Dec. Dep. Int. 155.
35 21 Stat. 61, c. 9, § 1. This has been held to apply to a case of temporary
absence. W. B. Frue et al., on the Topsey Mine, 7 Copp’s L. O. 20. But
if the resident applicant is within the land district he cannot have the ar-
fidavits executed by an agent, and if he does it is fatal to the application.
Rico Lode, 8 Land Dec. Dep. Int. 223; CROSBY AND OTHER LODE
CLAIMS, 35 Land Dec. Dep. Int. 434.
3622 Stat. 49, c. 106, § 2 (U. S. Comp. St. 1901, p. 1425).
37 Rev. St. U. S. § 2325 (U. S. Comp. St. 1901, p. 1429).
38 Every affidavit by the agent should recite the nonresidence of the claim-
ant, the residence of the agent, and the fact that the agent is conversant with
the facts.
39 For instance, the land department refuses to receive an affidavit sworn
to by the corporation’s president outside of the state which incorporated the
corporation. LOUISVILLE GOLD MINING CO. v. HAYMAN MINING &
TUNNEL CO., 33 Land Dec. Dep. Int. 680.
40 Ayers y. Daly, 3 Copp’s L. O. 196. “When a claim is owned in com-
mon, it is sometimes convenient to have a quitclaim executed by the others
to one of their number, placing the title for the time being in his name; the
grantors securing themselves by title bond or otherwise.” Morrison’s Mining
Rights (18th Ed.) 449.
§ 99b) FIRST SET OF APPLICATION PAPERS. 353
ship, unless as an association of persons unincorporated they appear
by their duly authorized agent.4t “Any party applying for patent as
trustee must disclose fully the nature of the trust and the name of
the cestui que trust; and such trustee, as well as the beneficiaries, must
furnish satisfactory proof of citizenship; and the names of beneficia-
ries, as well as that of the trustee, must be inserted in the final certifi-
cate of entry.” 4?
The Publisher's Agreement.
In addition to the proof of citizenship, an agreement with the pub-
lisher of the newspaper, to be designated by the register of the local
land office as published nearest the claim,** that he will hold the ap-
plicant alone responsible for the charges of publication, must be fur-
nished.*# The maximum newspaper charges are fixed by rule,*® and
enforced by requiring a newspaper to be a reputable newspaper before
it can be selected, and by declaring that a newspaper charging exces-
Sive prices is not reputable.*¢
The selection of the newspaper being in some instances discretionary
with the register,*’ the applicant, in case of doubt, finds out in advance
what paper to get an agreement with. Where there are several in the
same town, the register usually selects the one the attorney suggests.
The nearest newspaper by the most usually traveled route seems the
land office rule; but the nearest in a direct line is probably what was
intended,*® and, as the register’s discretion is subject to review on ap-
peal, should, it seems, be insisted upon in case of doubt.*®
41 Land Office Regulations, rules 66, 67.
42 Land Office Regulations, rule 54. A citizen of the United States, act-
ing as trustee for an alien corporation, cannot make a mineral entry for the
benefit of such corporation. CAPRICORN PLACER, 10 Land Dec. Dep. Int.
641. And if an entry is canceled for that reason, where the fact that the
corporation was alien was suppressed, repayment will not be allowed. MARY
McM. LATHAM, 20 Land Dec. Dep. Int. 379.
43 Rey. St. U. S. § 2325 (U. S. Comp. St. 1901, p. 1429); Condon vy. Mam-
moth Mining Co., 14 Land Dec. Dep. Int. 138.
44 Land Office Regulations, rule 45.
45 Land Office Regulations, rule 89.
46 CHAS. W. STEELE, 3 Land Dee. Dep. Int. 115.
47 Bretell v. Swift, 17 Land Dec. Dep. Int. 558; Instructions, 26 Land
Dec. Dep. Int. 145.
48 See HAYNES v. BRISCOE, 29 Colo. 137, 67 Pac. 156, holding similar
language in the forfeiture to co-owner statute to mean the nearest in a di-
rect line.
49 Tough Nut and Other Lode Claims, 32 Land Dec. Dep. Int. 359; North-
ern Pac. R. Co., 82 Land Dec. Dep. Int. 611.
Cost.M1n.L.—23
354 UNCONTESTED APPLICATION TO PATENT CLAIMS, (Ch, 18
Abstracts of Title.
The last things to furnish are a certified copy of each location notice
and an abstract of title of each claim. The legal custodian of the rec-
ords of transfers or the duly authorized abstracter of titles must certi-
fy to the abstract, and must state that no conveyances affecting the ti-
tle to the claim or claims in question appear of record other than those
set forth.°° Abstracters must attach to each abstract certified by them
the certificate of authority called for by rule 42.5
The land office requirement that the abstract of title shall be brought
down to the date of filing the application for patent °* has been taken
to mean to include the date of application, and to meet that situation
it was formerly the practice to furnish certified copies of the location
certificates at the time the application for patent is filed, and a few
days later to send on the abstract of title certified to a date after the
date of the application for patent.°? Under rule 42 of the Land Of-
fice Mining Regulations, as amended December 28, 1907, that practice
would now seem to be compulsory.
The record title shown in the abstract starts, of course, with the orig-
inal location certificate, and the object of requiring the abstract is
that the government may be assured that the applicant for patent is in
lawful possession of the claim.®* It should be borne in mind that “each
member of an association of persons seeking to acquire the legal title to
lands under the mining laws must own an interest in the claim, or in
each claim of a group embraced in the joint application for patent.” 5°
Titles Based on Adverse Possession.
In those cases coming under Rev. St. U. S. § 2332 (U. S. Comp. St.
1901, p. 1483), which statute permits evidence of adverse possession
for the local limitation period to establish a right to a patent, a loca-
tion certificate, copies of conveyances, or abstracts of title need not
be furnished; but instead the applicant “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 continuance of his possession of the mining ground covered
by his application, the area thereof, the nature and extent of the mining
50 Land Office Regulations, rule 42, as amended December 28, 1907.
511d. 521d.
53 Morrison’s Mining Rights (18th Ed.) 435.
54 Daniel Cameron, 4 Land Dec. Dep. Int. 515, 516. The statutes contem-
plate that applicants for mineral patent shall have, at the date of filing the ap-
plication, full possessory right or title to the claim for which patent is sought.
Lackawanna Placer Claim, 36 Land Dec. Dep. Int. 36.
56 GOLDEN CROWN LODE, 32 Land Dec. Dep. Int. 217, 219.
§ 99b) FIRST SET OF APPLICATION PAPERS. 355
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 knowl-
edge having a direct bearing upon his possession and bona fides which
he may desire to submit in support of his claim.” °¢
He must also file certificates from the courts having jurisdiction of
mining cases in his judicial district to the effect that no litigation is
pending, or during the limitation period has been pending, affecting the
title to the claim, or any part thereof, other than such litigation as has
finally been decided in favor of the claimant.°7 He must further sup-
port his narrative of facts relative to his possession, occupancy, and im-
provements by corroborative testimony of disinterested persons.°®
Filing the Application.
The application papers having been prepared as above, they are for-
warded, with the filing fee, to the local land office.*® They consist of
the application for patent; a copy of the final plat; the approved field
notes; the proof of posting the notice of application and the copy of
the final plat on the claim, the proof being attached to a copy of the
notice; a copy of the notice of application for patent, to be posted in
the land office; the proof of applicant’s citizenship; the publisher’s:
agreement; a copy of the notice of application for patent, to be giver
the application number and returned by the register to be published in
the newspaper designated by him; and a certified copy of the loca-
tion certificate, to serve for a few days until the abstract of title can be
brought down to include the date of the filing of the application in the
land office,tf and be sent to the land office.*°
56 Land Office Regulations, rule 75.
57 Land Office Regulations, rule 76.
58 Land Office Regulations, rule 77. While the statute and the rule do
not dispense with the annual labor requirement, they do dispense with the
need of record evidence of location and with the need of explaining the ab-
sence of such evidence. Capital No. 5 Placer Mining Claim, 84 Land Dec.
Dep. Int. 462.
59 If the wrong local land office is resorted to, steps taken there are ab-
solutely ineffective, as that office has no jurisdiction. FREDERICK A.
WILLIAMS, 17 Land Dec. Dep. Int. 282. Where land sought to be patented
lies in two land districts, entry will be allowed only for the land in the dis-
trict where the patent proceedings are taken. ALASKA PLACER CLAIM,
84 Land Dec. Dep. Int. 40. In such case an application for patent should
be made in each district.
++ A new system of numbering went into effect July 1, 1908. Methods of
keeping Records and Accounts Relating to the Public Lands, 37 Land Dec.
Dep. Int. 45-60.
60 While one application for patent is pending, another for the same ground,
356 UNCONTESTED APPLICATION TO PATENT CLAIMS. (Ch, 18
Jurisdictional Matters.
By the federal statute it is made the duty of the register, upon the
filing of the foregoing first set of papers, to “publish a notice that such
application has been made, for ‘the period of sixty days, in a newspaper
to be by him designated as published nearest to such claim; and he
shall also post such notice in his office for the same period.” ®t These
two notices and the one posted on the claim constitute together that
notice to the world which the land department regards as essential to
its jurisdiction, and if any one of these notices is insufficient they are
all rendered valueless.°? The application for patent prevents any other
application for patent for the ground affected while the application is
pending,®* except that a successful adverse claimant may patent the
conflict area awarded to him by the court. The patent proceeding is in
the nature of a proceeding in rem and is binding upon all the world.*+
The publication of the notice of application for patent must be, as
we have seen, for 60 days. That means 61 consecutive insertions in a
daily newspaper and 9 in a weekly.°® Within the 60 days’ publication,
or part thereof, will not be received. STEMMONS v. HESS, 32 Land Dec.
Dep. Int. 220. But where the applicant negligently delays making entry,
and an adverse relocation is made, the department will cancel the applica-
tion. CLEVELAND v. EUREKA NO. 1 GOLD MINING & MILLING CO.,
31 Land Dec. Dep. Int. 69.
61 Rev. St. U. S. § 2325 (U. S. Comp. St. 1901, p. 1429).
62 GROSS v. HUGHES, 29 Land Dec. Dep. Int. 467. Southern Cross Gold
Min. Co. v. Sexton, 31 Land Dec. Dep. Int. 415. If the notice posted
in the land office is interrupted by the closing of the office for purposes of
the removal of the office, the time to file adverse is simply extended the
number of days the office is closed. Tilden v. Intervener Mining Co., 1
Land Dec. Dep. Int. 584.
83 Land Office Regulations, rule 44. See note 60, supra.
64 HAMILTON v. SOUTHERN NEV. GOLD & SILVER MIN. CO. (C.
C.) 83 Fed. 562. “The proceedings before the land department are judicial,
or quasi judicial, at least. The publication is process. It brings all ad-
verse claimants into court, and, failing to assert their claims, they stand,
at the expiration of the notice, in default. True, no adverse claimant or
supposed claimant may be named in the notice, and no process may be
served personally upon him; but that does not avoid the notice, or weaken
its sufficiency to bring such party into court. This is not the only case known
to the law in which parties not named in a notice are by it brought into
court and their rights adjudicated. Unknown heirs are often thus brought
in by a published notice. Tax proceedings, condemnations of rights of way,
admiralty cases, and many others present familiar illustrations.” Brewer,
J., in WIGHT v. DUBOIS (C. C.) 21 Fed. 693-695. See Kannaugh v. Quar-
tette Min. Co., 16 Colo, 341, 27 Pac. 245; Healey v. Rupp,. 37 Colo. 25, 86
Pac. 1015.
65 Land Office Regulations, rule 45.
§ 99d) ENTRY AND PATENT. 357
all adverse claims must be filed, or they are barred.°* That means that
they must be filed within the 60 days, computed by excluding the first
day of publication of the notice merely.*7 The time for filing adverse
cannot be extended,°* though protest may be made at any time prior
to the issuance of patent.*® Both adverse claims and protests, and
their effect on patent proceedings, are considered in the next chapter ;
but here it will be assumed that none is filed.
SAME—THE FINAL SET OF APPLICATION PAPERS.
99c. The second and final set of papers filed by the applicant for pat-
ent in an uncontested application includes: (14) Proof by af-
fidavit that the plat and notice of application remained con-
spicuously posted during the publication period; (15) proof
by the publisher’s affidavit that the notice was duly publish-
ed; (16) proof by affidavit of the items of the application ex-
penses; and (17) the application to purchase the land, accom-
panied by the purchase money.
SAME—ENTRY AND PATENT.
99d. Upon the filing of the final application papers the register and
receiver of the local land office at once forward a copy of (1'7)
supra to the chiefs of field division of special agents, and the
register makes (18) his certificate that the notice of applica-
tion and the plat remained posted in the land office during the
publication period. Upon a favorable report from the chiefs
of field division, the register makes (19) his certificate of en-
‘try. The receiver of the local land office thereupon issues
(20) his duplicate receiver’s receipts.
The complete record is then forwarded to the Commissioner of the
General Land Office, and, if everything is regular, (21) a pate
ent issues in due course.
The publication period being complete, and no adverse or protest be-
ing filed, the second set of application papers is made up. If too great
_ 66 The adverse claimant, who has not filed an adverse claim, can attack
the patent only for reasons which a court of equity might allow to be urged
against a judgment at law. Golden Reward Min. Co. v.: Buxton Min. Co.
(C. C.) 79 Fed. 868.
67 Bonesell v. McNider, 13 Land Dec. Dep. Int. 286; Waterhouse v. Scott,
18 Land Dec. Dep. Int. 718.
68 DAVIDSON v. ELIZA GOLD MINING CO., 28 Land Dec. Dep. Int.
224: Gross v. Hughes, 29 Land Dec. Dep. Int. 467. No adverse claim being
filed, it will conclusively be presumed that none exists. Lily Min. Co. v.
Kellogg, 27 Utah, 111, 74 Pac. 518; Rev. St. U. S. § 2325 (U. S. Comp. St.
1901, p. 1429).
69 Land Office Regulations, rule 53.
358 UNCONTESTED APPLICATION TO PATENT CLAIMS. (Ch. 18
delay takes place in filing them, entry will be refused.7° This set con-
sists of the affidavit of the claimant that the plat and the notice posted
on the claim remained conspicuously posted thereon during the 60 days
of publication, the affidavit giving the dates;*' the publisher’s sworn
statement that the notice was published for the statutory period, the
statement giving the first and last days of such publication ; 7* the claim-
ant’s sworn statement of all charges and fees paid by him for publi-
cation and surveys, and of all fees and money paid the register and re-
ceiver of the land office; and the application to purchase, describing
the claim and excluded areas, and accompanied by the purchase mon-
ey, which in lode claims is $5 for each acre or fractional part of an
acre.
Entry.
These papers being received, the register at once forwards a copy of
the application to purchase to the chiefs of field division of special
agents. He then satisfies himself that the law has been complied with,
and makes his certificate that the plat and the notice of application were
posted and remained posted conspicuously in the land office during the
period of publication. If the chiefs of field division of special agents
report favorably, the register then makes his final certificate of entry
in favor of the applicant. The receiver thereupon issues his duplicate
receipts for the purchase money, filing the original with the papers and
sending the duplicate to the claimant, and the claim is thereupon regu-
larly entered. The duplicate receiver’s receipt must be given back be-
fore the patent is delivered, and it is customary to record it at once.
The proceedings after entry being merely ministerial, the receiver’s
receipt in most cases is the equivalent of patent.7?
After entry, or before entry if the chiefs of field division of special
70 Copper Bullion and Morning Star Lode Mining Claims, 35 Land Dec.
Dep. Int. 27, where entry was denied even after the withdrawal of protest,
because more than two years elapsed between end of publication period and
attempt by applicant to complete proceedings.
71 Land Office Regulations, rule 51. Personal observations at various
times and such information as a reasonably cautious man would accept are
sufficient knowledge to justify the affidavit. Bright v. Elkhorn Mining Co.,
9 Land Dec. Dep. Int. 503.
72 Land Office Regulations, rule 51.
73 Aurora Hill Con. Min. Co. v. Highty-Five Mining Co. (C. C.) 34 Fed.
515. Its possession is evidence of the claimant’s good faith, where that
is material. Valcalda vy. Silver Peak Mines, 86 Fed. 90, 29 C. CG. A. 591.
It gives a vested right to a patent, which right can be divested only on
proper notice. REBECCA GOLD MIN. CO. v. BRYANT, 81 Colo. To. GL
Pac. 1110, 102 Am. St. Rep. 17. The receiver’s receipt is so far the equiv-
alent of patent that it has been held that a vendee of a mining claim for
which a receiver’s receipt has been issued to the vendor cannot refuse the
§ 99d) ENTRY AND PATENT. 359
agents report unfavorably, the complete record is forwarded by the lo-
cal land officers to the Commissioner of the General Land Office, who
may have a special agent go upon the land and report, and if everything
is regular a patent issues in due course. If irregularities are discov-
ered, the applicant is given notice to correct them. Occasionally the
receiver’s receipt is recalled and the entry canceled. This may be done
any time before patent issues,"* after notice to the applicant and oppor-
tunity to him to be heard." Matters adjudicated by the final entry are
as conclusive from collateral attack as though patent had issued."®
Names Inserted in Patent.
Where an applicant conveys away his interest after application, the
land department refuses to consider the transfer and issues patent in the
name of the applicant, on the theory that the title inures to the trans-
feree.*7 If, however, the land department has knowledge of a trans-
feree’s or mortgagee’s conveyance from an entryman, however that
knowledge is acquired, the transferee or mortgagee is entitled to notice
of any action by the government looking to a cancellation of the entry
and if the notice is not given the entry will be reinstated.7®
Where an applicant dies before entry, the land office, on proof of that
fact, will issue the receiver’s receipt to “the heirs of” the applicant, or
correct it if issued in the name of the applicant.7® Where he dies aft-
er entry, he is regarded as having title, and the patent issues in his
name. After the entry the government holds the legal title in trust
for the entryman,®° and that equitable interest of the entryman passes
to his heir.
vendor’s deed merely because the vendor has not received his patent. Bash
v. Cascade Min. Co., 29 Wash. 50, 69 Pac. 402, 70 Pac. 487.
74 Orchard y. Alexander, 157 U. S. 372, 15 Sup. Ot. 635, 39 L. Ed. 737.
75 REBECCA GOLD MIN. CO. v. BRYANT, 31 Colo. 119, 71 Pac. 1110, 102
Am. St. Rep. 17; Mineral Farm Min. Co. v. Barrick, 33 Colo. 410, 80 Pac.
1055.
76 BROWN v. GURNEY, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717.
77 Land Office Regulations, rule 71; Liddia Lode Mining Claim, 33 Land
Dec. Dep. Int. 127. See Slothower v. Hunter, 15 Wyo. 189, 88 Pac. 36.
78 ROMANCE LODE MINING CLAIM, 31 Land Dec. Dep. Int. 51.
79 TRIPP v. DUMPHY, 28 Land Dec. Dep. Int. 14.
80 Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423; Ham-
ilton v. Southern Nev. Gold & Silver Min. Co. (C. C.) 33 Fed. 562. An entry
and certificate of purchase, while outstanding, are equivalent to patent.
Aurora Hill Con. Min. Co. v. Highty-Five Mining Co. (O. C.) 34 Fed. 515.
360 UNCONTESTED APPLICATION TO PATENT cLAIMS. (Ch. 18
THE PATENTING OF MILL SITES.
100. Mill sites patented with lodes are included in the same survey
and in the various lode application papers. The mill site
must be carefully described in the papers, and a copy of the
notice and one of the plats must be posted on the mill site,
as well as upon the lode claim. Proof by affidavit must be
furnished of the nonmineral character of the ground.
Mill sites patented separately from lode claims are patented in ex-
actly the same way as lode claims, except that proof by af-
fidavit must be furnished of the nonmineral character of the
ground and of the mill site use to which the ground is being
put.
When a mill site patent is applied for in connection with a lode, the
application may be at the time of the application for patent of the lode
or after such patent.6t Where both are applied for at the same time, a
survey of both is called for at the same time, and a certified copy of
the mill site location certificate, as well as of the lode location certifi-
cate, is furnished. The mill site is described in the plat and field notes
by the same survey number as the claim; but the claim then has the
letter “A” after the survey number and the mill site has the letter ““B.”
For instance, if the survey number is “37,” the claim is “Sur. No.
37A,” and the mill site “Sur. No. 37B.” §? In the posted and published
notices of the application for patent, as much care must be taken to
describe the mill site as to describe the lode claim, the plat and field
notes must give the course and distance from a corner of the mill site
to a corner of the lode claim, and a copy of the plat and notice of ap-
plication for patent must be conspicuously posted upon the mill site,
as well as upon the lode claim, for the statutory period.®?
Where a mill site used in connection with a lode for mining or mill-
ing purposes is sought to be patented after the lode claim has gone
to patent,®* or where a mill site claim, independent of any lode owner-
ship, is sought to be patented, the applicant for patent must proceed
precisely in the way required for lode mining patents.
The purchase price for mill sites is the same per acre as for lode
81 Hclipse Mill Site, 22 Land Dec. Dep. Int. 496.
82 Land Office Regulations, rule 63.
831d. If posting on the mill site is neglected, republication will be re-
quired. Silver Star Mill Site, 25 Land Dec. Dep. Int. 165; Peacock Mill
Site, 27 Land Dee. Dep. Int. 373.
84 “It is generally advisable to apply for a mill site in connection with a
lode claim, and in applying for a lode patent a mill site can be included, and
surface for building purposes readily acquired, at a cost of $50 less than if
Separate applications are made.” Morrison's Mining Rights (13th Ed.) 453.
§ 101) PATENTING OF PLACER CLAIMS. 361
claims. “In every case there must be satisfactory proof that the land
claimed as a mill site is not mineral in character, which proof may,
where the matter is unquestioned, consist of the sworn statement of
two or more persons capable, from acquaintance with the land, to testi-
fy understandingly.” 8° The application for patent should also show
the class of mill site claimed, and proof by the affidavit of two disinter-
ested persons should support the statement in the application that a
mill site use is being made of the ground. This proof should be fur-
nished with the first set of papers. The applicant for a mill site patent
must make his application in good faith for himself.®*
THE PATENTING OF PLACER CLAIMS.
101. With the exception that no survey need be made for placers con-
forming to government survey subdivisions, and that a spe=-
cial kind of descriptive report by the deputy mineral sur-
veyor is called for by the land department, the proceedings to
obtain a patent for a placer claim are the same as those for
a lode claim.
Applications to patent placers differ slightly from applications to
patent lodes. If the placer claim is located on surveyed land, and con-
forms to the 10-acre or larger subdivisions of the government survey,
no new survey need be made; but application for patent may be made
at once in the land office. In such case the proof of $500 worth of im-
provements must be furnished by the affidavit of two or more disin-
terested witnesses.87 The application for patent must state specifically
what 10-acre or other lots are sought to be patented. If the claim is on
unsurveyed land, or, being on surveyed land, does not exactly conform
to the surveyed subdivisions, an official survey is required,®* unless in
the case of surveyed land the failure to conform is due to excluding
patented land.®?
With the exception just noted, and with the further exception of
the descriptive report called for by the land department, the proceed-
ings to obtain a patent for a placer are the same as those to obtain a
patent for a lode claim.®°
85 Land Office Regulations, rule 65.
88 Hamburg Min. Co. v. Stephenson, 17 Nev. 449, 30 Pac. 1088.
87 Land Office Regulations, rule 25.
88 G, A. KHERN, 6 Land Dec. Dep. Int. 580.
89 MARY DARLING PLACER CLAIM, 31 Land Dec. Dep. Int. 64.
90 Land Office Regulations, rules 58, 59.
362 UNCONTESTED APPLICATION TO PATENT cLaIMs. (Ch. 18
The Descriptive Report.
The descriptive report is called for by the following provisions of
the land office rules, viz.:
“Mineral surveyors shall at the expense of the parties make full ex-
amination 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,
the kind and amount of timber and other vegetation, the locus and
size of streams, and such other matters as may appear upon the sur-
face of the claim. This examination should include the character and
extent of all surface and underground workings, whether placer or
lode, for mining purposes.
“In addition to these data, which the law requires to be shown in
all cases, the deputy should report with reference to the proximity of
centers of trade or residence; also of well-known systems of lode de-
posits or of individual lodes. He should also report as to the use or
adaptability of the claim for placer mining, whether water has been
brought upon it in sufficient quantity to mine the same, or whether it
can be procured for that purpose, and, finally, what works or expend-
itures have been made by the claimant or his grantors for the develop-
ment of the claim, and their situation and location with respect to the
same as applied for.
“This examination should be reported by the mineral surveyor un-
der oath to the surveyor general, and duly corroborated,®1 and a copy
ot the same should be furnished with the application for patent to the
claim, constituting a part thereof, and included in the oath of the claim-
ant.””2?
This descriptive report must receive the approval of the surveyor
general, who thereupon certifies a transcript of that report, as well as a
transcript of the field notes. Whenever a survey of a placer is required
this descriptive report must be obtained, and the deputy mineral sur-
veyor therefore makes it out without special instructions. If, however,
no survey is required, because the claim conforms to surveyed sub-
divisions, a descriptive report need not be made until required by the
land department.**
91 This corroboration should be by affidavit of one or more disinterested
persons (see Land Office Regulations, rule 167 [i]), who know the facts, and
who swear that they have read the descriptive report, and that it is true
in every particular.
92 Land Office Regulations, rules 60, 167. In rule 167 it igs further re-
quired that the descriptive report shall describe “the true situation of all
mines, salt licks, salt springs, and mill sites which come to the surveyor’s
knowledge, or a report by him that none exist on the claim, as the facts may
warrant.”
93 Rosina T. Gerbauser, 7 Land Dec. Dep. Int. 390. See Morrison’s Min-
ing Rights (18th Ed.) 459.
§ 101a) KNOWN LODES WITHIN PLACERS. 363
SAME—KNOWN LODES WITHIN PLACERS.
101la. Known lodes in placers must be located as such by the appli-
cant for placer patent if he intends to claim them in his pla-
cer application. Known lodes not claimed by the applicant
for placer patent may be patented by third parties after a
departmental inquiry establishes that they are known lodes.
The application for patent must state that the claim is all placer,
and be corroborated by accompanying proofs," or, if the claim contains
some known lodes, the application should contain a description of them
and a declaration of the intention of the applicant to claim such as he
may want. A failure to disclose known lodes in the application will not
make the patent cover them, nor prevent the issuance of a subsequent —
lode patent ; °° for by the express provisions of the statute such failure
must “be construed as a conclusive declaration that the claimant of the
placer claim has no right of possession of the vein or lode claim.” °¢
A placer applicant will not be allowed to amend his application, so as
to embrace therein veins or lodes discovered by others after the location
of the placer claim, but prior to the application therefor.°’ After pla-
cer patent the patentee will not be allowed to patent lodes in the placer
which were not known lodes.t Where the placer applicant claims the
known lodes, he must locate them as lodes and furnish the evidence of
title usual on patent applications. Survey is, of course, required; but
a survey number separate from the placer survey number seems not to
be necessary. In the survey the known lodes are designated simply by
their names.°® The posting of notice of the application for patent
must be done on each known lode, as well as on the placer ground.
Where, after a placer patent, a third person wants to apply to patent
a lode in the placer as a “known” lode, he must first get a departmen-
tal inquiry to establish that the lode was known to exist at the date of
the application for placer patent.°® Because “known lodes” are reserv-
ed and excepted from placer patents, the lode claimant does not have to
04 “Where there is no known lode or vein, the fact must appear by the
affidavit of two or more witnesses.” Land Office Regulations, rule 26.
95 South Star Lode, 20 Land Dec. Dep. Int. 204; Cape May Mining &
Leasing Co. v. Wallace, 27 Land Dec. Dep. Int. 676.
96 Rev. St. U. S. § 2333 (U. S. Comp. St. 1901, p. 1438).
°7 AURORA LODE v. BULGER HILL & NUGGET GULCH PLACER
CO., 23 Land Dee. Dep. Int. 95.
{Alice Mining Co., 27 Land Dec. Dep. Int. 661.
98 See Morrison’s Mining Rights (13th Ed.) 460.
99 BUTTE & BOSTON MIN. CO., 21 Land Dec. Dep. Int. 125; Cape May
Mining & Leasing Co. v. Wallace, 27 Land Dec. Dep. Int. 676.
364 UNCONTESTED APPLICATION TO PATENT CLAIMS. (Ch. 18
adverse the placer patent ; °° and because other than known lodes pass
by the placer patent, and cannot be taken away from the patentee by de-
partmental proceedings,?° the placer patentee does not have to adverse
the “known lode” claimant.1°? The issue between the two, if not act-
ually litigated between them in adverse proceedings, may be settled in
a suit to quiet title or in an ejectment action after the issuance of the
lode patent. It is only where the lode patent is applied for first that ad-
verse proceedings are absolutely required. If, however, the lode claim-
ant does not adverse the placer application, he may find that the land
department will not entertain his application, because he does not over-
come the presumption in the department against him.1°* He really
must undergo two trials, one in the department and one before the
courts, where one before the courts in adverse proceedings would do.
The “known lode” claimant, therefore, ought to adverse the placer ap-
plication, and to get more than 50 feet in width of surface ground he
probably must do so.1%
The lodes claimed in a placer application as “known lodes” must be
paid for at $5 per acre; but the purchase price of placer ground prop-
er is only $2.50 per acre or fractional part of an acre.19°
CONFLICTS OF LODES AND PLACERS WITH OLDER LOCATIONS.
102. The area in conflict between the claim being patented and pre-
viously patented claims is excepted from the area applied for,
but otherwise does not affect the application for patent, un-
less the claim sought to be patented is cut in two by the sen-
ior and no discovery has been made in one part. In the latter
case patent will issue only for the part on which discovery
has been made.
It sometimes happens that a lode location is intersected by an already
patented mill site or placer. In such case the department formerly
held that the lode claim could be patented only to the point where the
other claim intersected it, giving the applicant his option which segre-
100 Elda Mining & Milling Oo. v. Mayflower Gold Mining Co., 26 Land Dec.
Dep. Int. 573; Cape May Mining & Leasing Co. v. Wallace, 27 Land ‘Dec.
Dep. Int. 676, 679.
101 Alice Mining Co., 27 Land Dec. Dep. Int. 661.
102 Messrs. Morrison and De Soto advise him to do s0, however. Morri-
son’s Mining Rights (13th Ed.) 227.
1083 The burden of proof is on the lode claimant in the land department.
Cripple Creek Gold Mining Co. v. Mt. Rosa Mining, Milling & Land Co., 26
Land Dee. Dep. Int. 622.
104 A protest will not avail. ELDA MINING & MILLING CO. y. MAY-
FLOWER MINING CO., 26 Land Dee. Dep. Int. 573.
105 Rey. St. U. 8. § 2333 (U. 8. Comp. St. 1901, p. 1433).
§ 102) CONFLICTS WITH OLDER LOCATIONS. 365
gated tract to patent;1°* but now patent will issue for both tracts,
provided that the lode or vein upon which the location is based has
been discovered in both parts of the lode claim.1°7
A corresponding ruling would doubtless be made as to a placer in-
tersected by a lode or by a mill site. An attempted mill site location,
cut in two by a prior lode or placer location, would probably be govern-
ed by the same ruling also, if the claimant could overcome the pre-
sumption that the land is mineral.
106 The tract not selected became in such case subject to location as aban-
doned. BROWN v. GURNEY, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Hd. 717.
107 PAUL JONES LODB, 31 Land Dec. Dep. Int. 359.
366 ADVERSE PROCEEDINGS AND PROTESTS. (Ch, 19
CHAPTER XIX.
ADVERSE PROCEEDINGS AND PROTESTS AGAINST PATENT APPLI-
CATIONS.
103. Adverse Claims.
104. Court Proceedings on Adverse Claims.
105. The Relation of the Land Department to the Court Proceedings on
Adverse Claims.
106. Protests.
There are two methods of opposing a patent application, namely:
(1) Adverse; and (2) protest. An adverse claim is an assertion by the
adverse claimant of the ownership of some part of the surface of the
ground sought to be patented. A protest, on the other hand, will
generally not lie where an adverse is proper,’ and is essentially an
assertion by the protestant that the patent applied for should not is-
sue because of jurisdictional defects. An adverse claim must be filed
within the statutory time, or it will not be considered. A protest
may be filed any time before patent actually issues.
ADVERSE CLAIMS.
103. An adverse claim is one of title to part or all of the surface
sought to be patented. It must be filed during the 60-day
period of publication of the notice of application for patent,
must show fully the nature, boundaries, and extent of the
adverse claim, and must be followed, within 30 days after it
is filed, by the commencement of the proper court proceedings.
The federal statute provides that an adverse claim must be filed
during the 60 days’ publication of notice of application for patent,”
and that means within the 60 days computed by excluding the first
day of publication.? This time cannot be extended.* If, for any
1MUTUAL MINING & MILLING CO. v. CURRENCY CO., 27 Land Dec.
Dep. Int. 191.
2 Rev. St. U. S. § 2325 (U. S. Comp. St. 1901, p. 1429). See Hunt v. Eureka
Gulch Min. Co., 14 Colo. 451, 24 Pac. 550; Hamilton v. Southern Nev. Gold
& Silver Min. Co. (C. C.) 338 Fed. 562.
3 Bonesell vy. McNider, 13 Land Dee. Dep. Int. 286; Waterhouse v. Scott,
18 Land Dec. Dep. Int. 718. Where the last day of the 60 falls on Sun-
day or on a holiday, the land department will not any longer allow the filing
on the next day. HOLMAN v. CENTRAL MINES CO., 34 Land Dec. Dep.
Int. 568.
4 Davidson v. Eliza Gold Mining Co., 28 Land Dec. Dep. Int. 224; Gross v.
Hughes, 29 Land Dec. Dep. Int. 467. One who has not filed an adverse
§ 108) ADVERSE CLAIMS. 367
reason, republication takes place, the adverse must, of course, be re-
filed during the new publication. An adverse claim is ordinarily not
filed until the fees for filing are paid; but, if the officers of the land
office choose to become chargeable to the government for them by the
acceptance of the adverse, the applicant for patent cannot question the
validity of the filing on the ground that the fees have not been paid.®
The statute further provides that the adverse claim “shall show
the nature, boundaries, and extent of such adverse claim.’*® “The
adverse claim as filed must fully 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
certified copy of the original location, the original conveyance, a duly
certified copy thereof, or an abstract of title from the office 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 facts should be
supported by the affidavit of one or more witnesses, if any were pres-
ent at the time; and if he claims as a locator he must file a duly certi-
fied copy of the location from the office of the proper recorder.” 7
An adverse claim must be filed in every pending patent proceed-
ing which conflicts with the ground owned by the adverse claimant;
but, if several pieces of mining ground owned by the adverse claimant
are affected by only one patent proceeding, one adverse claim will do
to specify the various conflicts. ‘An adverse claim must be filed with
the register and receiver of the land office where the application for
patent is 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
claim under the statute cannot intervene in an adverse suit brought by
another adverse claimant, even though he claims an interest adverse to both
plaintiff and defendant. MURRAY v. POLGLASE, 23 Mont. 401, 59 Pac.
439. Where an applicant for patent allowed his application to sleep for
years and a relocation for failure to do the annual labor took place, the re-
locator was allowed to adverse on the ground that the 60-day statute did not
apply to adverse claims subsequently arising. GILLIS v. DOWNEY, 85 Fed.
483, 29 C. C. A. 286.
5 BLAKE vy. TOLL, 29 Land Dec. Dep. Int. 413.
6 Rev. St. U. S. § 2326 (U. S. Comp. St. 1901, p. 1430). A land department
rule requiring an adverse plat to be made by a deputy United States mineral
surveyor from an actual survey on the ground was held to be unreasonable
and void in Anchor vy. Howe (C. C.) 50 Fed. 366. Except where the applicant
and the adverse claimant both claim by survey subdivisions, a plat showing
both claims and the extent of conflict must be filed by the adverse claimant.
Land Office Regulations, rule 82.
7 Land Office Regulations, rule 81.
8 He may take the oath out of the district. Amendment by Act April 26,
368 ADVERSE PROCEEDINGS AND PROTESTS. (Ch, 19
the oath of any duly authorized agent or attorney in fact of the adverse
claimant cognizant of the facts stated.” ® It must be accompanied by
a plat showing both claims and the conflict areas, except in those cases
where the applicant and the adverse claimant both describe their lo-
cations by legal survey subdivisions.1° The rights of an adverse claim-
ant are limited to those existing at the time of the filing of his adverse.1+
It is for the land office to determine the sufficiency of the adverse,'?
and an appeal will properly lie from the rejection of it.* Despite the
rejection of the adverse, and the consequent appeal, the proper court
proceedings must begin within the 30 days from the filing of the ad-
verse.1? Where an adverse has been rejected by the land office, and no
appeal taken, yet suit has been begun within the 30 days, and certificate
thereof filed, the land department will suspend action until the suit is
terminated.14 The suit, however, unlike a genuine adverse suit, is
not binding on the department, though the department will give it
great respect.?®
An adverse claim may be amended before the expiration of the
publication period; but after that period expires it may not be so
amended as to embrace a larger conflict area, nor to set up a subse-
1882, c. 106, 22 Stat. 49, of Rev. St. U. S. § 2326 (U. S. Comp. St. 1901, p.
1481).
® Land Office Regulations, rule 78. The agent or attorney in fact must dis-
tinctly swear that he is such, and accompany his affidavit by proof thereof
(Id. rule 79), and must make the affidavit in the district where the claim
is situated (Id. rule 80).
10 Land Office Regulations, rule 82. The plat should, of course, be pre-
pared from an actual survey by a deputy mineral surveyor. Id. But it
need not be so prepared. KINNEY v. VAN BOKERN, 29 Land Dec. Dep.
Int. 460; Anchor v. Howe (C. C.) 50 Fed. 366. If the adverse claimant can-
not make the plat exact, because a survey could not be taken on account of
the snow, etc., his adverse should allege that fact. J. S. Wallace, 1 Land
Dec. Dep. Int. (Rev. Ed.) 582. The land department will not in any case
be technical if only the adverse shows with reasonable certainty the nature,
boundaries, and extent of the alleged adverse right. McFADDEN v. MOUN-
TAIN VIEW MINING & MILLING CO., 27 Land Dec. Dep. Int. 358.
11 HEALEY v. RUPP, 37 Colo. 25, 86 Pac. 1015.
12 Waterhouse v. Scott, 18 Land Dec. Dep. Int. 718. “A paper prepared as
an adverse, when not properly in the land office as such, is often received
and accepted as a protest, and is permitted to serve that purpose.” Behrends
v. Goldsteen, 1 Alaska, 518, 522. For an instance, see Grand Canyon Ry. Co.
vy. Cameron, 35 Land Dec. Dep. Int. 495.
* QUIGLEY v. GILLETT, 101 Cal. 462, 85 Pac. 1040; Ross v. Richmond
Mining Co., 17 Ney. 25, 27 Pac. 1105.
18 SCOTT v. MALONEY, 22 Land Dec. Dep. Int. 274.
14 Samuel McMaster, 2 Land Dec. Dep. Int. 706. This is not true, how-
ever, where the adverse is not filed in time. HOLMAN v. CENTRAL MON-
TANA MINES CO., 34 Land Dec. Dep. Int. 568.
16 NORTH STAR LODE, 28 Land Dec. Dep. Int. 41, 48, 44. So, where
there has been a relocation after the expiration of the publication period
§ 103) ADVERSE CLAIMS. 369
quently acquired right.1* An adverse claimant does not waive his
adverse by obtaining patent, pending the adverse proceedings. for that
part of his location not in conflict with the applicant’s location.**
Iho must Adverse.
A lode claimant must adverse a conflicting lode application, of
course; a mill site claimant, a conflicting mill site application; and
a placer claimant, a conflicting placer application. But the owner of
an already patented lode, mill site, or placer need not adverse any
application, because the statutory provisions relative to adverse pro-
ceedings apply only to cases where there are adverse claims to the
same unpatented ground.'® So the owner of a claim which has passed
the entry stage in patent proceedings need not adverse a subsequent
patent application.1® The owner of a “known lode” in a placer need
not, perhaps, adverse a placer. Certainly as to 25 feet on each side
of the lode he need not, unless the placer applicant is asking for a
patent to the known lode; but he ought to do so, to avoid all questions
as to surface area.2° The owner of an unpatented placer must adverse
a “known” lode application in order to confine the lode to the 25 feet
on each side of the vein, which is all it is entitled to if it was not lo-
cated until after the placer, just as he must do so to defeat a lode ap-
plication entirely as to conflicting ground.” In general, lode claims
must adverse placers and the latter must adverse lodes.
and before entry and the courts uphold the relocation, the department will
cancel the patent application. Cain v. Addenda Mining Co., 29 Land Dec.
Dep. Int. 62. The court’s judgment in such case has the effect of a protest.
16 “The notices required to be given cf an application for patent are in
effect a summons to all adverse claimants. The latter must assert their
rights by filing an adverse within the 60 days’ publication of notice of ap-
plication for patent. Unless filed within that period, it will be conclusively
presumed that none existed. So far, then, as an adverse claimant is con-
cerned, it must necessarily follow that his rights to the premises in con-
troversy must be limited to those existing at the time of filing his adverse.
If be had no claim then, he will not be heard to assert a right to the prem-
ises in dispute by virtue of one brought into existence thereafter; other-
wise, he would be permitted to assert title to the disputed premises by virtue
of rights other than those upon which his adverse is based.” HEALEY v.
RUPP, 37 Colo. 25, 86 Pac. 1015.
17 MACKAY v. FOX, 121 Fed. 487, 57 ©. C. A. 439.
18 North Star Lode, 28 Land Dec. Dep. Int. 41; Iron Silver Min. Co. v.
Campbell, 185 U. S. 286, 10 Sup. Ct. 765, 34 L. Ed. 155.
19 Owers v. Killoran, 29 Land Dec. Dep. Int. 160. See Murray v. Montana
Lumber & Mfg. Co., 25 Mont. 14, 63 Pac. 719.
20 See DAHL v. RAUMHEIM, 132 U. S. 260, 10 Sup. Ct. 74, 383 L. Ed. 324.
But see NOYES v. MANTLE, 127 U. S. 348, 8 Sup. Ct. 1132, 32 L. Ed. 168.
21 CLIPPER MIN. CO. v. ELI MINING & LAND CO., 194 U. S. 220, 24
Sup. Ct. 632, 48 L. Hd. 944.
Cost.M1n.L.—24
370 ADVERSE PROCEEDINGS AND PROTESTS. (Ch. 19
Who May Not Adverse.
With reference to mill sites the land department has held conflict-
ing views, but the present view accords with that held in regard to
those townsites which do not come under the act of 1891, namely,
that the case is not one for adverse at all; but, since the inquiry simply
is as to the mineral or nonmineral character of the land, the real
controversy must be determined on a protest.22, This view has the
support of a recent judicial decision that a townsite claimant cannot
adverse; ?° but that decision is of no real value on this question, be-
cause in that case the lode location was known at the time of town
site entry, and so did not pass by the townsite patent.2* The owner
of a town lot in an unpatented townsite has been allowed to adverse
a lode claim application.25 Messrs. Morrison and De Soto point out
that there have been frequent instances where adverses by mill sites
have been filed and sustained,?* and think that “it is advisable to file
both adverse and protest, as there is no certainty that the land office
will maintain its present position as to the right of a mill site to ad-
verse a mining application and vice versa.” ?*
A tunnel claimant has nothing which he can patent until he discovers
a blind vein or other lode in his tunnel and appropriates it in the way
the law requires. Hence the tunnel claimant as such need not ad-
22 Snyder v. Wallace, 25 Land Dec. Dep. Int. 7; Helena, etc., Co. v. Dailey,
36 Land Dec. Dep. Int. 144. See Ryan v. Granite Hill Mining & Development
Co., 29 Land Dec. Dep. Int. 522; Powell v. Ferguson, 23 Land Dec. Dep. Int.
173. But see Butte City Smoke House Lode Cases, 6 Mont. 397, 12 Pac. 858.
The land department would confine adverse to conflicts between mining claims
merely. Grand Canyon R. Co. v. Cameron, 35 Land Dec. Dep. Int. 495.
23 WRIGHT v. TOWN OF HARTVILLE, 13 Wyo. 497, 81 Pac. 649, 82 Pac.
450. Compare Davidson v. Fraser, 36 Colo. 1, 84 Pac. 695, 4 L. R. A. (N. S.)
1126. But see Hamilton v. Southern Nevada Gold & Silver Min. Co. (C. C.)
33 Fed. 562.
24 See Lalande v. Townsite of Saltese, 32 Land Dec. Dep. Int. 211.
25 YOUNG v. GOLSTEEN (D. C.) 97 Fed. 303; BONNER y. MEIKLE
(C. O.) 82 Fed. 697. But see WRIGHT v. TOWN OF HARTVILLE, 13
Wyo. 497, 81 Pac. 649, 82 Pac. 450; Behrends v. Goldsteen, 1 Alaska, 518.
Compare Nome-Sinook Co. v. Simpson, 1 Alaska, 578. :
26 Morrison’s Mining Rights (13th Ed.) 477, citing Shafer v. Constans, 3
Mont. 369, Durgan v. Redding (C. C.) 103 Fed. 914, and Cleary y. Skiffich,
28 Colo. 362, 65 Pac. 59, 89 Am. St. Rep. 207.
27 Morrison’s Mining Rights (18th Ed.) 478. Of course, the recent decision
of Helena, etc., Co. v. Dailey, 36 Land Dec. Dep. Int. 144, makes it more cer-
tain than it was when they wrote, but whether it is yet absolutely certain,
query. Where a lode claimant adverses a mill site, he must show that the
land contains minerals which can be extracted at a profit. CLEARY v. SKIF-
FICH, 28 Colo. 362, 65 Pac. 59, 89 Am. St. Rep. 207.
§ 103) ADVERSE CLAIMS. 371
verse,’* and probably may not do so;2* but as the owner of lode
claims already acquired through tunnel discovery and appropriation
he must adverse.* Blind veins yet to be discovered by him in his tun-
nel are protected from appropriation by others and from all necessity
of adverse on his part by the terms of the tunnel site statute as in-
terpreted by the United States Supreme Court.*°
Where two adjoining locations divide between them the width of
a broad vein, one’ may not adverse the other to determine extralateral
rights, because an adverse must relate to the surface ground sought
to be patented. Certainly, in the absence of a record of an adverse
suit, there is no presumption that subterranean rights under lode min-
ing locations were considered and determined in such suit.*+
By a rule of the land office, based by the department expressly on
a United States Supreme Court decision,?? it is declared that a co-
owner, whose co-tenants have excluded him from an application for
patent, does not have an adverse claim, but may protest the applica-
tion.2* It is held, however, that, if the co-owner does attempt an ad-
verse, the land department will stay proceedings pending the deter-
mination of the judicial proceedings; *#* and since the case of Turner
v. Sawyer®® does not deny the right of the co-owner to adverse, but
‘simply makes the other owners hold his share of the legal title in trust
for him, the better course would seem to be to adverse.?®
What is said above as to a co-owner would seem to apply, also, to
28CREEDE & C. C. MIN. & MILL. CO. v. UINTA TUNNEL MIN. &
TRANSP. CO., 196 U. S. 337, 25 Sup. Ct. 266, 49 L. Hd. 501. But see Back
y. Sierra Nevada Consol. Min. Co., 2 Idaho, 420, 17 Pac. 83. Compare Hope
Min. Co. of St. Louis v. Brown, 11 Mont. 870, 28 Pac. 732.
291d.
*This is true where he makes a surface location; but where he claims the
blind vein without doing so, query whether he has to adverse?
30 ENTERPRISE MIN. CO. v. RICO-ASPEN CONSOL. MIN. CO., 167 U.
S. 108, 17 Sup. Ct. 762, 42 L. Ed. 96; CREEDE & C. C. MIN. & MILL. CO.
vy. UINTA TUNNEL MIN. & TRANSP. CO., 196 U. S. 337, 25 Sup. Ct. 266, 49
L. Ed. 501.
31 LAWSON v. UNITED STATES MIN. CO., 207 U. S. 1, 28 Sup. Ct. 15,
52 L. Ed. 65. See New York Hill Co. v. Rocky Bar Co., 6 Land Dec. Dep.
Int. 318.
32 TURNER v. SAWYER, 150 U. S. 578, 14 Sup. Ct. 192, 37 L. Hd. 1189,
See Stevens v. Grand Central Min. Co., 133 Fed. 28, 67 C. C. A. 284.
33 Land Office Regulations, rule 53.
34 THOMAS vy. ELLING, 25 Land Dec. Dep. Int. 495; Id., 26 Land Dec.
Dep. Int. 220; Coleman v. Homestake Min. Co., 30 Land Dec. Dep. Int. 364.
35 150 U. S. 578, 14 Sup. Ct. 192, 37 L. Ed. 1189.
36 See Davidson v. Fraser, 86 Colo. 1, 84 Pac. 695, 4 L. R. A. (N. 8.) 1126;
Malaby v. Rice, 15 Colo. App. 364, 62 Pac. 228. Compare Hamilton y. South-
ern Nev. Gold & Silver Min. Co. (C. C.) 33 Fed. 562. A co-owner who has
been omitted from the application for patent, and who pending the applica-
tion attempts to forfeit the interest of the applicant co-owner for failure to
372 ADVERSE PROCEEDINGS AND PROTESTS. (Ch. 19
the mortgagee or judgment lien holder claiming under him, or the
grantee claiming from him.*7 It has also been held that an adverse
suit will lie against an applicant who is seeking to patent the claim
he relocated after fraudulently failing to do the assessment work
he was employed to do.**
One who merely has an easement over a mining claim by virtue
of the federal statutes cannot adverse.*® This applies to an ease-
ment for a railroad right of way.*° So one who has no surface con-
flict, but simply claims extralateral rights under the ground sought
to be patented, cannot adverse.*+ So, of course, one who, after the
expiration of the publication period, relocates for failure of applicant
to do the annual labor, cannot adverse, but must resort to protest.*?
So a mortgagee of the applicant for patent may not adverse the
application for patent, because he is protected by the statutory provi-
sion that “nothing in this chapter shall be deemed to impair any lien
which may have attached to any mining claim or property thereto
attached prior to the issuance of a patent.” *? The same is true of
judgment creditors.**
Who may Adverse, but Need Not.
Despite the land department rule to the contrary, it is believed that a
co-owner excluded from the patent application and those in privity
of title with him may adverse, though they need not do so.*5 Where
an applicant for patent for a placer does not ask to patent the known
lodes within it, the owner of the known lodes probably need not ad-
verse; but he ought to do so.*® It has been held that a known min-
ing claim included in a townsite need not adverse the townsite.*?
perform the annual labor, cannot thereby acquire any right in himself to
make entry under the application. Surprise Fraction and Other Lode Claims,
82 Land Dec. Dep. Int. 93.
37 As to grantees, see Suessenbach v. First Nat. Bank, 5 Dak. 477, 41 N.
W. 662.
38 Argentine Min. Co. v. Benedict, 18 Utah, 183, 55 Pac. 559.
39 Rockwell v. Graham, 9 Colo. 36, 10 Pac. 284.
40 Grand Canyon R. Co. v. Cameron, 35 Land Dec. Dep. Int. 495.
41 New York Hill Co. v. Rocky Bar Co., 6 Land Dec. Dep. Int. 818. See
Lawson v. United States Min. Co., 207 U. S. 1, 28 Sup. Ct. 15, 52 L. Ed. 65.
#2 Cleveland v. Eureka No. 1 Gold Mining & Milling Co., 31 Land Dee. Dep.
Int. 69; Gillis v. Downey, 85 Fed. 483, 29 C. C. A. 286.
43 Rey. St. U. 8. § 2332 (U. S. Comp. St. 1901, p. 1483).
44 Butte Hardware Co. v. Frank, 25 Mont. 344, 65 Pac. 1.
45 Butte Hardware Co. v. Cobban, 13 Mont. 351, 84 Pac. 24; Davidson v.
Fraser, 36 Colo. 1, 84 Pac. 695, 4 L. R. A. (N. S.) 1126. But see Malaby v.
Rice, 15 Colo. App. 364, 62 Pac. 228. See note 36, supra.
48 See Dahl v. Raunheim, 132 U. 8. 260, 10 Sup. Ct. 74, 33 L. Ed. 824. But
see Noyes v. Mantle, 127 U. 8S. 348, 8 Sup. Ct. 1132, 32 L. Ed. 168. See note
20, supra. /
47 Silver Tow M. & M. Co. v. Clark, 5 Mont. 378, 5 Pac. 570; Talbott v.
§ 103) ADVERSE CLAIMS. . 373
By the express provisions of the federal statute no locations made
prior to May 10, 1872, need adverse any location made under the act
of 1872.48 An applicant for patent need not adverse a subsequent ap-
plication made while his application is pending.t® Whether a prior
patentee may adverse is uncertain, but it is clear that he need not.®°
The fact that the senior locator has agreed to purchase the junior
claim if a patent is obtained therefor has been held not to deprive the
senior locator of the right to contest the allowance of a patent to the
junior claim for conflicting area.°+
A lien claimant need not adverse the application to patent the claim
to which the lien attaches.5?
Effect of Failure to Adverse.
Where an adverse claim is required, but is not interposed, the failure
to interpose it bars it, except where protest is proper.®* It may not be
interposed, however, because of an agreement not to adverse. Such
an agreement is not against public policy.
King, 6 Mont. 76, 9 Pac. 484; Butte City Smoke House Lode Cases, 6 Mont.
397, 12 Pac. 858.
48 Rey. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426); Eclipse Gold &
Silver Min. Co. v. Spring, 59 Cal. 304; Blake v. Butte Silver Min. Co., 2
Utah, 54. “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.” 2 Lindley on Mines (2d Ed.)
§ 726.
49 STEEL v. GOLD LEAD M. CO., 18 Nev. 80, 1 Pac. 448; Owers v. Kil-
loran, 29 Land Dec. Dep. Int. 160.
50 North Star Lode, 28 Land Dec. Dep. Int. 41; IRON SILVER MIN. CO.
v. CAMPBELL, 185 U. S. 286, 10 Sup. Ct. 765, 34 L. Ed. 155; Mantle v.
Noyes, 5 Mont. 274, 5 Pac. 856.
51 Griffin v. American Gold Min. Co., 114 Fed. 887, 52 C. C. A. 507.
52 Butte Hardware Co. v. Frank, 25 Mont. 344, 65 Pace. 1.
58 Rev. St. U. S. § 2325 (U. S. Comp. St. 1901, p. 1429); Richmond Min.
Co. of Nevada v. Eureka Consolidated Min. Co., 103 U. S. 839, 26 L. Ed. 557;
Wight v. Dubois (C. C.) 21 Fed. 693; Lily Mining Co. v. Kellogg, 27 Utah,
111, 74 Pac. 518; Jefferson Min. Co. v. Anchorea Leland Min. & Mill. Co., 32
Colo. 176, 75 Pac. 1070, 64 L R. A. 925; Nesbitt v. De Lamar’s Nevada Gold
Min. Co., 24 Ney. 273, 52 Pac. 609, 53 Pac. 178, 77 Am. St. Rep. 807.
+ St. Louis Min. & Mill Co. v. Montana Min. Co., 171 U. 8S. 650, 19 Sup.
Ct. 61, 48 L. Ed. 320. Of Ducie v. Ford, 138 U. S. 587, 11 Sup. Ct. 417, 34 L.
Ed. 1091, where the court refused to enforce a trust under such a contract
because the contract was not in writing, and so did not comply with the Stat-
ute of Frauds, Messrs. Morrison and De Soto say: “The decision, however,
is largely based on asserted defects in the pleadings, and can hardly be con-
sidered as holding that so gross an instance of wrong would be in all cases
shielded by that statute.” Morrison’s Mining Rights (13th Hd.) 495.
374 ADVERSE PROCEEDINGS AND PROTESTS. (Ch. 19
COURT PROCEEDINGS ON ADVERSE CLAIMS.
104. The court proceeding is, according as the situation calls for one
or the other, an action in ejectment or a suit in equity. If
it is an action in ejectment, there is a right to a jury trial.
If it is a suit in equity, there is in most jurisdictions no such
right. The adverse claimant is plaintiff in the proceedings,
and the particularity of allegations required in the pleadings
varies in the different jurisdictions. The trial is much like
the ordinary trial where the ownership of real property is
litigated; but the citizenship of the parties is involved, and
judgment may be entered that neither party is entitled to the
conflict area.
The federal statutes make it the duty of the adverse claimant, “with-
in thirty days after filing his claim, to commence procéedings in a
court of competent jurisdiction, to determine the question of the
rights of possession, and to prosecute the same with reasonable dili-
gence to final judgment; and a failure to do so shall be a waiver of his
adverse claim.” ®* The purpose of an adverse suit is to determine for
the information of the officers of the land department which, if either,
of the parties has the possessory title to the premises in dispute.
The question whether the land is mineral or nonmineral is ordinarily
not to be litigated in such suit, but is for the land department to de-
termine.°®
By a court of competent jurisdiction is not meant a United States
court, unless such court would have jurisdiction for reasons other
than the nature of the property involved. A suit brought in support
of an adverse claim is not necessarily a suit arising under the laws of
the United States in such a sense as to confer jurisdiction on a federal
54 Rev. St. U. S. § 2326 (U. S. Comp. St. 1901, p. 1480). The local land of-
ficers are required to give notice to both parties of the filing of the adverse
and of the requirement about court proceedings. Land Office Regulations,
rule 83.
55 Healey v. Rupp, 37 Colo. 25, 86 Pac. 1015. A decree adjudging that the
defendant is entitled to purchase a claim from the United States and receive
a patent therefor is in excess of the jurisdiction of the state court. Gru-
well v. Rocca, 141 Cal. 417, 74 Pac. 1028. The court has no right to deter-
mine whether the $500 expenditure in labor or improvements required for
patent has been made. Wilson v. Freeman, 29 Mont. 470, 75 Pac. 84, 68 L.
R. A. 833; Stolp v. Treasury Gold Min. Co., 38 Wash. 619, 80 Pac. 817.
Nor to determine whether the land is mineral or nonmineral. Wright v.
Town of Hartville, 13 Wyo. 497, 81 Pac. 649, 82 Pac. 450; Behrends v.
Goldsteen, 1 Alaska, 518.
56 Wright v. Town of Hartville, 18 Wyo. 497, 81 Pac. 649, 82 Pac. 450;
LE FEVRE v. AMONSON, 11 Idaho, 45, 81 Pac. 71; Behrends vy. Galdsteon,
1 Alaska, 518.
§ 104) COURT PROCEEDINGS ON ADVERSE CLAIMS. 3875
court regardless of the citizenship of the parties, “but may present
simply a question of fact as to the time of the discovery of mineral, the
location of the claim on the ground, or a determination of the meaning
and effect of certain local rules and customs prescribed by the miners
of the district or the effect of state statutes.” 57
Congress meant to have the adverse claimant bring suit in any court
having jurisdiction to determine, as between himself and the applicant
for patent, the question of the right of possession.®* It is certainly
doubtful whether an adverse suit could be brought in a federal court
for any other reason than the diversity of citizenship.5® The ordinary
place to bring such suits is in state courts of general jurisdiction, and
those courts have full jurisdiction, subject only to removal of the
cause to the federal courts in cases where the latter have jurisdiction.
The Nature of the Court Proceedings.
While the word “suit” was used above in speaking of the court
proceedings, it was without any intention of prejudicing the ques-
tion of whether the court proceedings on an adverse claim are actions
at law or suits in equity. The determination of that question settles the
matter of the right to jury trial.°°
The Supreme Court of the United States has taken the sensible
ground that where the plaintiff is out of possession the proper action
is ejectment, but that where the plaintiff is in possession the proper
suit is one in equity to quiet title.®t Under this view a jury trial
could be demanded of right in ejectment, but need not be granted in
the suit to quiet title? While the state statute may permit a person
57 SHOSHONE MINING CO. v. RUTTER, 177 U_ 8. 505, 20 Sup. Ct. 726,
44 L. Ed. 864. See Blackburn v. Portland Gold Min. Co., 175 U. S. 571, 20
Sup. Ct. 222, 44 L. Ed. 276; Mountain View Min. & Mill. Co. v. McFadden,
180 U. S. 533, 21 Sup. Ct. 488, 45 L. Ed. 656.
58 Blackburn v. Portland Gold Min. Co., 175 U. 8S. 571, 20 Sup. Ct. 222,
44 L. Ed. 276.
59 See 2 Lindley on Mines (2d Ed.) § 747.
60 Where the suit is in equity, there need be no jury (PEREGO v. DODGE,
163 U. S. 160, 16 Sup. Ct. 971, 41 L. Ed. 118; Mares v. Dillon, 30 Mont. 117,
75 Pac. 968), unless, of course, the state statutes or Constitutions give the
right to one.
61 PEREGO v. DODGE, 163 U. 8S. 160, 16 Sup. Ct. 971, 41 L. Ed. 113;
Allen v. Myers, 1 Alaska, 114. See Davidson v. Calkins (C. C.) 92 Fed. 230;
Young v Golsteen (D. C.) 97 Fed. 303; Wolverton v. Nichols, 5 Mont. 89,
2 Pac. 308; Milligan v. Savery, 6 Mont. 129, 9 Pac. 894. For a case where
living in a tent and working a shaft on one of several claims for the bene-
fit of all was held to constitute actual possession of all the claims, see Lange
y. Robinson, 148 Fed. 799, 79 C. C. A. 1.
62 PEREGO v. DODGH, supra. In so holding the court declared that
the amendment of 1881 to Rev. St. U. S. § 2326 (U. S. Comp. St. 1901, p.
376 ADVERSE PROCEEDINGS AND PROTESTS. (Ch. 19
out of possession to bring a suit in the nature of a suit to quiet title,
the fact that the plaintiff is out of possession would seem to make
the action so far the equivalent of ejectment as to give either party
the right to demand a jury trial.**
In a jurisdiction authorizing such a verdict, the right to a jury trial
is satisfied by a jury which renders a three-fourths verdict.**
Time in Which to Commence Court Proceedings. ;
By the federal statute the court proceedings must be commenced
within 30 days after the filing of the adverse claim,** and the land
department construes this to mean within 30 days after the adverse
claim is filed, even though it is rejected and an appeal from the rejec-
tion has to be taken.** The statute is mandatory. “There is no ex-
ception as to the claimant who may be beyond the seas, or under dis-
ability of any kind, or who may fail to act from inadvertence or oth-
er cause. The suit must be brought within the time specified, and it
must be prosecuted with reasonable diligence. The act says: ‘And
a failure so to do shall be a waiver of this adverse claim.’ This act
admits of no addition or modification from the statute of the state;
and where, as in this instance, the claimant commences suit in due time
and is cast in his suit, he is without remedy, except such as may be ob-
tained in the same suit on appeal or writ of error.” §7
While the statute is mandatory, the objection that the action was
not brought within 30 days after the filing of the adverse claim can-
not be raised by motion for judgment or by a motion to strike the
complaint from the files, but may be presented by answer or special
plea.** This includes demurrer.*® Moreover, when the defendant has
demurred, answered, and gone to trial, it is too late to raise the ob-
1430), that if neither party established title “the jury shall so find,” does
not require a jury in the suit to quiet title. See Mares vy. Dillon, 30 Mont.
117, 75 Pac. 963; Rutter v. Shoshone Min. Co. (C. C.) 75 Fed. 37.
63 Donahue v. Meister, 88 Cal. 121, 25 Pac. 1096, 22 Am. St. Rep. 283;
Landregan v. Peppin, 94 Cal. 465, 29 Pac. 771. But see Mares v. Dillon, 30
Mont. 117, 75 Pac. 963.
64 PROVIDENCE GOLD MIN. CO. v. BURKE, 6 Ariz. 828, 57 Pac. 641.
65 Rev St. U. S. § 2326 (U. s. Comp. St. 1901, p. 1480).
66 Scott v. Maloney, 22 Land Dec. Dep. Int. 274; DENISS v. SINNOTT.
35 Land Dec. Dep. Int. 304. :
87 STEVES vy. CARSON (©. C.) 42 Fed. 821. A suit begun on the 81st day
is too late. Madison Placer Claim, 35 Land Dec. Dep. Int. 551. It will not
do to try to avail one’s self of a suit started before the publication period.
Selma Oil Claim, 33 Land Dec. Dep. Int. 187.
88 PROVIDENCE GOLD MIN. CO. v. MARKS, 7 Ariz. 74, 60 Pac. 938.
89 STEVES v. CARSON (C. C.) 42 Fed. 821; Hopkins y. Butte Copper Co.,
29 Mont. 390, 74 Pac. 1081,
-§ 104) COURT PROCEEDINGS ON ADVERSE CLAIMS. 3877
jection that the adverse or the complaint was not filed within the time
required by the statute.7°
The time when the court proceeding will be-deemed commenced will
depend upon the rule governing in the court where it is started; **
and it may be so commenced although the adverse claim is set up by
supplemental complaint in an adverse suit already begun on a differ-
ent adverse claim.7?
The Parties and Pleadings.
The adverse claimant brings the suit against the applicant for pat-
ent, even though the latter has sold his interest before the suit is
brought.7 Probably he would be allowed to join as a defendant with
the applicant for patent the applicant’s grantee. Where several adverse
claimants conveyed to one of their number, it was held that the latter
could bring the adverse proceeding without joining the grantor adverse
claimants.7* Only those who have filed adverse claims can be.made
parties or intervene.’®
With reference to the pleadings it may be stated that the particular-
ity of allegation required varies in the different jurisdictions. The
plaintiff out of abundant caution should aver his citizenship or declara-
tion of intention to become a citizen,7® should name and describe the
70 RICHMOND MIN, CO. v. ROSE, 114 U. 8S. 576, 5 Sup. Ct. 1055, 29. L.
Ed. 273; Pennsylvania Min. Co. v. Bales, 18 Colo. App. 108, 70 Pac. 444;
Hain v. Mattes, 34 Colo. 345, 83 Pac. 127.
71 HARRIS v. HELENA GOLD MIN. CO. (Nev.) 92 Pac. 1. See Mars y.
Oro Fino Min. Co., 7 S. D. 605, 65 N. W. 19; Rose v. Richmond Min. Co.,
17 Nev. 25, 27 Pac. 1105.
72 Marshall Silver Min. Co. v. Kirtley, 12 Colo. 410, 21 Pac. 492; Jones v.
Pacific Dredging Co., 9 Idaho, 186, 72 Pac. 956.
73 BLACKBURN v. PORTLAND GOLD MIN. CoO., 175 U. 8S. 571, 20 Sup
Ct. 222, 44 L. Ed. 276. Compare Mackay vy. Fox, 121 Fed. 487, 57 C. ©. A.
439.
74 WILLITT v. BAKER (C. C.) 133 Fed. 937.
75 Mont Blanc Consol. Gravel Min. Co. v. Debour, 61 Cal. 364; Murray
yv. Polglase, 23 Mont. 401, 59 Pac. 439.
76 See SHHRLOCK v. LEIGHTON, 9 Wyo. 297, 63 Pac. 580, 934; ALLYN
vy. SCHULTZ, 5 Ariz. 152, 48 Pac. 960; Lee Doon v Tesh, 68 Cal. 48, 6
Pac. 97, 8 Pac. 621; Thomas v. Onisholm, 183 Colo. 105, 21 Pac. 1019; Keeler
y. Trueman, 15 Colo. 143, 25 Pac. 311; Rosenthal v. Ives, 2 Idaho. 265,
12 Pac. 904; Matlock v. Stone, 77 Ark. 195, 91 8S. W. 553. But see ALTOONA
QUICKSILVER MIN. CO. v. INTEGRAL QUICKSILVER MIN. CO., 114
Cal. 100, 45 Pac. 1047; McCarthy v. Speed, 11 8S. D. 362, 27 N. W. 590.
While the absence of proof of citizenship justifies the court in refusing a
judgment to one party to an adverse suit, the other party does not thereby
become entitled to judgment. SHERLOCK v. LEIGHTON, supra; SCHULTZ
y. ALLYN, supra; Girard v. Carson, 22 Colo. 345, 44 Pac. 508.
378 ADVERSE PROCEEDINGS AND PROTESTS. (Ch. 19
mining claim which he asserts to be his and the conflict area,*” should
assert the defendant’s wrongful claim to or possession of the con-
flict area, should allege the filing of the adverse within the 60 days’
publication?’ and the bringing of the suit within the 30 days after the
filing,”® and should set out the special damage alleged by the plain-
tiff. Anything else required by the local statutes or decisions should
be stated.8° In Arizona the plaintiffs must even allege and prove that
the ground in controversy is mineral land, and everything else re-
quired in the land department, and amendment to supply any material
allegation will not be allowed after the expiration of the 30-day peri-
od.8? In California, on the other hand, a complaint simply alleging
the ownership by plaintiff of his mining location and the claim by de-
fendant without right of an adverse interest has been held to allege
enough,®? while several jurisdictions have held that the complaint may
be amended after the expiration of the 30-day period.*? Any complaint
which under the state laws will enable the state court to determine the
title to the conflict area ought to be held sufficient, even if, as in the
case of Rough v. Simmons,** it contains the least possible essential
77 The complaint must contain such a description of the property as will
enable the court to determine to what extent, if at all, the claim of plain-
tiff conflicts with that of defendant. Cronin v. Bear Creek Gold Min. Co..
3 Idaho, 614, 32 Pac. 204; Smith v. Imperial Copper Co. (Ariz.) 89 Pac. 510.
78 THORNTON vy. KAUFMAN, 385 Mont. 181, 88 Pac. 796. See Matting-
ly v. Lewisohn, 13 Mont. 508, 33 Pac. 111; Cronin v. Bear Creek Gold Min.
Co., 3 Idaho, 614, 82 Pac. 204. But, contra, that this allegation is unneces-
sary, see Rawlings v. Casey, 19 Colo. App. 152, 73 Pac. 1090; HAIN y.
MATTES, 34 Colo. 345, 83 Pac. 127; Helbert v. Tatem, 34 Mont. 3, 85 Pac.
733.
79 A failure of plaintiff to allege that the suit was begun within the time
fixed by the United States statute is not jurisdictional, but can be taken
advantage of only by demurrer. Hopkins v. Butte Copper Co., 29 Mont. 390,
74 Pac. 1081. Or by answer or special plea. Providence Gold Min. Co. v.
Marks, 7 Ariz. 74, 60 Pac. 938. See Pennsylvania Min. Co. v. Bales, 18
Colo. App. 108, 70 Pae. 444.
80 See Jackson vy. McFall, 36 Colo. 119, S85 Pac. 638.
81 KEPPLER v. BECKER (Ariz.) 80 Pac. 334. See Phillips v. Smith
(Ariz.) 95 Pae. 91.
82 ROUGH v. SIMMONS, 65 Cal. 227, 3 Pac. 804. See Contreras v. Merck,
131 Cal. 211, 63 Pac. 336; Altoona Quicksilver Min. Co. vy. Integral Quick-
silver Min. Co., 114 Cal. 100, 45 Pac. 1047: Parley’s Park Silver Mining
Co. v. Kerr, 130 U. S. 256, 9 Sup. Ct. 511, 32 L. Ea. 906; Bennett v. Hark-
rader, 158 U. 8S. 441, 15 Sup. Ct. 863, 39 L. Ed. 1046; Durgan v. Redding
(C. C.) 103 Fed. 914; Tonopah Fraction Min. Co. vy. Douglass (C. C.) 123
Fed. 986. See, also, Rose v. Richmond Min. Co., 17 Ney. 25, 27 Pac. 1105,
where a state statute dispensed with further allegations.
83 DEENEY vy. MINERAL CREEK MILLING CO., 11 N. M. 279, 67 Pac.
724; WOODY v. HINDS, 30 Mont. 189, 76 Pac. 1.
8465 Cal. 227, 3 Pac. 804,
§ 104) COURT PROCEEDINGS ON ADVERSE CLAIMS. 379
allegations ;*® because all that Congress intended, namely, that the
right to the ground should actually be litigated in the proper court
in a proceeding begun in proper time and the result reported to the
land department, can be accomplished as well by such pleading as by
the more detailed. A careful lawyer will take no chances, however,
and in view of the confused state of the cases the only thing to do in a
jurisdiction which has not announced a rule is to conform to the
most rigid requiremént adopted outside of. Arizona. The Arizona
rule is too extreme to be followed in any jurisdiction where the matter
is not concluded by statute.
The answer of defendants, in addition to containing a denial of
the disputed allegation of the plaintiff's complaint,8* must set up
affirmatively the allegations showing his citizenship and title in him
to the conflict area. That is because by the statute, if neither party
establishes title to the ground in controversy, judgment to that effect
must be entered.§7 Because of that statute the defendant is also in
a way a plaintiff.**
The plaintiff in strictness should reply to defendant’s affirmative
allegations of ownership,®® and to his allegation of citizenship, if he
wants to controvert those allegations; but in one case, at least, it has
been held to be unnecessary to reply to the defendant’s allegations
of ownership.°° In any event, no reply will be necessary where by
85 Durell v. Abbott, 6 Wyo. 265, 44 Pac. 647; Gillis v. Downey, 85 Fed.
483, 29 C. C. A. 286. See Bennett v. Harkrader, 158 U. S. 441, 15 Sup. Ct.
863, 39 L. Ed. 1046. For a complaint held sufficient in Colorado, see Jack-
son v. McFall, 36 Colo. 119, 85 Pac. 638.
86 For what may be proven, under a general denial, see Holmes v. Sala-
manca Gold Min. & Mill. Co., 5 Cal. App. 659, 91 Pac. 160. A showing that
plaintiff’s location was made on ground embraced within a prior valid sub-
sisting location is held to be a bar to his recovery in HOBAN y. BOYER,
87 Colo. 185, 85 Pac. 837. But query, under LAVAGNINO vy. UHLIG, 198
U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119.
87Act March 3, 1881, c. 140, 21 Stat. 505, amending Rey. St. U. S. § 2326
(U. S. Comp. St. 1901, p. 1430). In Montana, under the old statute, a locator
of a mining claim, who had not filed a proper declaratory statement and who
had not actual possession, could not have judgment in an adverse suit, even
though the defendants had made no valid location. Hahn v. James, 29 Mont.
1, 73 Pac. 965.
88 BROWN y. GURNEY, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717;
Schroder v. Aden Gold Min, Co., 144 Cal. 628, 78 Pac. 20. In the code states °
the failure to file a counterclaim or cross-complaint will not prevent a
judgment that defendant is entitled to the conflict area, if only the answer
alleges facts showing that defendant should have affirmative relief. PERE-
GO v. DODGE, 9 Utah, 8, 33 Pac. 221.
89 Newman vy. Newton (C. C.) 14 Fed. 634. But see Quimby v. Bova, 8
Colo. 194, 6 Pac. 462.
90IBA y. CENTRAL ASS’N OF WYOMING, 5 Wyo. 355, 40 Pac. 527,
42 Pac. 20.
380 ADVERSE PROCEEDINGS AND PROTESTS. (Ch. 19
the state statute affirmative allegations in the answer are deemed to
be denied.
Where it appeared in an adverse suit that the adverse claimant
agreed before suit to convey the disputed premises to a third person,
who was in actual possession when the adverse suit was begun and at
the time of trial, it was nevertheless held that the adverse claimant
could prosecute the adverse suit to judgment, for the reason that he
was bound to quiet title for the third person, and the latter’s posses-
sion was a part of, and in subordination to, the claimant’s title.®*
One who has not filed an adverse claim cannot intervene in the ad-
verse suit.°?
If either party is relying on an abandonment, or forfeiture, and a
relocation, the pleading must be governed by the rules heretofore
discussed in the chapter on abandonment, forfeiture, and relocation.
The Trial.
The federal statute requires that the suit shall be prosecuted with
reasonable diligence to final judgment. What is reasonable diligence
is for the court where the adverse suit is pending to decide in that
suit, and is not for the land department to pass upon.®? ‘The trial
is governed by the same rules as any other trial affecting real property,
except that the citizenship of the parties is involved and that judgment
may be entered that neither party is entitled to the conflict area.°*
The rights of the adverse claimant have been held to be limited
to those existing at the time of the filing of his adverse.®® This
would seem, however, to include all rights acquired during the 60-day
period of publication of the patent application notice and capable of
proof under the adverse claim filed, but would not include a discovery
subsequent to that period.°*
On the trial the court is not concerned with defects in the adverse
91 WOLVERTON v. NICHOLS, 119 U. S. 485, 7 Sup. Ct. 289, 830 L. Ed. 474.
92MURRAY v. POLGLASE, 23 Mont. 401, 59 Pac. 439; Mont Blane
Consol. Gravel Min. Co. v. Debour, 61 Cal. 364.
98 Richmond Min. Co. v. Rose, 114 U. 8S. 576, 5 Sup. Ct. 1055, 29 L, Bd.
273; Bernard vy. Parmelee (Cal. App.) 92 Pac. G58; Davis vy. McDonald, 33
Land Dec. Dep. Int. 641. A dismissal of an adverse suit for failure to pros-
ecute it is as fatal to the suit as if the suit had never been started. KAN-
NAUGH v. QUARTETTE MIN. CO., 16 Colo. 341, 27 Pac. 245. See Bern-
ard v. Parmelee, supra.
94 Proof of citizenship must be by competent evidence, and not by affidavit.
Strickley v. Hill, 22 Utah, 257, 62 Pac. 893, 83 Am. St. Rep. 786. Each
party must rely on the strength of his own title, and not on the weakness
of that of his adversary. MURRAY HILL MIN. & MILL. CO. v. HAVE-
NOR, 24 Utah, 73, 66 Pac. 762.
95 HEALEY y. RUPP, 37 Colo. 25, 86 Pac. 1015. 961d,
§ 104) COURT PROCEEDINGS ON ADVERSE CLAIMS. 381
claim itself, as these are for the land department to pass upon.°? The
same is true of the question of the $500 expenditure on each claim.°*
Where the defendant’s location is prior in time to the plaintiff’s, the
court may cast on the plaintiff the burden of rebutting the prima facie
presumption that the location prior in time has the better right.°°
The court may grant a nonsuit just as in any other case;1°° but
the defendant must nevertheless make an affirmative showing, unless
he is willing to have the judgment show that title is in neither party.*°*
After the nonsuit the proceedings become ex parte, and the plaintiff
is not prejudiced by court rulings and instructions, if the nonsuit has
properly been granted.1°? The court, having obtained jurisdiction of
all parties, may grant full relief and restore possession to the party en-
titled thereto.1°? It is no objection to a judgment in the adverse suit
that it was based upon a stipulation of the parties, as it is for the
courts to determine the manner of ascertaining the facts.*°*
The Verdict.
The form of verdict depends wholly upon the local statutes and
decisions. Even under a state statute requiring the jury to find that the
party recovering the verdict was entitled to the possession of the prop-
97 QUIGLEY v. GILLETT, 101 Cal. 462, 35 Pac. 1040; ROSE v. RICH-
MOND MIN. CO., 17 Nev. 25, 27 Pac. 1105.
98 Stolp v. Treasury Gold Min. Co., 38 Wash. 619, 80 Pac. 817; WILSON
v. FREEMAN, 29 Mont. 470, 75 Pac. 84, 68 L. R. A. 833.
99 LOCKHART v. FARRELL, 31 Utah, 155, 86 Pac. 1077, 1080.
100 McWILLIAMS vy. WINSLOW, 34 Colo. 341, 82 Pac. 538; Lozar v. Neill
(Mont.) 96 Pac. 348. But see Iba v. Central Ass’n of Wyoming, 5 Wyo. 355,
40 Pac. 527, 42 Pac. 20. Unless plaintiff establishes that at the time of his
location the ground in controversy was unoccupied and unappropriated Jand
open to location, he runs the risk of a nonsuit. Lozar vy. Neill, supra;
Moffatt v. Blue River Gold Excavating Co., 33 Colo. 142, 80 Pac. 189. For
a complaint held to contain a sufficient allegation of the matter even under
the strict Arizona rule, see Phillips v. Smith (Ariz.) 95 Pac. 91.
101 KIRK v. MELDRUM, 28 Colo. 453, 65 Pac. 6338. See Willitt v. Baker
(C. C.) 183 Fed. 937; Moffatt v. Blue River Gold Excavating Co., 33 Colo.
142, 80 Pac. 189; McWilliams v. Winslow, 34 Colo. 341, 82 Pac. 538; Lozar
v. Neill (Mont.) 96 Pac. 343.
102 MOFFATT v. BLUE RIVER GOLD EXCAVATING CO., 33 Colo. 142,
80 Pac. 139; Lozar v. Neill (Mont.) 96 Pac. 843. Where the adverse claim-
ant has waived his claim by failing to introduce any evidence, he is not
entitled to insist on a view of the premises by the jury. CONNOLLY vy.
HUGHES, 18 Colo. App. 372, 71 Pac. 681. Where he does not show that
he has any right whatever to the ground in question, he is not entitled to
insist that the applicant’s declaratory statement is insufficient. Milwaukee
Gold Fxtraction Co. v. Gordon (Mont.) 95 Pac. 995.
103 Silver City Gold & Silver Min. Co. v. Lowry, 19 Utah, 334, 57 Pace, 11.
104 Barney v. Conway, 29 Land Dec. Dep. Int. 388.
382 ADVERSE PROCEEDINGS AND PROTESTS. (Ch. 19
erty, or some part of it, or of some undivided share or interest in ei-
ther, and to find the nature and duration of the interest, a general ver-
dict for plaintiff on a complaint which alleges that the plaintiff is
entitled to the possession of certain described property, which is unlaw-
fully detained by the defendant, and the possession of which the
plaintiff prays to recover, is held by the United States Supreme Court
to be sufficient.1°9° It is, however, the general practice in adverse
cases to get a special verdict in jury trials, and specific findings of
fact in trials to the court, and various state decisions, still unreversed,
declare special verdicts to be necessary.1°* The argument of these
state decisions is that the act of March 3, 1881, requiring the jury
to find that neither party was entitled, if such should be the fact, com-
pels the finding of a special verdict, so as to make sure that the jury
did not regard the contest as simply one of the better right between
the litigants, rather than, what it really is, one of the better right both
between the litigants and as against the United States.1°7 The ar-
gument does not seem to be sound, however, since, if the verdict does
not state that neither party is entitled and ‘does find for one party, the
necessary conclusion is that such party is entitled.1°® Nevertheless
the safe thing to do is to take in each case a special verdict. In a prop-
er case the jury may apportion the disputed ground between the par-
ties,2°°
Final Judgment.
Judgment follows upon verdict as in other cases. At what time the
judgment becomes final for land office purposes is in some doubt, as is
also the question of the effect of an appeal without a stay of proceed-
ings. By the terms of the statute the judgment must be “final” to
justify further land office proceedings, and “it is probably true that
the filing of the judgment roll would not entitle the claimant to a pat-
ent under the United States statute, in the face of evidence that an ap-
105 BENNETT v. HARKRADER, 158 U. S. 441, 15 Sup. Ct. 863, 39 L.
Ed. 1046. See Colorado Cent. Consol. Min. Co. v. Turck, 50 Fed. 888, 2
C. C. A. 67.
106 Burke vy. McDonald, 2 Idaho, 679, 33 Pac. 49; Manning vy. Strehlow,
11 Colo. 451, 18 Pac. 625.
107 BURKE y. McDONALD, supra. The United States is a quasi party,
of course, to every adverse suit. WILSON v. FREEMAN, 29 Mont. 470,
75 Pac. 84, 68 L. R. A. 833. But only so far that it has agreed to accept the
judgment rendered in such suit as conclusive of the right of possession as
between the contending claimants. Butte Land & Investment Co. y. Mer-
riman, 22 Mont. 402, 80 Pac. 675, 108 Am. St. Rep. 590.
108 But see McGinnis v. Egbert, 8 Colo. 41, 5 Pac. 652.
109 Currency Min. Co. v. Bentley, 10 Colo. App. 271, 50 Pac. 920.
§ 105) RELATION OF DEPARTMENT THERETO. 383
peal had been taken, or was being taken, or that proceedings for a
new trial were pending.” 11°
When the time for appeal has passed, and none has been taken, it
would seem that the judgment is unquestionably final; but it would
also seem as if the taking of an appeal without a stay of proceedings
should keep the land office from taking action pending the appeal.
The final judgment may be entered by consent in compromise of
the parties’ rights.114
THE RELATION OF THE LAND DEPARTMENT TO THE COURT
ADVERSE PROCEEDINGS.
105. Pending the determination of the court proceedings the land
department stays all steps in the application for patent, ex-
cept the completion of the posting and publication of notices,
the posting of plats, and the filing of the necessary proofs of
both.
If the court proceedings are not begun, a certificate to that effect is
obtained, and the patent application proceeds as in the case
of no adverse.
If the court proceedings are begun, and end by giving the whole
conflict area to the applicant for patent, he simply files in the
land office a certified copy of the judgment roll, and the pat-
ent application proceeds as if no adverse had been filed.
If, however, part or all of the conflict area is awarded to the adverse
claimant, that part is excluded from the application and will
be patented to the adverse claimant without the necessity of
posting and publication on his part, if he complies with the
land department’s rules.
Where the court’s judgment is that neither party is entitled, the
filing of the certified copy of the judgment roll ends the ap-
plication.
110 See DOON v. TESCH, 131 Cal. 406, 408, 63 Pac. 764. There the mo-
tion for new trial was pending 12 years.
111 ‘Where the suit is compromised, if there is only one adverse, it is
more convenient to dismiss the suit, taking deed or bond for deed from the
applicant. In such case, upon filing certificate of dismissal, the original sur-
vey goes to patent without further complications, and the defendant can
convey after entry according to the terms of settlement. But in all this
class of cases, and especially where there are two or more adverses, legal
counsel should be taken. A settlement between the applicant and one ad-
verser cannot bind a second adverser. There may be questions of retaining
end lines, or the discovery shaft, or patent improvements; and it may be
very material, as affecting extralateral rights or on the issue of priority,
as to which lode had best take the patented title.” Morrison’s Mining Rights
(138th Ed.) 494. For an instance of difficulties arising from such a com-
promise, see St. Louis Min. & Mill. Co. v. Montana Min. Co., 171 U. S. 650,
384 ADVERSE PROCEEDINGS AND PROTESTS. (Ch. 19
Upon the filing of the adverse claim in the land office the register
or receiver indorses upon the same the precise date of filing.*** He
also notifies both parties of the filing of the adverse, and preserves a
record of such notifications.122 Thereafter, so far as the land affected
by the adverse is concerned, all proceedings on the application for
patent, with the exception of the completion of the publication, the
posting of notices, and of the posting of plats and the filing of the
necessary proofs thereof, are suspended until the controversy is adjudi-
cated in court or the adverse claim is waived or withdrawn.*** It
is customary for the adverse claimant to obtain from the clerk of the
court where the adverse suit is started, and to file in the land office, a
certificate that the suit has been commenced; but that seems not to be
needed, because, unless, after the 30 days allowed the adverse claimant,
the applicant gets a certificate from the clerk that no suit has been
begun,??® or that one begun has been dismissed,**® the patent pro-
ceedings remain stayed.
The land office, as we have seen, cannot pass on the question wheth-
er the suit is being prosecuted with reasonable diligence.*1*7 It must
act upon certificates from the clerk of the court, and if a certificate
of no suit pending is furnished because of a default, and the court
later sets aside the default and reinstates the cause, a new certifi-
cate to that effect will bind the land office.12* A receiver’s receipt is-
sued pending the adverse suit is issued without jurisdiction and is
void; +7® but one whose adverse suit has been dismissed cannot be al-
lowed to contend that the patent issued after such a void receipt is al-
so void.1?° s
19 Sup. Ct. 61, 43 L. Ed. 320; Montana Min. Co. v. St. Louis Mining &
Milling Co., 204 U. S. 204, 27 Sup. Ct. 254, 51 L. Ed. 444.
112 Land Office Regulations, rule 84.
118 Land Office Regulations, rules 83 and 84.
114 Land Office Regulations, rule 84. If, pending the adverse suit, the
applicant obtains a patent for the part of the location not in dispute, he
does not waive his rights as to the part in litigation. Fox v. Mackay, 1
Alaska, 329; MACKAY vy. FOX, 121 Fed. 487, 57 CG. ©. A. 439. Permitting him
to do so was questioned in LAST CHANCE MIN. ©O. y. TYLER MIN. Co.,
157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859.
115 Land Office Regulations, rule 88.
116 Land Office Regulations, rule 86.
117 RICHMOND MIN. CO. v. ROSE, 114 U. §. 576, 5 L . 1055,.
L. Ed. 273; Davis v. McDonald, 33 Land Dec. Dep. Int. aa i
118 Iola Lode Case, 1 Land Dec. Dep. Int. (Rev. Ea. :
Hyman (C. ©.) 25 Fed. 539. DS ES
119 Deeney v. Mineral Creek Milling Co., 11 N. M. 279, 67 Pac, 724.
120 DENO vy. GRIFFIN, 20 Nev. 249, 20 Pac. 308. But see Rose vy. Rich-
mond Min. Co., 17 Ney. 25, 27 Pac. 1105.
§ 105) ° RELATION OF DEPARTMENT THERETO. 385
When the adverse suit reaches final judgment, it will not be suffi-
cient to file with the register a certificate of the clerk of the court,
setting forth the facts as to such judgment; but before the success-
ful party will be allowed to make entry he must file a certified copy
of the judgment roll.124_ If the judgment is in favor of the applicant
for patent (the defendant in the adverse suit) for the whole conflict
area, he need file, in addition to the papers regularly required of an
applicant, nothing but the copy of the judgment roll. If the judgment
is in favor of the adverse claimant as to all or part of the conflict
area, he may rest content with filing the certified copy of the judgment
roll and getting the conflict area awarded to him excluded from the
patent, or he may ask that it be patented to him. If he seeks to patent
the conflict area, he may do so without posting or publishing a notice
of application, and hence without the risk of an adverse; ¢ but to do so
he must “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 improve-
ments made thereon, and the description required in all other cases,
and shall pay to the receiver five dollars per acre for his claim, to-
gether with the proper fees.” 12?
Where the adverse claimant seeks to patent, also, ground not in con-
flict, and that is the usual case, he must proceed as to other than the
conflict area in precisely the same way as any other original ap-
plicant.*?°
Where the judgment is that neither party has established a right
of possession, the adverse claimant files the certified copy of the judg-
ment roll in the land office and ends the patent application. The
land thereupon is subject to relocation by either party or by others.1?#
By such a judgment the patent proceedings are ended, and entry can-
not be had, except on the prosecution by a qualified applicant of a new
patent proceeding.**®
121 Land Office Regulations, rule 85; Silver King Lode, 14 Land Dec. Dep.
Int. 308.
{That is, without the risk of adverse claims not already filed,
122 Rey. St. U. S. § 2326 (U. S. Comp. St. 1901, p. 1430); Woods v. Holden,
27 Land Dec. Dep. Int. 375.
123 Where pending the adverse proceedings, the adverse claimant patents
all of his location except the part in conflict, he does not thereby waive his
adverse claim. MACKAY vy. FOX, 121 Fed. 487, 57 C. C. A. 439. If suc-
cessful in the adverse proceedings, he simply proceeds to patent the conflict
area by itself.
124 LAUMAN v. HOOFER, 37 Wash. 382, 79 Pac. 953.
125 Brien v. Moffitt, 35 Land Dec. Dep. Int. 32.
Cost. M1n.L.—25
386 ADVERSE PROCEEDINGS AND PROTESTS, (Ch. 19
PROTESTS.
106. A protest, unlike an adverse, is an objection made, not to ac-
quire title for the objector, but to prevent the applicant
for patent from getting title because of some fatal defect,
and a protest will not lie where an adverse claim was proper.
A protestant is in the nature of an amicus curiz.
By the express provision of the federal statutes the fact that no ad-
verse claim is filed carries with it the assumption that none 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”;12° the chapter being the
collected mining law provisions of the Revised Statutes.
Who may Protest.
A protest may be filed, at any time prior to the issuance of patent,
by any person who alleges a state of facts which should prevent the
issuance of a patent.1?7. A protestant who makes no claim to the prop-
erty sought to be patented, nor to any part of it, is in the position of an
amicus curiz.1?® Such a one does not have the right of appeal,??°
however, and in consequence, if the protestant does claim an interest
in the property, it is desirable that he should state in his protest what
that interest is, so as to get all possible rights of appeal.t*° The
protestant can acquire no title through the protest, unless the protest
is based on the ground that he is a co-owner excluded from the patent
application; for a judgment of the land department rejecting an ap-
plication for patent as a result of a protest “is in effect one of non-
suit, and therefore not upon the merits,” where “the rights of the
protestants were neither involved nor adjudicated.” 134+ But, if the
126 Rey. St. U. 8. § 2325 (U. S. Comp. St. 1901, p. 1429).
127 Land Office Regulations, rule 53.
128 BEALS v. CONE, 27 Colo. 473, 62 Pac. 948, 88 Am. St. Rep. 92. See
WIGHT v. DUBOIS (C. C.) 21 Fed. 693, 696.
129 BRIGHT v. ELKHORN MIN. CO., 8 Land Dec. Dep. Int. 122; Dot-
son v. Arnold, 8 Land Dec. Dep. Int. 489.
130 Nevada Lode, 16 Land Dec. Dep. Int. 532; Opie v. Auburn Milling
Co., 29 Land Dec. Dep. Int. 230. The protestant cannot appeal, if his location
was made only after protest filed, nor unless his interest is in a surface
conflict. SMUGGLER MINING CO. v. TRUEWORTHY, 19 Land Dec. Dep.
Int. 856; New York Hill Co. v. Rocky Bar Co., 6 Land Dec. Dep. Int. 318.
131 BEALS v. CONE, 27 Colo. 478, 62 Pac. 948, 951, 88 Am. St. Rep. 92.
“The fair inference from these rulings [of the Secretary of the Interior]
is that the judgment of the department rejecting the application for patent,
and nothing more, leaves the applicant with the same right as though no
application had been made.” Id.
§ 106) PROTESTS. 387
protest is sustained on some ground which compels the applicant to
post and publish anew, the protestant will then be entitled to file and
prosecute any adverse claim he may have. One who should have ad-
versed, but who has lost his rights by failure to do so in time, may
protest, in the hope thereby of getting another chance to adverse, or
of defeating the application altogether.1%?
A co-owner excluded from the application for patent may protest
under the land office rules;?%* but that is because the land depart-
ment believes that he cannot adverse, and the co-owner case fur-
nishes the one exception to the rule that by protest one cannot affect
or share in the title actually issued in the patent proceedings. Except
in the case of an excluded co-owner, the office of a protest is to show
that the land claimed is not the kind it is represented to be, or that
the applicant has failed to comply with the law in a matter which
would avoid the claim. Protest would be proper where the applicant
is an alien, or is applying for a patent for a mill site which is in fact
on mineral land, or is seeking to patent as mineral ground which is
nonmineral,*** or has failed in a substantial particular in the perfection
of his location, or has failed to make the $500 expenditure required
for patent, or has neglected to comply with the statutes and depart-
mental rules in regard to posting or publishing the notices of applica-
tion for patent, or has been guilty of inexcusable delay in prosecuting
his application to completion, or is seeking to acquire title to mineral
ground for purposes or uses foreign to those of mining or the develop-
ment of minerals.t
182 “Such an objector appears aS an amicus curise—a friend of the court—
to suggest that there has been error and that the proceedings be stayed until
further examination can be had. Such a protest does not bring the protest-
ant into court for the assertion of his own title or rights—does not revivify
rights lost by a failure to adverse. True, if the protest or objection is sus-
tained, the proceedings will be set aside, new ones must be commenced, and
then the objector may be in a position to assert his rights; but, if the protest
or objection be not sustained, the objector, like an amicus curiz, has nothing
more to say in the matter. In other words, the right to protest is not the right
to contest. The latter is lost by the failure to adverse. The former remains
open to every one, holders of adverse claims as well as others.” Brewer, J.,
in WIGHT v. DUBOIS (C. C.) 21 Fed. 698, 696.
133 Land Office Regulations, rule 538. See Thomas y. Elling, 25 Land Dec.
Dep. Int. 495. In the Golden and Cord Lode Mining Claims, 31 Land Dec. Dep.
Int. 178, where the co-owner was deemed improperly excluded, the applicant
was given his election to amend his application to include the co-owner or to
have his entry canceled.
134 German Ins. Co. v. Hayden, 21 Colo. 127, 40 Pac. 453, 52 Am. St. Rep.
206; LE FEVRE v. AMONSAN, 11 Idaho, 45, 81 Pac. 71.
+Grand Canyon Ry. Co. v. Cameron, 36 Land Dec. Dep. Int. 66.
388 ADVERSE PROCEEDINGS AND PROTESTS. (Ch. 19
No Protest Where Adverse Proper.
In the case of a protest the first question asked is, was this prop-
erly the subject of an adverse? If it was, then no protest will lie;
for the departmental rule provides that “such protest cannot, how-
ever, be made the means of preserving a surface conflict lost by failure
to adverse, or lost by the judgment of the court in an adverse suit.” *9°
It is because of the last rule that the significance of the doctrine of
protest has apparently been greatly increased by the case of Lavagnino
v. Uhlig.18® It has long been a departmental holding that a protest
by a senior locator against a junior cannot be maintained, even though
the protestant alleges and can prove that the sole discovery of the
junior claim was within the senior boundaries,1®7 yet the uniform hold-
ing of the courts has been that such a second location is void. Lavag-
nino v. Uhlig decided that where a valid junior location overlaps a
senior, and the senior is abandoned or forfeited, the conflict area in-
ures to the junior location without the necessity of any further acts
by the junior locator. We have heretofore noticed that this does not
necessarily mean that the senior locator cannot “resume work” under
the statute, but that it is possible that it does mean that, if the junior
ground is not located by others prior to the abandonment or forfeiture
of the senior location, the senior ground would inure to a junior loca-
tion, even where there is no discovery to support the junior other than
that found on the conflict area.13®
Unless, therefore, the land department changes its ruling as to pro-
test in such cases, or is forced by the United States Supreme Court to
change it, the logical outcome of Lavagnino v. Uhlig would seem to be
to validate locations based on a discovery within the limits of an exist-
ing claim; such locations to become invalid only upon the location
of junior ground by other locators prior to the abandonment or for-
feiture of the senior, or upon the patenting by the senior location of
the discovery of the junior.1*® The reason why that is the logical out-
come of Lavagnino v. Uhlig is that the latter case is based expressly
upon the fact that, unless the senior locator adverses the junior locator’s
application, the junior will get patent. Under the present land de-
135 Land Office Regulations, rule 53.
136198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119.
187 Goudy v. Kismet Gold Min. Co., 22 Land Dec. Dep. Int. 624; American
Consol. Min. & Mill. Co. v. De Witt, ‘26 Land Dec. Dep. Int. 580; MUTUAL
MINING & MILLING CO. v. CURRENCY CO., 27 Land Dee. Dep. Int. 191;
BURNSIDE v. O’CONNOR, 80 Land Dee. Dep. Int. 67.
138 But see LOOKHART v. FARRELL, 31 Utah, 155, 86 Pac. 1077 (reversed
on other grounds in Farrell v. Lockhart, 210 U. S. 142, 28 Sup. Ct. 681, 52 L.
Ed. —.).
139 Gwillim v. Donnellan, 115 U. S. 45, 5 Sup. Ct. 1110, 29 L. Bd. 348.
§ 106) PROTESTS. 389
partment rulings that is no more certain in the situation presented by
Lavagnino v. Uhlig than it is in the situation of a junior location based
upon a discovery wholly within a senior location’s boundaries.1*°
Despite Lavagnino v. Uhlig, the United States Supreme Court may
yet say (if it has not already done so in Farrell v. Lockhartt) that
where a junior location is based solely upon a discovery within senior
ground a relocator of ground embraced in the junior location is en-
titled to adverse the junior’s application for patent. The Utah Su-
preme Court did declare that doctrine,t4? and the Supreme Court of
the United States seems to recognize its validity in the absence of an
abandonment by the senior locator prior to the junior location.** But
it is believed that Lavagnino v. Uhlig holds to the sounder doctrine.
With the qualifications that prior to the abandonment or forfeiture
140 The brief of counsel for the plaintiff in error in the case of Farrell v.
Lockhart, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —, points out that the
record in Lavagnino v. Uhlig, 198 U. S. 448, 25 Sup. Ct. 716, 49 L. Ed. 1119,
discloses that the junior location in that case was based on a discovery in the
senior locator’s ground.
$210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —.
141 LOCKHART vy. FARRELL, 31 Utah, 155, 86 Pac. 1077. With all defer-
ence, the argument of the Utah court that the decision is controlled by the
Indian reservation case of Kendall v. San Juan Silver Min. Co., 144 U. S. 658,
12 Sup. Ct. 779, 36 L. Ed. 583, cannot be accepted. The reasoning in LAVAG-
NINO v. UHLIG could by no possibility extend to the Indian reservation case.
The Utah case is, however, to be supported under Messrs. Morrison and De
Soto’s test, namely: “That where a defect exists which is a matter of pub-
lic interest, and which shows that the applicant has not proceeded regularly
as to the United States, or as to the entire body of prospectors, who are en-
titled to see that all are required to proceed under like restrictions, a protest
will be considered; but where the point is one of interest only as between the
applicant and the protestant, or as between the applicant and a third party,
who is not complaining, the protestant cannot by his protest claim the right to
litigate in this form what he should have contested by adverse.” Morrison’s
Mining Rights (13th Ed.) 497. But Messrs. Morrison and De Soto’s test is not
the one which the land department applies. See cases cited in note 137. su-
pra. The Utah court would also seem to be mistaken in regarding BROWN y.
GURNEY, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Hd. 717, as controlling the de-
cision of LOCKHART v. FARRELL. See the discussion of BROWN v. GUR-
NEY in chapter XVII, supra.
*t Barrell v. Lockhart, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Bd. —. In
Montague v. Labay, 2 Alaska, 575, the court declared that the doctrine of
LAVAGNINO v. UHLIG, 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119, must
be restricted to the case of an adverse proceeding contest between a locator
and the junior of two prior locators; and in Dufresne v. Northern Light Min-
ing Co., 2 Alaska, 592, the court apparently repudiated LAVAGNINO v. UH-
LIG entirely—a repudiation which the case of FARRELL v. LOCKHART,
supra, unfortunately seems to justify. It is to be hoped that the Supreme
Court of the United States will return to the sound doctrine of LAVAGNINO
v. UHLIG.
390 ADVERSE PROCEEDINGS AND PROTESTS. (Ch. 19
of the senior claim the nonconflicting ground embraced in an attempted
location which is based on a discovery within the limits of the senior
claim may be taken by valid locations by others, and that the junior
locator must diligently look after his claimtft or be deemed to have
abandoned it, there seems to be no rational reason why the junior
location may not be validated by the abandonment or forfeiture of the
senior. That is because by such abandonment or forfeiture the junior
discovery becomes a discovery on land not any longer embraced in a
prior location and perfects the junior location by relation. It is be-
lieved that if no rights of third persons intervene before the abandon-
ment or forfeiture of the senior location, and the junior locator dili-
ently keeps up his annual labor, the so-called void junior location
should be validated by such abandonment or forfeiture of the senior,
and that ultimately the Supreme Court of the United States will so
hold.
In view of the case of Farrell v. Lockhart,1*2 however, a cautious
miner will make in every case a complete relocation of ground which
he has attempted to locate on a discovery within a prior claim, and
which, because the prior claim has been abandoned or is subject to
forfeiture, he can now acquire. He should do so anyhow, because
even under Lavagnino v. Uhlig the right of the senior claimant to
priority over the junior claim could probably be restored by resump-
tion of work prior to relocation by amendment or otherwise,'*® and a
prudent miner would want to end that possibility.
Even in a case where neither adverse nor protest is filed, the Com-
missioner of the General Land Office may of his own motion cancel
an entry for failure of the applicant to comply with some statute or
with some rule of the department.*** An unsuccessful protest made
after entry does not, however, give the protestants any basis for a
suit in equity to annul the patent issued, nor any ground to charge
the patentee as trustee.**®
+t Diligence on his part is a land department test. Adams v. Polglase, 32
Land Dec. Dep. Int. 477, 33 Land Dec. Dep. Int. 30.
142 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. —.
143 See OSCAMP v. CRYSTAL RIVER MIN. CoO., 58 Fed. 293, 7 C. C. A.
233.
144 MINERAL FARM MIN. CO. v. BARRICK, 33 Colo. 410, 80 Pac. 1055.
The rejection of an application for patent for a placer because the applicant
failed to show that the ground was valuable for mining purposes or that he
made the requisite improvements is not a decision that the ground is not plac-
er ground, and is not res judicata in action between the applicant for placer
patent and a subsequent lode claim locator. Clipper Min. Co. v. Eli Mining
& Land Co., 29 Colo. 377, 68 Pac. 286, 64 L. R. A. 209, 93 Am. St. Rep. 89.
145 Neilson vy. Champaign Min. & Mill. Co., 119 Fed. 123, 55 C. C. A. 576.
§ 106) PROTESTS. 391
With reference to protest it should be remembered that the dis-
missal of an application for patent because of a protest leaves the ap-
plicant with his possessory title unimpaired if he has kept up his
annual labor.1#° If he has not kept up the annual labor, and the
application is dismissed for his laches, the applicant, on renewing his
application, may be confronted by an adverse claim made by a re-
locator.*47
But where the applicant for patent delayed entry, and a relocation for failure
to do the annual labor took place, the patentee was held a trustee for the re-
locator, in South End Mining Co. v. Tinney, 22 Nev. 19, 35 Pac. 89.
146 McGowan y. Alps Consol. Min. Co., 23 Land Dee. Dep. Int. 113; Clipper
Min. Co. 22 Land Dec. Dep. Int. 527.
147 P, Wolenberg, 29 Land Dec. Dep. Int. 302; Barklage v. Russell, 29 Land
Dec. Dep. Int. 401; Cleveland v. Eureka No. 1 Gold Mining & Milling Co., 31
Land Dec. Dep. Int. 69; Lucky Find Placer Claim, 82 Land Dec. Dep. Int. 200.
392 PATENTS, (Ch. 20
CHAPTER XX.
PATENTS.
107. Nature of a Patent.
108. Advantages of Patent.
109. Effect of Patent of Placer on Known Lodes in the Placer.
110. Direct Attacks on Patents.
111. Patentees as Trustees.
112. The Doctrine of Relation.
NATURE OF A PATENT.
107. A patent is both a judgment in rem of the quasi judicial land
department and a conveyance of title by the United States
to the patentee. If within the jurisdiction of the land de-
partment to issue and valid on its face, a patent is not sub-
ject to collateral attack.
A patent is the conveyance executed by the United States which
passes to the applicant the legal fee-simple title to the land.* In still
another aspect, however, because it is the culmination of the patent
proceedings, it is a final judgment in rem rendered by that quasi
judicial tribunal, the land department. The exact way to state it seems
to be that it is a judgment which is self-executing as respects title, and
therefore is both a judgment and a conveyance.’
Conclusiveness of Patent.
Because of the patent’s character as a judgment in rem rendered
on the default, or after the judicial defeat, of all adverse claimants,
the patentee takes free from the claims of all who are not specifically
protected under the public land acts. All adverse claimants who must
1STEEL v. ST. LOUIS SMELTING & REFINING CO., 106 U. S. 447, 1
Sup. Ct. 389, 27 L. Ed. 226. The result is that, with the possible exception of cases where
the end lines converge on the dip, parallelism of end lines is essential
53 Rev. St. U. S. § 2320 (U. S. Comp. St. 1901, p. 1424).
54 Rey. St. U. S. § 2322 (U. S. Comp. St. 1901, p. 1425).
55 DEL MONTE MINING & MILLING CO. v. LAST CHANCE MINING
& MILLING CO., 171 U. S. 55, 18 Sup. Ct. 55, 438 L. E@ 72. To give extra-
lateral rights, the end lines, in addition to being parallel, “must be straight
Jines, not broken or curved ones” WALRATH v. CHAMPION MIN. CO., 171
U. S. 298, 311, 18 Sup. Ct. 909, 43 L. Ed. 170.
§ 118a) FXTRALATERAL RIGHTS UNDER ACT OF 1872. 419
to the right of the locator or patentee to follow his vein outside of the
common-law limits of his claim. The claim itself is valid if the end
lines are not parallel; but in such case it has not the extralateral right
feature.°° It is enough to give extralateral rights if the end lines are
substantially parallel,°7 and it seems that the lines of the location
may be changed and proper record made, so as to acquire extralateral
rights, even though prior to the change the adjoining ground is locat-
ed.°* It is well settled that a locator may project his lines over a pre-
vious location in order to make them parallel for extralateral right
purposes, provided in doing so he does not have to make forcible en-
try.°° Such change of lines may be made even after patent applied
for.°° The right of a locator or patentee to veins which do not apex
within the boundary lines of his location is, therefore, one which a
relocation of the ground containing the apex or an amendment of
the apex location may defeat under circumstances like those just con-
sidered. It has been held that where a patent describes the claim as
having parallel end lines, and expressly grants extralateral rights, it
cannot be shown, to defeat extralateral rights, that the end lines were
not in fact parallel; °! but since the act of April 28, 1904,°? at least, it
would seem to be clear that the monuments on the ground must control.
The end lines are not expressly required to be of any given length, but
56IRON SILVER MIN. CO. v. ELGIN MINING & SMELTING CoO., 118
U. S. 196, 6 Sup. Ct. 1177, 830 L. Ed. 98; Montana Co, v. Clark, 42 Fed. 626.
“There is liberty of surface form under Act May 10, 1872, ¢. 152, 17 Stat.
91." Walrath v. Champion Min. Co., 171 U. S. 293, 312, 18 Sup. Ct. 909, 43
L. Ed. 170. The notion announced in the EHureka Case, 4 Sawy. (U. 8.) 302,
Fed. Cas. No. 4,548, and supported by Horswell v. Ruiz, 67 Cal. 111, 7 Pac.
197 (compare, also, Doe v. Sanger, 88 Cal. 203, 23 Pac. 365), that the re-
quirement of parallelisin ‘“‘is merely directory, and no consequence is attached
to a deviation from its direction,’ is erroneous so far as extralateral rights
are concerned, but it is perfectly true as regards intralimital rights.
67 CLIEESMAN vy. SHREVE (C. C.) 40 Fed. 787, 792; DOE v. SANGER,
83 Cal. 203, 23 Pac. 365. See McHlligott v. Krogh, 151 Cal. 126, 90 Vac, 823.
But for the correction of the location by making the end lines parallel, the
case of DOE v. SANGER would have furnished an erroneous application of
this principle; for the original end lines were far from being substantially
parallel.
658 DORN v. SANGER, supra.
58 Davis v. Shepherd, 31 Colo, 141. 72 Pae. 57; DEL MONTE MINING &
MILLING CGO. v. LAST CHANCE MINING & MILLING CO., 171 U. 8. 55,
18 Sup. Ct. 805, 43 L. Ed. 72.
60 Last Chance Min. Co. v. Tyler Min. Co., 61 Fed. 557, 9 C. O. A. 613;
Tyler Min. Co. v. Sweeney, 54 Fed. 284, 4 GC. C. A. 829; Doe v. Waterloo Min,
Co. (GC. C.) 54 Fed. 935.
61 Waterloo Min. Co. v. Doe, 82 Fed. 45, 276. C. A. 50.
6233 Stat. 545, « 1796 (U. S. Comp. St. Supp. 1907, p. 477).
420 SUBSURFACE RIGHTS. (Ch. 21
the land department declares that one less than three inches long can-
not be considered.**
For end lines to meet the test of parallelism required for extra-
lateral right purposes, they must be straight. They cannot be broken,
as in Figure No. 15, nor curved, as in Figure No. 16.*
FIGURE No. 15. FIGURE No. 16.
DISCOVERY YEIN
DISCOVERY VEIN
7
The dictum to this effect in Walrath v. Champion Min. Co. is based
on the common-sense doctrine that it is impossible to extend such
lines in their own direction to fix satisfactory extralateral right bound-
ing planes. When it is said that end lines must be parallel to give ex-
tralateral rights, it must not be forgotten that where the location is
laid across, instead of along, the strike, the side lines become for ex-
tralateral right purposes the end lines.* What this means will be
considered later.
Convergence on the Dip.
The one possible case under the act of 1872 where there may be
extralateral rights, even though the end lines are not parallel, is where,
as in Figure No. 13, supra, those end lines converge on the dip.**
63 “The department is of opinion that a line less than three inches in
length is not within the spirit or intent of the statute. The end lines, re-
quired in all cases to be parallel to each other, are important features of
a vein or lode location, and the statute clearly contemplates that such lines
shall have substantial existence in fact, and in length shall reasonably com-
port with the width of the claim as located.” Jack Pot Lode Min. Claim, 34
Land Dec. Dep. Int. 470, 471. The other end line was over 800 feet long, and
the claim in consequence was excessive. Id. For a similar case, see Bellig-
erent and Other Lode Mining Claims, 35 Land Dec. Dep. Int. 22.
* WALRATH vy. CHAMPION MIN. CO., 171 U. S. 298, 311, 18 Sup. Ct.
909, 43 L. Ed. 170.
64 TLAGSTAFF SILVER MIN. CO. OF UTAH v. TARBET, 98 U. S. 463,
25 L. Ed. 253; ARGENTINE MIN. CO. v. TERRIBLE MIN. CO., 122 U.
S. 478, 7 Sup. Ct. 1856, 30 L. Ed. 1140; KING v. AMY & SILVERSMITH
CONSOL. MIN. CO., 152 U. S. 222, 14 Sup. Ct. 510, 38 L. Ed. 419; Parrot
Silver & Copper Co. v. Heinze, 25 Mont. 1389, 64 Pac. 326, 53 L. R. A. 491, 87
Am. St. Rep. 386; Southern Nevada Gold & Silver Min. Co. v. Holmes Min.
Co., 27 Nev. 107, 73 Pac. 759, 103 Am. St. Rep. 759.
65 The giving of extralateral rights within fan-shaped end line planes
§ 118a) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 421
Mr. Lindley insists that the reasoning in favor of extralateral rights
where end lines converge on the dip is the same under the act of 1872
as under the act of 1866.°° The only reason, he says, why parallelism
of end lines is required is that more shall not be had of the dip than
can be claimed of the apex, and, “where the reason of the rule ceases,
the rule itself should cease.” °? Since the statutory requirement as
to end lines being parallel is not contained in the extralateral right
section of the statute—a reason which, however, Messrs. Morrison
and De Soto properly call “the weakest of all reasons in statutory
construction” **—and since no principle is violated by awarding ex-
tralateral rights where there is convergence on the dip, Mr. Lindley’s
contention ought to prevail. So far it seems to be supported in the
cases only by dicta®® and by concessions of counsel.?°
It is well settled that in order to get extralateral rights the lines of
a junior lode location may be laid within, upon, or across the surface
of a valid senior location, provided that no forcible entry is made.™
The same thing seems to be true, although the senior location is patent-
ed,”? and on principle should be so. The extent of the extralateral
—i. e., within planes which diverged as they were extended—was forbidden
in Hickey v. Anaconda Copper Min. Co., 83 Mont. 46, 81 Pac. 806.
662 Lindley on Mines (2d Ed.) pp. 981, 982, § 582.
67 Id.
68 Morrison’s Mining Rights (13th Ed.) 172.
69 CARSON CITY GOLD & SILVER MIN. CO. v. NORTH STAR MIN.
CO., 88 Fed. 658, 28 C. O. A. 333.
70 BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO. v.
EMPIRE STATE-IDAHO MINING & DEVELOPING CO., 109 Fed. 588, 540,
48 C. C. A. 665. The literal construction of the statute is impaired by the
cases which make the side lines serve as end lines where the location is
laid across the strike of the vein.
71 DEL MONTE MINING & MILLING CO. v. LAST CHANCE MINING
& MILLING CO,, 171 U. 8. 55, 18 Sup. Ct. 895, 43 L. Ed. 72; Davis v. Shep-
herd, 31 Colo. 141, 72 Pac. 57. The failure of the senior locator to object
makes the junior location valid for extralateral right purposes. EMPIRE
STATE-IDAHO MINING & DEVELOPING CO. v. BUNKER HILL & SUL-
LIVAN MINING & CONCENTRATING CO., 181 Fed. 591, 66 ©. ©. A. 99;
Big Hatchet Consol. Min. Co. v. Colvin, 19 Colo. App. 405, 75 Pace. 605.
If the junior locator is allowed to patent the conflict area, he gets the extra-
lateral rights which go with the conflict area in priority to the senior lo-
ecator. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO.
v. EMPIRE STATE-IDAHO MINING & DEVELOPING CO., 109 Fed. 538,
48 C. C. A. 665. Except in the case of broad veins apexing partly within two
or more adjacent lode claims. Lawson v. United States Min. Co., 207 U. S.
1, 28 Sup. Ct. 15, 52 L. Hd. 65.
72 Hidee Gold Min. Co., 39 Land Dec. Dep. Int. 420; BUNKER HILL &
SULLIVAN MINING & CONCENTRATING CO. v. EMPIRE STATE-IDAHO
MINING & DEVELOPING CoO. (C. C.) 106 Fed. 471. But see State v. Dis-
trict Court, 25 Mont. 572, 65 Pac. 1020.
422 SUBSURFACE RIGHTS. (Ch. 21
rights where locations conflict will be discussed later in connection with
the Del Monte Case.
The Ideal Location.
Ficure No.37.
DISCOVERY VEIN 5 See:
4
ee or er
ee ee eee
The ideal location contemplated by the statute is one where parallel
end lines are bisected by the strike of the vein which they cross at
right angles and the strike itself passes through the center of the claim
practically parallel with the side lines.7? Such a location is represent-
ed in Figure No. 17; its extralateral rights being measured by extend-
ing its parallel end lines in the direction of the dip and dropping the
requisite planes.**: Departures from this ideal and conflicts with the
dip rights of other locations cause the complications.
SAME—SIDE LINES AS END LINES.
118b. Where the discovery (original or principal) vein crosses both
side lines, instead of going out of the end lines as located,
and does not touch an end line, the side lines become, for ex<
tralateral right purposes, the end lines.
When the apex crosses both side lines and does not touch an end
line, it is, as has already been pointed out, well settled that for extra-
73 “There can be no arbitrary or ironclad rule to govern the laying of end
lines in all cases other than this: They must be straight and parallel to each
other, and when at right angles with the side lines they must not exceed 600
feet in length.” Belligerent and Other Lode Mining Claims, 35 Land Dec.
Dep. Int. 22, 26.
74 See Iron Silver Min. Co. v. Elgin Mining & Smelting Co., 118 U. S. 196,
6 Sup. Ct. 1177, 30 L. Ed. 98.
§ 118b) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 423
lateral right purposes the side lines become end lines.7® There is a
dispute, however, as to just what this means. It is clear that the side
lines become end lines sufficiently to defeat any right of the owner of
the claim to follow the vein on its dip beyond them.’® But Messrs.
Morrison and De Soto insist that, while the side lines become end
lines for this purpose, they do not become end lines for any other pur-
pose, and that, even though they are parallel, they do not permit any
dip right beyond the bounding planes of the location."7
FIGURE No. (8.
weer ww em
In Figure No. 18, Messrs. Morrison and De Soto would allow the
locator to have the dip as shaded within the claim’s boundaries, but
no more. In other words, they confine the locator to intralimital
rights. But the same reason which justifies calling the side lines end
lines necessitates calling the end lines side lines, and, if the end lines
are for extralateral right purposes side lines, then the apex owner
can pursue the vein beyond them.7* While there is only one case
76 See cases cited supra, note 64; Last Chance Min. Co, v. Bunker Hill & S.
Mining & Concentrating Co., 131 Fed. 579, 66 C. C. A. 299; Tyler Min. Co. v.
Sweeney, 79 Fed. 277, 24 C. C. A. 578; New Dunderberg Min. Co. v. Old,
79 Fed. 598, 25 C. C. A. 116. /
76 FLAGSTAFF SILVER MIN. CO. OF UTAH v. TARBET, 98 U. 8.
463, 25 L. Ed. 253. ARGENTINE MIN. CO. v. TERRIBLE MIN. CO., 122
U. 8. 478, 7 Sup. Ct. 1356, 30 L. Ed. 1140; KING v. AMY & SILVERSMITH
CONSOL. MIN. CO., 152 U. S. 222, 14 Sup. Ct. 510, 38 L. Hd. 419; Last
Chance Min. Co, v. Tyler Min. Co.. 157 1. S. 688, 15 Sup. Ct. 733, 389 L. Ed.
$59; Watervale Min. Co. v. Leach, 4 Ariz. 34, 33 Pac. 418; Parrot Silver &
Copper Co. v. Heinze, 25 Mont. 139, 64 Pac. 326, 53 L. R. A. 491, 87 Am.
St. Rep. 386. Any other rule would really give the right of extralateral
pursuit of the strike of a vein, and that is not allowed. Colorado Cent.
Consol. Min. Co. v. Turck, 50 Fed. 888, 2 C. ©. A. 67; SOUTHERN NEVADA
3OLD & SILVER MIN. CO. v. HOLMES MIN. CoO., 27 Nev. 107, 73 Pac. 759,
103 Am. St. Rep. 759; McCormick v. Varnes, 2 Utah, 855; Tombstone Mill.
& Min. Co. v. Way Up Mining Co., 1 Ariz. 426, 25 Pac. 794.
77 Morrison’s Mining Rights (13th Ed.) 180, 181.
78“Our conclusions may be summed up in these propositions: * * *
Fourth. The only exception to the rule that the end lines of the location as
424 SUBSURFACE RIGHTS. (Ch. 21
actually deciding that the side lines as end lines are to be extended,
and that the apex owner can go through the end lines as side lines in
following the dip,”® the doctrine was conceded by counsel in another
case,°° and it would seem that Mr. Lindley is right in supporting it.**
It has been suggested that, where the vein crosses the location in
such a way as to cut the side lines at an angle of less than 45°, the
regular end lines remain the end lines.6? That theory would bound
extralateral rights as indicated in Figure No. 19.
i Fiaure No.!9.
is
/
the locator places them establish the limits beyond which he may not go
in the appropriation of a vein on its course or strike is where it is developed
that in fact the location has been placed, not along, but across, the course
of the vein. In such case the law declares that those which the locator
calls his side lines are his end lines and those which he called end lines are
in fact side lines.” DEL MONTE MINING & MILLING CO. v. LAST
CHANCE MINING & MILLING CO., 171 U. S. 55, 89, 90, 18 Sup. Ct. 895,
908, 48 L. Ed. 72.
79 EMPIRE MILLING & MINING CO. v. TOMBSTONE MILL. & MIN.
CO. (C. C.) 100 Fed. 910; Id. (O. C.) 181 Fed. 339.
80 BUNKER HILL & S, MINING & CONCENTRATING CO. v. EMPIRE
STATE-IDAHO MINING & DEVELOPING CO., 109 Fed. 588, 48 C. GC. A. 665.
812 Lindley on Mines (2d Ed.) § 589.
82 Mr. John M. Zane, “A Problem in Mining Law,” 16 Harv. Law Rev. 94,
§ 118b) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 425
The theory of Figure No. 19 might well be adopted, if it were the
only way to avoid the objectionable consequences of the just explain-
ed doctrine of Messrs. Morrison and De Soto; but, as their doctrine
cannot be accepted, it seems to be sufficient to point out that the
theory here being considered is believed not to be consistent with the
various side lines as end lines cases, and in particular with the case of
Del Monte Mining & Milling Co. v. Last Chance Mining & Milling
Co.88
A practical question should not be complicated by technical tests
difficult of ascertainment. As the Supreme Court of the United States
has pointed out: “With all the care possible, the end lines marked
on the surface will often vary greatly from a right angle to the true
course of the vein. But whatever inconvenience or hardship may thus
happen, it is better that the boundary planes [for extralateral right
purposes] should be definitely determined by the lines of the surface
location than that they should be subject to perpetual readjustment
according to subterranean developments made by mine workings. Such
readjustment at every discovery of a change in the course of the vein
would create great uncertainty in titles to mining claims.” ** The
sole question should be which lines are crossed, and no attention
should be paid to the angle at which. they cross, except so far as may
be necessary to prevent the locator from getting extralateral rights
on the strike as contrasted with the dip.
The extralateral rights for the claim in Figure No. 19 are there-
fore as represented in Figure No. 20. The shaded portion simply
reminds the reader of the theory of Messrs. Morrison and De Soto
explained in connection with Figure No. 18. Of course, where the
side lines which serve as end lines are not parallel, there can be no
extralateral rights for the vein crossing them, unless those side line
end lines converge on the dip.*®
101, citing Last Chance Min. Co. v. Tyler Min. Co., 61 Fed. 559, 9 C. ©. A.
613, and Consolidated Wyoming Gold Min. Co. vy. Champion Min. Co. (0.
C.) 63 Fed. 540, but seemingly admitting in the next preceding note of the
article that DEL MONTE MINING & MILLING CO. v. LAST CHANCH
MINING & MILLING CO., 171 U. 8S. 55, 18 Sap: Ct. 895, 48 L. Ed. 72, is
contra.
83171 U. S. 55, 18 Sup. Ct. 895, 48 L. Ed. 72.
84 IRON SILVER MIN. CO. v. ELGIN MINING & SMELTING CO., 118 U.
S. 196, 207, 6 Sup. Ct. 1177, 1183, 30 L. Ed. 98.
862 Lindley on Mines (2d Ed.) § 590.
426 SUBSURFACE RIGHTS. (Ch. 21
SAME—VEIN CROSSING ONE END LINE AND ONE SIDE LINE.
118c. Where the discovery (original or principal) vein crosses one end
_ line and one side line, the extralateral right bounding planes
are drawn along the crossed end line and parallel thereto
through the point where the vein crosses the side line.
Because the locator miscalculates the course of a vein, it often hap-
pens that the discovery vein which has entered one end line goes out
a side line. In such case it is settled that the end line crossed remains
the end line of the location for all purposes, and that the extralateral
right extends between parallel planes drawn along the end line cross-
ed by the vein and through the point where the vein departs from
the side line.**
FIGURE No. 21.
aa
Figure No. 21 shows the method of calculation. The important
feature is that the located end lines remain the end lines for extra-
lateral right purposes, except so far as it is necessary to draw them
in to meet the requirements of the located apex.
86 DEL MONTE MINING & MILLING CO. vy. LAST CHANCE MINING &
MILLING CO., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72; Clark v. Fitzgerald,
171 U. 8S. 92, 18 Sup. Ct. 941, 43 L. Ed. 87; Republican Min. Co. v. Tyler Min.
Co., 79 Fed. 738, 25 C. C. A. 178; Tyler Min. Co. v. Last Chance Min. Co. (C.
C.) 71 Fed. 848; TYLER MIN. CO. v. SWEENEY, 54 Fed. 284, 4 ©. CG. A. 329;
Last Chance Min. Co. v. Tyler Min. Co., 61 Fed. 557, 9 C. C. A. 613; Consoli-
dated Wyoming Gold Min, Co. v. Champion Min. Co. (C. C.) 68 Fed. 540; Fitz-
gerald v. Clark, 17 Mont. 100, 42 Pac. 273, 30 L. R. A. 803, 52 Am. St. Rep.
665. See Parrot Silver & Copper Co. v. Heinze, 25 Mont, 139, 64 Pac. 826, 53
L. R. A. 491, 87 Am. St. Rep. 386.
§ 118d) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 427
SAME—VEIN CROSSING ONE END LINE, BUT STOPPING BEFORE
ANOTHER BOUNDARY LINE IS REACHED.
118d. Where the discovery (original or principal) vein crosses one end
line and stops before another boundary line is reached, the
extralateral right bounding planes are drawn along the
crossed end line and parallel thereto through the end of the
vein inside the claim.
In the Del Monte Case it is said: “Suppose a vein enters at an end
line, but terminates half way across the length of the location, his [the
locator’s] right to follow that vein on its dip between the vertical
side lines is as plainly given by the statute as though in its course it
had extended to the farther end line. It is a vein ‘the top or apex of
which lies inside of such surface lines extended downward vertical-
ly.’” 87 The dictum just quoted seems perfectly sound.*® It is with-
in the principle governing the case of a vein crossing one end line
and one side line.
FiguReE No. 22. FiGureE No. 23.
DilscovERY VEIN
DISCO}
maewcece
= imme mee
_
87 DEL MONTE MINING & MILLING CO. v. LAST CHANCE MINING &
MILLING CO., 171 U. 8S. 55, 89, 18 Sup. Ct. 895, 908, 48 L. Ed. 72,
88 CARSON CITY GOLD & SILVER CO. v. NORTH STAR MIN. CO.
428 SUBSURFACE RIGHTS. (Ch, 21
The situation is pictured in Figures Nos. 22 and 23, except that in
Figure No. 23 the shaded portion represents the only part of the vein
which Messrs. Morrison and De Soto would allow the claim owner to
take.
SAME—VEIN NOT REACHING ANY BOUNDARY LINE.
118e. Extralateral rights on discovery (original or principal) veins
not touching any boundary line are fixed by drawing planes
through the ends of the veins and parallel to the lines of the
location which for extralateral right purposes are deemed
its end lines.
FiguRe No. 24. FiauRE No. 25.
Discovery VEIN
+
Discovery Vein
&
oS
1
The situation of a vein not reaching any boundary line, as pictured
in Figures Nos. 24 and 25, seems to call for the same treatment as the
one dealt with in Figures Nos. 22 and 23. In Figure No. 24, as
in the case of Figures Nos. 21 and 22, the end lines located as such
remain the end lines for extralateral right purposes, because there is
no genuine reason for selecting other end lines to fix dip rights; but
in Figure No. 25 as in the case of Figures Nos. 18, 20, and 23, the in-
ability to award extralateral rights on the strike of the vein, and the evi-
dent intent of Congress to award extralateral rights, furnish sufficient
(C. C.) 73 Fed. 597; Id., 83 Fed. 658, 28 C. C. A. 333; Wakeman yv. Norton,
24 Colo. 192, 49 Pac. 2838. See Tyler Min. Co. v. Sweeney, 54 Fed. 284, 293, 4
C. ©. A. 829.
§ 118f) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 429
reason for regarding for dip right purposes the side lines as end lines.
Where the vein does not touch any side or end line, then the rule to be
adopted should be to treat as end lines those lines which it would cross
if it were extended on its strike.8® There seem to be no cases
on the situation presented in Figures Nos. 24 and 25.
A real difficulty would be experienced, were the vein to lie in the
claim at such an angle that it would be impossible to tell which lines
should be regarded as end lines and which as side lines; but in such
case, since the burden is on the owner of the apex to establish his
right to come into his neighbor’s ground, extralateral rights should be
denied pending further disclosures as to the course of the vein.
SAME—VEIN CROSSING TWO OPPOSITE PARALLEL BOUNDARY
LINES, BUT IN ITS COURSE GOING OUT OF AND RETURN-
ING THROUGH ANOTHER BOUNDARY LINE.
118f. Extralateral rights on discovery (original or principal) veins
which cross the two opposite parallel end lines located as
such, but which in their course go out of and return through
one of the side lines located as such, are measured by drawing
parallel planes through the opposite parallel end lines and
through the point of departure of the vein from the side line;
no extralateral right attaching to the space where the vein
apexes outside the claim.
Extralateral rights on such veins, which cross the two opposite par-
allel side lines located as such, and which in their course go
out of and return through one of the end lines located as such,
also appear to be governed by planes drawn parallel to the
end lines located as such and through the points of departure
of the vein from the side lines located as such.
Certain difficulties are to be experienced with veins which cut three
boundary lines of a location. Those difficulties are represented in
Figures Nos. 26, 27, 28, and 29.
The situation in Figures Nos. 26 and 27 calls for the representation
of more than two planes to show the dip rights. The spaces represent-
ing the dip rights on that part of the apex which lies outside the claim
are, or course, out of bounds for the claim owner.°°
80 “If the lode runs more nearly parallel with the end lines than with the
side lines as marked on the ground as such, then the end lines of the location
must be considered by the courts as the side lines meant by the statute. If
the lode runs more nearly parallel with the side lines than the end lines, then
the end lines as marked on the ground are considered by the court as the end
lines of the location. In both cases the extralateral rights are preserved and
maintained as defined in the statute.” CONSOLIDATED WYOMING GOLD
MLN. CO. v. CHAMPION MIN. GO. (C. C.) 63 Fed. 540, 549.
90 WATERLOO MIN. CO. v. DON, 82 Fed. 45, 27 C. C. A. 50. °
430 SUBSURFACE RIGHTS. (Ch. 21
Figure No. 26. FIGURE No. 28.
| 1
| DIP RiGHTs |
\ '
i 4
{ ’ ! |
41-
FIGURE No. 2.7.
{
)
Dip RIGHT) No Lip | | Rian No Die
| RIGHT] | RIGHT
| yy
l ' 1
I I i
|
|
|
I
\
|
§ 118f) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 431
In Figure No. 28 there is a difficulty. At first sight it seems as if
the doctrine of Figure No. 18 makes the side lines become end lines,
and hence that according to Messrs. Morrison and De Soto the claim
owner would get only the shaded portions of Figure No. 28, while ac-
cording to the other doctrine he would be able to go out through the
located end line as a side line. But a scrutiny of the figure shows that
the vein goes through a side line and an end line, and in accordance
with the rule applied in the case of Figure No. 21 the located end lines
should, therefore, remain the end lines for extralateral right purposes.
It is believed that such is the right rule, and that the claim owner gets
dip rights out of both sides of his location. The discussion of Figure
No. 29 should make that clearer.
While in Figure No. 27 the true extralateral rights seem to be
properly represented, there is a difficulty which Figure No. 29 seems
to emphasize. In Figure No. 29 the vein goes in and out of three of
the four boundary lines, dipping away from the claim in all cases. If
those parts of the vein which go in and out of the side lines located
as such are to control, the rules governing in Figures Nos. 21 and 26
would seem to apply and to give dip rights under both side lines. But
what about the part of the vein going in and out of the end line?
That is, as a matter of fact, the only part of the vein which crosses
two opposite parallel boundary lines of the location. Does that make
the case one of side lines becoming end lines, and so determined by the
rule which at first sight seemed to apply in Figure No. 28? If it does,
the shaded portions represent all of the vein that Messrs. Morrison and
De Soto would allow the claim owner to get, while Figure No. 28 shows
what on the other view should be allowed in such case. But the doc-
trine applied in Figures Nos. 21, 22, 24, and 27, namely, that the
end lines of the claim as located shall control for extralateral right
purposes, in the absence of an overpowering reason to the contrary,
makes it certain that in Figures Nos. 28 and 29, as in Figure No. 27,
the sole dip rights are through the side lines located as such. In
Figures Nos. 28 and 29, however, unlike the other cases we have
considered, the claim owner seems to have dip rights under both side
lines. No case seems yet to have disclosed situations like those pic-
tured in Figures Nos. 27, 28, and 29.
432 SUBSURFACE RIGHTS. (Ch. 21
Figure No.30, Figure No.32.
yer VEIN
S\N
—
_\
oYERY
oF
ESN
|
|
Fiagure No.dl. Figure No.33.
xX
Ek
0
Sy x
LN
Ka
_\
Oe we me ee,
kd a me ome me
§ 118g) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 433
SAME—VEIN ENTERING AND DEPARTING THROUGH ONLY ONE
BOUNDARY LINE.
118g. Extralateral rights on discovery (original or principal) veins
which enter and depart by the same boundary line only are on
principle the same as where the veins do not reach any bound-
ary line; but the only decision directly in point denies any ex-
tralateral right in such case.
Where a vein enters and departs by the same side or end line, the
principle that governed in Figures Nos. 24 and 25 requires that lines
be draw: as in Figures Nos. 30, 31, 32, and 33. The only decision
squarely on the situation, however, is to the effect that there are no
extralateral rights in such cases.°t The Colorado case so deciding
emphasized the fact that there was very little of the apex in the claim
dealt with, and that it did not run parallel or nearly parallel to the
side lines; °? but it seems clearly to deny extralateral rights in such
a case as that in Figure No. 30, and on that ground is supported by
Messrs. Morrison and De Soto.®? The Colorado case has been sup-
posed to be opposed by a later federal court case.°* The later case
presented a different situation, however, for the original principal or
discovery vein went through both end lines and was for its entire
length within the claim, and only extralateral rights on a secondary or
incidental vein were involved.®® The situation in the later federal
case may be represented by Figure No. 34.
FIGURE No 3+.
DISCOVERY VEIN a
L
gre
: +
| oe a.
| i |
I
|
91 CATRON v. OLD, 23 Colo. 433, 48 Pac. 687, 58 Am. St. Rep. 256,
9223 Colo. 441, 48 Pac. 687, 58 Am. St. Rep. 256.
93 Morrison’s Mining Rights (13th Ed.) 174.
94 ST. LOUIS MIN. & MILL. CO. OF MONTANA v. MONTANA MIN. CO.,
95 See 2 Lindley on Mines (2d Ed.) § 584.
Cost.Min.L.—28
434 SUBSURFACE RIGHTS. (Ch, 21
While the allowance of extralateral rights to the secondary or
incidental vein under the circumstances shown in Figure No. 34 is not
necessarily inconsistent with Catron v. Old,®* it certainly suggests
the propriety of refusing to follow that case. If extralateral rights
can be had on a secondary or incidental vein entering and departing
by one side line, they should be allowed where a similarly situated
vein is an original principal or discovery vein.
SAME—VEIN COVERED BY CONFLICTING SURFACE LOCATIONS
WHICH HAVE DIVERSE EXTRALATERAL RIGHT
PLANES—“JUDICIAL APEX.”
118h. Where the apex of the vein is covered by conflicting locations,
which have end lines so differently slanted that after the
senior claim’s extralateral rights are fully protected the
junior claim finds a part of the dip unlocated by the senior
locator and within the junior’s end line planes extended, the
junior is on principle entitled thereto. For judicial purposes
the junior claim has the apex, a doctrine which finds its ulti-
mate justification in Lavagnino v. Uhlig.
In the Del Monte Case®? a question was raised which was not pass-
ed upon. ‘There are three locations shown on the diagram of the
case; but only two, the New York and the Last Chance, are important
for our purposes.
The New York being the senior location, and the vein coming in
one of its end lines and going out a side line, its extralateral rights
are between the planes f—g—g’ and R—z—z’. The Last Chance
claim has the vein going out one end line, and through the other end
line as projected on the New York. a—d—t—t’ clearly furnishes
one boundary plane for the Last Chance, and the question is whether
the other is r—s—s,’ or is b—c—c’. The Supreme Court of the United
States did not have to pass on the question, because the dispute related
to the right of the Last Chance to the space between a—d—t—t’ and
r—s—s’. That the Last Chance was entitled to the dip between a—d—
t—t’ and b—c—c,’ except so far as the New York dip rights were
carved out of it, seems clear on principle, however, even though for
judicial purposes both the New York and the Last Chance thereby
104 Fed. 664, 44 C. C. A. 120, 56 L. R. A. 725; MONTANA MIN. CO. vy. ST.
LOUIS MIN. & MILL. CO., 102 Fed. 430, 42 C. C. A. 415. See Mr. John M.
Zane, “A problem in Mining Law,” 16 Harv. Law Rev. 94, 101.
96 23 Colo. 433, 48 Pac. 687, 58 Am. St. Rep. 256.
87 DEL MONTE MINING & MILLING CO. v. LAST CHANCE MINING &
MILLING CO., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72.
§ 118h) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 435
FIGURE. No. 35.
\
\ \ \\
\
\ : c.,
\ \ ic! *
\
ie \s
are allowed to base a right upon the same part of the apex. Because
the Last Chance was allowed to throw its end line over on the New
York to perfect its extralateral rights, it had for extralateral right pur-
poses all the apex within the lines so thrown, and all the dip that
went with it, subject only to the prior dip right of the New York. The
Del Monte Case does not so decide, because the question was not in-
‘volved there; ®* but it seems to be a logical extension of the principles
announced in that decision,®® and is sustained by the decision on a sim-
98171 U. S. 85, 18 Sup. Ct. 895, 43 L. Ed. 72.
99 Bunker Hill & Sullivan Mining & Concentrating Co. v. Empire State-Ida-.
ho Mining & Developing Co., 109 Fed. 538, 547, 48 C. C. A. 665; Empire State-
Idaho Mining & Developing Co. v. Bunker Hill & Sullivan Mining & Concentrat--
436 SUBSURFACE RIGHTS. (Ch. 21
ilar situation found in the broad vein cases discussed in the next sec-
tion. The ultimate justification of the “judicial apex” doctrine must,
of course; rest on the foundation furnished by the case of Lavagnino
v. Uhlig.+
Analogous to the questions just considered is the question raised
in Figure No. 36.
FiauRe No. 36.
DiscoveERY Vein
SENIOR JUNIOR
/ / \ s
, ¢ ff & % \ Me
/ / iN >
i xf S *
/ / ‘ se
/ / = *
\ \N
f ie RX .
e / .
One case has suggested that the dip, X, is owned by the two claims
together,?°° but that seems illogical Either the true solution is to
be found in the doctrine of “theoretical apex,” hereafter explained,?°+
or else the dip can be acquired only by locations which, because on
the dip, have no extralateral rights.
ing Co., 181 Fed. 591, 66 C. C. A. 99. See Id., 114 Fed. 417, 52 C. O. A. 219.
But see Jefferson Min. Co. v. Anchoria-Leland Min. & Mill. Co., 32 Colo. 176,
7 Pac. 1070, 64 L. R. A. 925; State v. District Court, 25 Mont. 504, 65 Pac.
1020.
7 198 U. S. 448, 25 Sup. Ct. 716, 49 L. Ed. 1119.
100 CHAMPION MIN. CO. v. CONSOLIDATED WYOMING GOLD MIN.
CO., 75 Cal. 78, 16 Pac. 518. This case takes the view that extralateral rights
may be taken beyond the end line planes extended if no third persons are there-
by injured, and that they are not injured if the claims concerned own the whole
of the apex above the dip taken. But query?
101 See § 118m, infra.
§ 118i) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 437
SAME—BROAD VEIN BISECTED ON ITS STRIKE BY THE COMMON
SIDE LINE OF TWO ADJOINING LOCATIONS.
118i. Extralateral rights on a broad discovery (original or principal)
vein, bisected on its strike by the common side line of two
adjoining locations, belong to the senior claim, subject only
to the qualification noted in 118h.
A question analogous to the last is presented by a broad vein bi-
sected by the common side line of two locations which have end lines
of different slant. Before taking up that case, though, a word must
be said about the case where the end lines of the two adjoining loca-
tions are in the same direction.
FiauReE No. 37.
SENIOR
Discovery VEIN
JUNIOR
In Figure No. 87 it is now settled that the senior location takes all
the extralateral rights on the broad vein, though, of course, it gets
no rights on the surface of the junior location.1°? In determining
seniority, priority of discovery may be shown by testimony other than
the entries and patents, and it is settled that acceptance by the govern-
ment of location proceedings had before the statute of 1866, and issu-
ance of a patent thereon, is evidence that those location proceedings
were in accordance with the rules and customs of the local mining
district.1°8
102 ST. LOUIS MIN. & MILL. CO. OF MONTANA v. MONTANA MIN. CO.,
104 Fed. 664, 44 C. C. A. 120, 56 L. R. A. 725; Empire State-Idaho Mining &
Developing Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., 114
Fed. 417, 52 ©. C. A. 219; Id., 181 Fed. 591, 66 C. C. A. 99; Last Chance Min.
Co. v. Bunker Hill & S. Mining & Concentrating Co., 131 Fed. 579, 66 ©. C.
A. 299; UNITED STATES MIN. CO. v. LAWSON, 134 Fed. 769, 67 C. OC. A.
587. The last case overruled Hall v. Equator Mining & Smelting Co. (U. 8.)
Fed. Cas. No. 5,931, an earlier decision by Judge Hallett, and has been affirm-
ed in LAWSON v. UNITED STATES MIN. CO., 207 U. 8. 1, 28 Sup. Ct. 15,
52 L. Ed. 65. See, also, ARGENTINE MIN. CO. v. TERRIBLE MIN. CO.,
122 U. S. 478, 7 Sup. Ct. 1356, 30 L. Ed. 1140.
108 LAWSON vy. UNITED STATES MIN. CO., 207 U. 8. 1, 28 Sup. Ct. 15,
52 L. Ed. 65.
438 SUBSURFACE RIGHTS. (Ch, 21
Figure No.38.
SENIOR
BRoAo Discovery VEIN 3
i ea tebe
' : (
' t
; JUNIOR !
! t
' ‘Ss ! ss
‘ s { “
' le 1 ne
| ee, >
‘ ~ 1
| sa ‘
l uN
a ‘
.
N
In Figure No. 38 we have the question presented: Shall the junior
location have all the dip of the broad vein not taken by the senior
location, and yet included within the junior’s end lines extended? One
federal case answers the question in the affirmative,?°* though the
reasoning of a Utah case seems to support the negative.1°® The af-
firmative answer would seem to be sound, because the senior locator
is protected fully. Moreover, the affirmative answer is supported by
the case just discussed of a vein covered by conflicting surface loca-
tions.
104 EMPIRE STATE-IDAHO MINING & DEVELOPING CO. v. BUNKER
HILL & S. MINING & CONCENTRATING CO., 114 Fed. 417, 52 C. C. A. 219.
105 BULLION BECK & CHAMPION MIN. CO. v. EUREKA HILL MIN. CoO.,
5 Utah, 3, 11 Pac. 515.
§ 118)) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 439
SAME—VEIN SPLITTING ON ITS STRIKE.
118j. Where a discovery (original or principal) vein splits within the
claim, so as to form two separate veins, extralateral rights on
each split portion seem to be determined as if each remains
the principal vein.
FIGURE No. 39.
Uy
royERY VE In,
ss
——_— =e ae oe oe
— — oe ee ee
Where a vein splits on its strike, so as to make two veins from that
point, it seems that extralateral rights are measured on each part
as if it were the main vein.1°® Instead of one split part being regard-
ed as the principal vein and the other as the secondary, both seem to be
regarded as principal veins. The situation is represented in Figure
No. 39. But it should be remembered that broken-off bodies of ore
may be so connected with the fissure vein as not to form a separate
vein entitled to extralateral rights.1°* Where one of the split ends
entitled to extralateral rights passes on its strike into another loca-
tion, the dip rights of the first location are measured from the point
_ of departure, while the second location may follow the part of the
fork within its lines on the dip of that part under the first location.1°*
106 See HICKEY v. ANACONDA COPPER MIN. CO., 33 Mont. 46, 81 Pac.
806. Compare Doe v. Waterloo Min. Co. (C. C.) 54 Fed. 935.
107 TOMBSTONE MILL. & MIN. CO. v. WAY UP MIN. CO., 1 Ariz. 426,
25 Pac. 794.
108 COLORADO CENT. CONSOL. MIN. CO v. TURCK, 50 Fed. 888, 2 CG. C.
A. 67. But see WALRATH v. CHAMPION MIN. CO., 171 U. S. 298, 18 Sup.
Ct. 909, 43 L. Ed. 170; JEFFERSON MIN. CO. v. ANCHORIA-LELAND MIN.
& MILL. CO., 32 Colo. 176, 75 Pac. 1070, 64 L. R. A. 925.
440 SUBSURFACE RIGHTS, (Ch. 21
SAME—SECONDARY OR INCIDENTAL VEINS.
118k. Extralateral rights on secondary (incidental) veins—that is,
on veins other than the discovery (original or principal) vein—
are determined with reference to those lines which for the
discovery (original or principal) vein’s extralateral rights
are the end lines of the claim. On principle and under one
state decision the secondary (incidental) veins are allowed all
the extralateral rights which they would have with those end
lines if they were the discovery (original or principal) veins;
but there is some contention that they are confined within the
extralateral right planes of the discovery (original or prin-
cipal) vein. The latter contention finds some support in
Walrath v. Champion Mining Co., which contains a dictum
that a senior location which does not have as much of the
apex of a secondary (incidental) vein as it has of the discov~
ery (original or principal) vein may take the whole dip of the
secondary (incidental) vein within the discovery vein’s extra-
lateral right bounding planes; but that dictum may well be
doubted.
Where the secondary (incidental) vein cuts across the discovery
(original or principal) vein at right angles, and maintains
that relative position through the claim, there can usually be
no extralateral rights in the secondary (incidental) vein, be-=
cause to award them would be to give extralateral rights on
the strike of such vein.
Under the act of 1866 only one vein could be located or patented ;
but under the act of 1872 claims located and patented under the act
of 1866, as well as those under the act of 1872, are entitled to all
veins apexing therein.1°® The only exception is in the case of loca-
tions under the act of 1866, where adverse rights in secondary veins
were acquired prior to the act of 1872.11° There is no doubt that ex-
tralateral rights may be had on secondary or incidental veins, if they
are properly situated with reference to the discovery vein; and there
is no doubt that they are properly situated with reference to that vein
if they are more or less parallel with it and are embraced within the
109 Rev. St. U. S. § 2822 (U. S. Comp. St. 1901, p. 1425); WALRATHI v.
CHAMPION MIN. CO., 171 U. S. 298, 305, 18 Sup. Ct. 909, 43 L. Ed. 170.
110 Rey. St. § 2328 (U. 8. Comp. St. 1901, p. 1431); Eclipse Gold & Silver Min.
Co. v. Spring, 59 Cal. 304; Mt. Diablo Mill. & Min. Co. v. Callison, 5 Sawy.
(U. 8.) 489, Fed. Cas. No. 9,886; North Noonday Min. Co. v. Orient Min. Co.
(C. C.) 1 Fed. 522; Jupiter Min. Co. v. Bodie Consol. Min. Co. (C. C.) 11 Fed.
S66; Iron Silver Min. Co. v. Cheesman (C. C.) 8 Fed. 297; Book y. Justice
Min. Co. (C. ©.) 58 Fed. 106; Armstrong v. Lower, 6 Colo. 393.
§ 118k) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 441
ms FIGURE No. +0.
parallel planes which measure the extralateral rights on the discovery
vein.1*?_ The situation is represented in Figure No. 40.112
It is also perfectly clear that the lines of the claim, determined to
be the legal end lines of the claim with reference to the discovery
vein, are such for all secondary veins.14? But beyond these points
there is confusion. Messrs. Morrison and De Soto insist that because
the end lines of the location, ascertained to be such with reference to
111 WALRATH v. CHAMPION MIN. CoO., 171 U. S. 298, 18 Sup. Ct. 909, 43
L. Ed. 170; St. Louis Min. & Mill. Co. of Montana y. Montana Min. Co., 104
Fed. 664, 44 C. C. A. 120, 56 L. R. A. 725.
112 In JEFFERSON MIN. CO. v. ANCHORIA-LELAND MIN. & MILL. CO.,
32 Colo. 176, 75 Pac. 1070, 64 L. R. A. 925, the court failed to allow the secon-
dary vein all the benefit of the discovery vein’s planes for extralateral right
purposes which it was entitled to, though both veins cut across both side
lines, and the side lines, therefore, were for extralateral right purposes end
lines. To the extent of such failure the decision must be wrong. While the
case has the support, seemingly, of WALRATH v. CHAMPION MIN. CO., 171
U. S. 293, 18 Sup. Ct. 909, 48 L. Ed. 170, that case is discredited, as the dis-
cussion in this section (infra, p. 447) shows, and anyway should be confined to
locations under the act of 1866. Under the doctrine of the “judicial apex”
treated in § 118h, supra, and supported by DEL MONTH MINING & MILLING
Co. v. LAST CHANCE MINING & MILLING CO., 171 U. 8. 55, 18 Sup. Ct. 895,
43 L. Ed. 72, it would seem as if the owner of the Mattie L claim should have
been given all rights in the secondary vein within his side line end lines not
included within the extended extralateral right bounding planes of the Anchor
claim on that secondary vein. In any event he was entitled to all between the
east side line end line and a plane parallel thereto drawn through the point
where the secondary vein left the Mattie L to enter the Anchor claim.
113 COSMOPOLITAN MIN. CO. v. FOOTE (C. C.) 101 Fed. 518; JEFFER-
SON MIN. CO. v. ANCHORIA-LELAND MIN. & MILL. CO., 82 Colo. 176, 75
Pac. 1070, 64 L. R. A. 925; ST. LOUIS MIN. & MILL. CO. OF MONTANA vy.
MONTANA MIN. CO., 104 Fed. 664, 44 C. C. A. 120, 56 L. R. A. 725.
442 SUBSURFACE RIGHTS. (Ch, 21
the discovery vein, are such for all secondary or incidental veins, there-
fore the end line planes fixing the extralateral rights on the discovery
veins must govern all extralateral rights. Their statement is: “There
can be but one set of end lines for all the veins covered by the
patent.” 744 That quoted remark must be conceded to be true; but it
is just as true, nevertheless, that there may be several sets of end
line planes for extralateral right purposes, even on the same vein. The
situation represented in Figures Nos. 26 and 27 proves that.
Since there may be several sets of extralateral right planes on’
the same discovery vein, it is not conceived why there may not be
within the same end lines for the claim one set of extralateral right
planes for the discovery vein and another for the incidental.12® In
Figure No. 34, for instance, there are necessarily two sets, because the
secondary vein apex is not of the same length in the location as the
discovery vein.t
Se No, 41.
-— @= -— — =
—— eo
——_— os
So in Figure No. 41, for the same reason, there must be two sets
of planes run, one set for each vein. Since the end lines of the claim
for the discovery vein remain the same for the secondary or incidental
vein as for the discovery vein, and all planes must be parallel to them,
114 Morrison’s Mining Rights (13th Ed.) 178.
115 Even though it be admitted that the dictum in WALRATH y. CHAMP-
ION MIN. CO., 72 Fed. 978, 19 C. C. A. 823, and 171 U. S. 293, 18 Sup. Ct. 909,
43 L. Ed. 170, means that the end line planes for the discovery vein, when they
‘are identical with the end lines of the claim itself, are to serve for secondary
veins as well, that dictum does not logically require that anything short of
the actual end lines of the claim (including, of course, side lines treated as
end lines) and short of the points of entrance and departure of the secondary
vein from the claim shall determine the secondary vein’s extralateral rights,
{But see the discussion of Walrath v. Champion Min. Co., infra.
§ 118k) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 443
all technicalities are complied with, while the gift of extralateral rights
on all veins within the location can be satisfied in no other way. The
Colorado case giving extralateral rights on secondary veins, even
though they do not apex in the same segment of the claim as does the
discovery vein, seems perfectly sound.**® Under that doctrine as full
extralateral rights would exist on the incidental vein in Figure No.
41 as if that vein were the discovery vein, instead of the extralateral
rights being confined to the segment of the incidental vein shown
in Figure No. 41 to be between the extralateral right bounding planes
for the discovery vein. It should be noticed that the foregoing doc-
trine enables the Colorado court to escape from what would otherwise
be an absurd result of Catron v. Old‘? at the same time that it dis-
credits Catron v. Old.
Under Catron v. Old there would be extralateral rights on neither
vein in Figure No. 42. Whether there would be any in the secondary
vein in Figure No. 43 is, perhaps, in doubt under that decision. Prob-
Fiagure No. 42.
Figure No. 43.
Discovery Venn
eoeet VE iy
fe a
116 AJAX GOLD MIN. CO. v. HILKEY, 31 Colo. 131, 72 Pac. 447, 62 L. R.
A. 555, 102 Am. St. Rep. 23. But see Jefferson Min. Co. v. Anchoria-Leland
Min. & Mill. Co., 32 Colo. 176, 75 Pac. 1070, 64 L. R. A. 925.
117 23 Colo. 483, 48 Pac. 687, 58 Am. St. Rep. 256.
444 SUBSURFACE RIGHTS. (Ch. 21
ably, however, there would be.14® But under Catron v. Old there
would be none on the discovery vein in Figure No. 44, and but for
Ajax Gold Min. Co. v. Hilkey** the consequence would be that there
would be no extralateral rights on the incidental or secondary vein,
which extends clear across the claim and cuts both end lines. The
Colorado court wisely avoided such an absurd result; but at the same
time, by giving extralateral rights on the incidental or secondary vein
in Figure No. 44, that court made the implied denial of extralateral
rights on the discovery vein in the same figure highly objectionable.
FIGURE No. 44,
Mca) INCIDENTAL VEIN
ovERY VEIN
gy
yy?
x ‘
Walrath v. Champion Min. Co.
The much discussed case of Walrath v. Champion Min. Co. 11° has
raised a very important question in regard to a secondary vein’s extra-
lateral rights, namely, the question whether the senior location may
take the whole dip of a secondary vein within the extralateral right
bounding planes of the discovery vein, even though a greater length
of the dip of the secondary vein is thus secured than there is length of
the apex of the secondary vein within the location.1?° For a clear
understanding of the case Figures Nos. 45 and 46 are given. The dia-
gram in Figure No. 45 is the one given in the lower court’s report.1?1
In Figure No. 46 the lines fixed by the Circuit Court and by the Cir-
cuit Court of Appeals are shown as they appear in the report of the
decision of the United States Supreme Court.1??
118 There certainly should be extralateral rights in such case. MONTANA
MIN. CO. v. St. LOUIS MIN. & MILL. CO., 102 Fed. 480, 42 GC. GC. A. 415;
St. Louis Min. & Mill. Co. v. Montana Min. Co., 104 Fed. 664, 44 C. C. A. 120,
56 L. R. A. 725.
** 31 Colo. 131, 72 Pac. 447, 62 L. R. A. 555, 102 Am. St. Rep. 23.
119171 U. S. 298, 18 Sup. Ct. 909, 43 L. Ed. 170.
120 That he cannot have more of the discovery (i. e., original or principal)
vein than he has of its apex is, of course, clear. See Bunker Hill & S. Min-
ing & Concentrating Co. v. Empire State-Idaho Mining & Developing Co. (C.
©.) 108 Fed. 189; Id., 109 Fed. 588, 48 C. C. A. 665.
121 Walrath v. Champion Min. Co. (C. C.) 63 Fed. 552, 554.
122171 U. 8. 298, 295, 18 Sup. Ct. 909, 438 L. Ed. 170.
§ 118k)
EXTRALATERAL RIGHTS UNDER ACT OF 1872,
Ficure No. +8.
445
446 SUBSURFACE RIGHTS. (Ch. 21
Figure No. 46.
v SHOWING THE END LINES CLAIMED
BY EACH, AND THE LINES FIXED BY THE
/ CIRCUIT COURT AND COURT OF APPEALS.
o 8 s ¢@
ua
SCALE OF CHAINS
# ee
§ 118k) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 447
The question in the case related to the dip rights of the Providence
on the secondary vein x—x. ‘The discovery, and hence principal, vein
z—z,’ cut both the lines g—h and a—p, which were substantially paral-
lel, and were treated by the courts as the statutory end lines. The
Supreme Court of the United States affirmed the decree of the Cir-
cuit Court of Appeals. The decree affirmed allowed the Providence
claim rights on the secondary vein x—x, within the extended planes
bounding the discovery vein’s extralateral rights; i. e., within planes
drawn downward through g—h and a—p, extended indefinitely in
their own direction.128 It is conceded that, as the case stands, that
gave a greater dip right on the secondary vein than would exist if it
were the original vein. But, to make the matter worse, the decree
fixed the planes as above, “subject to the condition that the complain-
ant has no right to enter upon the surface of the respondent's
claims” ; 124 and it has been suggested that the Providence was to have
the right to upraise on the vein x—x, between the planes v—v’ and
g—h extended across the New Year’s extension. Mr. Lindley, who
was one of the counsel in the case, is, however, “quite satisfied that
this result was neither intended nor contemplated by the court.” 17°
But, even so, that still leaves the Providence owning more of the dip
of the secondary vein than it has apex within its boundary lines. Such
a doctrine may not be defended, even on the principle announced in
Van Zandt v. Argentine Min. Co.;1#° for in Van Zandt v. Argentine
Min. Co. the dip claimed by location was the discovery vein of the lo-
cation. The holding that a prior location on the dip based solely on
a discovery on the dip may retain the part of the dip inclosed within its
common-law boundaries as against a subsequent locator of the apex
may possibly be justified on the ground that the location was valid
when made, because based on a sufficient discovery, and could not be
invalidated through no fault of the locator;*** but to say, as Walrath
v. Champion Min. Co. does, that a mining claim has all of the dip
of incidental lodes which apex within it, so far as that dip is contained
within the extended bounding planes established for extralateral rights
on the discovery vein, is to do something not necessary for the con-
tinued validity of the claim, and something which places an undue
limitation on the rights of the present or future owners of that part of
128 WALRATH v. CHAMPION MIN. CO., 72 Fed. 978, 19 C. C. A. 8238.
124 Id.
1252 Lindley on Mines (2d Ed.) p. 1043, § 593.
126 (C. 0.) 8 Fed. 875.
127 The writer has already doubted the soundness of the decision in VAN
ZANDT vy. ARGENTINE MIN. CO. See note 12, supra.
448 SUBSURFACE RIGHTS. (Ch. 21
the apex of the incidental vein which is outside the claim and yet
covers part of the dip thereof awarded to the claim.*”®
That the court fell into the error which it did was doubtless due
to the fact that the ore bodies in dispute did not lie between the line
v—v' claimed as a bounding plane by the Champion (which should
have been the line fixed by the court) and the line g—h—h’—h”. The
ore bodies contended for were north of the line g—h, outside of the
vertical boundaries of either party, and lying between the 800 and
1,000 foot levels of the Champion. That g—h, instead of v—v’, was
fixed as the bounding plane for the secondary vein x—x, is therefore
strictly in the nature of a dictum; and because it was a dictum which
affected no substantial right of the Champion, that company took no
cross-appeal.12® It will take another decision by the United States
Supreme Court to define the effect of Walrath v. Champion Min. Co.,
and to determine whether that dictum is to become settled law. Mean-
while it is possible to say that in any event the case announces a rule
applicable only to claims located and patented under the act of 1866.1°°
Where the incidental vein cuts across the discovery vein at right
angies, or otherwise lies at right angles, to the discovery vein, the
doctrines that there can be but one set of end lines for extralateral
right purposes for the claim, that those must be fixed with reference
to the discovery vein, and that there can be no extralateral right of
pursuit on the strike of a vein, necessarily compel a denial of any
128 See “A Problem in Mining Law, Walrath v. Champion Mining Company,”
by Mr. John M. Zane, in 16 Harv. Law Rev. 94. That article deserves careful
reading. The true doctrine to adopt for all cases would seem to be that no dip
rights can be awarded to a location in respect to any part of a vein which
apexes in another location when to award such rights would interfere with
what would otherwise be the dip rights of the location having that part of
the apex. See McElligott v. Krogh, 151 Cal. 126, 90 Pac. 823.
129 “No cross-appeal was taken by the Champion Company to either of the
appellate courts for economic reasons. All of the vein within the New Year’s
and New Year’s Extension claims north of the plane f—g had been worked
out years before the litigation arose. There was nothing of value there to jus-
tify litigation. The narrow strip of ground between the plane claimed by the
Champion, v—v’, and the one fixed by the court, g—h—h’, did not embrace
the ore ‘shoot,’ and was practically valueless. The valuable ore bodies over
which the litigation arose, and which alone engaged the attention of either
courts or litigants, were within the triangle formed by the line g—h—h’ and
the one claimed by the providence, f—g—g’. The only object to be gained by
prosecuting a cross-appeal would have been to secure the establishment of a
principle to be followed in other cases.” 2 Lindley on Mines (2d Ed.) p. 1048,
§ 593, note.
130 Mr. John M. Zane, in 16 Harv. Law Rev. 94, 107.
§ 1182) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 449
extralateral right to the secondary vein.1*1 The situation is represent-
ed by Figures Nos. 47 and 48.
FIGURE ese FIGURE No. +8.
SAME—VEIN DIPPING UNDER PRIOR PATENTED LAND.
1181. Extralateral rights exist, although the vein dips under prior
patented mining land, and on principle where it dips under
a prior agricultural grant; but the only case on the latter
situation denies the right of extralateral pursuit on veins
which dip under agricultural grants which antedate the min-
ing location.
Vein Dipping under Prior Mining Claims.
Except as qualified by Walrath v. Champion Min. Co., as just ex-
plained, except as further limited by the doctrine of Van Zandt v.
Argentine Min. Co., giving a locator on the dip whose location is ex-
pressly based thereon the part of the dip within his boundary planes,
and except as restricted by the prior dip rights of others, the apex own-
er may follow his vein on its dip within his extralateral right planes
under senior mining locations and patented claims, as well as under
junior.1#? Even under Van Zandt v. Argentine Min. Co, the owner of
131 COSMOPOLITAN MIN. CO. v. FOOTE (C. C.) 101 Fed. 518. That the
right to follow a vein on its strike is limited to the lines of the location is
clear, Davis v. Shepherd, 31 Colo. 141, 72 Pac. 57. See cases in note 37, supra.
182 COLORADO CENT. CONSOL. MIN. CO. v. TURCK, 50 Fed. 888, 2 C.
O. A. 67; Id., 70 Fed. 294,17 C. C. A. 128; Cheesman y. Hart (C. C.) 42 Fed.
Cost. Min. L.—29
450 SUBSURFACE RIGHTS. (Ch. 21
the apex would have a right of way through the claim on the dip to
get at the dip still further below.
Vein Dipping under Prior Agricultural Grant.
In the only reported case squarely on the point it has been held
that a vein cannot be followed on its dip through a prior agricultural
grant.18* In another case a trial judge announced the doctrine that
the vein could be followed under such land; but, as a settlement pend-
ing the appeal enabled the upper court to avoid deciding the point,***
the grounds of the decision are not before us. Doubtless the trial
judge in the latter case followed the reasoning of Mr. Lindley, namely,
that the mining law is but a part of the public land law, and that an
agricultural land patent should confer no more rights as against apex
owners than mining patents do. Mr. Lindley insists that all the fed-
eral laws providing for the sale and disposal of the public lands “are
essentially in pari materia.”18° His conclusion would seem to be
sound on principle and should be adopted by the courts.
SAME—“‘THEORETICAL APEX.”
118m. Where veins apex in land from which they cannot be pursued
extralaterally, there is some reason to contend that the lo-
cator of a lode claim on the dip of such a vein adjoining the
land in which it apexes shall be deemed theoretically to have
the apex for extralateral right purposes.
A land department decision +*° raises a question that is of interest,
namely, whether a vein apexing in an agricultural or other grant of
land, from which it cannot be pursued extralaterally, can be located
on the dip in such a way that the dip locator will get extralateral
rights. The question is whether the courts will “theorize” an apex’'so
to speak, by treating the part of the dip just outside the lines of
the grant containing the real apex as if that part really were the
98. See DEL MONTE MINING & MILLING CO. vy. LAST CHANCE MINING
& MILLING CO., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Hd. 72, where ore on the
dip and under the senior claim, the Del Monte, was awarded to the Last
Chance, the junior claim, which owned the apex.
1383 AMADOR MEDEAN GOLD MIN. Co. v. SOUTH SPRING HILL GOLD
MIN. CO. (C. C.) 86 Fed. 668. Compare Paterson v. Ogden, 141 Cal. 48, 74
Pac. 448, 99 Am. St. Rep. 31, where the agricultural land patent expressly re-
served dip rights. The court did not have to pass on the validity of that res-
ervation, but seemed to think it void.
184 WEDEKIND v. BELL, 26 Ney. 395, 69 Pac. 612. The state report gives
the briefs of counsel, showing what the trial court ruled.
1352 Lindley on Mines (2d Ed.) § 612.
186 WOODS vy. HOLDEN, 26 Land Dec. Dep. Int. 198.
§ 118n) EXTRALATERAL RIGHTS UNDER ACT OF 1872. 451
apex. The term “theoretical apex” should be applied to such a case,
and the term “judicial apex” kept for the case where the junior claim
really does throw its lines over the apex, albeit partly within the lines
of a senior location.}+
The question could arise just as well where the apex of the vein
is wholly occupied by locations having end lines diverging on the dip.
For instance, in a case such as in Figure No. 36, where the apex is
taken by locations having their end lines so directed that large parts
of the dip belong to nobody, and yet none of the real apex is left to
locate, there is really no reason why the courts should not evolve a
theoretical apex to meet the situation.1*7 The Del Monte Case lets
each of two conflicting locations have the same apex for extralateral
right purposes, the junior having it subject of course to the prior
rights of the senior; but that case of “judicial apex” is different from
this case of “theoretical apex,” because in that case of judicial apex
the lines of the junior claim actually embrace the apex, though subject
to the full rights of the senior claim, while in this case of theoretical
apex the lines of the claim do not actually embrace the apex. It is, per-
haps, wiser to adopt Mr. Lindley’s attitude, and refuse to predict what
the courts will do.188
SAME—RIGHTS OF GRANTOR AND GRANTEE AFTER A GRANT OF
PART OF A LOCATED APEX.
118n. The grantee of part of a location with an inclosed part of the
apex of the located vein is on principle entitled to extralateral
rights bounded by planes drawn parallel to the original lo-
cation’s end lines and through the points where the vein en-
ters and departs from the granted land.
The grantor under such a grant ought on principle to have full extra<
lateral rights under the granted land, subject only to the
grantee’s prior right to veins apexing in the granted land;
but a California case holds that he is estopped by the grant
from extralateral pursuit of veins under the granted lands.
As a conveyance of a location conveys with the apex of the vein
all extralateral rights, a conveyance of part of the location contain-
ing a portion of the apex should convey pro tanto extralateral rights.
It is admitted, of course, that the parties may in their conveyance
++ For “judicial apex,” see § 118h.
187 The land department favors it. WOODS v. HOLDEN, 26 Land Dec. Dep.
Int. 198; Id., 27 Land Dee. Dep. Int. 375.
1881 Lindley on Mines (2d Ed.) p. 567, § 312a.
452 SUBSURFACE RIGHTS. (Ch. 21
expressly define their rights; but the question is what rule to apply
in the absence of any such expression of intention.
FIGURE No.4.
Cc
!
'
1
i
Take Figure No. 49, where the owner of the claim conveys the tri-
angular piece a—b—c. Is the grantee to be allowed dip rights, or is he
to be estopped from claiming them by the fact that this strip does not
have parallel end lines? The best rule is that the grantee has extra-
lateral rights within planes drawn through the points where the vein
crosses the grantee’s boundaries and parallel to the end lines of the
grantor’s claim.1*® If the grantor has in his remaining piece the apexes
of veins which dip under the granted land, it would seem that on
principle he should have the right to follow that dip. The same rea-
soning that will allow a subsequent locator to follow the dip of his
vein under a prior patented claim should allow the grantor to follow
the dip of his lodes under the granted land. But a recent California
case holds that the grantor is estopped to do so.1*° ©
139 MONTANA ORE PURCHASING CO. v. BOSTON & M. CONSOL. COP-
PER & SILVER MIN. CO., 27 Mont. 288, 536, 70 Pac. 1114, 71 Pac. 1005. But
see Boston & M. Consol. Copper & Silver Min. Co. v. Montana Ore-Purchasing
Co. (C. C.) 89 Fed. 529.
140 Riley v. North Star Min. Co. (Cal.) 93 Pac. 194.
§ 119) CROSS VEINS. 453
CROSS VEINS.
119. Veins which cross on their dip belong to the locators having the
apexes, except that the ore at the space of intersection be-
longs to the senior location.
Veins which cross on their strike likewise belong to the locators
having the apexes; but under the construction given the fed-
eral statute there is a right of way in the junior locator
through the space of intersection from one part of his claim
to another. Whether that right of way is confined to the
course of the vein, or is to be exercised where the junior
claimant finds it most convenient within the conflict area
of the two claims, is in doubt.
“Where 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 subse-
quent location shall have the right of way through the space of in-
tersection for the purposes of the convenient working of the mine.”
Rev. St. U. S. § 2336 (U. S. Comp. St. 1901, p. 1436).
Considering that the next sentence of the above section of the Re-
vised Statutes treats of veins uniting on the dip, there is very little
doubt that, if the question were an original one to-day, the above por-
tion of the section would be held to apply only to veins crossing on the
dip. Unfortunately, however, it was decided early in Colorado that
the section governed the case of veins crossing on the strike; 141 and
while the Colorado court, with the affirmation of the Supreme Court
of the United States, has reversed that earlier ruling 74? so far as to
give the first locator of a claim all veins within his boundaries, it
still seems to be true that, where the junior locator’s lines are laid
along his vein across the senior claim, the junior locator is deeméd
entitled to a right of way through the senior’s claim from one segment
of the junior’s bisected claim to the other. In this view of the matter,
“space of intersection,” in the federal statute, means the space in the
senior claim within junior lines, instead of meaning, as it ought, if
141 Branagan vy. Dulaney, 8 Colo. 408, 8 Pac. 669; Hall v. Equator Mining
& Smelting Co. (U. S.) Fed. Cas. No. 5,931. On the effect of a contract affect-
ing conflicting ground, when this case was law, see Bogart vy. Amanda Consol.
Gold Min. Co., 32 Colo. 32, 74 Pac. 882.
142 CALHOUN GOLD MIN. CO. v. AJAX GOLD MIN. CO., 27 Colo. 1, 59:
Pac. 607, 50 L. R. A. 209, 88 Am. St. Rep. 17; Id., 182 U. S. 499, 21 Sup. Ct.
885, 45 L. Ed. 1200.
454 SUBSURFACE RIGHTS. (Ch, 21
applicable at all to veins crossing on their strike, the space where the
veins actually intersect in crossing on the strike.tt
Now that Branagan v. Dulaneys which allowed the junior locator to
take all the ore on the cross vein within the senior’s lines, save only
where the veins actually intersected on their strike, has been re-
pudiated, the fact that a right of way through the senior claim still
exists on the strike of the cross vein or through the space of claim in-
tersection seems a small matter.1*%
tiIn CALHOUN GOLD MIN. CO. v. AJAX GOLD MIN. CO., supra, the
Colorado court, in speaking of the cross vein claimant, said: “But, if the ex-
pression ‘space of intersection’ is limited to the intersection of veins, as the
space through which he should have a right of way for the convenient working
of his mine, it would be of no avail, for he would have no right under which
he could reach the easement; and so, again, in order to recognize one which
would be of any value to the junior cross claimant, the space of intersection
must also mean the intersection of the claims.” 27 Colo. 1, 19, 59 Pac. 607, 615,
50 L. R. A. 209, 83 Am. St. Rep. 17. That argument, however, contains a
false assumption. If an easement through the space of intersection of veins
is given, that would seem necessarily to imply an easement from one part of
the junior cross claim along the cross vein, to and through the space of in-
tersection of veins, and thence along the cross vein to the other part of the
junior cross claim. Assuming, then, that the statute was meant to apply
to veins crossing on their strikes, the controversy must be as to whether the
easement of a right of way through senior ground must be exercised by the
cross claimant only in and along the cross vein, or whether he may exercise
that easement at the most convenient place for him in the space of intersec-
tion of the two claims. It is to be regretted that the statute was ever con-
strued to give an easement in the case of veins crossing on their strikes. The
cross vein statute appears to have been meant to apply only to veins crossing
on their dips. :
148 The Supreme Court of the United States expressly refused to say wheth-
er the right of way was only through the vein, as held in Arizona, California,
and Montana, or was through the space of intersection of the claim, as held
in Colorado. CALHOUN GOLD MIN. CO. v. AJAX GOLD MIN. CoO., 182 U.
S. 499, 21 Sup. Ct. 885, 45 L. Hd. 1200. See WATERVALE MIN. CO. v. LEACH,
4 Ariz. 34, 33 Pac. 418; Wilhelm vy. Silvester, 101 Cal. 358, 35 Pac. 997; Pardee
v. Murray, 4 Mont. 234, 2 Pac. 16. It has been said of CALHOUN GOLD MIN.
CO. v. AJAX GOLD MIN. CoO., supra, that “under the decision of the Supreme
Court of the United States four questions growing out of the two sections of
the statute referred to are still undetermined: (1) Does section 2336, Rey. St.
U. 8S. (U. S. Comp. St. 1901, p. 1436), apply to veins located under the law of
1866 which cross each other on their course or strike within the limits of the
older location? (2) If so, does the ‘space of intersection’ mean the intersec-
tion of the veins or of the claims? (8) If the ‘space of intersection’ means
the intersection of the claims, has the junior locator the right of way within
the claim entirely across the location? (4) Can one locate a vein which crosses
another on its strike within the surface boundaries of a valid location in such
manner as to leave it entirely subdivided by the older location?’ 27 Cyc. 586.
§ 119) OROSS VEINS. 455
FIGURE No, 50.
Figure No. 50 represents the situation dealt with by the courts
where the veins cross on their strikes.
FiaurReE No. 51.
SURFACE
Figure No. 51 represents veins crossing on the dip,***
««* Tn Stinchfield v. Gillis, 96 Cal. 33, 30 Pac. 839, veins crossed on the dip,
and the question about the ownership of the ore at the space of intersection
arose between the grantee of part of a mining claim and his grantor. As the
intersection occurred under the granted land, the ore at the place of intergec-
tion was awarded to the grantee, although the grantor’s location antedated a
relocation by the grantee. In Stinchfield v. Gillis, 107 Cal. 84, 40 Pac. 98, the
grantee’s right was reaflirmed, despite the fact that the location of the gran-
tor was senior, and did not, as had been supposed on the earlier appeal, consist
456 SUBSURFACE RIGHTS. (Ch. 21
CROSSING OF EXTRALATERAL RIGHTS ON DIP OF SAME VEIN.
120. Where, owing to the shape of two claims located on a vein, their
dip rights cross each other, the senior locator takes the ore
in the space of intersection of the dips, but the junior locator
has an easement to go through to get the ore on the dip of
his vein beyond.
FiaguRE No. 52.
‘ DINCOVERY /VeIN 3 —
Me SENIOR ye J. JUNIOR /
ie 7
My / 7
\ x \. /
“ \ /
\ 7 \
A Mie 7
“x Ni ax
/ \ f=
Analogous to the case of veins crossing on the dip is the case of
the crossing on the same vein of dip rights. It is clear, of course,
that the senior claim is protected;+** but does the junior claim get
the part beyond the point of crossing, and has it a right of way through
the space of intersection? It has been held, and properly, it would
seem, that the junior both owns the segment beyond the space of in-
tersection and has an easement to go through the space of intersection
to get at it.45 The principle of the statute covering lodes crossing
on the dip is applied, on the theory that the statute is simply declaratory
of that law of mining which would apply in the absence of a statute.
The situation is represented in Figure No. 52.
merely of the balance of the claim out of which the grant was made. The
fact that the grantor and his predecessor had treated the claim of which part
had been conveyed and the adjoining claim on which the grantor was relying
as together making one claim led the court to apply the same rule as if they
had actually constituted one claim.
144 ARGENTINE MIN. CO. v. TERRIBLE MIN. CO., 122 U. 8S. 478, 7 Sup.
Ct. 1356, 1140. See Jefferson Min. Co. v. Anchoria-Leland Min. & Mill. Co.,
82 Colo. 176, 75 Pac. 1070, 64 L. R. A. 925.
145 EMPIRE STATE-IDAHO MINING & DEVELOPING CO. v. BUNKER
HILL & S. MINING & CONCENTRATING CO., 121 Fed. 973, 58 ©. C. A.
311; BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO. v.
EMPIRE STATE-IDAHO MINING & DEVELOPING CO. (C. C.) 184 Fed. 268;
DAVIS vy. SHEPHERD, 31 Colo. 141, 72 Pac. 57.
§§ 121-122) VEINS UNITING ON DIP AND STRIKE, 457
VEINS UNITING ON THE DIP AND ON THE STRIKE.
121. Where two or more veins unite on the dip, the senior location
takes the compound vein below the point of union, as well
as the space of union.
122. Where two or more veins unite on the strike, they belong to
the senior location in which they apex.
Veins Uniting on the Dip.
Rey: St. U.S, § 2336 (U, §. Comp. St, 1901, 9. 1436). ** * *
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 in-
tersection.”
Fiaure No. 53.
SURFACE ey
of8 Unig
oe
Figure No. 53 represents veins uniting on the dip. In such case
the first location, without regard to which location was first patented,
takes the whole vein below the point of union;14* and that is true,
regardless of whether, beyond the point of union, it passes under still
a third claim.?47
Veins Uniting on the Strike.
Veins which unite on the strike are owned, of course, by the senior
location or patented claim within the lines of which their united apexes
are found.148
146 LITTLE JOSEPHINE MIN. CO. v. FULLERTON, 58 Fed. 521, 7 C.
Cc. A. 840; CONSOLIDATED WYOMING GOLD MIN. CO. v. CHAM-
PION MIN. CO. (C. C.) 63 Fed. 540. See Champion Min. Co. v. Consolidated
Wyoming Gold Min. Co., 75 Cal. 78, 16 Pac. 513.
147 ROXANNA GOLD MINING & TUNNELING CO. v. CONE (C. CG.) 100
Fed. 168.
148 LEE v. STAHL, 13 Colo. 174, 22 Pac. 486; Book v. Justice Min. Co. (C.
C.) 58 Fed. 106. That is because the word “below” in the statute cannot be
construed to mean “beyond.” LEB y. STAHL, supra.
458 SUBSURFACE RIGHTS. (Ch. 21
EXTRALATERAL RIGHT COMPROMISE AGREEMENTS AND
DEEDS.
123. Relative extralateral and intralimital rights may be adjusted
by compromise agreements and deeds. Such adjustments are
most likely to occur during adverse suits,
It is, of course, possible for the owners of adjoining mining claims
to adjust by deed their relative extralateral rights. Where an agree-
ment is entered into which awards one mine owner extralateral rights
under an adjoining mine owner’s land, and deeds are executed to car-
ry out the agreement, the right of the first owner to the extralateral
pursuit of his vein under the second one’s land cannot be denied on the
ground that the end lines of his claim are not parallel.1*® So, where
an end line is fixed by compromise, no right beyond it can be claim-
ed; 75° and, if the parties so stipulate, each may forego extralateral
rights under the land of the other.15! Where the owner of a pat-
ented quartz mine gave to the owner of certain agricultural land a
quitclaim deed to a portion of subsequently patented agricultural land
described as lying east of the patented quartz mine, it was held by
the state court that the deed conveyed no interest in the dip of the
patented quartz vein beneath the agricultural surface;*°* and the
United States Supreme Court followed the state court’s construction
of the deed.15? So rights to cross veins may be changed by con-
traet:*>*
149 RICHMOND MIN. CO. OF NEVADA vy. EUREKA CONSOLIDATED
MIN. CO., 103 U. S. 839, 26 L. Hd. 557.
150 KENNEDY MINING & MILLING CO. v. ARGONAUT MINING CO.,
189 U. S. 1, 23 Sup. Ct. 501, 47 L. Ed. 685. Where a patent is issued for a
placer, “excepting and excluding * * * all that portion of the surface
ground herein described which is embraced by” a lode named, the placer
patentee does not get title to the veins and lodes which apex beneath the ex-
cepted surface; for not only the surface area embraced in the conflict area,
but also all veins or lodes beneath such surface having their tops or apexes
within the vertical lines thereof, are carved out of the placer grant by the -
exception. LELLIE LODE MINING CLAIM, 31 Land Dec. Dep. Int. 21.
151 MONTANA MIN. CO. v. ST. LOUIS MIN. & MILL. CO., 204 U. S.
204, 27 Sup. Ct. 254, 51 L. Ed. 444. See Montana Ore Purchasing Co. vy. Boston
& M. Consol. Copper & Silver Min. Co., 27 Mont. 536, 71 Pac. 1005; RILEY
v. NORTH STAR MIN. CO. (Cal.) 93 Pae. 194.
152 Central Eureka Min. Co. v. Hast Central Eureka Min. Co., 146 Cal.
147, 79 Pac. 834,9 L. R. A. (N. 8.) 940.
153 BAST CENTRAL EUREKA MIN. CO. v. CENTRAL EUREKA MIN.
CO., 204 U. S. 266, 27 Sup. Ct. 258, 51 L. Ed. 476.
164 Coffee vy. Emigh, 15 Colo. 184, 25 Pac. 88, 10 L. R. A. 125.
§ 124) ILLUSTRATIVE DIAGRAM, 459
DIAGRAM TO ILLUSTRATE RELATIVE EXTRALATERAL RIGHTS.
124. Relative extralateral rights may best be illustrated by Figure
No. 54.
; A good diagram to illustrate relative extralateral rights is found
in Figure No. 54.
Figure No. 54
ny
¢
Tr jam p w——E
ts |
ascot 3
ten-| Mascot Extension Ng \ qa Ehens lon mh Mascot
sion| b
Not “™ ate \
xtengio
No 3. \ a *~
Hoodoo \ é :
WG
Let it be assumed that the Mascot claim was located under the
act of 1866 and all the others under the act of 1872. Assume that the
Mascot extension claims were located in the order indicated by their
names, and that after they were located the Hoodoo claim was lo-
cated, and then the Tramp. Let vein a—b—b’ be the original discov-
ery vein on all but the Hoodoo and Tramp claims. Let vein c—d be
the discovery vein of the Tramp, and the broad vein, x—y, that of the
Hoodoo. Veins e—f and g—h are secondary veins, and b—b” is a split-
off part or spur of the vein a—b—b’. Let vein a—b dip to the south,
b—b” and e—-f dip southwest, g—h dip southeast, and c—d dips west.
The extralateral rights of the claims then are:
Mascot. As the Mascot was located under the act of 1866, the end
lines need not be parallel to give extralateral rights. The first question
is as to the discovery vein, b—b’. The general course of the vein in
the Mascot must be established, and parallel planes-are then drawn
at right angles to that course through the points where the vein en-
ters and leaves the surface boundaries. Then with reference to the
secondary vein, ‘g—h, we note that while under the act of 1866 it
did not belong to the owner of the Mascot, and therefore had no
extralateral rights, the act of 1872 changed that rule by express pro-
vision. Owing to the way g—h lies in the claim, however, it probably
could have no extralateral rights if the end lines fixed for b—b’ gov-
ern, as to try to award them would be to give the strike, not the dip,
460 SUBSURFACE RIGHTS. (Ch, 21
and even if Ajax Min. Co. v. Hilkey?®® is to be followed the same
difficulty would exist. It would seem to be clear that g—h has no
extralateral rights.
Mascot Extension No. 1. The end lines would be extended to fix
the planes for extralateral rights on vein a—b—b.’ These rights
would be subject, of course, to the prior rights, if any, of the Mascot.
Planes parallel to the end lines would be drawn through the points
where vein c—d enters and leaves the location to fix the extralateral
rights on that vein. Vein b—b”, being parallel with the end lines,
could enjoy no extralateral rights, as to attempt to give them would
award the strike, and not the dip.
Mascot Extension No. 2. As to vein a—b the question of extra-
lateral rights depends upon whether Mr. Lindley’s view is adopted,
that even under the act of 1872 such rights may exist without parallel
end lines, providing those lines converge on the dip. If his view is
adopted, as it ought to be, the rights on vein a—b would be limited
by the converging end lines of the claim extended to their meeting
point. Whether the vein e—f would have extralateral rights is doubt-
ful, however. The rule for the broad vein, x—y, would probably ap-
ply. On the broad vein, x—y, lines would probably be drawn through
its points of entrance into and departure from the claim parallel to
the respective converging end lines of the claim, and these new lines
extended to their point of convergence. On one view of Walrath v.
Champion Min. Co. all the dip of the broad vein and of vein e—f
could be claimed by Mascot Extension No. 2 within the converging
end lines of the location as extended; but that view must be repudiated.
Mascot Extension No. 3, Find the end lines established as such
by the locator by looking at his notices, end line or side line posts, etc.,
and then draw ‘ines parallel to those end lines through the points
where the discovery vein, a—b, enters and departs from the location.
That will fix the extralateral right lines on that vein. Then, if e—f
is not parallel with the claim’s end lines, extralateral rights will ex-
ist on it. If Ajax Min. Co. v. Hilkey'®® is to be followed as it should
be, these rights will be bounded by the claim’s end lines extended.
If it is not to be followed, they will be bounded by the end lines
fixed for vein a—b extended. Of course, if vein e—f turns out
to be parallel to the claim’s end lines, no extralateral rights on it
can be allowed, as to attempt to give them would be to award the
strike of the vein. What has been said of these other veins will apply
to the broad vein x—y.
15531 Colo. 131, 72 Pac. 447, 62 L. R. A. 555, 102 Am. St. Rep. 23.
156 Td.
§ 124) ILLUSTRATIVE DIAGRAM. 461
Mascot Extension No. 4. In this claim the side lines are the end
lines, and they are parallel, so there should ‘be extralateral rights on
vein a—b. Messrs. Morrison and De Soto would not allow the vein
to be pursued beyond the located end line; but, as that has become
a side line for this purpose, pursuit of the vein beyond it and within
the planes formed by extending the other and parallel lines is doubt-
less permitted. If vein a—b may be pursued beyond the claim’s ver-
tical boundaries, vein x—y may be. As to the rule with reference to
that vein the same question about Walrath v. Champion Min. Co.
arises as did with reference to Mascot Extension No. 2. The true
way of determining the rights would seem to be to draw planes paral-
lel to the extralateral right end lines through the extreme points of
entrance and exit of x—y, provided that doing so will not give extra-
lateral pursuit of the strike of the vein.
Hoodoo. The Hoodoo gets all extralateral rights in x—y within
the extended end line planes of the Hoodoo not already awarded to
the Mascot Extension No. 2 and to the Mascot Extension No. 3.
The Tramp. The Tramp gets all extralateral rights on the vein
c—d within the Tramp’s end line planes extended not already award-'
ed to the Mascot Extension No. 1. The Tramp also gets whatever
“cross vein” rights there may be under the federal statutes.157
157 Ag to these, see the discussion of cross veins, supra, § 119.
462 COAL, TIMBER, AND STONE LAND ENTRIES, ETC. (Ch. 22
CHAPTER XXII.
COAL LAND AND TIMBER AND STOND LAND ENTRIES AND PATENTS.
125. Coal Land Entries.
1253, Ordinary Cash Entry.
125b. Cash Entry under a Preference Right.
125¢. Indian Coal Land Leases. :
126. Timber and Stone Land Entries.
COAL LAND ENTRIES.
125. Coal lands are entered by legal subdivisions by qualified in-
dividuals and associations. They may be entered (1) by ordi-
mary cash entry, and (2) by cash entry under preference right.
Coal lands + are entered by legal subdivisions.2. Any individual who
is a citizen of the United States, or has declared himself to be such,
and who is 21 years of age, may enter by such subdivisions, not to ex-
ceed 160 acres.* Any association, which includes a corporation,* com-
posed of individuals qualified to make entry as individuals, may enter
not to exceed 320 acres by private entry, ® and if the association con-
sists of not less than four qualified persons, who shall have expended
not less than $5,000 in working and improving a coal mine or mines, it
may enter not to exceed 640 acres, including such mining improve-
ments. The right to purchase coal lands can be exercised but once,
whether the person exercising it did so alone or as a member of an
association, and no entry can be allowed to an association which has
in it a single person disqualified." Moreover, in a recent case where
1“Lands containing lignites are included under the term ‘coal lands.’”
Coal Lands Regulations, part 1, rule 2. See Appendix.
“The lands must be vacant and unappropriated, and must contain work-
able deposits of coal, and must not be valuable for mines of gold, silver, or
copper.” Id.
21d.
3 Rev. St. U. S. § 2347 (U. S. Comp. St. 1901, p. 1440); Coal Land Regula-
tions, part 1, rule 3.
4UNITED STATES v. TRINIDAD COAL & COKING CO., 187 U. S. 160,
11 Sup. Ct. 57, 34 L. Ed. 640.
5 Rev. St. U. S. § 2847 (U. S. Comp. St. 1901, p. 1440); Coal Land Regula-
tions, part 1, rule 3.
6 Rev. St. U. S. § 2348 (U. S. Comp. St. 1901, p. 1440); Coal Land Regula-
tions, part 1, rule 4.
7 Rev. St. U. S. § 2350 (U. S. Comp. St. 1901, p. 1441); Coal Land Regula-
tions, part 1, rule 5.
“The right so to enter or hold is exhausted, whether an entry embraces in
§ 125a) COAL LAND ENTRIES. 463
a wife sought to purchase coal lands, the land department said: “The
provisions of the coal land laws fully warrant the requirement in all
cases that in entries thereunder the entryman shall show under oath
that the entry is made in good faith in his own and individual interest,
and not in the interest, directly or indirectly, in whole or in part, of
any other person or persons whomsoever.” ®
The coal land laws recognize two kinds of entry: (1) Ordinary cash
entry; and (2) cash entry under a preference right.
SAME—ORDINARY CASH ENTRY.
125a. Ordinary cash entry is without previous occupation or improve-
ment of the land, and the steps in it are (1) the filing of a
sworn application; (2) the posting and publication of a no-
tice of application; (3) the proofs of the completed posting
and publication; (4) the determination in the land office of
adverse claims and protests; (5) the report by the chiefs
of field division of special agents of the land department;
(6) the register’s certificate for entry and the receiver’s re-
ceipt; (7) the patent,
The ordinary cash entry may be made without previous occupation
or improvement of the coal land. To enter the lands the entryman
must make oath to an application prescribed by the land department
showing his qualifications to purchase, the fact that no part of the
land is in the possession of anybody else, and that it is chiefly valuable
for its coal deposits.° Upon the filing of this application, the applicant
is required, at his own expense, to publish for 30 days a notice of the
application in a form prescribed by the land department. The notice
must be published “in a newspaper nearest the lands, to be designated
by the register,” and during the period of publication “a similar notice
any instance the maximum area allowed by the law or less; also by the
acquisition of a preference right of entry, unless sufficient cause for the
abandonment thereof is shown.” Id. See UNITED STATES v. TRINIDAD
COAL & COKING CO., 187 U. S. 160, 11 Sup. Ct. 57, 84 L. Ed. 640.
8 Jessie E. Oviatt, 35 Land Dec. Dep. Int. 235, 238. The ruling was that,
in a state where by virtue of the marriage a husband had no vested interest
in his wife’s property, she could enter coal lands for herself. See, also, John-
son yv. Leonhard, 1 Wash. St. 564, 20 Pac. 591. But on the essentials of crim-
inal conspiracy in the entry of coal lands, see United States v. Keitel (D. C.)
157 Fed. 396; Pereles v. Weil (D. C.) 157 Fed. 419; Arnold v. Weil (D. C.) 157
Fed. 429; United States v. Robbins (D. C.) 157 Fed. 999. Compare William-
son v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278.
9 Coal Land Regulations, part 1, rule 10, contains the form of application.
By rule 16 the verification must take place in the district where the land is
situated and before the register or receiver in that district.
464 COAL, TIMBER, AND STONE LAND ENTRIES, ETC. (Ch. 22
must be posted in the local land office and in a conspicuous place on
the land.” 2° Proofs of publication of the notice and of its conspicuous
and continued posting on the land must be furnished, and the register
must add his certificate that the notice remained posted in his office.*?
The notice is a call for protests and adverse claims, and if any are filed
before entry the local officers will hear them; but after entry the local
officers can only forward the papers to the General Land Office for
instructions.17 An entry will in no case be allowed until the proofs
of publication of notice and of posting are filed.1* If the specified
proofs are not furnished, and the purchase price is not tendered, with-
in 30 days after the expiration of the period of newspaper publication,
the local land officers must reject the application, subject to appeal.1*
“Furthermore, in the exercise of a preference right to purchase, no
part of the 30-day period specified herein may extend beyond the year
fixed by the statute.” 15
When the requisite proofs are furnished, and all adverse claims and
protests are disposed of, and the register finds both that the tract ap-
plied for is vacant, surveyed, and unappropriated, and that the claim-
ant has complied with all the coal land laws and regulations, the
register will certify the facts to the receiver, stating the prescribed
purchase price for the land, and the applicant must then pay the
amount of purchase money.?® Registers and receivers will not issue
final certificates, or their equivalents, until notice has been given to the
10 Coal Land Regulations, part 1, rule 17, 19.
11 Coal Land Regulations, part 1, rule 18.
12 Coal Land Regulations, part 1, rules 8,9. The decision of the Interior De-
partment in canceling an entry on coal land, permitting an amendment of an-
other entry, and issuing a patent on the iatter entry, cannot be collaterally at-
tacked. Quinn v. Baldwin Star Coal Co., 19 Colo. App. 497, 76 Pac. 552.
13 Coal Land Regulations, part 1, rule 18.
14 Coal Land Regulations, part 1, rule 18, as amended November 30, 1907.
15 1d.
16 Coal Land Regulations, part 1, rule 20. The price is fixed by statute with
reference to completed railroads. The term “completed railroad” is held to
mean “a railroad actually constructed, equipped, and operating at the date
of entry.” Coal Land Regulations, part 1, rule 6. The price is not less
than $10 per acre where the land is situated more than 15 miles from any
completed railroad, and not less than $20 per acre where it is within 15 miles
of such road. Coal Land Regulations, part 1, rule 12; Rev. St. U. S. § 2347 (U.
S. Comp. St. 1901, p. 1440). The distance is measured from the roadbed and
not from the nearest shipping point. Clinton S. Conant, 29 Land Dec. Dep.
Int. 637. The Commissioner of the General Land Office will furnish informa-
tion from time to time to the registers and receivers showing the coal lands
for sale, with a schedule of prices for them. The coal entries are to be al-
lowed at the minimum prices stated above, except that lands known to con-
tain workable deposits of coal and so designated on the maps furnished shall
§ 125b) COAL LAND ENTRIES. 465
chiefs of field division of special agents, and the latter have returned a
copy of the notice with an indorsement not protesting the validity of
the entry.17 The receiver’s receipt is followed in due time by patent.
SAME—CASH ENTRY UNDER A PREFERENCE RIGHT.
125b. The actual possession of coal lands and the bona fide opening
thereon of a coal mine give a preference right in the lands,
which must be exercised, if at all, within 60 days. The proceed-
ings otherwise are substantially like those in the case of ordi-
nary cash entry, except that entry claimed under a preference
right cannot take place until a year after the expiration of
the 60-day period allowed for filing the sworn application.
The preferential right to purchase* rests upon actual possession of
the land and the opening of a coal mine thereon improved sufficiently
to indicate good faith.* By ordinary cash entry one can get no rights
in unsurveyed lands; but the preferential right, though it can be per-
fected only on surveyed lands, can be initiated on unsurveyed lands.?®
If initiated on unsurveyed lands, the declaratory statement must be
filed within 60 days after the receipt of the township plat at the dis-
trict land office; ?° while, if initiated on surveyed land for which the
be sold at the prices stated in the schedules and maps. Land Office Regula-
tions, part 1, rule 6.
17 Instructions of April 24, 1907, § 5. See Appendix.
*“The term ‘preference’ is a familiar one under the public-land laws and
means ‘exclusive.’ A right thus secured, therefore, is to the exclusion of all
other persons; and it is evident without argument that the duration and ex-
tent of a right of that character should be strictly governed by the statute.
* * * Under the provisions of the law the preference right of entry arises
only when a duly qualified person or persons open and improve a mine or
mines of coal upon the public lands and are in actual possession of the same.
Apart from the matter of qualification under the statute, three elements must
concur in point of time to give rise to the preference right, viz.: The opening
of a mine of coal; its improvement as such; and actual possession.” Charles
S. Morrison, 86 Land Dec. Dep. Int. 126, 128, 129.
18 Rey. St. U. S. § 2848 (U. S. Comp. St. 1901, p. 1440); James D. Negus, 11
Land Dec. Dep. Int. 32; Reed v. Nelson, 29 Land Dec. Dep. Int. 615. ‘A
perfunctory requirement with the law in this respect will not suffice; but
a mine or mines of coal must be in fact opened and improved on the land
claimed.” Coal Land Regulations, part 1, rule 7. Clearing out old coal pros-
pects at an expense of $10 will not do. Esther F. Files, 836 Land Dec. Dep.
Int. 360.
19 Holladay Coal Co. v. Kirker, 20 Utah, 192, 57 Pac. 882.
20 Coal Land Regulations, part 1, rule 7. A method is provided for getting
a survey of such unsurveyed lands under Act Aug. 20, 1894, ¢. 802, 28 Stat. 423
(U. S. Comp. St. 1901, p. 1477). See Circular 21 Land Dec. Dep. Int. 77. See
Coal Land Regulations, part 1, rule 23.
Cost.M1n.L.—30
466 COAL, TIMBER, AND STONE LAND ENTRIES, BTC. (Ch. 22
township plat is already on file, the tract must be claimed within 60
days from the date of actual possession and commencement of improve-
ments upon the land.?1. The declaratory statement must set forth the
qualifications of the applicant, the circumstances giving preferential
rights, and the fact that the land is chiefly valuable for coal; and it
must be verified.?? Then, within one year after the expiration of the
period allowed for filing the declaratory statement, the applicant** may
file a sworn application to purchase, substantially in repetition of the
declaratory statement,?* and after a publication and posting of notices
similar to that in the case of ordinary cash entry,?® and after special
notice to all others who appear of record as claimants of the same
tract, he may make final proof and payment.?* Protests and adverse
claims are governed by the same rules as in ordinary cashentry. There
is the same notice to and return of copy by the chiefs of field divisions
of special agents. The register makes the same certificate as in ordi-~
nary cash entry, and on payment of the money the receiver’s receipt
issues. Patent follows in due course.
21 Rey. St. U. S. § 2849 (U. S. Comp. St. 1901, p. 1440); Coal Land Regula-
tions, part 1, rule 7. “From the date the mine is opened upon the coal and
improvements thereon are commenced, the possession concurring, the period
of 60 days within which a declaratory statement may be filed in accordance
with section 2349 begins to run.” Charles §. Morrison, 36 Land Dec. Dep.
Int. 126, 129. If the declaratory statement is not filed within the 60 days,
but is filed within the period of substantially 14 months allowed to the claim-
ant to purchase and before adverse rights intervene, the preference right ex-
ists. CHARLES S. MORRISON (ON REVIEW) 36 Land Dec. Dep. Int. 319.
22 A form is suggested by the land department. Coal Land Regulations, part
1, rule 11. By rule 16 the verification must take place in the district where the
land is situated and before the register or receiver of the land district.
23 “Assignment of a preference right of entry under section 2348, Rev. St.
U. S. (U. S. Comp. St. 1901, p. 1440), will not hereafter be recognized.” Coal
Land Regulations, part 1, rule 5. A contract by one person to enter coal land
and after patent convey it to another, who has exhausted his right, is clear-
ly contrary to public policy. JOHNSON v. LEONHARD, 1 Wash. St. 564,
20 Pac. 591.
24 For form of affidavit, see Coal Land Regulations, part 1, rule 14.
25 Coal Land Regulations, part 1, rules 17, 18, 19. Publication must be made
sufficiently in advance to permit entry within the year specified by the statute.
Id. rule 17. :
26 Coal Land Regulations, part 1, rule 12. “A declarant will not be per-
pitted to file after the expiration of the 60 days allowed, nor to exercise a
preference right of purchase after the expiration of the year.” Coal Land
Regulations, part 1, rule 18. See Rev. St. U. S. § 2350 (U. S. Comp. St. 1901,
p. 1441); Reed v. Nelson, 29 Land Dec. Dep. Int. 615.
§ 126) ' TIMBER AND STONE LAND ENTRIES. 467
SAME—INDIAN COAL LAND LEASES.
125c. Certain Indian coal lands are not allowed to be sold, but are
leased for the Indians by the United States. It is possible
that ultimately a similar leasing system will completely dis-
place the present system of coal land entries.
The coal lands of the tribes of Indians in that part of Oklahoma
which was Indian ‘Territory have been protected from sale, and are
still to some extent protected from sale, by various United States stat-
utes, but have been leased for the Indians by the United States. In
view of at least one bill pending in Congress to end the sale of all
coal lands and substitute a system of leasing such lands, the regula-
tions adopted by the United States for the leasing of some of such
Indian mineral lands, and, in addition, some of the forms used by the
United States, are embodied in the appendix of this book.
TIMBER AND STONE LAND ENTRIES.
126. A plan analogous to that used in coal land entries is followed
under the timber and stone act for timber and stone lands,
which are unfit for cultivation and are valuable chiefly for
timber and stone. The steps are: (1) The sworn application;
(2) the posting and publication of the notice of application;
(3) the proofs of posting and publication; (4) an oral hear-
ing, and, if there are any adverse claims or protests, their
determination; (5) a report by the chief of field division of
special agents of the land department; (6) entry; (7) patent.
Under the timber and stone act of June 3, 1878,27 as amended Au-
gust 4, 1892,?8 a somewhat similar method to that for coal lands is
provided for acquiring lands valuable chiefly for timber or stone and
unfit for cultivation at the time of sale.2° The same rules as to in-
dividual and association qualifications apply to claimants of such lands
as do to claimants for coal lands, except that only 160 acres can be
acquired by any one person or association.*° No land can be entered
until after the filing of a sworn application and.a hearing thereon, had
upon the proper posting and publication of the requisite notice.
2720 Stat. 89, ec. 151 (0. S. Comp. St. 1901, p. 1545).
2827 Stat. 348, c. 375 (U. S. Comp. St. 1901, p. 1547).
29 Johnson v. McMillan, 22 Land Dec. Dep. Int. 647. A timber and stone
entry on unsurveyed land was held to be a nullity in Cobb v. Oregon & Cali-
fornia R. R. Co., 36 Land Dec. Dep. Int. 268.
80 In the case of an association claiming coal lands, each of the persons must
prove the requisite qualifications, and each must subscribe and swear to the
application or affidavit. Coal Land Regulations, part 1, rule 15.
468 COAL, TIMBER, AND STONE LAND ENTRIES, ETC. (Ch. 22
The statute prescribes that the sworn application must be made in
duplicate, must designate by legal subdivisions the particular tract
of land the applicant desires to purchase, and must set forth that the
same is unfit for cultivation and valuable chiefly for its timber or stone;
that it is uninhabited; that it contains no mining or other improve-
ments, except for ditch or canal purposes, where any such do exist,
save such as were made by or belong to the applicant, nor, as deponent
verily believes, any valuable deposit of gold, silver, cinnabar, copper,
or coal; that deponent has made no other application under this act;
that he does not apply to purchase the same on speculation, but in good
faith to appropriate it to his own exclusive use and benefit; and that
he has not, directly or indirectly, made any agreement or contract, in
any way or manner, with any person or persons whatsoever, by which
the title which he might acquire from. the government of the United
States should inure, in whole or in part, to the benefit of any persons
except himself.**
Upon the filing of the sworn statement, the register must post in his
office for 60 days a notice of the application, and furnish the appli-
cant a copy to publish for a like period in the newspaper nearest the
location of the premises.*?, This notice must describe the land by legal
subdivisions,?* must state the time and place when, and the officer be-
fore whom, the applicant intends to offer proof, and must contain the
names of the witnesses who are to testify.24 The claimant has to be
corroborated by two disinterested witnesses,*® so at least two witnesses
must be named in the notice.
The hearing is by oral examination, reduced to writing upon the
blanks furnished for the purpose.*® Payment must be made at the
time of offering proof. Until recently proof of everything contained
in the sworn application has been required; but the Supreme Court
31 Act June 3, 1878, c. 151, § 2, 20 Stat. 89 (U. S. Comp. St. 1901, p. 1545).
By the application no such vested right is acquired, prior to making final proof
and payment, as will prevent withdrawal of the lands under the irrigation
act (Act June 17, 1902, c. 1093, 32 Stat. 388 [U. 8S. Comp. St. Supp. 1907, p.
511]). Charles O. De Land, 36 Land Dec. Dep. Int. 18. An application to
purchase under the timber and stone act was held a valid exercise of a pref-
erence right gained in contesting a homestead entry for the same land in
Harris v. Heirs of Ralph H. Chapman, 36 Land Dec. Dep. Int. 272. In Cain
v. Carrier, 36 Land Dec. Dep. Int. 356, two applications for stone and timber
land were treated as simultaneous, and entry awarded to the higher bidder.
The filing of an application for a tract of land to which the applicant can
complete title exhausts the applicant’s right of purchase under the act. George
F. Brice, 37 Land Dec. Dep. Int. 145.
32Act June 3, 1878, ¢. 151, § 3, 20 Stat. 90 (U. S. Comp. St. 1901, p. 1546).
33 Id.
34 General Land Office Circular Issued Jan. 25, 1904, p. 41, rule 10. See
Sarah L. Bigelow, 20 Land Dec. Dep. Int. 6.
35 General Land Office Circular Issued Jan. 25, 1904, p. 41, rule 11,
86 Id,
§ 126) TIMBER AND STONE LAND ENTRIES. 469
of the United States has just decided in a criminal case that the land
department cannot require an applicant under the timber and stone act
to make oath on final hearing of his bona fides and of the absence of
any contract or agreement by him in respect to the title.** A report
from the chiefs of field division of special agents of the land depart-
ment seems to be required, just as in the case of coal land.
No entry will be allowed until previous adverse claims and pro-
tests have been determined.** Special provision is made for contest
after entry and before patent.® In the case of uncontested applica-
tions, patent issues in due course after entry.
37 Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278.
88 General Land Office Circular Issued Jan. 25, 1904, p. 42, rule 14.
89 General Land Office Circular Issued Jan. 25, 1904, p. 42, rule 15.
470 OIL AND GAS LEASES. (Ch, 28
CHAPTER XXIII.
OIL AND GAS LEASES.
127. Kinds of Oil and Gas Leases.
128. Ordinary Obligations of Lessors and Lessees.
KINDS OF OIL AND GAS LEASES.
127. Oil and gas leases display certain peculiarities which grow out
of the migratory character of oil and gas. Such so-called
leases seem to be of three kinds:
(1) “Optional leases,’’ terminable by either party.
(2) The ordinary so-called leases, which are licenses, irrevocable
while being exercised in accordance with their terms, but
carrying no estate in the minerals or the land.
(3) Genuine leases, carrying a present estate in the land and the
lessor’s full qualified property in the oil and gas for the
terms of the leases.
Oil lands, as we have seen,! are to be located as placers.? So are
natural gas lands, it would seem,* since natural gas is a mineral.* But
the volatile and fugitive character of such minerals has resulted in cer-
tain peculiarities of oil and gas leases which need to be dwelt upon.
Because of the migratory character of the oil and the gas, the land-
owner’s title to them is contingent, and liable to be defeated at any
time by their escape into other land.® Until the oil or gas is discovered
in a well in a given tract of land, indeed, there is no certainty that
1 See chapter XV, § 69, supra.
2 Act Feb. 11, 1897, c. 216, 29 Stat. 526 (U. S. Comp. St. 1901, p. 1484);
Union Oil Co., 25 Land Dec. Dep. Int. 351.
3 Cf. 1 Lindley on Mines (2d Ed.) § 423.
4 WESTMORELAND & CAMBRIA NATURAL GAS CO. v. DE WITT, 130
Pa. 235, 249, 18 Atl. 724,5 L. R. A. 731; MURRAY v. ALLRED, 100 Tenn.
100, 43 S. W. 355, 39 L. R. A. 249, 66 Am. St. Rep. 740; Lanyon Zine Co. v.
Freeman, 68 Kan. 691, 75 Pac. 995; Preston v. White, 57 W. Va. 278, 50 S. E.
236; Sult v. Hochstetter Oil Co. (W. Va.) 61 S. E. 307. But see Silver v.
Bush, 213 Pa. 195, 62 Atl. 832.
5 “Water and oil, and still more strongly gas, may be classed by themselves,
if the analogy be not too fanciful, as mineral feree nature. In common with
animals, and unlike other minerals, they have the power and the tendency to
escape without the volition of the owner. * * * They belong to the owner
of the land, and are part of it, so long as they are on it or in it, and are sub-
ject to his control; but when they escape and go into other land, or come
under another’s control, the title of the former owner is gone.’ WESTMORE-
§ 127) KINDS OF OIL AND GAS LEASES. 471
any is contained in it. Accordingly a landowner may drill an oil well
on his land, though he may draw from an oil well on adjoining land; °
but it has been declared in Indiana that, independently of the statutes
which exist there against pumping,’ “natural gas in the ground is so
far the subject of property rights in the owners of the superincumbent
lands that while each of them has the right to bore or mine for it on
his own land, and to use such portion of it as, when left to natural
laws of flowage, may rise in the wells of such owner and into his pipes,
no one of the owners of such lands has the right, without the consent
of all the other owners, to induce an unnatural flow into or through his
own wells, or to do any act with reference to the common reservoir and
body of gas therein injurious to or calculated to destroy it.” ®
LAND & CAMBRIA NATURAL GAS CO. v. DE WITT, 130 Pa. 235, 249, 18
Atl. 724, 5 L. R. A. 731. See BROWN vy. SPILMAN, 155 U.S. 665, 15 Sup.
Ct. 245, 39 L. Ed. 304; Barnard v. Monongahela Natural Gas Co., 216 Pa. 362,
65 Atl. 801; Kelley v. Ohio Oil Co., 57 Ohio St. 317, 49 N. E. 399, 39 L. R.
A. 765, 63 Am. St. Rep. 721; Richmond Natural Gas Co. v. Davenport, 37 Ind.
App. 25, 76 N. HB. 525; Poe v. Ulrey, 2338 Ill. 56, 84 N. EB. 46. For a discussion
of the distinction between animals feree nature and mineral deposits of oil
and gas, see OHIO OIL CO. v. STATE OF INDIANA, 177 U. 8S. 190, 208-211,
20 Sup. Ct. 576, 44 L. Ed. 729.
6 BARNARD v. MONONGAHELA NATURAL GAS CO., 216 Pa. 362, 65 Atl.
801.
7 Manufacturers’ Gas & Oil Co. v. Indiana Natural Gas & Oil Co., 155 Ind.
461, 468, 57 N. E. 912, 50 L. R. A. 768.
8 Manufacturers’ Gas & Oil Co. v. Indiana Natural Gas & Oil Co., 155
Ind. 469, 57 N. E. 912, 50 L. R. A. 768. See Calor Oil & Gag Co. v. Fran-
zell, 33 Ky. Law Rep. 98, 109 S. W. 328. But see People’s Gas Co. v. Ty-
ner, 131 Ind. 277, 81 N. BE. 59, 16 L. R. A. 443, 831 Am. St. Rep. 433. But,
where the reservoir is almost depleted, the pumps are so small in cost that
they are within the reach of all operators, and, if all use them, nobody
will be injured, the use of the pumps will not be enjoined. JONES vy. FOR-
EST OIL CO., 194 Pa. 379, 44 Atl. 1074, 48 L. R. A. 748. And it has been held
that a landowner may let gas escape and go to waste to the depletion of the
gas basin where others are operating. Hague y. Wheeler, 157 Pa. 324, 27 Atl.
714, 22 L. R. A. 141, 387 Am. St. Rep. 736. But see LOUISVILLE GAS CO.
v. KENTUCKY HEATING CO., 25 Ky. Law Rep. 1221, 77 S. W. 368. Id.
(Ky.) 111 §. W. 874, contra. In the latter case the true measure of damages
for waste is discussed. A lessee of two tracts of oil land, who sinks a well
on one tract which drains a portion of the other, must pay the lessor of the
other his proportionate share of royalty on the oil produced. KLEPPNER v.
LEMON, 198 Pa. 581, 48 Atl. 483.
It has to be admitted that, in failing to protect one oil or gas well owner
against the waste and malice of another, the courts have fallen too far short
of the progressive stand being taken by them in regard to percolating water.
See a note on “Correlative Rights in Percolating Waters,” Barclay v. Abra-
ham, 64 L. R. A. 256. The recent case of LOUISVILLE GAS Co. v. KEN-
TUCKY HEATING CO., 25 Ky. Law Rep. 1221, 77 S. W. 368, where a lessee
was not allowed to waste the gas from gas wells in order to injure the own-
472 OIL AND GAS LEASES. (Ch. 23
The fact to be remembered is that oil and gas are the subject of only
qualified ownership while they remain in the land, and that a lessor
cannot confer on his lessee anything more than the qualified property in
the minerals which he himself has.° There seem to be three kinds of
contracts referred to in the books as oil and gas leases.
“Optional” Oil and Gas Leases.
There is, first, what from the so-called lessor’s point of view is noth-
ing but a revocable license, and from the so-called lessee’s point of
view is a mere option. These so-called “optional leases” are illustrated
by the case of a lease which expressly gives the lessee the right to sur-
render it at any time without payment of rent or fulfillment of any
covenant on his part.1° Such an executory lease is terminated by the
death of the lessor 1? and at the will of either pabty.12 Whether an oil
or gas lease shall be construed to be a real lease, or only a license, de-
depends upon the intention of the parties as expressed in the written
instrument, in view of the peculiar character of the minerals dealt with.
A so-called oil and gas lease which does not obligate the lessee to com-
mence or prosecute the work, and which he may terminate at his pleas-
ure without compensation to the lessor, other than the $1 consideration
paid for it, is practically a revocable license, or at best a conditional es-
tate at will, terminable at the will of either party.*®
er of wells on adjoining land, is a step in the right direction. See, also, dic-
tum in Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663, 74 Pac. 766,°772, 773,
64 L. R. A. 236, 99 Am. St. Rep. 35.
® One lawfully in possession of oil or gas lands is not entitled to extract
oil or gas without permission of the owner of the fee. Richmond Natural Gas
Co. v. Davenport, 37 Ind. App. 25, 76 N. HB. 525.
10 Eclipse Oil Co. v. South Penn Oil Co., 47 W. Va. 84, 34 S. B. 923; Glas-
gow v. Chartiers Oil Co., 152 Pa. 48, 25 Atl. 232. See Snodgrass v. South
Penn Oil Co., 47 W. Va. 509, 85 S. E. 820; Tennessee Oil, Gas & Mineral Co.
v. Brown, 131 Fed. 696, 65 C. C. A. 524; Brooks v. Kunkle, 24 Ind. App. 624,
57 N. E. 260; O’Neill v. Risinger (Kan.) 93 Pac. 340.
11 TREES v. ECLIPSE OIL CoO., 47 W. Va. 107, 34 S. EB. 933. Compare
Mathews v. People’s Natural Gas Co., 179 Pa. 165, 36 Atl. 216.
12 TENNESSEE OIL, GAS & MINERAL CO. v. BROWN, 131 Fed. 696,
65 C. O. A. 524; J. M. Guffey Petroleum Co. v. Oliver (Tex. Civ. App.) 79 S.
W. 884. But see Central Ohio, etc., Co. v. Eckert, 70 Ohio St. 127, 71 N. E.
281, where the court construed an instrument to be a lease at the option of
the lessee only. A lease to terminate within 60 days after unpaid rental be-
comes due is terminable in that way only at the option of the lessor. HAN-
COCK v. DIAMOND PLATE GLASS CO., 162 Ind. 146, 70 N. E. 149. An op-
tion, which, when exercised, becomes a vested interest, may, of course, be
given in the form of a lease. Emery v. League, 31 Tex. Civ. App. 474, 72 8.
W. 603.
13 FEDERAL OIL CO. v. WESTERN OIL CoO. (C. C.) 112 Fed. 373; Roberts
& Corley v. McFadden, Weiss & Kyle, 32 Tex. Civ. App. 47, 74 8. W. 105;
§ 127) KINDS OF OIL AND GAS LEASES, 473
The Ordinary So-Called Oil or Gas Lease.
The second kind of oil or gas leases is that where the lessee is either
impliedly or expressly bound to go ahead and drill wells (with perhaps
the provision that certain test wells shall first be put down to see wheth-
er there is oil or gas in the land), and it is the express or implied con-
dition of any estate in the minerals or in the land vesting in the lessee
that oil or gas shall bé found in such quantities as to justify the ex-
penditure by the lessee of the money necessary for their production."*
In such leases, because of the uncertainty whether oil or gas will be
found, and because both public policy and the due protection of the les-
sor require that the lessee be spurred on to make a discovery,?® it is
held that the lessee has no estate in the oil or gas in the land until he
actually discovers them in his well in paying quantities.‘® Indeed, it
Martel v. Jennings-Heywood Oil Syndicate, 114 La. 351, 88 So. 253; O’Neill
v. Risinger (IKan.) 93 Pac. 340. See Shepherd v. McCalmont Oil Co., 38 Hun,
387; Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732; Murray v. Barnhart,
117 La. 1028, 42 So. 489; Dill v. Fraze (Ind.) 79 N. E. 971. But see Poe v.
Ulrey, 233 Il]. 56, 84 N. E. 46; Allegheny Oil Co. v. Snyder, 106 Fed. 764, 45
C. C. A. 604; BREWSTER v. LANYON ZINC CO., 140 Fed.,801, 72 C. C. A.
213; New American Oil Co. v. Troyer, 166 Ind. 402, 76 N. H. 253, 77 N. HE. 739.
See Parish Fork Oil Co. v. Bridgewater Gas Co., 51 W. Va. 583, 42 S. E.
655, 59 L. R. A. 566. Where a lessee must either drill or pay rent under pen-
alty of the lease being void, he cannot take advantage of his own wrongful
refusal to do either to terminate the lease. HENNE v. SOUTH PENN OIL
CO., 52 W. Va. 192, 48 S. B. 147; Jackson v. O’Hara, 183 Pa. 233, 38 Atl. 624.
Such a lease is based on a sufficient consideration. Great Western Oil Co.
v. Carpenter (Tex. Civ. App.) 95 S. W. 57; MHoussiere-Latreille Oil Co. v.
Jennings-Heywood Oil Syndicate, 115 La. 107, 88 So. 932. But there is no
consideration if the agreement is to complete a second well within 90 days
after the completion of a first well, which the lessee does not agree even to
commence. FEDERAL OIL CO. v. WESTERN OIL CoO. (C. C.) 112 Fed. 878.
14 On the question of when oil has been found in such quantities, see MAN-
HATTAN OIL CO vy. CARRELL, 164 Ind. 526, 73 N. E. 1084; Bay State Pe-
troleum Co. vy. Penn. Lubricating Co., 27 Ky. Law Rep. 1133, 87 S. W. 1102;
SUMMERVILLE y. APPOLO GAS CO., 207 Pa. 334, 56 Atl. 876. See, also,
note 37, infra.
16 See PLUMMER v. HILLSIDE COAL & IRON CO., 160 Pa. 483, 493, 28
Atl. 853, where oil and gas leases are distinguished from coal leases.
16 The right to go ahead under such a lease may be lost by abandonment.
STEELSMITH v. GARTLAN, 45 W. Va. 27, 29 S. B. 978, 44 L. R. A. 107;
Venture Oil Co. v. Fretts, 152 Pa. 451, 25 Atl. 732; FLORENCE OIL & RE-
FINING CO. v. ORMAN, 19 Colo. Apn. 79, 73 Pac. 628; RAWLINGS y. AR-
MEL, 70 Kan. 778, 79 Pac. 683; HUGGINS v. DALEY, 99 Fed. 606, 40 C. ©.
A. 12, 48 L. R. A. 320. See Detlor v. Holland, 57 Ohio St. 492, 49 N. E. 690,
40 L. R. A. 266; Aye v. Philadelphia Co., 193 Pa. 451, 44 Atl. 555, 74 Am. St.
Rep. 696; Lowther Oil Co. v. Miller-Sibley Oil Co., 53 W. Va. 501, 44 8. B.
433, 97 Am. St. Rep. 1027; Sult v. Hochstetter Oil Co. (W. Va.) 61 8S. E. 307;
Mills v. Hartz (Kan.) 94 Pac. 142. Under an Ohio recording act, such a lease
474 OIL AND GAS LEASES. (Ch. 28
seems clear that the lessee of an exclusive right to mine and excavate
oil on a royalty basis has no title in the oil until he has actually taken
the oil from the ground and reduced it to possession.1? ‘That is be-
cause in reality the lessor’s right is only that.*®
Prior to the discovery of oil or gas, this usual kind of oil or gas
lease is merely a grant of possession of the realty for the purpose of
searching for and procuring oil or gas,?® and so is in the nature of a li-
has been held to be of no force against third persons unless it is recorded, or
unless the lessee is actually in possession of the land. Northwestern Ohio
Natural Gas Co. vy. Tiffin, 59 Ohio St. 420, 54 N. E. 77. And the doctrine cov-
ers an extension of a lease under an option contained in it. Brown vy. Ohio Oil
Co., 21 Ohio Cir. Ct. R. 117. But it may not apply to a license, as distin-
guished from a lease. Allegheny Oil Co. v. Snyder, 106 Fed. 764, 45 C. C. A.
604, Where a lessee who has bound himself by covenants to develop the oil
tract has actually produced oil, he has a vested estate, which cannot be tak-
en away because he exercises his discretion, without fraud, by not sinking
more wells. COLGAN v. FOREST OIL CO., 194 Pa. 234, 45 Atl. 119, 75 Am.
St. Rep. 695. :
17 WAGNER y. MALLORY, 169 N. Y. 501, 62 N. HB. 584. See Lawson v.
Kirchner, 50 W. Va. 344, 348, 40 S. B. 344; Duffield v. Hue, 186 Pa. 602, 607,
20 Atl. 526; Backer v. Penn Lubricating Co. (C. C. A.) 162 Fed. 627. See, also,
note 25, infra.
18 “Petroleum oil is a mineral, and while in the earth is part of the realty,
and should it move from place to place, by percolation or otherwise, it forms
part of that tract of land in which it tarries for the time being, and if it
moves to the next adjoining tract it becomes part and parcel of that tract;
and it forms part of some tract until it reaches a well and is raised to the
surface, and then for the first time it becomes the subject of distinct owner-
ship separate from the realty, and becomes personal property, the property of
the person into whose well it came. And this is so whether the oil moves,
percolates, or exists in pools or deposits. In either event, it is the property
of, and belongs to, the person who reaches it by means of a well and severs
it from the realty and converts it into personalty.” KELLEY v. OHIO OIL
CO., 57 Ohio St. 317-828, 49 N. E. 399, 39 L. R. A. 765, 68 Am. St. Rep. 721;
Wilson v. Youst, 48 W. Va. 826, 28 S. E. 781, 39 L. R. A. 292. See State v.
Ohio Oil Co., 150 Ind. 21, 49 N. EH. 809, 47 L. R. A. 627; Ohio Oil Co. v. State
of Indiana, 177 U. 8S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729; Manufacturers’
Gas & Oil Co. v. Indiana Natural Gas & Oil Co., 155 Ind. 461, 57 N. BE. 912, 50
L. R. A. 768.
19 BARNHART vy. LOCKWOOD, 152 Pa. 82, 25 Atl. 237; Richlands Oil Co.
v. Morriss (Va.) 61 S. E. 762. ‘A lease to mine for oil or gas is a mere in-
corporeal right to be exercised in the land of another. It is a profit & pren-
dre, which may be held separate and apart from the possession of the land
itself.” FEDERAL OIL CO. v. WESTERN OIL Co. (C. C.) 112 Fed. 373,
375, 376. See FUNK v. HALDEMAN, 57 Pa. 229, 248. It is sufficient of an
inchoate interest to enable the lessee to maintain an injunction against a
wrongdoer’s extraction of oil and gas from the land. TREES y. ECLIPSE
OIL CO., 47 W. Va. 107, 34 S. E. 933. Or to recover damages against the
wrongdoer. Backer v. Penn Lubricating Co. (C. C. A.) 162 Fed. 627. Where
§ 127) KINDS OF OIL AND GAS LEASES. 475
cense ; * but it differs from a mere license, in that there is no right to
revoke it so long as the lessee proceeds with due diligence and prudence
to carry out his part of the undertaking. It is, if one dislikes the term
“lease,” a license irrevocable so long as its express and implied terms
are fulfilled by the licensee.2® Until oil or gas is struck, as well as aft-
erwards, a genuine oil or gas lease is irrevocable, except for breach of
an express or an implied condition.??
The doctrine is fundamental that because of the peculiar nature of
oil and gas, and the danger of loss to the lessor through the drainage
of oil and gas by surrounding wells, oil and gas leases are to be con-
strued most strongly against the lessee and in favor of the lessor.??
While, therefore, where the lessor granted, demised, and let for five
years, or as much longer as oil or gas should be found in paying quanti-
ties, all the petroleum and gas in or under a specified tract of land, “for
the purpose and with the exclusive right of drilling and operating upon
said premises for said petroleum and gas,” it was held that the instru-
ment was more than a license and was a lease,?* no estate could vest
in oil or gas under it until found, and the presumption is against any
estate even in the land vesting until then.2* The better view is that
the lessor has a homestead, it is a conveyance of an interest in that. Poe v.
Ulrey, 233 Ill. 56, 84 N. E. 46.
* Beardsley v. Kansas Natural Gas Co. (Kan.) 96 Pac. 859.
20 DARK y. JOHNSTON, 55 Pa. 164, 93 Am. Dec. 732; Shepherd v. McCal-
mont Oil Co., 88 Hun, 37; Grubb v. Bayard, 2 Wall. Jr. (U. S.) 81, Fed. Cas.
No. 5,849. Subscribing witnesses are as necessary to a lease of land for the
development of oil or gas as to any other lease for the same length of time
for any other purpose. Langmede v. Weaver, 65 Ohio St. 17, 60 N. BE. 992.
21 See HARRIS v. OHIO OIL CO., 57 Ohio St. 118, 48 N. E. 502, Carr v.
Huntington Light & Fuel Co., 33 Ind. App. 1, 70 N. B. 552, and Dickey v. Cof-
feyville Vitrified Brick & Tile Co., 69 Kan. 106, 76 Pac. 398, to the effect that
the right becomes vested on the discovery of oil or gas. To the same effect is
Headley v. Hoopengarner, 60 W. Va. 626, 55 8. E. 744.
22 HUGGINS vy. DALRBY, 99 Fed. 606, 40 C. O. A. 12, 48 L. R. A. 320;
STEELSMITH v. GARTLAN, 45 W. Va. 27, 35, 29 8. BE. 978, 44 L. R. A. 107;
Bettman v. Harness, 42 W. Va. 433, 26 8. BH. 271, 36 L. R. A. 566.
23 Woodland Oil Co. v. Crawford, 55 Ohio St. 161, 44 N. E. 1093, 34 L. R.
A. 62. Such a grant seems to create a tenancy from year to year until a
well is completed, and then the tenancy continues as long as oil or gas is
produced in paying quantities. Lowther Oil Co. v. Guffey, 52 W. Va. 88, 43
8. E. 101. A gas or oil lease, to extend so long as gas and oil may be found
in paying quantities, is not void for uncertainty as to term. DICKEY vy.
COFFEYVILLE VITRIFIED BRICK & TILE CO., 69 Kan. 106, 70 Pac. 398.
24“It ig well settled in West Virginia that a lease of this character is not
a grant of property in the oil or in the land, but merely a grant of posses-
sion for the purpose of searching for and procuring oil. The title is inchoate,
and for the purpose of exploration only, until the oil is found. If it is not
found, no estate vests in the lessee.” HUGGINS v. DALRBY, 99 Fed. 606, 608,
476 OIL AND GAS LEASES. (Ch. 28
title to the oil or gas does not even vest on discovery, nor at any time
prior to extraction.?® It is held in Pennsylvania that under an oil lease
for a fixed period and for as long thereafter as oil is found in paying
quantities, the lessor to receive one-eighth of the oil produced, the ex-
piration of the fixed period without oil being found in paying quantities
converts the tenancy as to the surface of the land into a tenancy’in
the nature of a tenancy at will.2® Moreover, the principle that oil and
gas leases will be construed more strongly against the lessee works, not
only to delay the vesting of an estate in the lessee, but also to compel
him to a diligent search for and extraction of the minerals.?7._ When his
search for the product is successful, he becomes answerable for the
rental stipulated in the contract.28 The fact that the lessee has to do
something affirmative gives the lease mutuality.?®
Oil and Gas Leases That are Genuine Leases.
The third kind of oil or gas lease is where a present estate in the land
and the landowner’s qualified interest in the minerals are vested in the
lessee, to be divested if the obligations of the lease are not performed.*°
It is a lease where the genuine relation of landlord and tenant exists,
40 ©. C. A. 12, 48 L. R. A. 320. See RAWLINGS v. ARMEL, 70 Kan. 778,
79 Pac. 683; Lowther Oil Co. v. Miller-Sibley Oil Co., 53 W. Va. 501, 44 S.
E. 483, 97 Am. St. Rep. 1027; Brown v. Fowler, 65 Ohio St. 507, 63 N. Ei.
76; Richlands Oil Co. v. Morriss (Va.) 61 S. E. 762. See, however, Lawson v.
Kirchner, 50 W. Va. 344, 40 S. H. 344.
25 PARISH FORK OIL CO. v. BRIDGEWATER GAS CoO., 51 W. Va. 583,
42 S. BW. 655, 59 L. R. A. 566; Kelly v. Keys, 213 Pa. 295, 62 Atl. 911, 110 Am.
St. Rep. 547. See note 17, supra.
26 CASSELL vy. CROTHERS, 193 Pa. 359, 44 Atl. 446. See American
Window Glass Co. v. Indiana Natural Gas & Oil Co., 37 Ind. App. 439, 76 N.
E. 1006; Indiana Natural Gas & Oil Co. v. Pierce, 34 Ind. App. 523, 68 N.
E. 691, 73 N. E. 194; Chaney v. Ohio & I. Oil Co., 32 Ind. App. 193, 69 N.
E. 477; Diamond Plate Glass Co. v. Echelbarger, 24 Ind. App. 124, 55 N. B.
233; Murdock-West Co. v. Logan, 69 Ohio St. 514, 69 N. E. 984.
27 Aye vy. Philadelphia Co., 193 Pa. 451, 44 Atl. 555, 74 Am. St. Rep. 696;
Huggins v. Daley, 99 Fed. 606, 40 C. C. A. 12, 48 L. R. A. 820; Parish Fork
Oil Co. v. Bridgewater Gas Co., 51 W. Va. 583, 42 S. E. 655, 59 L. R. A. 566;
Elk Fork Oil & Gas Co. v. Jennings (C. C.) 84 Fed. 889 (affirmed, sub nom.
Foster v. Elk Fork Oil & Gas Co., $0 Fed. 178, 32 C. C. A. 560).
28 WILSON vy. PHILADELPHIA CO., 210 Pa. 484, 60 Atl. 149.
29 Ingle v. Bottoms, 160 Ind. 73, 66 N. E. 160.
30 DUKE v. HAGUE, 107 Pa. 57; Brown v. Beecher, 120 Pa. 590,15 Atl.
608; Iams v. Carnegie Natural Gas Co., 194 Pa. 72, 45 Atl. 54; Chicago & A.
Oil & Mining Co. v. United States Petroleum Co., 57 Pa. 83; Gale v. Pe-
troleum Co., 6 W. Va. 200. See Kitchen v. Smith, 101 Pa. 452; Heller v.
Dailey, 28 Ind. App. 555, 63 N. E. 490; Haskell y. Sutton, 53 W. Va. 206, 44
8S. E. 533. A grant of oil or gas while in the earth passes nothing which can
be the subject of an ejectment or other real action. Watford Oil, ete. Co.
vy. Shipman, 233 Ill. 9, 84 N. BE. 53.
§ 127) KINDS OF OIL AND GAS LEASES. 477
and seems to be more like a lease for tillage than it is like a lease
for the mining or quarrying of solid minerals. Under such a lease it
seems that the lessee has such title that, where the lessor has stipulated
that no other well shall be driven on his lands near the lessee’s land,
except for the lessor and his neighbors, the lessee may have an injunc-
tion against a stranger who is threatening to bore a well in the lessor’s
land, although the stranger is not intruding on the leased land, and al-
though the lessee has not yet struck oil or gas.3?
Because of the rule that oil and gas leases are construed more
strongly in favor of the lessor and against the lessee, it will seldom
happen that the lease will pass the lessor’s qualified property in the
oil or gas, or anything more than an easement in the surface, prior to
the actual discovery and appropriation of the oil or gas; and it is
therefore with the second class of oil and gas leases, rather than the
first or third, that the courts have mainly to deal.?*
31 WETTENGEL v. GORMLEY, 160 Pa. 559, 28 Atl. 934, 40 Am. St. Rep.
733. See, also, Lowther Oil Co. v. Miller-Sibley Oil Co., 583 W. Va. 501, 44
S. BD. 433, 97 Am. St. Rep. 1027.
32 Indianapolis Natural Gas Co. v. Kibbey, 185 Ind. 357, 35 N. EB. 392. See
Brown v. Spilman, 155 U. 8S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304. On neces-
sary parties to such an injunction suit, see Steelsmith y. Fisher Oil Co., 47 W.
Va. 391, 35 §. E. 15.
338 See Shepherd v. McCalmont Oil Co., 38 Hun, 37. ‘While most of the
cases cited have gone upon the ground of abandonment, the governing priu-
. ciple in all oil leases of the character under consideration is that the discovery
and production of oil is a condition precedent to the continuance or vesting
of any estate in the demised premises; that such leases vest no present tifle
in the lessee, and if, at any time, the lessee has the option to suspend opera-
tions, the lease is no longer binding on the lessor, because of want of mutu-
ality; and, where the only consideration is prospective royalty to come from
exploratiod and development, failure to explore and develop renders the agree-
ment a mere mudum pactum, and works a forfeiture of the lease, for it is of
the very essence of the contract that work should be done.” HUGGINS v.
DALEY, 99 Fed. 606, 40 C. C. A. 12, 48 L. R. A. 320.
478 OIL AND GAS LEASES. (Ch. 23
THE ORDINARY OBLIGATIONS OF LESSORS AND LESSEES.
128. The lessor’s ordinary covenants, implied where not expressed,
are that the lessee shall have the right to enter and shall
have quiet enjoyment, and the lessee’s ordinary covenants are
to start work promptly and to use reasonable diligence in
sinking enough wells to utilize the supply of oil and gas.
The lessor’s obligations under the ordinary gas and oil lease are
simple. The grant of a right to drill for oil and gas on the lessor’s
premises does not carry with it any implied covenant that oil or gas
exists there, in paying quantities or otherwise.** The lessor does,
however, impliedly covenant that the lessee shall have the right to en-
ter and shall have quiet enjoyment.?® The lessor must be careful not to
take oil or gas from the premises to the injury of the lessee, even
though he takes it from lands reserved from the lease, provided there
is no reservation of the right to take oil or gas.*°
The lessee’s obligations under the ordinary gas and oil lease are
more fundamental. They are: (1) To comply with the express pro-
visions of the lease; 7 (2) to start work in the manner and at the time
84 But where both parties believe that an oil-producing well is being trans-
ferred, and it has really been salted by previous owners, a rescission of the
transfer may be had. Rowland v. Cox, 28 Ky. Law Rep. 307, 89 S. W. 215.
35 KNOTTS v. McGREGOR, 47 W. Va. 566, 35 8. B. 899. But see Chambers
v. Smith, 183 Pa. 122, 88 Atl. 522. An absolute conveyance of oil lands by -
the lessor, without reserving the lessee’s right of entry to drill for oil, is a
constructive eviction. MATHEWS v. PEOPLE’S NATURAL GAS CO., 179
Pa. 165, 36 Atl. 216.
36 Lynch v. Burford, 201 Pa. 52, 50 Atl. 228; Fanker v. Anderson, 173 Pa.
86, 34 Atl. 434, 2
37 Gillespie Tool Co. v. Wilson, 123 Pa. 19, 16 Atl. 86. An oil Iease gives
the lessee no right to a gas well developed by him. Palmer vy. Truby, 136
Pa. 556, 20 Atl. 516. Under a lease where the rights of the lessee depend up-
on the finding of oil in paying quantities, the jury, in determining whether
the oil or gas can be marketed at a reasonable profit, must take into ac-
count the distance to market and the expense of marketing. IAMS y. CAR-
NEGIE NATURAL GAS CO., 194 Pa. 72, 45 Atl. 54. A paying well normally
means one that pays to operate after it is sunk. “But if a well, being down,
pays a profit, even a small one, over the operating expenses, it is producing in
‘paying quantity,’ though it may never repay its cost, and the operation as a
whole may result in a loss. Few wells, except the very largest, repay cost un-
der a considerable time, and many never do; but that is no reason why the
first loss should not be reduced by profits, however small, in continuing to op-
erate. The phrase ‘paying quantities,’ therefore, is to be construed with refer-
ence to the operator, and by his judgment when exercised in good faith.”
YOUNG v. FOREST OIL CoO., 194 Pa. 243, 250, 251, 45 Atl. 121; Lowther Oil
Co. v. Miller-Sibley Oil Co., 53 W. Va. 501, 44 S. E. 483, 97 Am. St. Rep. 1027.
See, also, cases in note 14, supra.
§ 128) ORDINARY OBLIGATIONS OF LESSORS AND LESSEES. 479
fixed in the lease, or, if none is fixed, then in a reasonable time,** and
to prosecute it continuously and diligently to its termination; *® (3) to
exercise good faith in drilling and working enough wells both to get
out with reasonable promptitude the oil and gas found and to prevent
loss by drainage to other wells.#°
38 Ztarn v. Huffman (W. Va.) 59 S. EB. 179; Mills v. Hartz (Kan.) 94 Pac.
142, Logan Natural Gas & Fuel Co. v. Great Southern Gas & Oil Co., 126
Fed. 623, 61 C. C. A. 859. See Consumers’ Gas Trust Co. v. Worth, 163 Ind.
141, 71 N. E. 489; National Oil & Pipe Line Co. v. Teel, 95 Tex. 586, 68 S.
W. 979; Id. (Tex. Civ. App.) 67 S. W. 545. “The smaller the tract of land
demised, the more important is the need of prompt exploration and develop-
ment, because the lessor is entitled to his royalty as promptly as it can be had,
and delay endangers the drainage of oil and gas from the demised premises
through wells in its immediate vicinity.” FEDERAL OIL CO. v. WESTERN
OIL CO. (C. C.) 112 Fed. 378, 375.
30 AYE v. PHILADELPHIA CO., 193 Pa. 451, 44 Atl. 555, 74 Am. St. Rep.
696; Cleminger v. Baden Gas Co., 159 Pa. 16, 28 Atl. 293; Henderson vy. Fer-
rell, 183 Pa. 547, 38 Atl. 1018; Parish Fork Oil Co. v. Bridgewater Gas Co.,
51 W. Va. 5838, 42 S. H. 655, 59 L. R. A. 566; J. M. Guffey Petroleum Co. v.
Oliver (Tex. Civ. App.) 79 S. W. 884; Hlk Fork Oil & Gas Co. v. Jennings
(C. C.) 84 Fed. 839 (affirmed sub nom. Foster v. Elk Fork Oil & Gas Co., 90
Fed. 178, 32 C. C. A. 560); HUGGINS v. DALEY, 99 Fed. 606, 40 C. O. A. 12,
48 L. R. A. 320. See Price v. Black, 126 Iowa, 304, 101 N. W. 1056; Vene-
docia Oil & Gas Co. v. Robinson, 71 Ohio St. 302, 73 N. BH. 222, 104 Am. St.
Rep. 773; Florence Oil & Refining Co. v. Orman, 19 Colo. App. 79, 73 Pac.
628; Buffalo Valley Oil & Gas Co. v. Jones, 75 Kan. 18, 88 Pac. 537. Time is
of the essence in agreements relative to mining property. Waterman y. Banks,
144 U. S. 394, 403, 12 Sup. Ct. 646, 36 L. Ed. 479.
“Where an oil lease, to run for a number of years, provides for the comple-
tion of a test well within a certain time, and states what shall be done if
oil is found in paying quantities, but does not provide what shall be done if
the test well proves dry, there is an implied obligation on the lessee, when
the test well does prove dry, to proceed further with the exploration and
development of the land with reasonable diligence according to the usual
course of the business, and a failure to do so amounts to an abandonment,
which will sustain a re-entry by the lessor. AYE v. PHILADELPHIA CO.,
193 Pa. 451, 44 Atl. 555, 74 Am. St. Rep. 696. See Rawlings v. Armel, 70 Kan.
778, 79 Pac. 683. To constitute abandonment proper, however, there must
be both an intent to abandon and an actual relinquishment of the leased
premises. LOWTHER OIL CO. v. MILLER-SIBLEY OIL CO., 53 W. Va.
501, 44 8. B. 483, 97 Am. St. Rep. 1027; Phillips v. Hamilton (Wyo.) 95 Pac.
846.
40 J. M. Guffey Petroleum Co. v. Jeff Chaison Townsite Co. (Tex. Civ. App.)
107 8. W. 609. See Coffinberry v. Sun Oil Co., 68 Ohio St. 488, 67 N. E. 1069.
This last obligation will also be implied in some states in cases where the
lease is silent on the subject. Allegheny Oil Co. v. Snyder, 106 Fed. 764, 45
Cc. C. A. 604; BREWSTER v. LANYON ZINC CO., 140 Fed. 801, 72 C. C. A.
213; Acme Oil & Mining Co. v. Williams, 140 Cal. 681, 74 Pac. 296; Barnsdall
v. Boley (C. CG.) 119 Fed. 191; American Window Glass Co. v. Williams, 30
Ind. App. 685, 66 N. B. 912; Gadbury v. Ohio & I. Consol. Natural & II-
480 OIL AND GAS LEASES. (Ch. 28
A failure by the lessee to comply with the lease may amount to an
abandonment,*! and in extreme cases may be held to do so, regardless
of the lessee’s actual intent.*?
luminating Gas Co., 162 Ind. 9, 67 N. BE. 259, 62 L. R. ‘A. 895; Adams v.
Stage, 18 Pa. Super. Ct. 808; Phillips v. Hamilton (Wyo.) 95 Pac. 846. ‘“‘The
extent of the development and number of wells to be drilled, and as to the
protection of the lines, is often, if not usually, expressed in the lease; and
that is certainly the better practice. When the extent of the development
and protection of lines is provided for in the lease, there can be no implied
covenant for further development and protection of lines. The implied cov-
enant arises only when the lease is silent on the subject.” HARRIS v. OHIO
OIL CO., 57 Ohio St. 118, 128, 48 N. H. 502. See McKnight v. Manufacturers’
Natural Gas Co., 146 Pa. 185, 23 Atl. 164, 28 Am. St. Rep. 790; Poe v. Ulrey,
233 Ill. 56, 84 N. E. 46; Brewster v. Lanyon Zinc Co., 140 Fed. 801, 72 C. C.
A. 213. Where there is no way to market the product of wells if they are
sunk, the remedy for breach of an implied covenant to drill wells has been
held to be, not forfeiture, but an action for damages. Poe v. Ulrey, 233
Ill. 56, 84 N. BE. 46. That the remedy for a breach of an implied covenant
in an oil lease is ordinarily not by forfeiture, but by an action for damages,
is asserted in CORE v. NEW YORK PETROLEUM CO., 52 W. Va. 276, 43
S. E. 128. But see CONSUMERS’ GAS TRUST CO. v. LITTLER, 162 Ind.
820, 70 N. E. 363; Hodges v. Brice, 32 Tex. Civ. App. 358, 74 8S. W. 590;
Gadbury v. Obio & I. Consol. Natural & Dluminating Gas Co., 162 Ind. 9, 67
N. E. 259, 62 L. R. A. 895. That equity may cancel the lease for delay in
development, see Lowther Oil Co. v. Miller-Sibley Oil Co., 53 W. Va. 501, 44
S. E. 483, 97 Am. St. Rep. 1027; Starr v. Huffman (W. Va.) 59 S. EH. 179.
Where the same person holds an oil well on two adjacent farms, he will not
be allowed to drill an oil well to drain the oil off of one of the farms to the
detriment of the other. Barnard v. Monongahela Natural Gas Co., 216 Pa.
362, 65 Atl. 801.
41 AYE v. PHILADELPHIA CoO., 193 Pa. 451, 44 Atl. 555. See, also, note
39, supra.
42 WILMORE COAL CO. v. BROWN (C. C.) 147 Fed. 981.
§ 129) OTHER MINING CONTRACTS AND LEASES. 481
CHAPTER XXIV.
OTHER MINING CONTRACTS AND LEASES.
129. Prospecting or Grub-Staking Contracts,
180. Mining Licenses and Leases.
131-132. Leases and Options and Title Bonds.
133. Working Contracts.
184. Ore Contracts.
Our review of the peculiarities of oil and gas leases prepares the
way for a consideration of the peculiarities of other mining leases ana
contracts. Only those matters which differentiate mining contracts
and leases from ordinary real estate contracts and leases will be con-
sidered.
PROSPECTING OR GRUB-STAKING CONTRACTS.
129. Prospecting or grub-staking contracts are agreements by which
miners, in consideration of supplies furnished to them, under-
take to prospect for and locate claims to be held by all par-
ties in certain agreed shares. Unless the supplies are fur-
nished, a grub-staking agreement is without consideration,
and does not bind the prospector. If they are furnished, the
rights of the outfitters are fully protected at law and in
equity.
The kind of contract common in the mining region, whereby a min-
er is furnished supplies by people who wish to locate mining claims,
and in return agrees to prospect for and to locate such claims for all
concerned in the shares agreed upon, has caused considerable litiga-
fion. One reason has been that such contracts have almost universally
been regarded as not within the statute of frauds.1_ They have been
1 SHEA v. NILIMA, 183 Fed. 209, 66 C. O. A. 268; Cascaden vy. Dunbar,
2 Alaska, 408, 157 Fed. 62, 84 C, C. A. 566; MURLEY v. ENNIS, 2 Colo. 300;
MEYLETTE vy. BRENNAN, 20 Colo. 242, 38 Pac. 75; Moritz v. Lavelle, 77 Cal.
10, 18 Pac. 803, 11 Am. St. Rep. 229; Raymond v. Johnson, 17 Wash. 232, 49
Pac. 492, 61 Am. St. Rep. 908; Doyle v. Burns, 123 Iowa, 488, 99 N. W. 195;
Eberle v. Carmichael, 8 N. M. 169, 42 Pac. 95; Id., 8 N. M. 696, 47 Pac. 717.
See Reagan v. McKibben, 11 S. D. 270, 76 N. W. 948. The case of CRAW vy.
WILSON, 22 Ney. 385, 40 Pac. 1076, supposed to be contrary to the foregoing,
holds that where an oral partnership has been formed under which some
mining locations are made and other property obtained, and one partner ac-
quires for himself still other mining locations, without employing partner-
ship capital in their acquisition, the excluded partner cannot have a trust
declared. The matter has since been set at rest for Nevada by a statute
Cost.M1n.L.—381
482 OTHER MINING CONTRACTS AND LEASES. (Ch, 24
subject to all those disputes as to terms which naturally attend im-
portant verbal contracts.”
While such contracts are sometimes referred to as mining partner-
ships, they are not such unless, in addition to covering the location and
holding in common of mining claims, they provide for the develop-
ment of the claims, and actually do develop them for the joint benefit
of the contractors. So far as the contracts to locate claims contemplate
only the discovery work essential to location, and the co-ownership
which is to result from the location of the claims, they are not mining
partnership contracts, but are simply “grub-staking” or prospecting
contracts. A grub-staking contract does not constitute a partnership,
unless the agreement extends beyond the mere furnishing of supplies
as a consideration of a participation in the results of discoveries.*
Before the miner’s obligation under a prospecting contract can be
enforced against him, the other party to the contract must furnish the
supplies agreed upon. If, therefore, the supplies are not furnished to
him, the miner may go ahead and locate lodes in his own right, with-
out regard to the contract. But if the supplies are furnished, and the
miner locates claims in his own name, he holds the title thus ac-
quired, or the property for which it is exchanged, in trust for himself
and the outfitter in the proportions called for by the prospecting con-
tract,® and must account for the proceeds received on any sale of such
making grub-stake contracts void unless recorded. If acknowledged and re-
corded, they are made prima facie evidence in all cases where the title to
mining locations is in question. Laws Nev. 1907, p. 370, c. 174. In Oregon
such contracts seem to be void unless recorded. B. & C. Comp. Or. § 3985. In
Idaho they may be recorded to make them constructive notice, Civ. Code
Idaho 1901, § 2784. A verbal release of a grub-staking contract was upheld in
Eubanks v. Petree, 1 Alaska, 427.
2See Abbott v. Smith, 3 Colo. App. 264, 266, 832 Pac. 843.
3 See, however, Berry v. Woodburn, 107 Cal. 504, 512, 40 Pac. 802, 80,
where such contracts are called “qualified partnerships.” See, also, Boucher
v. Mulverhill, 1 Mont. 306; Lawrence v. Robinson, 4 Colo. 567.
While prospecting contracts are partnerships of a kind, the term “mining
partnership” is strictly applicable only where there is actual joint working of
the claim. DORSEY v. NEWCOMER, 121 Cal. 218, 53 Pac. 557; Anaconda
Copper Mining Co. v. Butte & Boston Min. Co., 17 Mont. 519, 48 Pac. 924. See,
also, cases, cited in chapter XXV, note 6, infra. For that reason the term “pros-
pecting contract,” or the miners’ term, “grub-staking contract,” should be kept
to apply to the kind of contract here considered.
4 See Costello v. Scott (Nev.) 93 Pac. 1.
5 MURLEY y. ENNIS, 2 Colo. 300; Miller v. Butterfield, 79 Cal. 62, 21
Pac. 543. See Windmuller y. Clarkson, 2 Alaska, 298.
6 MEYLETTE vy. BRENNAN, 20 Colo. 242, 388 Pac. 75; Marks v. Gates, 2
Alaska, 519; Mack v. Mack, 89 Wash. 190, 81 Pac. 707. See Stewart v.
Douglas, 148 Cal. 511, 83 Pac. 699. But, after the prospecting contract
§ 129) PROSPECTING OR GRUB-STAKING CONTRACTS. 483
title.* Where the supplies are so inadequate as to make it apparent
to anybody that the property located is not acquired by means of the
grub-stake furnished and pursuant to the grub-stake contract, the Cali-
fornia court refuses to compel a conveyance by the miner to the alleg-
ed outfitter.7 A contract to exchange interests in existing claims for
supplies is not a grub-staking contract.®
There has been some question as to the amount of proof necessary
to establish an oral prospecting contract sufficiently to make the miner
a trustee of the claims located. In Idaho, for instance, it was at first
declared that a mere preponderance of the evidence was not enough,
but that the evidence must be so clear and certain as to leave no well-
founded doubt in the mind of the court.® Since then, however, it has
been held in Idaho that the courts “should not refuse to enforce these
grub-stake agreements simply because a plaintiff cannot produce that
great preponderance of evidence which reaches a moral certainty and
precludes all reasonable doubt.” *° The latter seems the better doc-
trine where a statute does not require a writing, for all that should be
required of evidence in such cases is that it be convincing.1?
is rescinded by mutual agreement of the parties, one of them may relocate
unperfected locations, and, in the absence of fraud, will hold such locations
free from any trust. Page v. Summers, 70 Cal. 121, 12 Pac. 120; McLaugh-
lin v. Thompson, 2 Colo. App. 135, 29 Pac. 816; Eubanks v. Petree, 1 Alaska,
427.
* But the complaining party must act promptly, or he may be denied any
rights. MeKenzie v. Coslett, 28 Nev. 65, 78 Pac. 976.
7 PRINCE y. LAMB, 128 Cal. 120, 60 Pac. 689.
8 Roberts v. Date, 123 Fed. 2388, 59 C. C. A. 242,
® Rice v. Rigley, 7 Idaho, 115, 61 Pac. 290. Compare Copper River Min-
ing Co. v. McClellan, 2 Alaska, 134.
10 MORROW v. MATTHEW, 10 Idaho, 423, 79 Pac. 196. The court there
says that the rule requiring evidence so convincing as to leave no reasonable
doubt is properly applied when one seeks to declare a trust as against a
record title conveyed to a defendant by a third person, but has no applica-
tion where the defendant, as locator of a mining claim, creates his own rec-
ord title.
11 “Grub-stake contracts will be enforced by the courts, but only as other
contracts; that is to say, it is not enough for parties to assert that they have
rights, in order to secure legal protection, but they must be able to prove in
each case a clear and definite contract, and that by the terms and conditions
of such contract, and compliance therewith on their part, rights have become
vested.” Cisna v. Mallory (C. C.) 84 Fed. 851, 854.
484 OTHER MINING CONTRACTS AND LEASES. (Ch, 24
MINING LICENSES AND LEASES.
130. In distinguishing between licenses, leases, and sales of mineral
in place, it is the intention of the parties gathered from the
terms of the instrument, and not the form of the instrument,
that determines which kind of interest exists in the given
case.
1
The common-law rule is that the lessee of real property may work
already opened mines, but cannot open new ones. But the lease may
expressly, or by implication from express powers, give the right to open
new mines. If a leasehold estate is created in the land, with a right to
take the minerals, the instrument is a genuine lease.1? On the
other hand, if an attempt is made by the instrument to pass title
to the minerals in place, there is really a sale of the mineral.** If no
title to the minerals passes, and a leasehold estate even is not created in
the so-called lessee, the instrument merely creates a license.1* It is not
the form of the instrument, but rather the intention of the parties
gathered from its terms, that determines whether it is a lease, or passes
title to the minerals, or is only a license.*®
12 Cahoon v. Bayaud, 123 N. Y. 298, 25 N. E. 376; Young v. Ellis, 91 Va.
297, 21 S. E. 480; PAUL vy. CRAGNAZ, 25 Ney. 293, 312-314, 59 Pac. 857,
60 Pac. 988, 47 L. R. A. 540; MALCOMSON v. WAPPOO MILLS (C. C.) 85
Fed. 907; Raynolds v. Hanna (C. C.) 55 Fed. 783; Appeal of Hope (Pa.)
2 Atl. 23; Harlan v. Lehigh Coal & Navigation Co., 35 Pa. 287. See Wil-
kins v. Abell, 26 Colo. 462, 58 Pac. 612; Fuhr v. Dean, 26 Mo. 118, 69 Am.
Dec. 484; National Light & Thorium Co. v. Alexander, 80 S. C. 10, 61 S.
E. 214. :
13 PLUMMER v. HILLSIDE COAL & IRON CO., 104 Fed. 208, 43 ©. C. A.
490; In re Lazarus’ Estate, 145 Pa. 1, 23 Atl. 372; Kingsley v. Hillside Coal
& Iron Co., 144 Pa. 613, 23 Atl. 250; Delaware, L. & W. R. Co. v. Sanderson,
109 Pa. 583, 1 Atl. 394, 58 Am. Rep. 743; Hobart v. Murray, 54 Mo. App. 249;
Edwards v. McClurg, 39 Ohio St. 41 (but see Buchannan v. Cole, 57 Mo. App.
11); Dorr v. Reynolds, 26 Pa. Super. Ct. 139. It is none the less a sale
that the coal conveyed is to be taken out within a fixed term. HOSACK
v. CRILL, 204 Pa. 97, 53 Atl. 640. But a so-called “sale” may really be “a
lease without impeachment of waste.” Coolbaugh v. Lehigh & Wilkes- Barre
Coal Co., 218 Pa. 28, 62 Atl. 94,4 L. R. A. (N. 8.) 207.
14 Wheeler v. West, 71 Cal. 126, 11 Pac. 871. See Silsby v. Trotter, 29 N.
J. Eq. 228. Such a license is not such an interest in the land as to be tax-
able as real property. Board of Sup’rs of Hancock County v. Imperial Naval
Stores Co. (Miss.) 47 So. 177. Even a quitclaim deed may be so worded as
to be a license. BAKER v. CLARK, 128 Cal. 181, 60 Pac. 677. A parol
license passes no title to ores not severed, even though the licensee has ex-
pended money in mining. McCullagh v. Rains, 75 Kan. 458, 89 Pac. 1041.
15 CONSOLIDATED COAL CO. v. PEERS, 150 Ill. 844, 87 N. BE. 937; PAUL
v. CRAGNAZ, 25 Nev. 293, 59 Pac. 857, 60 Pac. 983, 47 L. R. A. 540; Baker
vy. Clark, 128 Cal. 181, 60 Pac. 677; Tennessee Oil, Gas & Mineral Co. yw
§ 130) MINING LICENSES AND LEASES. 485
Since a mere license must be revocable at will,t® and, being only a
personal privilege, must also be nonassignable,1’ it is comparatively
easy to tell when one is dealing with such a right. But because a li-
cense may be coupled with an interest, and so may be irrevocable*® and
assignable,’ it may be doubtful in a given case whether an irrevocable
license or a lease exists. While it is true that an exclusive license may
exist,?° the fact that a right given is exclusive of the creator of the
right, and is exclusive of other people later empowered by him, goes
far to show that the instrument giving the right is a lease.24 But if
it appears that the persons given the so-called lease were not bound
to do anything, but could enter and work “if they saw fit,” the lack
of mutuality in the arrangement makes the right a mere revocable li-
cense.??
The rules applicable to ordinary leases govern in mining leases.
There is, in addition, an implied covenant that the lessee will work the
claim with reasonable diligence, or forfeit his interest in all leases,
Brown, 181 Fed. 696, 65 C. C. A. 524. See Hosack v. Crill, 204 Pa. 97, 53 Atl.
640; Couch v. Welsh, 24 Utah, 36, 66 Pac. 600. Coal in place is subject to a
sale absolute, a conditional sale, or a lease. Gallagher vy. Hicks, 216 Pa. 243,
68 Atl. 623.
16 FAST JERSEY IRON CO. v. WRIGHT, 32 N. J. Eg. 248. See Desloge
v. Pearce, 88 Mo. 588; Lockwood vy. Lunsford, 56 Mo. 68. A promise not to
revoke will not make it irrevocable. Entwhistle v. Henke, 211 Ill. 273, 71 N.
E. 990, 103 Am. St. Rep. 196. Even the payment of a consideration will not
make it irrevocable. Huff v. McCauley, 53 Pa. 206, 91 Am. Dec. 203. In
any event a revocation cannot make trespasses of acts already done under
the license. FURR v. DEAN, 26 Mo, 116, 69 Am. Dec. 484. The licensee has
property merely in the ore actually taken from the mine. CLARK v. WALL,
32 Mont. 219, 79 Pac. 1052.
17 MANNING v. FRAZIER, 96 Il. 279. See Dark v. Johnston, 55 Pa. 164,
93 Am. Dec. 732. But see Muskett v. Hill, 5 Bing. N. C. 694, where, how-
ever, the deed operated both as a license and as a grant of the ore, and hence
there was not a mere license.
18 HALL v. ABRAHAM, 44 Or. 477, 75 Pac. 882; Silsby v. Trotter, 29 N.
J. Eq. 228; Grubb v. Bayard, 2 Wall. Jr. (U. 8.) 81, Fed. Cas. No. 5,849.
See Bingo Min. Co. v. Felton, 78 Mo. App. 210.
19 Muskett v. Hill, 5 Bing. N. C. 694. A revocable license may become by
estoppel irrevocable and assignable. Hosford v. Metcalf, 113 lowa, 240, 84
N. W. 1054.
20 Muskett v. Hill, 5 Bing. N. C. 694; Funk v. Haldeman, 53 Pa. 229.
21 CONSOLIDATED COAL CO. v. PEERS, 150 Ill. 344, 37 N. B. 987. See
Stinson v. Hardy, 27 Or. 584, 41 Pac. 116.
22 Wheeler v. West, 71 Cal. 126, 11 Pac. 871; Id., 78 Cal. 95, 20 Pac. 45.
In that case there was no chance to uphold the arrangement as a lease by im-
plying a promise to work, and hence the case is like the revocable license
cases considered in the chapter on oil and gas leases. But see Woodside y.
Ciceroni, 98 Fed. 1, 35 C. C. A. 177.
486 OTHER MINING CONTRACTS AND LEASES. (Ch, 24
where only royalty of so much per ton is to be paid.?? There is in some
cases an implied covenant on the lessor’s part that the land contains
minerals in paying quantities;** but in other cases there is no such
covenant.?® As in the case of other leases, mining leases may be aban-
doned.?* It has been held in a recent case that a lessee of a lower level
in a mine has no cause of action against the lessor for the willful or
negligent caving in of higher levels by those to whom the lessor leased
the higher levels, for the reason that the lessor was, at the most, guilty
only of nonfeasance.??
Some forms of leases used by the United States in leasing mineral
Indian lands are given in the appendix.?®
28 Brown v. Wilmore Coal Co., 153 Fed. 148, 82 C. C. A. 295; Sharp v.
Behr (C. C.) 117 Fed. S64; Shenandoah Land & Anthracite Coal Co. y. Hise,
92 Va. 238, 23 S. HB. 302; Rorer Iron Co. v. Trout, 83 Va. 397, 2 S. E. 718, 5
Am. St. Rep. 285; Conrad vy. Morehead, 89 N. C. 31. See Aye v. Philadelphia
Co., 198 Pa. 451, 44 Atl. 555, 74 Am. St. Rep. 696; National Light & Thorium
Co. v. Alexander, 80 8. C. 10, 61 S. E. 214. Where the lessor in a mining
lease evicted the lessee, and thereafter extracted a large amount of valuable
ore, and the lessee sued for damages, the court put on the lessor the burden
of provipg the amount and value of the ores extracted. Isabella Gold Min.
Co. v. Glenn, 87 Colo. 165, 86 Pac. 349. The phrase “smelter returns” in
a contract should ordinarily be construed to mean returns from the ore, less
the smelting charges, without deducting the charges for hauling, freight and
switching. Frank v. Bauer, 19 Colo. App. 445, 75 Pac. 930.
24 BROOKS v. COOK, 135 Ala. 219, 34 So. 960; Blake v. Lobb’s Estate,
110 Mich. 608, 68 N. W. 427. See Diamond Iron Min. Co. v. Buckeye Iron
Min. Co., 70 Minn. 500, 73 N. W. 507; Boyer v. Fulmer, 176 Pa. 282, 35 Atl.
236; Bannan v. Graeff, 186 Pa. 648, 40 Atl. 805; Fritzler v. Robinson, 70
Iowa, 500, 31 N. W. 61. For an instance where the lessor was allowed to re-
scind because of mutual mistake as to the existence of coal in the leased land
and because of other reasons, see Bluestone Coal Co. v. Bell, 88 W. Va. 297,
18 S. E. 498. See, also, Muhlenberg v. Henning, 116 Pa. 188, 9 Atl. 144.
25 See CLIFTON v. MONTAGUE, 40 W. Va. 207, 21 S. BE. 858, 33 L. R. A.
449, 52 Am. St. Rep. 872; Clark v. Babcock, 23 Mich. 164. BAMFORD vy.
LEHIGH ZINC & IRON CO. (C. C.) 83 Fed. 677. If the land does not con-
tain mineral, the consideration for the rental may fail. As to the latter
point, however, see Wharton v. Stoutenburgch, 46 N. J. Law, 151.
26 Wilmore Coal Co. v. Brown (C. C.) 147 Fed. 931.
27 PETERSON v. BULLION-BECK & CHAMPION MIN. CO. (Utah) 91 Pace.
1095.
28 The state of Washington has a statute governing the leasing of state min-
eral lands. Laws Wash. 1901, p. 313, c. 151.
8§ 131-132) LEASES AND OPTIONS AND TITLE BONDS. 487
LEASES AND OPTIONS AND TITLE BONDS.
131. Au option to purchase may be accompanied by a lease, and,,
when so accompanied, may end with the lease, or may survive
it.
132. A title bond is an offer under seal to convey a good title if the of-
fer’s terms are complied with. It is, om principle, irrevoca-
ble for the time specified, or until after a reasonable time if
no time is specified; but the cases seem to hold that unless it is
actually supported by a genuine consideration it is revocable
at any time.
Very often there is coupled with a lease either an option to purchase
or a bond for title. Even a license to enter and mine, when accom-._
panied by an option to purchase the mining claim by paying a fixed
sum, on which sum the licensee is to be credited with the net proceeds
of working paid to the seller, has been held to become so coupled with
an interest as to be irrevocable, except as in the contract provided.*®
On the other hand, a lease and an option to purchase, though contained
in one instrument, may be separate and independent agreements, so as
to make the option survive a forfeiture of the lease.*® Time is of the
essence of an option to purchase mining property.**
With reference to title bonds, whereby the owner of a mining claim
by bond binds himself to convey a good title to the obligee in the
bond, if the latter makes certain payments at the time or times specified,
there can be no question that the bond constitutes an offer under seal to
sell at the amount named, to be paid at the time or times specified.
Whether that offer can be accepted in any other way than by payment
or tender of payment as called for therein will depend wholly upon
the proper construction of the instrument. In the ordinary case it
would seem to be performance by the obligee, rather than a promise to
perform, that is called for; ** but sometimes a bilateral contract is call-
ed for, and hence is complete when the offer is duly accepted.**
Being under seal, the offer is, on principle, irrevocable during the
29 CLARNO vy. GRAYSON, 30 Or. 111, 46 Pac. 426; HALL v. ABRAHAM,
44 Or. 477, 75 Pac. 882. An option to purchase with a license to extract ore,
instead of a covenant running with the land, was found to exist in Smith v.
Jones, 21 Utah, 270, 60 Pac. 1104.
30 MATHEWS SLATE CO. v. NEW EMPIRE SLATE CO. (C. C.) 122 Fed.
972.
31 Merk v. Bowery Min. Co., 31 Mont. 298, 78 Pac. 519; Settle v. Winters,
2 Idaho, 215, 10 Pac. 216. On the surrender of an option see K. P. Min. Co.
v. Jacobson, 30 Utah, 115, 88 Pac. 728, 4 L. R. A. (N. 8.) 755.
32 See Largey v. Bartlett, 18 Mont. 265, 44 Pac. 962.
83 Pennsylvania Min. Co. v. Smith, 207 Pa. 210, 56 Atl. 426.
488 OTHER MINING CONTRACTS AND LEASES. (Ch. 24
time which it specifies, * or until the lapse of a reasonable time if no
time is specified; but the few cases involving mining title bonds hold
that, unless there is a genuine consideration for them, such bonds are
either revocable offers ?® or are absolutely invalid.*®
WORKING CONTRACTS.
133. It seems that working contracts are sometimes formed which
do not amount to a mining partnership.
In addition to the contracts above set forth are contracts to work a
mine for cash payments or a share in the proceeds. For instance, a
contract by which a third person agreed with the owner of a mining
claim to work the mine, and pay one-half the expenses, and receive
one-half the product, has been held not to constitute a mining part-
nership, but instead a contract to work the mine on shares.*7 Such a
case raises a close question of fact. In the ordinary case of letting a
contract for the sinking of a shaft or the running of a cross cut no
difficulty arises; the case being governed by the principles applicable
to ordinary contracts.*®
34 Willard v. Tayloe, 8 Wall. (U. S.) 557, 19 L. Ed. 501; O’Brien v. Boland,
166 Mass. 481, 44 N. E. 602.
35 GORDON v. DARNELL, 5 Colo. 302. See Finnerty v. Fritz, 5 Colo. 174.
An option to purchase, not under seal, may be a revocable offer. SNOW v.
NELSON (C. C.) 113 Fed. 353.
36 SMITH vy. REYNOLDS (C. C.) 8 Fed. 696. For a case finding a sale with
a valid option, see Pittsburg Vitrified Pav. & Bldg. Brick Co. v. Bailey, 76 Kan.
42, 90 Pac. 803, 12 L. R. A. (N. 8.) 745.
37 STUART v. ADAMS, 89 Cal. 367, 26 Pac. 970; Hudepohl v. Liberty Hill
Con. Min. & Water Co., 80 Cal. 558, 22 Pac. 339. So where the plaintiff worked
the defendant’s mine, and agreed that the defendant’s mill should treat the ore
at a certain price plus one-half the proceeds above plantiff’s expense of ex-
tracting the ore, it was held that no partnership existed. Vietti v. Nesbitt,
22 Nev. 390, 41 Pac. 151.
38 Time is of the essence of such a contract. Montrozona Gold Min. Co. v.
Thatcher, 19 Colo. App. 371, 75 Pac. 595. In the absence of an express pro-
vision in the contract, or of a custom requiring it, the contractor need not tim-
ber a shaft contracted for. No. 5 Min. Co. v. Bruce, 4 Colo. 298. He may have
to do so, however, to make such a shaft as the other party is bound to accept
in fulfillment of the contract, as, for instance, where because of the crum-
bling nature of the ground the shaft, if untimbered, will be dangerous to use.
Unless the contract so specifies, it seems that an extension of an old shaft
contracted for need not follow the dip of the vein, if the course of the old
shaft is continued. Buckeye Min. & Mill. Co. v. Carlson, 16 Colo. App. 446,
66 Pac. 168. Where a contract called for a shaft to be sunk 500 feet on a
vein, and at 330 feet the vein gave out entirely, the contractor was held ex-
cused from further performance. Woodworth vy. McLean, 97 Mo. 325, 11 S.
§ 134) ORE CONTRACTS. 489
ORE CONTRACTS.
134. Contracts may be made for the sale of ore either after sever-
ance or while in place in the mine. Care should be taken to
comply with the statute of frauds.
In connection with working contracts should be considered contracts
for the sale of ore. Where the ore to be sold has already been severed
from the vein, it is, of course, personalty, and the ordinary rules as to
sales of personalty apply. Where the ore is contained in the collectiort
of waste rock and débris known as a “dump,” and is therefore held to
be real estate,?° it has been intimated that a contract for its sale is
within the statute of frauds.4° Where the contract is to sell ore after
it has been severed from the vein, the ordinary rules of contract and
of the law of damages apply.
Assays.
A word is necessary in regard to assays. An assay is the determina-
tion of the amount of gold, silver, lead, or other metals in a given lot
of ore, by ascertaining how much is contained in a small sample select-
ed as representative.*? The whole value of an assay depends upon the
representative character of the sample*? and upon the thoroughness
with which the assayer extracts the values from the sample.
W. 43. To sink three holes to bed rock requires only that some part of each
hole extend to bed rock. Meehan v. Nelson, 137 Fed. 731, 70 C. C. A. 165.
39 ROGERS v. COONEY, 7 Nev. 213. Refuse matter from washing iron
ore, which refuse contained less iron than could profitably be worked, was
held not to be “iron ore,” within the meaning of a lease. Appeal of Erwin
(Pa.) 12 Atl. 149.
40 Foster v. Lumbermen’s Min. Co., 68 Mich. 188, 200, 36 N. W. 171. See
dicta in Smart y. Jones, 15 C. B. (N. S.) 717, where a mere promise to let the
plaintiff dig and carry away cinders from a cinder tip, for breach of which
promise the plaintiff’s only remedy was an action for damages, was held not
to amount to an incorporeal hereditament, requiring creation by deed.
41 “Gold, silver, and platinum are assayed for the number of ounces per ton
of ore; lead, copper, zine, and the base metals generally, for the per cent. of
the minerals in the ore.” Morrison’s Mining Rights (13th Ed.) 376.
42 See Pittsburg Concentrating & Mining Co. v. Glick, 7 Colo. App. 48, 42
Pac. 188; Golden Reward Min. Co. v. Buxton Min. Co., 97 Fed. 413, 88 C. C.
A. 228. Because it is more representative, a mill sample is a better test of
value than a car sample is. FOX v. HALE & NORCROSS SILVER MIN. CoO.,
108 Cal. 369, 41 Pac. 308. For a statement of the method of taking mill sam-
ples at a certain mill, see Chisholm vy. Eagle Ore Sampling Co., 144 Fed. 670,
%5 0. C. A. 472.
490 MINING PARTNERSHIPS AND TENANCIES IN ComMON. (Ch. 25
CHAPTER XXV.
MINING PARTNERSHIPS AND TENANCIES IN COMMON.
185. Mining Partnerships.
135a,. Differences between Mining Partnerships and Ordinary Partnerships.
1386. Tenancies in Common of Mining Property.
136a. Accounting between Co-tenants.
186b. Fiduciary Relationship of Co-tenants.
136c. Relations Between Surface and Subsurface Owners.
MINING PARTNERSHIPS.
135. A mining partnership is that relationship short of ordinary
partnership which the law affirms where two or more persons,
who own or for exploitation acquire a mining claim, actually
engage togetber in working the claim.
So closely connected with prospecting or “grub-staking” contracts
as to require consideration with them are mining partnerships. A min-
ing partnership, so called, is something different from a regular
commercial partnership; but, to avoid any misunderstanding, it must
be stated that just as a prospecting contract may also involve a min-
ing partnership, so what at first sight seems to be a mining partner-
ship may be an ordinary partnership.1_ The peculiar kind of partner-
ship known distinctively as a “mining partnership” is all that is dis-
cussed here.
State statutes regarding mining partnerships are in general merely
declaratory of what is the law in the absence of legislation.2, A mining
partnership exists where two or more persons who own a mining
claim, or who acquire one for development purposes, actually engage
together in the working of the claim.* Though no express agreement
of partnership is necessary,* mere co-tenancy is not enough to con-
1 See Costello v. Scott (Nev.) 93 Pac. 1; Bybee v. Hawkett (C. C.) 12 Fed.
649; Haskins v. Curran, 4 Idaho, 573, 48 Pac. 559; Decker v. Howell, 42 Cal.
636; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764. Compare
Freeman vy. Hemenway, 75 Mo. App. 611; Lawrence y. Robinson, 4 Colo. 567.
2 CONGDON v. OLDS, 18 Mont. 487, 489, 46 Pac. 261; FERRIS v. BAKER.
127 Cal. 520, 59 Pac. 937.
3 Stuart v. Adams, 89 Cal. 367, 26 Pac. 970; Dorsey v. Newcomer, 121 Cal.
213, 53 Pac. 557; Marks y. Gates, 2 Alaska, 519; Walker v. Bruce (Colo.) 97
Pac. 250. See note 6, infra.
4 Manville v. Parks, 7 Colo. 128, 184, 2 Pac. 212; Dale & Bennett v. Golden-
rod Min. Co., 110 Mo. App. 317, 85 S. W. 929; DURYEFA v. BURT, 28 Cal. 5@9-
Snyder v. Burnham, 77 Mo. 52. That an agreement of mining partnership,
§ 135a) MINING PARTNERSHIPS. 491
stitute a mining partnership. A mining partnership arises only when
there is a joint working of the mining claim.®
SAME—DIFFERENCES BETWEEN MINING PARTNERSHIPS AND
ORDINARY PARTNERSHIPS.
135a. The chief difference between mining partnerships and ordinary
partnerships lies in the fact that there is no delectus personz
in mining partnerships. From this results the fact that the
implied authority of one mining partner to bind the others
is extremely limited.
A mining partnership exhibits striking differences from the ordinary
commercial partnerships.
In the first place, in a mining partnership there is no delectus per-
sone. One partner may retire, sell his interest to a stranger, or die,
without destroying the partnership.7?’ A sale may be made by one
where one exists, is not within the statute of frauds, see cases cited, chapter
XXIV, note 1. A mining partnership may exist, even though the partners agreed
that they should not be liable as partners. Bentley v. Brossard (Utah) 94 Pac.
736.
5 HARTNEY v. GOSLING, 10 Wyo. 346, 68 Pac. 1118; First Nat. Bank v.
G. V. B. Min. Co. (C. C.) 89 Fed. 449; G. V. B. Min. Co. y. First Nat. Bank,
95 Fed. 35, 35 C. C. A. 510; Tuck v. Downing, 76 Ill. 71. A mining partner-
ship is a cross between a tenancy in common and a regular partnership. Bates
on Partnership, § 14.
6 Hartney v Gosling, 10 Wyo. 346, 68 Pac, 1118, 98 Am. St. Rep. 1005. See
note 3, supra. See First Nat. Bank y. G. V. B. Min. Co. (C. C.) 89 Fed. 449;
Caley v. Cogewell, 12 Cale. App. 394, 55 Pae. 939; Lyman v. Schwartz, 18 Colo.
App. 318, 57 Pac. 725; Ferris v. Baker, 127 Cal. 520, 59 Pac. 987; Madar v.
Norman, 13 Idaho, 585, 92 Pac. 572; Higgins v. Armstrong, 9 Colo. 38, 10 Pace.
232; Meagher v. Reed, 14 Colo. 335, 24 Pac, 681, 9 L. R. A. 455; Anaconda Cop-
per Mining Co. v. Butte & Boston Min. Co., 17 Mont. 519, 43 Pac. 924; Marks
v. Gates, 2 Alaska, 519. It exists, athouek the partners are only lessees.
Kirchner v. Smith, 61 W. Va. 434, 58 S. E. 614. Where some furnish the mon-
ey, and the others do the work, and all are to share equally in results, there is
a mining partnership. LYMAN v. SCHWARTZ, 13 Colo. App. 318, 57 Pac. 735 ;
CHILDERS v. NEELY, 47 W. Va. 70, 34 8. E. 828, 49 L. R. A. 468, 81 Am.
St. Rep. 777. But the partnership extends to the work and its profits, and not
necessarily to the title to the claim. McMahon vy. Meehan, 2 Alaska, 278. In
PRINCE v. LAMB, 128 Cal. 120, 60 Pac. 689, it was held that though a con-
tract for the formation of a mining partnership in the future possibly exist-
ed, an actual mining partnership did not. At the most there was a grub-stak-
ing contract. In Dodge v. Chambers (Colo.) 96 Pac. 178, the court found that
Joans were made to a corporation by its shareholders, and hence no partner-
ship existed between the contributing shareholders.
7IKAHN v. CENTRAL SMELTING CO., 102 U. 8. 641, 26 L. Hd. 266; BLACK-
MARR y. WILLIAMSON, 57 W. Va. 249, 50 S. E. 254; Childers vy. Neely, 47 W.
Va. 70, 34S. EB. 328, 49 L. R. A. 468, 81 Am. St. Rep. 777. A retiring partner
~
492 MINING PARTNERSHIPS AND TENANCIES IN comMoN. (Ch.
partner against the protest of the others, and yet the purchaser becomes
a partner. The death of one partner neither dissolves the partner-
ship nor gives to the surviving partners as such any right to control
the property.®
In the second place, and growing out of the fact that there is no
delectus persone, it is the rule that in mining partnerships there is no
general implied authority of any of the partners to bind any of the
others.1° Even in mining partnerships, however, authority to do so
is implied to the limited extent that such authority is necessary and usu-
al in the case of such partnerships.11 Where, on due notice to the
world, a co-tenant mining partner withdraws from the partnership,
which he may do when he wills,1? he is restored to his regular condi-
tion as tenant in common, subject merely to such liabilities as were
incurred by the partnership prior to his withdrawal.1® The remain-
ing partners do not lose the lien they have on the partnership prop-
erty, which is a right in equity to have partnership assets go for part-
nership debts.1* A purchaser from a retiring partner takes subject
must give notice, of course, to persons who have dealt with the partnership,
if he wishes to escape any further liability to them. Dellapiazza v. Foley,
112 Cal. 380, 44 Pac. 727.
8 KAHN vy. CENTRAL SMELTING CO., 102 U. S. 641, 26 L. Ed. 266; Bis-
sell v. Foss, 114 U. 8S. 252, 5 Sup. Ct. €51, 25 L. Ed. 126; IXimberly v. Arms,
129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Nisbet v. Nash, 52 Cal. 540; CHIL-
DERS v. NEBLY, 47 W. Va. 70, 34 S. E. 828, 49 L. R. A. 468, 81 Am. St. Rep.
777; Taylor v. Castle, 42 Cal. 367.
9 JONES v. CLARK, 42 Cal. 180.
10 Skillman v. Lachman, 23 Cal. 198, 83 Am. Dec. 96; DURYEA v. BURT,
28 Cal. 569; Decker v. Howell, 42 Cal. 636; Bentley v. Brossard (Utah) 94
Pac. 736.
11 Bentley v. Brossard (Utah) 94 Pac. 736; HARTNEY v. GOSLING, 10
Wyo. 346, 68 Pac. 1118; Meagher v. Reed, 14 Colo. 335, 24 Pac. 681, 9 L. R.
A. 455; Manville v. Parks, 7 Colo. 128, 2 Pac. 212; Abbott v. Smith, 3 Colo.
App. 264, 32 Pac. 843; Lyman v. Schwartz, 13 Colo. App. 318, 57 Pac. 735;
Nolan vy. Lovelock, 1 Mont. 224.
But even this limited authority is subject to the rule that those who own a
majority of the shares or interests in the partnership shall control. Dougher-
ty v. Creary, 30 Cal. 291, 89 Am. Dec. 116; CHILDERS v. NEELEY, 47 W. Va.
70, 84 S. E. 828, 49 L. R. A. 468, 81 Am. St. Rep. 777; Nolan vy. Lovelock, 1
Mont. 224; Taylor yv. Castle, 42 Cal. 367; BLACKMARR y. WILLIAMSON,
57 W. Va. 249, 50 S. E. 254.
12 Lawrence v. Robinson, 4 Colo. 567.
13 SLATER v. HAAS, 15 Colo. 574, 25 Pac. 1089, 22 Am. St. Rep. 440. See
First Nat. Bank v. G. V. B. Min. Co. (C. C.) 89 Fed. 449.
14 DURYDA v. BURT, 28 Cal. 569; CHILDERS y. NEELEY, 47 W. Va.
70, 34 S. B. 828, 49 L. R. A. 468, 81 Sia St. Rep. 777. See Beck y. O'Connor,
21 Mont. 109, 53 Pac. 94; G. V. B. Min. Co. v. First Nat. Bank, 95 Fed. 35,
85 C. C. A. 510; Ervin v. Masterman, 16 Ohio Cir. Ct. 62, 8 Ohio Dec. 516.
§ 136) TENANCIES IN COMMON OF MINING PROPERTY. 493
to the lien, even though he does not become personally liable for the
partnership debts contracted prior to his purchase.*®
In conclusion, it should be noted that the copartners hold fiduciary
relations toward one another, which will prevent one acquiring for
himself property which rightfully belongs to the partnership.*® But a
location made by one partner after dissolution upon a discovery prior
to dissolution will not inure to the benefit of the other partner, unless
the failure to locate during the partnership was fraudulent.*?
TENANCIES IN COMMON OF MINING PROPERTY.
136. The mere fact that one is a tenant in common and works the
claim does net make him a mining partner of his co-tenant;
but the latter may call on him to account.
Mere co-tenancy, as we have seen, does not create a mining part-
nership; 1% but the peculiar nature of an unpatented mining claim and
the fact that any co-tenant can enjoy the claim only by more or less
rapidly exhausting its ore bodies have contributed to make special prob-
lems for co-tenants of mining property and to differentiate co-tenancy
of such property somewhat from co-tenancy of other kinds of real
property.
Each co-tenant has a perfect right to enter upon the mining claim
and work it,?® and to maintain an action for its recovery without join-
As to what constitutes mining partnership property, see Dorsey v. Newcomer,
121 Cal. 213, 53 Pac. 557.
15 Jones v. Clark, 42 Cal. 180.
16 KIMBERLY vy. ARMS, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Con-
tinental Divide Min. Inv. Co. v. Bliley, 23 Colo. 160, 46 Pac. 683; Settembre v.
Putnam, 30 Cal. 490; Brown v. Bryan, 5 Idaho, 145, 51 Pac. 995; McMahon
vy. Meehan & Larson, 2 Alaska, 278.
17 JENNINGS v. RICKARD, 10 Colo. 395, 15 Pac. 677. See Pierce v. Pierce,
55 Mich. 629, 22 N. W. 81. One mining partner may sell out, it seems, at a
higher price than his partners get. Harris v. Lloyd, 11 Mont. 390, 38 Pac.
736, 28 Am. St. Rep. 475.
18 Where some co-owners engage in working a mine, and others do not, the
former are mining partners, and the latter are merely co-tenants. Madar v.
Norman, 13 Idaho, 585, 92 Pac. 572. See, also, Garside v. Norval, 1 Alaska, 19.
19 Kahn v. Old Telegraph Min. Co., 2 Utah, 13; McCORD v. OAKLAND
QUICKSILVER MIN. CO., 64 Cal. 134, 27 Pac. 863, 49 Am. Rep. 686; Marsh
v. Holley, 42 Conn. 453. The doctrine to the contrary in Murray v. Haverty,
70 Ill. 318, 320, cannot be supported. A co-tenant has no more right to exclude
the other co-tenants from a tunnel run to work the claim than to exclude them
from the claim itself. People v. District Court, 27 Colo. 465, 62 Pac. 206. And
he has no right to work the claim itself through a shaft from another mine
to which his co-tenants have no right of access. Butte & B. Consol. Min. Co.
v. Montana Ore-Purchasing Co., 24 Mont. 125, 60 Pac. 1039. And no right to
494 MINING PARTNERSHIPS AND TENANCIES IN CoMMON. (Ch. 25
ing his co-tenants;?° but he must account to his co-tenants for their
share of the ore that he takes out and sells. The other co-tenants,
while entitled to claim their share of the profits, are not responsible
for any losses, except that they cannot claim any damages if in fact
the working co-owner emerges with a loss.?1_ It is not waste for the
tenant in common to take out ore in minerlike fashion, but may be a
violation of a state statute for the protection of co-tenants.??
By statutes in the different jurisdictions the right of one tenant in
common to sue another has been considerably enlarged.?®
SAME—ACCOUNTING BETWEEN CO-TENANTS.
136a. The proper basis for accounting between co-tenants of mining
property would seem to be the net profits after the deduction
of the actually incurred reasonable expenses; but where the
co-tenant who works the claim invites the others to join in
the work, and they refuse, the justice of this rule is doubted
by some.
The common-law rule was that a tenant in common of real property
had no right to an account from his co-tenant. This was changed by
the statute of Anne,?* which gave an account for rents and profits
actually received by the defendant co-tenant from third persons, but
it gave none for the use and occupation of the co-tenant.2> Where,
however, one co-tenant excluded another from the possession of the
joint property, an account would lie.*® If the co-tenant is not ex-
use a tunnel on the claim to convey ore from an outside claim. Laesch v. Mor-
ton, 38 Colo. 171, 87 Pac. 1081.
20 Morenhaut v. Wilson, 52 Cal. 263; Weese v. Barker, 7 Colo. 178, 2 Pac.
919; Binswanger y. Henninger, 1 Alaska, 509. See Melton v. Lambard, 51
Cal. 258.
21 WOLFE v. CHILDS (Colo.) 94 Pac. 292; Stickley v. Mulrooney, 36 Colo.
242, 87 Pac. 547, 118 Am. St. Rep. 107; McCORD vy. OAKLAND QUICKSIL-
VER MIN. CO., 64 Cal. 134, 27 Pac. 863, 49 Am. Rep. 686; Edsall v. Merrill,
87 N. J. Eq. 114. See Goller v. Felt, 30 Cal. 481.
22 ANACONDA COPPER MINING CO. v. BUTTE & BOSTON MIN. CO.,
17 Mont. 519, 43 Pac. 924.
23 For cases under the Montana statute, see Connole vy. Boston & M. Consol.
Copper & Silver Min. Co., 20 Mont. 523, 52 Pac. 263; Butte & B. Consol. Min-
ing Co. v. Montana Ore-Purchasing Co., 24 Mont. 125, 60 Pac. 1039; Id., 25
Mont. 41, 68 Pac. 825.
24 St. 4 Anne, c. 16, § 27.
251 Tiffany, Real Property, 392.
26JId. So it has been held that a lessee of one co-tenant, when excluded by
the other co-tenant, may have an accounting, and may even recover damages
based on loss of profits. PAUL v. CRAGNAZ, 25 Nev. 293, 59 Pac. 857, 60 Pac.
983, 47 L. R. A. 540.
§ 136a) TENANCIES IN COMMON OF MINING PROPERTY. 495
cluded by the one in possession, there is a diversity of views. Mr.
Snyder contends that he must account,?? and Mr. Lindley that he need
not.?* It is believed that the sounder view is that he must account.’?
In some states the matter is regulated by statutes.*°
Where an accounting is called for, there are various rules for
determining what the co-tenant in possession must pay. Where the
- complaining co-tenant refused to share the risks, his recovery is lim-
ited by some cases to his share of the fair rental value of the land.**
The difficulty of such a measure of damages for mining property,
if it were possible to fix a fair rental value for such property, is
that, if it is to hold, there should be a recovery, even if the tenant in
possession has made a loss. The same is true of the rule measuring
recovery by the value of the ore in place.??, The view which gives the
complaining co-tenant his proportionate share of the profits after de-
ducting all proper expenses, a view which clearly applies where the
defendant has excluded the plaintiff from the joint property,** and
where the defendant has received royalties from a lessee,** would
seem to be the proper one to apply to the case of mines.2® The only
objection to it is the one applicable to all the others, namely, that it
lets a man who refused to take the risk share the profit. The answer
to that would seem to be that the co-tenant who works does so with
his eyes open to the consequences. He must make up his mind wheth-
er he will get a lease from his co-tenants, will force a partition, or
will abide by the rules of co-tenancy.*®
272 Snyder on Mines, § 1444.
282 Lindley on Mines (2d Ed.) § 789a.
29 McGOWAN v. BAILEY, 179 Pa. 470, 36 Atl. 325; COLEMAN vy. COLE-
MAN, 1 Pearson (Pa.) 470; GAGE v. GAGE, 66 N. H. 282, 29 Atl. 548, 28 L. R.
A. 829; KAHN v. SMELTING CoO., 102 U. S. 641, 646, 26 L. Ed. 266. But
see Pico v. Columbet, 12 Cal. 414, 73 Am. Dec. 550. See Morrison’s Mining
Rights (13th Ed.) p. 334.
30 Laws Mont. 1899, p. 184; Comp. Laws Nev. (1861-1900) § 250. See Butte
& B. Consol. Min. Co. v. Montana Ore-Purchasing Co., 25 Mont. 41, 63 Pace.
825; Red Mount Consol. Min. Co. v. Esler, 18 Mont. 174, 44 Pac. 523.
31 Early v. Friend, 16 Gratt. (Va.) 21, 78 Am. Dec. 649. See Edsall v. Mer-
rill, 87 N. J. Eq. 114.
32 McGowan v. Bailey, 179 Pa. 470, 36 Atl. 325. 5
33 WILLIAMSON v. JONES, 43 W. Va. 562, 27 8. E. 411, 38 L. R. A. 694,
64 Am. St. Rep. 891.
34 CHCIL v. CLARK, 49 W. Va. 459, 39 S. BE. 202.
36 WOLFE v. CHILDS (Colo.) 94 Pac. 292; Graham v. Pierce, 19 Gratt.
(Va.) 28, 100 Am. Dec. 658. See Ruffners v. Lewis’ Ex’rs, 7 Leigh (Va.) 720,
30 Am. Dec. 513; Martel v. Jennings-Heywood Oil Syndicate, 114 La. 351, 38
South. 253: Lone Acre Oil Co. v. Swayne (Tex. Civ. App.) 78 S. W. 380.
36 Under the interpretation given by the Idaho Supreme Court to a state
statute, the owner of a majority interest in a claim being worked by a co-ten-
496 MINING PARTNERSHIPS AND TENANCIES IN COMMON. (Ch. 25
SAME—FIDUCIARY RELATIONSHIP OF CO-TENANTS.
13Gb. There is the same fiduciary relationship between tenants in
common of mining property as between those of other prop-
erty.
The same fiduciary relationship exists between tenants in common
of mining property as of other property.*7 An instance is found in
a Washington case, where a mining company that had joined with
several people in the location of a mining claim, and then, fearing that
the claim was located on the dip of a vein apexing within a senior lo-
cation, had bought a four-sevenths interest in the senior location, was
compelled to let the co-tenants share in that four-sevenths interest
when it became apparent that the senior location did have the apex.**
SAME—RELATIONS BETWEEN SURFACE AND SUBSURFACE
OWNERS.
136c. Where the title to the minerals has been severed from that ta
the surface, the owner of the minerals and the owner of the
surface are not tenants in common of the whole.
It would seem to be unnecessary to say, except that the point has
been expressly decided, that, where there has been such a severance
that the title to the surface of a mining claim is in one person and the
title to the minerals is in another, the two are neither joint tenants nor
tenants in common, but each owns in severalty what is his.*®
ant having a minority interest can dictate the manner in which the latter shall
work, because by interfering the majority owner converts the co-tenancy into
a mining partnership. Hawkins v. Spokane Hydraulic Min. Co., 3 Idaho (West.)
970, 3 Idaho, 241, 28 Pac. 483; Id. 3 Idaho, 650, 38 Pac. 40. See Sweeney v.
Hanley, 126 Fed. 97, 61 C. C. A. 153. That being so, the majority owner must
account to the minority for the latter’s share of the profits, if the majority
owner works the property. Id.
87 STEVENS v. GRAND OBNTRAL MIN. CO., 183 Fed. 28, 67 C. CG. A. 284.
See Royston v. Miller (C. C.) 76 Fed. 50; Hallack v. Traber, 23 Colo. 14, 46
Pac. 110; Hunt v. Patchin (C. C.) 35 Fed. 815; Garside v. Norval, 1 Alaska,
19. For an application of this doctrine to a case of relocation, see Van Wag-
enen v. Carpenter, 27 Colo. 449, 61 Pac. 698. For other instances, see chap-
ter XVII, § 96, supra.
38 CEDAR CANYON CONSOL. MIN. CO. v. YARWOOD, 27 Wash. 271, 67
Pac. 749, 91 Am. St. Rep. 841. Though the location made by the so-called co-
tenants was invalid, because the vein was already located, the mining company
was nevertheless held bound. In the absence of a discovery of some other
vein within the claim, the correctness of that holding may be doubted.
39 VIRGINIA COAL & IRON CO. v. KELLY, 93 Va. 832. 24 S. BE, 1020;
HUTCHINSON vy. KLINE, 199 Pa. 564, 49 Atl. 312. See, also, cases in chap-
ter XXVI, note 28, infra.
§ 137) CONVEYANCES AND LIENS, 497
CHAPTER XXVI.
CONVEYANCES AND LIENS.
137. Necessity of Written Conveyances of Mining Claims.
138. Quitclaim and Warranty Deeds.
138a. The Special “Dips, Spurs,” etc., Clause.
138b. After-Acquired Title.
139. Easements on Severance.
140. Mortgages.
141. Other Liens.
142. Examinations of Title.
NECESSITY OF WRITTEN CONVEYANCES OF MINING CLAIMS.
137. While oral transfers of unpatented mining claims early re-
ceived judicial sanction, it has long been settled that such
claims are real estate, and conveyances of them must conform
to the requirements of conveyances of real estate.
In the early days of California, Idaho, and Nevada, before the real
nature of mining locations was understood, it became established that
a writing was not necessary for the conveyance of a mining claim.*
That was a doctrine which grew out of the supposed necessities of the
time, before it was seen that a mining claim was essentially real prop-
erty, and the doctrine has since been abandoned.
The doctrine has, however, had some interesting survivals. In 1879
the United States Supreme Court, on the strength of one of those
early California cases,” stated that “a written conveyance is not neces-
sary to the transfer of a mining claim.” *® The natural conclusion that
a mining claim, which is not real estate within the statute of frauds,
is not real estate within a state statute making judgments liens
on real estate,* and is not an interest in real property within a state
1 JACKSON v. FEATHER RIVER & GIBSONVILLE WATER CO., 14 Cal.
18; TABLE MOUNTAIN TUNNEL CO. v. STRANAHAN, 20 Cal. 198; An-
toine Co. v. Ridge Co., 23 Cal. 219; Patterson v. Keystone Min. Co., 23 Cal.
575; Lockhart v. Rollins, 2 Idaho, 540, 21 Pac. 418; Kinney v. Consolidated
Va. Min. Co., 4 Sawy. (U. 8S.) 382, 451, 452, Fed. Cas. No. 7,827. Hven in Cali-
fornia this doctrine did not hold where the claim was in the adverse posses:
sion of third persons. COPPER HILL MIN. CoO. v. SPENCER, 25 Cal. 18.
2 TABLE MOUNTAIN TUNNEL CoO. v. STRANAHAN, 20 Cal. 198.
8 UNION CONSOL. SILVER MIN. CO. v. TAYLOR, 100 U. 8. 87, 42, 25 L.
Ed. 541. See, also, Lockhart v. Rollins, 2 Idaho, 540, 21 Pac. 413.
4 PHOINIX MIN. & MILL. CO. v. SCOTT, 20 Wash. 48, 54 Pac. 777. See,
contra, BUTTE HARDWARE CO. v. FRANK, 25 Mont. 344, 65 Pac. 1; Brad-
Cost. M1n.L.—32
498 CONVEYANCES AND LIENS. (Ch. 26
statute affecting the jurisdiction of justices of the peace,® or with-
in a state statute of limitation,? has been adopted in two states. In
Washington, however, the court regards a mining claim as the equi-
table estate of the locator, rather than as personalty;* while in
Oregon a statute now makes all conveyances of mining claims sub-
ject to the same rules as apply to “other realty.”® The facts that the
Idaho case related only to transfers prior to the act of 1866 supported
by mining customs, that California passed an act as early as 1860 which
the courts construed to require the conveyances of mining claims to
be in writing, that the California courts have ever since called a min-
ing claim real estate,® and that in 1862 Nevada passed an act requiring
the same formalities for the conveyance of mining claims as of other
real estate,?° far outweigh the earlier erroneous California and Ne-
vada cases.
It would seem to be clear that an unpatented mining claim is realty,
and as such within the state statutory requirements applicable to real
property... While, under the old rule allowing oral transfers, a writ-
ten transfer did not have to be under seal,* a seal would now seem to
be necessary, wherever it is necessary to the conveyance of ordinary
real estate.
Transfers of Unperfected Claims.
But, while the above is true of an actually perfected mining loca-
tion, it seems still to be true that an unperfected location may be
ford v. Morrison (Ariz.) 86 Pac. 6. Compare Waller v. Hughes, 2 Ariz. 114,
11 Pac, 122.
5 DUFFY v. MIX, 24 Or. 265, 33 Pac. 807.
6 HERRON v. EAGLE MIN. CoO., 87 Or. 155, 61 Pac. 417,
7 Phenix Min. & Mill. Co. v. Scott, 20 Wash. 48, 54 Pac. 777.
8B. & C. Comp. Or. § 3981. See, also, Lohmann y. Helmer (C. C.) 104 Fed.
178.
9 GOLLER v. FETT, 30 Cal. 481; King v. Randlett, 33 Cal. 318; Melton v.
Lambard, 51 Cal. 258; GARTHE v. HART, 73 Cal. 541, 15 Pac. 98; Moore
v. Hamerstag, 109 Cal. 122, 41 Pac. 805; Bakersfield & Fresno Oil Co. vy. Kern
County, 144 Cal. 148, 77 Pac. 892.
10 Gen. St. Nev. 1885, § 2650. See Hale & Norcross Gold & Silver Min. Co.
v. Storey County, 1 Nev. 104, 108.
11 ROSEVILLE ALTA MIN. CO. v. IOWA GULCH MIN. CO., 15 Colo. 29,
24 Pac. 920, 22 Am. St. Rep. 373; Alaska Exploration Co. v. Northern Min.
& Trading Co., 152 Fed. 145, 81 C. C. A. 8368; REAGAN v. McKIBBEN, 11
S. D. 270, 76 N. W. 948; Harris v. Equator Min. & S. Co. (C. C.) 8 Fed. 863;
Hopkins v. Noyes, 4 Mont. 550, 2 Pac. 280; Cascaden vy. Dunbar, 2 Alaska, 408.
See Butte Hardware Co. y. Frank, 25 Mont. 344, 65 Pac. 1; Bradford v. Mor-
rison (Ariz.) 86 Pac. 6. A mining claim descends as realty to the heirs of the
intestate owner. LOHMANN vy. HELMUER (C. C.) 104 Fed. 178; KEELER v.
TRUEMAN, 15 Colo. 148, 25 Pac. 311. See, also, chapter XX, note 17, supra.
* Jackson v. Feather River & Gibsonville Water Co., 14 Cal. 18; Draper v.
Douglass, 23 Cal. 347; St. John v. Kidd, 26 Cal. 265.
§ 138) - QUITCLAIM AND WARRANTY DEEDS. 499
transferred without writing, and the transferee will acquire the legal
title if he perfects the location in his own name.t? That is because,
until the location is perfected, it has not acquired the status of real
property, and in consequence is not governed by the statutes affecting
real property.
It being settled that a perfected mining location must be conveyed in
writing, and, of course, that a patented claim must be so conveyed, a
question arises as to the form of deed.
QUITCLAIM AND WARRANTY DEEDS.
138. A grantor of an unpatented claim should convey by a quitclaim
deed or by a carefully worded special warranty deed.
The question is whether a quitclaim deed or a warranty should be
used in conveying a mining claim. In the case of a patented claim
a warranty deed may be used, whenever it would be used in regard to
other real property, if only care be taken to have the warranty except
anything excepted by the patent itself; but in the case of an unpat-
ented claim a warranty deed should never be given, without expressly
stating in the deed that the warranty does not apply to the United
States. In the case of an unpatented claim a grantor should insist
upon giving either a quitclaim deed or a carefully worded special war-
ranty deed.
It often happens that so-called warranty deeds are really quitclaims,.
because the granting clause conveys only the right, title, and interest:
of the grantor, and the passage of that is all that is warranted; 13 and
it also often happens that a so-called quitclaim deed will have in it
a covenant of warranty.14 The choice between mere quitclaims and
various kinds of warranty deeds will, of course, depend wholly upon the
purposes which the parties have in view.*®
12 MILLER v. CHRISMAN, 140 Cal. 440, 73 Pac. 1083, 74 Pac. 444, 98 Am.
St. Rep. 63; Doe v. Waterloo Min. Co., 70 Fed. 455, 17 C. C. A. 190. See Weed
v. Snook, 144 Cal. 489, 77 Pac. 1028. Compare Bay v. Oklahoma Southern Gas,
Oil & Min, Co., 13 Okl. 425, 73 Pac. 936.
13 Sweet v. Brown, 12 Metc. (Mass.) 175, 45 Am. Dec.-243. But see Loomis
v. Bedel, 11 N. H. 74.
14 A common form of mining deed in use in Colorado purports to quitclaim,
but contains a covenant of further assurance. Such a deed is not invalid to
pass present title because of such covenant, WHOLEY v. CAVANAUGH, 88
Cal. 132, 25 Pac. 1112; while an after-acquired title will pass under it, Id.;
Norfleet v. Russell, 64 Mo. 176; Phelps v. Kellogg, 15 [ll]. 131; Bennett v.
Waller, 23 Ill. 97.
16 That the grantee in a quitclaim deed of mining property will take title
as free from equities as if the deed contained full covenants of warranty was:
500 CONVEYANCES AND LIENS. (Ch. 26
SAME—THE SPECIAL “DIPS, SPURS,’ ETC., CLAUSE.
138a. While the clause in mining deeds, conveying all veins, with
their dips, spurs, angles, and variations, is on principle super-
fluous, its retention is recommended.
It is customary to insert in mining deeds, following the description
of the claim, a clause conveying all lodes and veins, with their dips,
spurs, angles, and variations. The purpose of this is to grant the
small veins, which are offshoots or feeders of the larger veins, and
are known as spurs,* as well as to grant the larger veins themselves,
and to convey all extralateral rights on the various veins, whatever
may be the irregularity of the construction and strike of such veins.
That the conveyance of the land by an ordinary real estate deed
not containing such a clause conveys the tops of the veins within the
common-law boundaries, and that the ownership of the tops of the
veins carries with it, of necessity, the extralateral rights which the
grantor had, would seem to be clear.17 As a matter of fact, the
custom of inserting in a mining deed such a clause as the one under
consideration is an inheritance from conditions prevailing under the
act of 1866 and prior thereto, when the vein was the principal thing
in a location and the surface a mere incident. It has no application
under the present statutes, where the claim consists of a piece of real
estate embracing lodes or veins. Such a clause is deemed by all mining
law writers to be superfluous; but out of abundant caution, and be-
cause some lawyers reason that the long continuance of the custom
proves its necessity, and on that account may question a deed which
does not contain such a clause, its insertion in a deed of mining prop-
erty is recommended.*§
held in BRADBURY v. DAVIS, 5 Colo. 265. That case ought to be followed
as to unpatented mining claims, even in a jurisdiction where as to ordinary
real property and as to patented mining claims the taking of a quitclaim deed
is deemed evidence that the grantee knows that something is wrong with the
title. A contract to convey a mining claim “by good and sufficient deed in
fee simple” was held fulfilled, where the grantee knew that the claim was un-
patented, by the conveyance of full title to the unpatented claim, in Bash v.
Cascade Min. Co., 29 Wash. 50, 69 Pac. 402, 70 Pac. 487.
ié¢ The law fixes no limit to the size or prominence of a mineral-bearing
vein before a mining location can be made upon it. CARSON CITY GOLD &
SILVER MIN. CO. v. NORTH STAR MIN. CoO. (C. C.) 73 Fed. 597, 601.
17 “Tt is probably not necessary to specify extralateral rights in order that
a conveyance of a mining claim be operative to transfer them, and yet it is
not strange that the custom grew up of naming them for the sake of avoiding
the possibility of disputes.” MONTANA MIN. CO. vy. ST. LOUIS MIN. &
MILL. CO., 204 U. S. 204, 27 Sup. Ct. 254, 257, 51 L. Ed. 444.
18In MONTANA MIN. CO. v. ST. LOUIS MIN. & MILL, CO., 204 U. 8.
§ 132b) QUITCLAIM AND WARRANTY DEEDS. 501
SAME—AFTER-ACQUIRED TITLE.
138b. The courts are liberal in assisting title to pass under mining
deeds by estoppel.
With reference to mining deeds the courts have adopted a very
liberal estoppel doctrine. Regardless of whether a deed is a warranty
deed, or only a quitclaim, the courts endeavor to estop the grantor as
to after-acquired title, and to make the deed pass all that the state of
facts at the time of the conveyance will justify. For instance, where
the grantor has made first a location and then a relocation of the same
ground, a conveyance will pass his rights under both locations,*® al-
though a different name is used for each, and the conveyance gives
only oe asme.?° Where the owners of a mining claim changed its
stakes after record, so as to make the claim conflict with an adjoining
claim, and then, without amending the record, but by deed (which
seemingly referred to patent proceedings started for the reformed
claim), conveyed the claim by reference to the record, it was held that,
when the grantors afterwards acquired title to the adjoining claim, the
titlé to the conflict area passed to the grantees by estoppel.?4_ The
courts are often helped by state statutes, which provide, as the state
statutes in the case just cited did,?? that any deed which purports to
pass the fee will carry an after-acquired title. Accordingly such a
quitclaim deed, given after entry in patent proceedings, will pass the
patented title to the grantee.2® But the after-acquired title will not
204, 27 Sup. Ct. 254, 51 L. Ed. 444, the words “together with all the miner-
als therein,” when added to the “dips, spurs, and angles” clause, were held
to show that despite the latter clause the grantee was to have only common-
law rights in the vein embraced in the conveyed land. That caSe shows the
danger of special clauses.
19 WEILL y. LUCERNE MIN. CO., 11 Nev. 200; COLLINS v. McKAY, 386
Mont. 123, 92 Pac. 295.
20 PHILLPOTTS v. BLASDEL, 8 Nev. 61; LEBANON MIN. CO. v. CON-
SOLIDATED REPUBLICAN MIN. CO., 6 Colo. 871; COLLINS v. McKAY,
86 Mont. 123, 92 Pac. 295. See SHOSHONE MIN. CO. v. RUTTER, 87 Fed.
801, 31 C. C. A. 223.
21 SHREVE v. COPPER BELL MIN. CO., 11 Mont. 309, 28 Pac. 315. As
no application for patent could be pending without a plat and description be-
ing given, the reference to the patent proceedings would seem to have describ-
ed the conflict area, while under the Montana statutes the conveyance was one
which would pass an after-acquired title. Id., 11 Mont. 347, 28 Pac. 315. See
Bernardy v. Colonial & U. 8. Mortg. Co., 17 S. D. 637, 98 N. W. 166, 106 Am.
St. Rep. 791.
22 Shreve v. Copper Bell Min. Co., 11 Mont. 309, 347, 28 Pac. 815.
28 Bradbury v. Davis, 5 Colo. 265; Crane v. Salmon, 41 Cal. 68. This is
502 CONVEYANCES AND LIENS. (Ch. 26
pass by estoppel to a grantee where the grantee has forfeited the un-
patented location conveyed and the grantor has purchased it from a
subsequent relocator.?*
EASEMENTS ON SEVERANCE.
139. Upon severance of surface from minerals by conveyance, the
proper easements of access and support arise, unless they are
expressly contracted away. The grantor’s right to the sup-
port of the surface by the minerals is on principle retained,
even where he grants all the minerals, with the right to re-
move them, and where it is their careful removal that causes
the subsidence of the surface; but the authorities on the
point are in conflict.
The severance which exists because of reservations under the town-
site acts has already been considered, but the severance which arises
from conveyance must be noted. While it is not common in the pre-
cious metal mining regions to separate the ownership of the minerals
in place from the ownership of the surface of the ground, it is always
possible, and in coal mining regions it is comparatively common,
to have such severance.?® Such severance exists either because the
owner of the mining claim conveys the minerals and keeps the sur-
face, or because he conveys the surface but keeps the minerals.?®
in accordance with the rule applicable to public lands generally. See 16 Cyc.
696, and cases cited.
24 McDERMOTT MIN. CO. v. McDERMOTT, 27 Mont. 143, 69 Pac. 715.
25 Peterson v. Hall, 57 W. Va. 535, 50 8. E. 603; Manning v. Frazier, 96 Ill.
279; Hartwell v. Camman, 10 N. J. Eq. 128, 64 Am. Dec. 448; Caldwell v.
Fulton, 31 Pa. 475, 72 Am. Dec. 760. The city of Victor, Colo., for instance,
is situated on the surface of patented mining claims, and all deeds of city lots
except minerals and reserve mining rights.
26 WILLIAMS v. SOUTH PENN OIL CoO., 52 W. Va. 181, 43 S. BE. 214, 60
L. R. A. 75; Brand v. Consolidated Coal Co., 219 Ill. 548, 76 N. BE. 849; Me-
Connell v. Pierce, 210 Ill. 627, 71 N. EH. 622; L[uterstate Coal & Iron Co. v. Clint-
wood Coal & Timber Co., 105 Va. 574, 54 S. E. 593; Marvin v. Brewster Iron
Min. Co., 55 N, Y. 538, 14 Am. Rep. 322; Moore v. Griffin, 72 Kan. 164, 83 Pac.
395; Wallace v. Elm Grove Coal Co., 58 W. Va. 449, 52 8S. BE. 485; Huss v.
Jacobs, 210 Pa. 145, 59 Atl. 991; Smoot y. Consolidated Coal Co., 114 IN. App.
512; Preston v. White, 57 W. Va. 278, 50 S. E. 236. See GILL v. FLETCHER,
74 Ohio, 295, 78 N. E. 433, 113 Am. St. Rep. 962, where there was an excep-
tion of one-half of the mineral, though the surface and the rest of the mineral
passed. To the same effect, see NEGAUNEE IRON CO. v. IRON CLIFFS
CO., 1384 Mich. 264, 96 N. W. 468. The exception in a deed of oil from a well
now producing oil covers oil obtained by sinking the well to a lower sand
rock after it has ceased to flow. Ammons vy. Toothman, 59 W. Va. 165, 53
S. E. 13, 115 Am. St. Rep. 908. See Jones v. American Ass’n, 27 Ky. Law
Rep. 804, 86 S. W. 1111. A deed excepting granite on the lot has been held,
§ 139) EASEMENTS ON SEVERANCE. 503
Whatever the form of the instrument of conveyance, and even
though the parties speak of it in its terms as a lease,?? if its fair
construction shows that the title to the minerals in place is to pass
upon the delivery of the instrument, while the surface is retained, or
vice versa, there is a severance for the length of time of the granted
estate, and, of course, for all time, if the fee is granted,?* except that
the fee to the space occupied by the minerals seems to terminate when
the mine is exhausted.?®
however, to cover only exposed granite. Phillips v. Collinsville Granite Co.,
123 Ga. $30, 51 8. E. 666. But in that case exposed granite was held to cover
granite thereafter exposed by the washing away of the soil. Id. See Brady
y. Smith, 181 N. Y. 178, 73 N. E. 963, 106 Am. St. Rep. 531. On the distinc-
tion between a reservation and an exception and on the effect of an exception
upon a remote grantee of the grantee, see Moore v. Griffin, 72 Kan. 164, 83
Pac. 395, 4 L. R. A. (N. 8S.) 477. See, also, Marvin v. Brewster Iron Min. Co.,
oo N.Y. 5388, 14 Am. Rep. 322.
27 PLUMMER v. HILLSIDE COAL & IRON CoO., 104 Fed. 208, 43 C. C. A.
490. See Denniston v. Haddock, 200 Pa. 426, 50 Atl. 197.
28 McCONNELL vy. PIERCH, 210 Il. 627, 71 N. E. 622; Kinsley v. Iron Co.,
144 Pa. 613, 23 Atl. 250; Vlummer v. Iron Co., 160 Pa. 483, 28 Atl. 853; GAL-
LAGHER vy. HICKS, 216 Pa. 243, 65 Atl. 623; Barrett v. Kansas & Texas Coal
Co., 70 Kan. 649, 79 Pac. 150. See City of New Haven v. Hotchkiss, 77 Conn.
168, 58 Atl. 753, where a reservation of a right to mine was held to create an
estate of inheritance. Compare Ames v. Ames, 160 Ill. 599, 48 N. E. 592.
“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 and the mineral right in another.
It is not denied, in such a case, that both are landowners, both holders of a
corporeal hereditament. Our English ancestors, indeed, found difficulty in
conceiving of a corporeal interest in an unopened mine—separate from the
ownership of the surface—because livery of seisin was in their minds insepa-
rable from a conveyance of land, and livery could not be made of an unopened
mine. The consequence was that they were disposed to regard such rights as
incorporeal, though they are not rights issuing out of land, but the substance.
With us, unfettered as we are by the necessity of livery of seisin, and abound-
ing in mineral districts, I am not aware that it has been seriously doubted
that the ownership of a coal bed or seam is a corporeal interest in land.” CALD-
WELL v. FULTON, 31 Pa. 475, 483, 72 Am. Dec. 760. Accordingly, if the own-
er of the surface takes out the minerals, the owners of the minerals may main-
tain trespass. Ashman v. Wigton (Pa.) 12 Atl. 74. Compare Yellow Poplar
Lumber Co. v. Thompson’s Heirs (Va.) 62 8. BH. 358. The two are neither ten-
ants in common nor joint tenants, but are owners in severalty of distinct es-
tates in different subjects. INTERSTATE COAL & IRON CO. v. CLINT-
WOOD COAL & TIMBER CO., 105 Va. 574, 54 S. BE. 593. And each subject
is capable of sale or incumbrance. HOSACK vy. CRILL, 204 Pa. 97, 53 Atl.
640, And the owner of one can safely buy the estate of the other at tax sale.
Hutchinson v. Kline, 199 Pa. 564, 49 Atl. 312. The purchase of an outstand-
ing title by one does not inure to the other’s benefit. Virginia Coal & Iron
Co. v. Kelly. 93 Va. 332, 24 S. E. 1020.
29 MOORE v. INDIAN CAMP COAL CO., 75 Ohio St. 498, 80 N. E. 6. Until
504 CONVEYANCES AND LIENS. (Ch. 26
Where a severance has taken place, two questions may arise, name-
ly: Has the owner of the minerals any rights on the surface? and has
the owner of the surface a complete right to its support? *°
Relative Rights of Surface Owner and of Subjacent Mineral Owner.
It seems clear that arising out of the grant the mineral owner has
an easement of access through the surface,*t and a right to work the
mine by occupying as much of the surface as is reasonably necessary
for the purpose.?* Moreover, it seems that where the owner of land
conveys the coal under the surface, retaining for himself the surface,
he retains title to everything beneath the coal, and has the right of ac-
cess to it, although the deed does not expressly so provide.** It is
also well settled that, unless the surface owner has by deed or other-
wise estopped himself from claiming the right, he has a clear right
to the support of the surface by the vertically underlying minerals and
other constituent parts of the land.8* The right to vertical or subja-
such exhaustion the unrestricted owner of the minerals may use the space left
by proper mining for such purposes as he may see fit, which do no injury to the
surface. Id.
30 “The word ‘surface,’ as used in the books, means not merely the geomet-
rical superficies, without thickness, but includes whatever earth, soil, or land
lies above and superincumbent on the mine. Surface, therefore, includes the
appellee’s mine, which lies above the appellant’s mine and below the top sur-
face, which still may remain undisturbed and uninjured in the original gran-
tor.” Yandes v. Wright, 66 Ind. 319, 325, 32 Am. Rep. 109. ‘“Surface,’? when
conveyed, means that portion of the land which is or may be used for agri-
cultural purposes. Williams v. South Penn Oil Co., 52 W. Va. 181, 43 S. E.
214, 60 L. R. A. 795.
31 ROBERTSON v. YOUGHIOGHENY RIVER COAL CO., 172 Pa. 566, 33
Atl. 706; Baker v. Pittsburg, C. & W. R. Co., 219 Pa. 398, 68 Atl. 1014.
32 Wardell v. Watson, 93 Mo. 107, 5 S. W. 605; Williams vy. Gibson, 84 Ala.
228, 4 So. 350, 5 Am. St. Rep. 368.
33 CHARTIERS BLOCK COAL CO. v. MELLON, 152 Pa. 286, 25 Atl. 597,
18 L. R. A. 702, 834 Am. St. Rep. 645; Mansfield Coal & Coke Co. v. Mellon,
152 Pa. 286, 25 Atl. 601. But see Jefferson Iron Works v. Gill Bros., 9 Ohio
Dec. 481. In CHARTIERS BLOCK COAL CO. v. MELLON, 152 Pa. 286, 25
Atl. 597, 18 L. R. A. 702, 34 Am. St. Rep. 645, an owner of land had granted
away the coal underlying his land, with full right of removal, but later, dis-
covering that gas and oil underlay the coal, gave oil and gas leases under which
the lessees sought to drill through the coal beds to get at the oil and gas. The
coal company sought an injunction, but was refused one on condition that the
oil and gas lessees give bond to indemnify the coal company from any dam-
age which might be caused by oil and gas leaking into the coal mine from the
wells sunk. While the decision is satisfactory, the reasoning of the court is
not. See the dissenting opinion of Mr. Justice Williams.
34 Weaver v. Coal Co., 216 Pa. 195, 65 Atl. 545; YOUGHIOGHENY RIVER
COAL CO. v. ALLEGHENY NAT. BANK, 211 Pa. 319, 60 Atl. 924, 69 L. R. A.
637; NOONAN y. PARDEE, 200 Pa. 474, 50 Atl. 255, 55 L. R. A. 410, 86 Am.
St. Rep. 722; Pringle v. Vesta Coal Co., 172 Pa. 488, 33 Atl. 690; ROBERT-
§ 189) EASEMENTS ON SEVERANCE, 505
cent support for the surface in its natural state prima facie belongs to
every surface owner.
While the common-law right of subjacent support extends only to
the surface in its natural state, it is violated, even though buildings or
other structures are erected on the surface, if the subsidence would
have occurred had the superstructures not been there; and in case
of such violation damages for the injury to the buildings, as well
as to the surface, may be recovered.*® By agreement, also, the right
of vertical or subjacent support may be extended to superstructures as
well as to the surface,*® and should be held so to be extended where,
to accomplish the severance, the surface is platted into city lots and
sold as such by the one who reserves the minerals. ‘There are also stat-
utes in several states, which are based upon the so-called police powers
of the different states, and which give the surface owners express
SON v. YOUGHIOGHENY RIVER COAL CO., 172 Pa. 566, 33 Atl. 706; Jones
v. Wagner, 66 Pa. 429, 5 Am. Rep. 385; Livingston v. Moingona Coal Co., 49
Iowa, 369, 31 Am. Rep. 150; Burgner v. Humphrey, 41 Ohio St. 340; Phillips
v. Collinsville Granite Co., 123 Ga. 830, 51 S. E. 666; Western Indiana Coal
Co. v. Brown, 36 Ind. App. 44, 74 N. E. 1027, 114 Am. St. Rep. 367; Yandes
v. Wright, 66 Ind. 319, 32 Am. Rep. 109; Chicago & A. R. Co. v. Brandau, 81
Mo. App. 1; Lloyd v. Catlin Coal Co., 210 Ill. 460, 71 N. E. 335; Perry
County Coal Min. Co. v. Maclin, 70 Ill. App. 444. That the injury happened
in spite of due care and skill in working is no defense. NOONAN y. PAR-
DEE, supra; YANDES v. WRIGHT, 66 Ind. 319, 32 Am. Rep. 109; Carlin v.
Chappel, 101 Pa. 348, 47 Am. Rep. 722; Collins v. Gleason Coal Co. (Iowa)
115 N. W. 497. For cases holding a lessor liable where his lessee did not
leave sufficient support for the surface, see Kistler v. Thompson, 158 Pa. 139,
27 Atl. 874; Campbell v. Louisville Coal Min. Co., 39 Colo. 379, 89 Pac. 767,
10 L. R. A. (N. S.) 822. For a case where the lessor was not liable, see Hill
v. Pardee, 143 Pa. 98, 22 Atl. 815.
85 WILMS v. JESS, 94 Ill. 464, 34 Am. Rep. 242; NOONAN vy. PARDEE,
200 Pa. 474, 50 Atl. 255, 55 L. R. A. 410, 86 Am. St. Rep. 722; Gumbert v.
Kilgore (Pa.) 6 Atl. 771; Chicago & A. R. Co.:v. Brandau, 81 Mo. App. 1. See
Matulys v. Philadelphia & Reading Coal & Iron Co., 201 Pa. 70, 50 Atl. 828.
Compare Campbell v. Louisville Coal Min. Co., 39 Colo. 379, 89 Pac. 767, 10
L. R.. A. (N. S.) 822. See, as to springs in the land, Weaver v. Berwind-
White Coal Co., 216 Pa. 195, 65 Atl. 545. NOONAN v. PARDEBR, supra, gives
the surface owner a right of access to the mine below the surface to see that
his right of surface support is being maintained. And it has further been
held in Pennsylvania that the cause of action for injury to the surface
arises where the support of the surface is so weakened that the surface
might fall. TISCHLER v. PENNSYLVANIA COAL CO., 218 Pa. 82, 66 Atl.
988; NOONAN y. PARDEE, supra. But an injunction will not lie against
removal of the minerals where an action at law for damages is an adequate
remedy. Berkey v. Berwind-White Coal Min. Co., 220 Pa. 65, 69 Atl. 329.
It has been held, also, that the surface owners do not have to show affirm-
atively that the subsidence did not occur by reason of his buildings. West-
ern Indiana Coal Co. v. Brown, 36 Ind. App. 44, 74 N. HE. 1027, 114 Am. St.
Rep. 367; WILMS v. JESS, supra.
86 BURGNER vy. HUMPHREY, 41 Ohio St. 340.
506 CONVEYANCES AND LIENS. (Ch. 26
rights, which, if valid, necessarily imply a right of superstructure as
well as surface support.*”
But the right of surface support by subjacent land, a right which
prima facie belongs to the surface owner as such, but which may be
reserved to him or increased by express stipulation, may be lost
to him by express agreement.?® It should be remembered, however,
that “the mere fact of giving a right to sink pits and to work or get
coal (or other minerals) does not of itself establish a right to get rid
of that which is the common-law right of the surface owner to have
his surface undisturbed,’ even though a covenant is taken from the
grantee of the minerals that he will pay compensation for damages
to the surface.*®
But the right given may be so extensive as to carry with it a right
to let down the surface, and the courts are divided over the question
whether it is so extensive where the right given is to mine and re-
move “all the coal.” It would seem as if the grantee of coal or of
precious metal minerals should not have the right to deprive the sur-
face of support, unless the right to let down the surface is granted
in express terms or by unavoidable implication, which does not exist
where “all the coal” or “all the mineral” is granted; and that is the
majority view.*® But the view that the right to take “all the coal”
37In Colorado, for instance, the statute provides that no person shall have
the right to mine under any building or improvement unless he shall first se-
cure the parties owning the same from all damages except by priority of
right (Mills’ Ann. St. Colo. §§ 3139, 3620); and there is a provision for injunc-
tion (Id. § 3159). See, also, Civ. Code Idaho 1901, § 2571; Rev. St. Wyo. 1899,
§ 2537; Rev. Codes N. D. 1899, § 1436; Ann. St. S. D. 1899, § 2666. In Colo-
rado, though the bond is not exacted, the surface owner may still recover
damages occasioned by the negligent removal of support. Camnbell v. Louis-
ville Coal Min. Co., 39 Colo. 379, 89 Pac. 767, 10 L. R. A. (N. 8.) 822.
38 Compare SORANTON vy. PHILLIPS, 94 Pa. 15, where one who granted
the surface expressly reserved the right to cause it to subside, if that should
prove necessary in getting out all the coal. See, also, Madden y. Lehigh
Valley Coal Co., 212 Pa. 63, 61 Atl. 559.
39 New Sharlston Collieries Co. v. Earl of Westmoreland, 82 Law T. (N. S.)
725, 726. So in the converse case of reservation of minerals. Williams v. Hay,
120 Pa. 485, 14 Atl. 379, 6 Am. St. Rep. 719; Fairview Coal Co. v. Hay (Pa.) 14
Atl. 383.
+0 ROBERTSON vy. YOUGHIOGHENY RIVER COAL CO., 172 Pa. 566, 33
Atl. 706; Weaver v. Berwind-White Coal Co., 216 Pa. 195, 65 Atl. 545;
WILMS v. JESS, 94 Ill. 464, 84 Am. Rep. 242; Mickle v. Douglas, 75 Iowa, 78,
39 N. W. 198; BURGNER v. HUMPHREY, 41 Ohio St. 340; Horner v. Wat-
sop, 79 Pa, 242, 21 Am. Rep. 55; Coleman v. Chadwick, 80 Pa. 81, 21 Am.
Rep. 93; Erickson v. Michigan Land & Iron Co., 50 Mich. 604, 16 N. W. 161.
See Williams v. Gibson, 84 Ala. 228. + So. 350, 5 Am. St. Rep. 368; Yandes
v. Wright, 66 Ind. 319, 32 Am. Rep. 109.
§ 139) EASEMENTS ON SEVERANCE. 507
means the right to take it even though the surface subsides, unless
the right of surface support is expressly reserved, has its advocates.**
The cases which deny to the grantor of the surface, who excepts the
minerals, or “all” the minerals, and reserves mining privileges, the
right to let down the surface granted,** are, of course, in support
of the majority view.*?
. Because by the better view the owner who grants the minerals and
keeps the surface retains the right of support despite the fact that his
grant is of all the minerals, it seems equally the better view that the
grantee of the surface has the right of subjacent support by the grant-
or who excepts all the minerals and reserves mining rights.** More-
over, as the surface owner’s right of subjacent support is absolute,
it would seem as if the subjacent owner has as absolute a right that
the surface owner shall not cause his surface to drop down on the
subjacent mine, or let water down into it, as a result of surface ex-
cavation.#®
With reference to the right of subjacent support the weight of
authority is that the right is not infringed until there is a subsidence,
41 GRIFFIN v. FAIRMONT COAL CO., 59 W. Va. 480, 53 S. E. 24, 2 L.
R. A. (N. 8S.) 1115, where both sides of the question are vigorously presented.
42 COLLINS v. GLEASON COAL CO. (Iowa) 115 N. W. 497; Lord v. Car-
bon Iron Mfg. Co., 42 N. J. Eq. 157, 6 Atl. 812; Carlin v. Chappel, 101 Pa.
348, 47 Am. Rep. 722; Wrickson v. Michigan Land & Iron Co., 50 Mich. 604,
16 N. W. 161. See Marvin v. Brewster Iron Min. Co., 55 N. Y. 538, 14 Am.
Rep. 322.
43 An interesting side light is thrown on the question by the decisions
dealing with ways of necessity. Where a grantor conveys away all his land
except a piece from which he has no way out except over the granted land, the
law implied a grant back to him from his grantee of a way of necessity, even
though the grantor gives a deed containing general covenants of warranty.
Brigham v. Smith, 4 Gray (Mass.) 297, 64 Am. Dec. 76; New York & N. HB. R.
Co. v. Commissioners, 162 Mass. 81, 388 N. BE. 27; Whitehouse v. Cummings,
83 Me. 91, 21 Atl. 748, 23 Am. St. Rep. 756. This doctrine is a recognized
exception to the general rule that in construing deeds the intention of the
parties as manifested by the language used in the deed itself should govern,
and the exception exists because public policy demands such an implied re-
grant, despite the general words of warranty in the deed. Buss v. Dyer, 125
Mass. 287, 291. Public policy would seem to call just as strongly for the im-
plied right of subjacent support, and even though the deed purports to convey
all the coal, with the right to remove all of it, the implication of the right
of subjacent support is not as inconsistent with the express grant as is the im-
plication of a way of necessity for the grantor in the face of the latter’s gen-
eral covenants of warranty.
44 LORD vy. CARBON IRON MFG. CO., 42 N. J. Eq. 157, 6 Atl. 812. The
grantor may expressly reserve the right to let down the surface, however.
Scranton y. Phillips, 94 Pa. 15.
45 See Bagnall v. L. & N. W. Ry. Co., 7 Hurl. & N. 4238, 11 Hurl. & C. 544.
\
508 CONVEYANCES AND LIENS. (Ch. 26
and that each subsidence gives a new cause of action. The ques-
tion is important in the law of damages and with reference to the
statute of limitations.*7
The Right of Lateral Support. :
The right of lateral support is not lost by the severance of title
to the minerals from title to the surface. The surface owner still
has the right, unless he has contracted it away. Even where the
grantor of the surface, in excepting minerals and reserving min-
ing rights, expressly stipulates that he shall not be liable for any
damage occasioned thereby, such stipulation applies only to opera-
tions under the surface conveyed, and does not relieve the grantor
from liability for taking away the lateral support from the surface
by operations on other land.t8 Where gold placer claims worked
by hydraulic process adjoin, it has been held that neither has a right
of lateral support as against the other.*®
But with reference to a breach of the right of lateral support
where there are buildings, and yet the ground would have fallen if
there had been none, it seems that, while the injury to the surface
can be recovered for despite due care on the part of the defendant,
any injury to plaintiff’s buildings can be compensated only on proof
of defendant’s negligence.®°
48 Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127; Crumbo vy. Wall-
send Local Board [1891] 1 Q. B. 503; Smith y. Seattle, 18 Wash. 484, 51 Pac.
1057, 68 Am. St. Rep. 910; Bank of Hartford County v. Waterman, 26 Conn.
324; Church of Holy Communion vy. Paterson Extension R. Co., 66 N. J. Law,
218, 49 Atl. 1030, 55 L. R. A. 81. The cases of NOONAN v. PARDER, 200
Pa. 482, 50 Atl. 255, 55 L. R. A. 410, 86 Am. St. Rep. 722, and Chicago & A.
R. Co. v. Brandau, 81 Mo. App. 1, are contra. In the latter case the doctrine
is adopted that, where damages for subsidence would be inadequate to com-
pensate for the injury done, injunction will lie against the removal of the
mineral. In NOONAN vy. PARDEE, supra, the cause of action for the subsid-
ence is held to arise when the coal is removed without leaving proper sup-
port, and the statute of limitations is held to begin to run then. See TISCH-
LER v. PENNSYLVANIA COAL CO., 218 Pa. 82, 66 Atl. 988, to the same
effect.
47 The owner or lessee in possession at the time of subsidence is held not
to be liable where the damage was caused by the working of the mine by a
predecessor in title. Hall v. Duke of Norfolk [1900] 2 Ch. 4938; Greenwall v.
Low Beechburn Coal Co. [1897] 2 Q. B. 165.
48 MATULYS v. PHILADELPHIA & READING COAL & IRON CO., 201
Pa. 70, 50 Atl. 823.
49 HENDRICKS v. SPRING VALLEY MIN. & IRR. CO., 58 Cal. 190, 41
Am. Rep. 257.
50 MATULYS v. PHILADELPHIA & READING COAL & IRON CO., 201
Pa. 70, 50 Atl. 828, where the court concedes that in cases of subjacent sup-
port the damage to houses may be recovered for, when the subsidence would
§ 141) OTHER LIENS. 509
MORTGAGES.
140. Mining claims may be mortgaged; but, if they are unpatented,
the mortgagee should secure himself against a default in
the doing of the annual labor.
It is possible to mortgage an unpatented mining claim; but, ow-
ing to the need of the assessment work being done to keep the claim
from being forfeited, such a mortgage is a precarious security, un-
less the mortgagee himself undertakes the doing of the annual labor.
In such case the mortgage should be so drawn that the necessary
assessment work and any additional development work may be paid
out of the rents, issues, and profits of the claim before the mortgagee
has to look to the claim itself.5t A patented mining claim may, of
course, be mortgaged in the same way that other real estate may be,
and a continuance of mining by the mortgagor, if carried on in prop-
er mining fashion, cannot be enjoined as waste.*?
OTHER LIENS.
141. Except in a few jurisdictions, the same liens attach to mining
claims as adhere to ordinary real estate.
The same liens which attach to ordinary real estate adhere in gen-
eral to mining claims. The only states making exceptions are those
where an unpatented mining claim is regarded as personalty. The
result is that a mining claim is subject to a judgment lien,®* to the
lien of taxes on real estate,°* and usually to the liens provided for
have taken place if the houses had not been there, even though no negligence
is shown. Donk Bros. Coal & Coke Co. v. Novero, 185 Ill. App. 633, despite its
syllabus, is a case of subjacent, and not of lateral, support. For the different
views on lateral support, see 1 Tiffany, Real Property, 668-670.
61 Charter Oak Life Ins. Co. v. Stephens, 5 Utah, 319, 15 Pac. 253. A
mortgage of the “Jim Blaine mining claim” was held to pass the “Slap Jack
mine” in Wemple v. Yosemite Gold Min. Co., 4 Cal. App. 78, 87 Pac. 280.
52 Capner v. Flemington Min. Co., 3 N. J. Eq. 467.
53 Butte Hardware Co. v. Frank, 25 Mont. 344, 65 Pac. 1; Bradford v. Mor-
rison (Ariz.) 86 Pac. 6. But see, contra, Phoenix Min. & Mill. Co. v. Scott, 20
Wash. 48, 54 Pac. 777. For a case where a judgment lien reached the in-
terest of a landowner in coal in place leased by him by a lease sometimes
called a sale, see Coolbaugh v. Lehigh & Wilkes-Barre Coal Co., 213 Pa. 28,
62 Atl. 94, 4 L. R. A. (N. 8S.) 207.
54 Forbes vy. Gracey, 94 U. S. 762, 24 L. Ed. 313. Where the surface is
owned by one and the minerals by another, the minerals may be assessed and
taxed separately from the surface. Stuart v. Commonwealth, 15 Ky. Law
Rep. 513, 23 8. W. 367; Consolidated Coal Co. of St. Louis v. Baker, 135 Il.
545, 26 N. B. 651, 12 L. R. A. 247. Under the Colorado statute the mineral
survey number is so essential a part of the tax assessment description of a
510 CONVEYANCES AND LIENS. (Ch. 2
in the mechanic’s lien laws.5* Moreover, since the issuance of a
patent for a claim docs not terminate the liens which attached to the
unpatented claim,*® a patent inures to the benefit of the lien holder.*?
We have already considered a mining partner's lien, In considering
what is a lien on mining claims the only safe test is to ask what is
a lien on other real estate.
EXAMINATIONS OF TITLE.
142. The examination of the title of a mining claim requires careful
scrutiny of the ground, as well as of the abstract, and even
where the claim is patented a search is necessary for certain
papers antedating patent.
Patented Claims.
The examination of the title of a patented mining claim presents
very few questions not applicable to ordinary real estate. Nothing
necd be looked for in the record prior to patent, except conveyances
under which the patented title may pass by estoppel, disclosures as
to co-tenants excluded from the application for patent, and liens
saved by the terms of Rev. St. U. S. § 28382 (U. S. Comp. St. 1901,
p. 1433). Outside of the record, however, certain investigations
must be made even with reference to patented claims. By the act
of April 28, 1901,5* it is provided that the monuments established
on the ground when the official survey is made shall constitute the
highest authority as to what land is patented, and erroneous or in-,
consistent descriptions or calls in the patent shall give way thereto.
claim that its omission invaldates a tux sale. TfTammon y. Nix, lOf Ped. 689,
44.0. C. AL 132.
55 Where several locations are known as one ming, a mechante's Hen agaist
the property under the consolldated name will be enforced. TRIODINNICK
vy. RED CLOUD CONSOLIDATED MIN, CO., 72 Cal 78, 18 Pae. 192; Phil
lips v. Salmon River Min. & Development Co., Tdaho, 149, 72 Tne, S86;
Hamilton y. Delhi Min, Go., 118 Gal, 148, 50 Pae. 378 See Salt Lnke THard-
ware Co. vy. Chaimnan Mining & Wleetrie Co. (G2. 0.) 187 Tred. 682. Under
the California act a tract of land tn process of development as “an of} mine?
is subject to the aet. Berentz v. Belmont OH Min, Go., 4S Gal 577, 8b Pre.
47, 118 Am. St. Rep. 808. Whether work done for a lessee enn be eharged
against the lessory’ Interest or not depends, of course, on the state statute
and the nature of the lease. See Wiggins vo Mining Co., 148 Cn. 700, St Pie.
ToX, 113 Am. St. Rep. 846; Wiliams vy. Mldora Enterprise Gold) Ming Co., 85
Colo, 127, 88 Pae. TSO; Littler ve Robinson, 38 Ind, App. 104, 77 N, I 1145;
Caseuden vy. Whubish (CG. C. A.) 161 Med. 201.
56 Rey, St. U.S. § ease (U.S. Comp. Sh 1904, p. Tas
57 Butte Tardware Co, vo Mrank, 25 Mont. $6 65 Pae. 1.
Beoe Stat S15, 6. 1796 (U.S. Comp, SL Supp. 1907, p. 477).
§ 142) EXAMINATIONS OF TITLE. 511
A surface examination, therefore, is essential to make certain that
the monuments on the ground show that the claims correspond to the
patent description, as well as to make sure that nobody is in posses-
sion under claim of hostile title.® Placer claims should also be in-
spected, to see whether they contain “known lodes.” Due care also
suggests that, where a patent is unaccompanied by a diagram of the
ground patented, a certified copy of the plat of the claim should be
obtained from the surveyor general, to be used in verifying the patent
descriptions and the monuments on the ground.*°
Unpatented Claims.
The title to unpatented claims is much more precarious than that
to patented. The record title begins, of course, with the location
certificate; but, because the location itself is not de jure until dis-
covery, a subsequent record based upon a proper discovery may dis-
close the better title.°t Moreover, as we have noticed, the mere fact
of a discovery is not enough. It must be a discovery on unoccupied
and unappropriated land of the United States. An inspection of the
premises and an investigation into the legality of the discovery, the
proper performance of the various acts of location, and the doing
of the annual labor are indispensable. Inthe case of unpatented claims
the record title must be examined; but the facts investigated out-
side of the record are of paramount importance. As in the case of
other real estate, a purchaser takes subject to the rights of those open-
ly in possession,®? but not of those claiming under an unrecorded
secret trust.°* A survey should be advised, and a complete investi-
gation as to conflicting mining claims and the ownership of conflict
areas instituted. Because of the holding in several states that any
part of an unpatented location which is made more than the statutory
distance from the center of the vein by the devious course pursued
by the vein is to that extent void for excess, the client should also
be advised to make as careful an investigation into the question of
the strike of the vein as is possible.
59 COFFEE v. EMIGH, 15 Colo. 184, 25 Pac. 83, 10 L. R. A. 125. See
WETZSTEIN v. LARGEY, 27 Mont. 212, 70 Pac. 717.
60 See Combs v. Virginia Iron, Coal & Coke Co., 32 Ky. Law Rep. 601, 106
S. W. 815. ;
61 “Location and record may both be prior to those of a cross lode, and still’
the latter be the older and better title, by reason of an earlier discovery, per-
fected within the statutory time, of which the record gives no information.”
Patterson v. Hitchcock, 3 Colo. 533, 538.
62 Reedy v. Wesson, 1 Alaska, 570; WETZSTEIN vy. LARGEY, 27 Mont.
212, 70 Pac. 717.
63 Reed v. Munn, 148 Fed. 737, 80 C. C. A. 215.
512 MINING REMEDIES, (Ch. 27
CHAPTER XXVII.
MINING REMEDIES.
143. Ejectment Actions and Suits to Quiet Title.
144. Trespass.
144a. The Measure of Damages.
145. Trover and Replevin.
146. Injunctions.
147. Accounting. ©
148. Inspection and Survey.
149. Receiverships.
150. Partition.
151. Condemnation Proceedings—Eminent Domain.
152. Personal Injury Actions.
153. Adverse Possession—Statutes of Limitation.
Any book on mining law would be incomplete without some refer-
ence to the various legal remedies available in mining disputes.
EJECTMENTS AND SUITS TO QUIET TITLE.
148. Except in the case of adverse suits, ejectments and suits to,
quiet title are not varied by the fact that mining claims are
the subject of litigation.
Ejectment is the action to try title to mining claims, except in those
cases where the plaintiff is in possession. In the latter case a suit to
quiet title is what results. In either legal proceeding the fact that a
mining claim is being litigated about necessitates no special rules,
except where it is brought to determine adverse claims in patent pro-
ceedings. The peculiarities of adverse suits in patent application mat-
ters have been discussed fully in chapter XIX, supra.1_ By statute
ejectment will lie for a mining claim, although the paramount title is
in the United States.? The same is true of a suit to quiet title.?
1As against all but the United States an unpatented claim is treated as
real property held in fee, and will support a suit to quiet title. Mt. Rosa
Mining, Milling & Land Co. v. Palmer, 26 Colo. 56, 56 Pac. 176; Fulkerson v.
Chrisna Min. & Imp. Co., 122 Fed. 782, 58 C. GC. A. 582. To be in posses-
sion at the time of wrongful entry it is, of course, not necessary to be actually
on the property. Davis v. Dennis, 43 Wash. 54, 85 Pac. 1079. A trespasser,
having possession of the surface of mineral land, may eject a subsequent
trespasser who enters beneath the surface. Lincoln-Lucky & Lee Min. Co.
v. Hendry, 9 N. M. 149, 50 Pac. 330.
2 Rev. St. U. 8. § 910 (U. S. Comp. St. 1901, p. 679). See Davidson v. Cal-
kins (C. C.) 92 Fed. 230, 232.
3 Fulkerson v. Chrisna Min. & Imp. Co., 122 Fed. 782, 58 C. C. A. 582.
§ 144a) TRESPASS. 513
TRESPASS.
144. Trespass is the action usually resorted to when damages are
sought for the wrongful taking of ore.
Trespass is the action usually resorted to when damages are sought
for the unlawful extraction of ore. This is true, even where the ore
is taken on the dip of the vein outside the surface line planes ex-
tended downward, for the reason that the ownership and possession
of a vein which has extralateral rights gives the owner of the apex
of the vein possession of its dip between the bounding end line planes
of his location extended as far as the dip goes.*
SAME—THE MEASURE OF DAMAGES.
144a. The measure of damages for the taking of ore varies in dif-
ferent jurisdictions. In some the good faith of the defendant
will enable him to deduct the cost of getting out the ore,
and in others it will not; and, to put it in another way, in
some the bad faith of the defendant will prevent him from
deducting the cost of getting out the ore, and im others it
will not. Im some the bad faith of the defendant makes
him liable for exemplary damages, and in others it does not.
The real difficulty, where ore is taken, is the measure of damages.
On that question there is great conflict of authority. It seems to
be well settled that one who by innocent mistake of fact mines the
ore of another or cuts down his standing timber has a right of a
quasi contractual nature to mitigate the damages by deducting from
the fair value of the ore or timber, after its severance from the soil,
the amount which that value has been enhanced by his labor in get-
ting out the ore and the timber.® In other words, the majority of
Where the title to minerals is severed from title to the surface, it seems
that a suit to quiet title to the minerals under the surface may be maintained,
though plaintiff is not in actual possession of the land. Combs v. Virginia
Iron, Coal & Coke Co., 32 Ky. Law Rep. 601, 106 S. W. 815.
4 FLAGSTAFF SILVER MINING CO. v. TARBET, 98 U. 8S. 463, 25 L. Ed.
253; MONTANA MIN. CO. v. ST. LOUIS MIN. & MILL. CO., 102 Fed. 430,
42 ©. C. A. 415; Eilers v. Boatman, 3 Utah, 159, 2 Pac. 66; Pardee v. Mur-
ray, 4 Mont. 234, 2 Pac. 16.
5 WATERS v. STEVENSON, 13 Nev. 157, 29 Am. Rep. 293; Empire Gold
Min. Co. v. Bonanza Gold Min. Co., 67 Cal. 406, 7 Pac. 810; DONOVAN v.
CONSOLIDATED COAL CO., 187 Ill. 28, 58 N. BH. 290, 79 Am. St. Rep. 206;
Austin vy. Huntsville Coal & Min. Co., 72 Mo. 535, 87 Am. Rep. 446; DURANT
MIN. CO. v. PERCY CONSOL. MIN. CO., 93 Fed. 166, 35 C. C. A. 252; Hall
vy. Abraham, 44 Or. 477, 75 Pac. 882; Colorado Cent. Consol. Min. Co. v.
Turck, 70 Fed. 294, 17 C. C. A. 128; Anderson v. Besser, 131 Mich. 481, 91
Cost.M1n.L.—33
514 MINING REMEDIES. (Ch. 27
the courts allow the plaintiff simply the value of the ore or timber
before its severance from the land.® A few jurisdictions, however, do
not allow the morally innocent defendant to deduct anything, but give
the plaintiff the value of the ore after severance.’7 One jurisdiction
favors the rule of allowing the recovery of a reasonable royalty
against a defendant who acted in good faith If, in addition, to
the defendant’s action being in good faith, the plaintiff has know-
ingly let the defendant labor under the mistake, the defendant’s
right everywhere to a deduction of the increase in value which he
gave the ore or timber would seem to be perfectly clear. Some
courts, which have repudiated the doctrine of exemplary damages,
or which consciously or unconsciously are influenced by the doctrine
of Britton v. Turner ® and kindred quasi contract cases, allow the
defendant who knowingly trespasses the same deduction as they al-
low an innocent defendant.1° Other courts, either because they al-
low exemplary damages or because they deny to a wrongdoer a quasi
contractual recovery, allow an innocent plaintiff to recover from
the willful trespasser the value of the property at the time it is finally
converted to the use of the trespassers; i. e., its value as enhanced by
the labor of the defendant.11 In most mining law states is seems that a much shorter time
will suffice.*°
But the running of the statute of limitations will be interrupted by
the issuance of patent to the record owner.°? Any adverse possession
Pac. 587, 51 L. R. A. 930; Lavagnino v. Uhlig, 26 Utah, 1, 71 Pac. 1046, 99 Am.
St. Rep. 808; Four Hundred & Twenty Min. Co. v. Bullion Min. Co., 9 Ney.
240; Bradley v. Johnson, 11 Idaho, G8), 83 Pac. 927; Buffalo Zinc & Copper
Co. vy. Crump, 70 Ark. 525, 69 S. W. 572, 91 Am. St. Rep. 87. See Shafer v.
Constans, 3 Mont. 369. Where a purchaser of mining claims has held them
adversely for the period of limitation, it will be presumed against an adverse
claimant that the claims were regularly located. BUFFALO ZINC & COP-
PER Co. v. CRUMP, supra.
58 Cleary v. Skiffich, 28 Colo. 362, 65 Pac, 59, 89 Am. St. Rep. 207; Mec-
Gowan y. Maclay, 16 Mont. 234, 40 Pac. 602.
54 See Barklage v. Russell, 29 Land Dec. Dep. Int. 401; Belk v. Meagher
104 U. 8. 279, 287, 26 L. Ed. 735; Four Hundred & Twenty Min. Co. v. Bul-
lion Min. Co., 9 Nev. 240; Altoona Quicksilver Min. Co. vy. Integral Quick-
silver Min. Co., 114 Cal. 100, 45 Pac. 1047; Buffalo Zine & Copper Co. v.
Crump, 70 Ark. 525, 69 S. W. 572, 91 Am. St. Rep. 87; Risch v. Wiseman,
36 Or. 484, 59 Pac. 1111, 78 Am. St. Rep. 783; Harris v. Equator Min. &
8. Co. (C. C.) 8 Fed. 863. See, also, Four Hundred & Twenty Min. Co. v. Bul-
lion Min. Co., 3 Sawy. (U. 8.) 634, Fed. Cas. No. 4,989.
55 RISCH v. WISEMAN, 36 Or. 484, 59 Pac. 1111, 78 Am. St. Rep. 783.
See Minnesota & Montana Land & Improvement Co. v. Brasier, 18 Mont. 444,
45 Pac. 682.
56 Seven years in Colorado. Eberville v. Leadville Tunneling, Mining &
Drainage Co., 28 Colo. 241, 64 Pac, 200. (Under one statute it was five years.
Glacier Mountain Silver Min. Co. vy. Willis, 127 U. 8. 472, 8 Sup. Ct. 1214, 32
L. Ed. 172.) One year in Montana Horst v. Shea, 23 Mont. 390, 59 Pac. 364.
Two years in Nevada. South End Mining Co. v. Tinney, 22 Nev. 19, 35 Pae.
89; Id., 22 Nev. 221, 88 Puc. 401. Seven years in Utah. Lavagnino vy. Uhiig,
26 Utah, 1, 71 Pac. 1046, 99 Am. St. Rep. 808. Possession for the statutory
period does not of course relieve the possessor from the annual labor re-
quirement and upon his failure to perform the annual labor the claim may
be relocated. Upton v. Santa Rita Min. Co. (N. M.) 89 Pace. 275.
67 TYER CONSOL. MIN. CO. v. LANGSTEDT, 136 Fed. 124, 69 C. CG. A.
548; Tyee Consol Min. Co. v. Jennings, 137 Fed. 863, 70 C. C. A. 392.
§ 153) ADVERSE POSSESSION—STATUTES OF LIMITATION. 525
must either be asserted in the patent proceedings, by adverse claim
and suit, or else must date from the issuance of patent or later.®*
While a receiver’s receipt vests in the patent applicant the equitable
title, it is held that the statute of limitations does not run until pat-
ent actually issues.5°
What constitutes adverse possession of mining claims is the same
as what constitutes it in other real property. Secret underground
mining will not serve;®° but such open, continuous, and exclusive
acts of possession and of mining as the nature of the business and
customs of the country call for will suffice.6t Where the estate in
the minerals has been severed from that in the surface, adverse
possession of the surface does not carry with it adverse possession
of the minerals.°?
One tenant in common cannot get title by adverse possession
against his co-tenants by taking exclusive possession of the property,
without notice to his co-tenants of a hostile claim.**
58 SOUTH END MINING CO. v. TINNEY, 22 Nev. 221, 38 Pac. 401;
Mayer v. Carothers, 14 Mont. 274, 36 Pac. 182; Clark v. Barnard, 15 Mont.
176, 38 Pac. 834.
591d. See REDFIELD vy. PARKS, 132 U. 8S. 239, 10 Sup. Ct. 83, 33 L.
Ed. 327. But see Hamilton v. Southern Nev. Gold & Silver Min. Co. (C. C.)
83 Fed. 562.
60 Badger Gold Min. & Mill. Co. v. Stockton Gold & Copper Min. Co. (C.
C.) 189 Fed. 888; Pardee v. Murray, 4 Mont. 234, 2 Pac. 16; Pierce v. Bar-
ney, 209 Pa. 132, 58 Atl. 152; Davis v. Shepherd, 31 Colo. 141, 72 Pac. 57.
See Last Chance Min. Co v. Bunker Hill & S. Mining & Concentrating Co.,
131 Fed. 579, 66 C. C. A. 299; Plummer v. Hillside Coal & Iron Co., 104 Fed.
208, 43 C. C. A. 490.
61 Stephenson v. Wilson, 87 Wis. 482; Hamilton v. Southern Nev. Gold
& Silver Min. Co. (C. C.) 33 Fed. 562; Four Hundred & Twenty Min. Co. v.
Bullion Min. Co., 9 Nev. 240. Adverse possession of a mining claim cannot
extend to a portion of a vein apexing outside of the claim, for that is no
part of it. Davis v. Shepherd, 31 Colo. 141, 72 Pac. 57. For instances of
insufficient adverse possession, see Costello v. Muheim (Ariz.) 84 Pac. 906;
Gill v. Fletcher, 74 Ohio St. 295, 78 N. E. 483, 113 Am. St. Rep. 962; Wal-
lace v. Elm Grove Coal Co., 58 W. Va. 449, 52 S. E. 485. Lessees of mining
ground in possession, who oust their lessor by relocating the ground and set-
ting up an adverse title in themselves, forfeit all rights under the lease.
Silver City Gold & Silver Min. Co. v. Lowry, 19 Utah, 334, 57 Pac. 11.
62 CATLIN COAL CO. v. LLOYD, 176 Ill. 275, 52 N. E. 144; Id., 180 Ill.
398, 54 N. E. 214, 72 Am. St. Rep. 216; Caldwell v. Copeland, 87 Pa. 427, 78
Am. Dec. 486; Armstrong v. Caldwell, 53 Pa. 284; ALGONQUIN COAL CoO.
v. NORTHERN COAL & IRON CO., 162 Pa. 114, 29 Atl. 402. See Lulay v.
Barnes, 172 Pa. 331, 34 Atl. 52. Compare Yellow Poplar Lumber Co. v.
Thompson’s Heirs (Va.) 62 S. E. 358.
63 Faubel v. McFarland, 144 Cal. 717, 78 Pac. 261.
526 WATER RIGHTS AND DRAINAGE, (Ch. 28
CHAPTER XXVIII.
WATER RIGHTS AND DRAINAGE.
154-155. The Appropriation of Water Doctrine.
156-157. Pollution of Water—Débris.
158. Drainage.
THE APPROPRIATION OF WATER DOCTRINE.
154. The appropriation of water doctrine prevails in whole or in part
in the several mining law states and territories.
155. The appropriation of water is regulated to-day by local statutes,
and the usual steps in an appropriation are: (1) The posting
and record of a notice of appropriation; (2) the reasonably
diligent diversion of the water; and (3) the application of
the water within a reasonable time to a beneficial use. Min-
ing is a beneficial use, and appropriators take in the order of
appropriation.
It so happens that the leading mining law states and territories
are those where the appropriation of water doctrine in whole or in
part prevails. The development of the appropriation of water doc-
trine was contemporaneous with that of the mining law, because it
met a mining need. As Mr. Justice Field pointed out in an early case,
“the mines could not be worked without water. Without water the
gold would remain forever buried in the earth or rock. To carry
water to mining localities, when they were not on the banks of a
stream or lake, became, therefore, an important and necessary business
in carrying on mining.. Here, also, the first appropriator of water
to be conveyed to such localities for mining or other beneficial pur-
poses was recognized as having, to the extent of actual use, the better
right. The doctrines of the common law respecting the rights of
riparian owners were not considered as applicable, or only in a very
limited degree, to the condition of miners in the mountains. The wa-
ters of rivers and lakes were consequently carried great distances in
ditches and flumes, constructed with vast labor and enormous expend-
itures of money, along the sides of mountains, and through cafions
and ravines, to supply communities engaged in mining, as well as for
agriculturalists and ordinary consumption. Numerous regulations
were adopted or assumed to exist, from their obvious justness, for
the security of these ditches and flumes, and the protection of rights
of water, not only between different appropriators, but between them
and the holders of mining claims. These regulations and customs
§§ 154-155) APPROPRIATION OF WATER DOCTRINE. 527
were appealed to in controversies in the state courts, and received
their sanction; and properties to the value of many millions rested
upon them.” }
Starting as it did at a time when the federal government owned
both the land and the water which flowed over the land, and fostered
as it was by the acquiescence of the federal government in the re-
pudiation by the settlers of the riparian right doctrine,’ the appropria-
tion of water doctrine was firmly established before the riparian right
doctrine could give effective resistance. In the act of 1866 the ap-
propriation of water doctrine was expressly sanctioned by Congress.®
By the subsequent act of 1870 all patents were to be granted and pre-
emptions and homesteads allowed subject to all vested water rights
and to all ditch and reservoir rights connected with such water rights.*
The acts of 1866 and of 1870 were held to be “rather the voluntary
recognition of a pre-existing right of possession, constituting a valid
claim to its continued use, than the establishment of a new one”; *
but they at least expressly sanctioned what before had rested only
on implication.
The California System.
Despite the sanction given to the appropriation of water doctrine
by the federal government, however, the mining law states of Cal-
ifornia, North Dakota, Oregon, South Dakota, Washington, and prob-
ably, also, Montana, have only in part adopted it. They have what
is known as the “California System.” *® Appropriation of water may
there be made prior to the issuance of a federal patent to riparian land,
and the patent will therefore be subject to prior appropriations ; but,
if the patentee chooses to stand on his rights as a riparian owner, no
appropriation subsequent to his patent that will diminish his riparian
rights can be made.” In such states it is of the first importance to
determine when the patent takes effect within this rule, and it seems
1 JENNISON vy. KIRK, 98 U. S. 458, 458, 459, 25 L. Ed. 240.
2 ATCHISON v. PETERSON, 20 Wall. (U. S.) 507, 22 L. Ed. 414.
8 Rev. St. U. S. § 2339 (U. S. Comp. St. 1901, p. 1487).
4Rev. St. U. S. § 2340 (U. S. Comp. St. 1901, p. 1487).
5 BRODER v. NATOMA WATER & MINING CO., 101 U. S. 274, 25 L.
Ed. 790.
6 Long on Irrigation, § 6; Mills’ Irrigation Manual, § 20; Weil’s Water
Rights in the Western States (2d Ed.) § 22.
7 LUX v. HAGGIN, 69 Cal. 255, 4 Pac. 919, 10 Pac. 674; Hargrave v. Cook,
108 Cal. 72, 41 Pac. 18, 30 L. R. A. 390; BROWN v. BAKER, 39 Or. 66, 65
Pac. 799, 66 Pac. 193; Carson v. Gentner, 33 Or. 512, 52 Pac. 506, 43 L. R.
A. 1830; BENTON v. JOHNCOX, 17 Wash. 277, 49 Pac. 495, 89 L. R. A. 107,
61 Am. St. Rep. 912; SMITH v. DENNIFF, 24 Mont. 20, 60 Pac. 398, 81 Am.
St. Rep. 408. See CRUSE v. McCAULBLY (C. C.) 96 Fed. 369,
528 WATER RIGHTS AND DRAINAGE. (Ch. 28
clear that it takes effect by relation from the time of the initial step
in the acquisition of title.®
The Colorado System.
But in Arizona, Colorado, Idaho, Nevada, New Mexico, Utah, and
Wyoming there are no riparian rights, and in such states and terri-
tories the appropriation doctrine of water rights is supreme, wheth-
er the appropriation is made before patent to the land on the banks
of the stream or after such patent. The system of water rights
prevailing in these states and territories is known as the “Colorado
System.” 1°
The Method of Appropriating Water.
While it is beyond the scope of this book to go into a detailed
discussion of the appropriation of water doctrine, a word must be
said about the method of appropriating water. Appropriations were
originally governed by local customs and rules, but to-day they are
regulated by statute. Prior to statute the way to appropriate was to
make a diversion of the water with an intent to apply it to beneficial
uses, and then to follow up that diversion by actually applying it with
reasonable diligence to such beneficial uses. If the diversion was thus
followed up, the law would date the right to appropriate the water
by relation as of the time when the work of building the dam or ditch
to divert the water began.1t But since the statutes have prescribed,
in addition to the foregoing steps, the posting and record of a notice,
and have provided that a compliance with the statute shall cause the
water right to date from the posting of the notice, the courts are
8 STURR v. BECK, 133 U. 8. 541, 10 Sup. Ct. 350, 33 L. Ed. 761; Lone
Tree Ditch Co. v. Cyclone Ditch Co., 15 S. D. 519, 91 N. W. 352; McGuire vy.
Brown, 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384; Faull v. Cooke, 19 Or.
455, 26 Pac. 662, 20 Am. St. Rep. 886; BENTON v. JOHNCOX, 17 Wash.
277, 49 Pac. 495, 39 I. R. A. 107, 61 Am. St. Rep. 912.
9 COFFIN v. LEFT HAND DITCH CO., 6 Colo. 443; Jones vy. Adams, 19
Ney. 78, 6 Pac. 442, 3 Am. St. Rep. 788; Reno Smelting, Milling & Reduction
Works v. Stevenson, 20 Ney. 269, 21 Pac. 317, 4 L. R. A. 60, 19 Am. St. Rep.
364. See Hammond v. Rose, 11 Colo. 524, 19 Pac. 466, 7 Am. St. Rep. 258.
And this is true even though the patent antedates the act of 1866. Twaddle
v. Winters (Ney.) 85 Pac. 280. The right of a state to adopt the appropria-
tion of water doctrine as a system is recognized in UNITED STATES v.
RIO GRANDE DAM & IRRIGATION CO., 174 U. 8. 690, 19 Sup. Ct. 770, 48
L. Ed. 1186. See STATE OF KANSAS vy. STATE OF COLORADO, 185 U.
S. 125, 22 Sup. Ct. 552, 46 L. Ed. 888; Id., 206 U. 8. 46, 27 Sup. Ct. 655, 51
L. Ed. 956.
10 Mills’ Irrigation Manual, § 21; Weil’s Water Rights in the Western
States (2d Ed.) § 34.
1iIrwin v. Strait, 18 Nev. 486, 4 Pac. 1215; Osgood vy. El Dorado Water
& Deep Gravel Min. Co., 56 Cal. 571.
§§ 154-155) APPROPRIATION OF WATER DOCTRINE. 529
‘inclined to say that there shall be no relation back in favor of one,
however diligent, who does not comply with the statute. An ap-
propriation may still be made without complying with the statutory
requirements as to the posting and recording of a notice,’* because
the actual application of the water to a beneficial use is the best kind
of notice of an appropriation;?* but such an appropriation can no
longer have the benefit of that relation back to which it was entitled
before there was any statute.1* Even under the statutes it still re-
mains true that to constitute an appropriation there must be an ap-
propriator who, with the intent to apply the water to some beneficial
use, diverts it and then within a reasonable time actually applies it
to that or an equivalent use.1° Such an appropriation of water con-
stitutes a water right which has priority over subsequent appropria-
tions. Such water right is property, which in a proper case may be
12 DE NECOCHEA vy. CURTIS, 80 Cal. 397, 20 Pac. 568, 22 Pac. 198;
Senior v. Anderson, 115 Cal. 496, 47 Pac. 454. See Murray v. Tingley, 20
Mont. 260, 50 Pac. 723.
13 Wells v. Mantes, 99 Cal. 5838, 34 Pac. 324. “The term ‘appropriation’ is
often loosely used by the authorities, and in general it is used with reference
to a claim to the use of the water of a public stream from the time of the
inception of the right, at all the intermediate stages, and down to the time
when the last act is accomplished by which the right is finally and complete~
ly, secured. An appropriation proper is not made until there hag been an
actual application of the water claimed to some beneficial purpose or some
useful industry. All rights acquired prior to this time, at whatsoever step in:
the process, amount simply to a claim of an appropriation; but they are none-
the less rights and privileges which may be asserted and maintained against
all persons not entitled to priority in rights and privileges of like nature:.
* * * So that actual user for a beneficial purpose is the true and only final
test touching the question whether a party’s claim has ripened into a valid
appropriation. There can be no constructive appropriation, nor can any step
required to be taken throughout the whole project and course of water ap-
propriations be constructively accomplished. It is the actual physical per-
formance of every essential requisite, from the time the purpose is definitely
conceived down to the ultimate user of the water in connection with the ad-
vancement of some useful and beneficial industry, that matures and finally
accomplishes the ‘appropriation.’ NEVADA DITCH CO. v. BENNETT, 30:
Or. 59, 89-91, 45 Pac. 472, 60 Am. St. Rep. 777.
14 MURRAY v. TINGLEY, 20 Mont. 260, 50 Pac. 723; PYKE v. BURN-
SIDE, 8 Idaho, 487, 69 Pac. 477. See Sand Point Water & Light Co. v. Pan-
handle Development Co., 11 Idaho, 405, 83 Pac. 347. While this result is:
based on the supposed intent of the Legislature in passing the statute, it
would seem as if nothing short of express legislative prohibition to that effect
should be allowed to prevent that relation back which, but for the statute,
would have existed. See MOYER v. PRESTON, 6 Wyo. 308, 44 Pac. 845,
71 Am. St. Rep. 914.
15 CARTER v. WAKEMAN, 42 Or. 147, 70 Pac. 393.
Cost. M1n.L.—34
530 WATER RIGHTS AND DRAINAGE. (Ch. 28
alienated.1® The different appropriators take in the order of their
appropriations.
Mining as a Beneficial Use.
That the use of water in mining is a beneficial application of it
within the appropriation law doctrine has never been doubted. Be-
cause mining was the very beneficial use which first called the appro-
priation of water doctrine into existence, it has, indeed, been especial-
ly favored. An extreme instance of such favoritism is found in the
case where it was held that a placer location which covered both banks
of a stream operated as an appropriation of all the waters of the
stream so far as they were necessary. for working the claim.17 That
decision must surely be qualified by letting the appropriation be ef-
fective only if before third parties appropriate the water it is ap-
plied with reasonable diligence to placer mining purposes.*® Another
case of favoritism to the mine owner is the rule that water encounter-
ed in mining and allowed to escape through a tunnel cannot be ap-
propriated in such a way as to prevent the mine owner from divert-
ing it to his own uses before it leaves the mining claim.*® But, in
general, an appropriation of water for mining purposes or flowing
from mining claims is governed by the same rules as an appropria-
tion of water for other purposes or flowing from other property.
16 In Colorado a water right is realty. Wyatt v. Larimer & Weld Irriga-
tion Co., 18 Colo. 298, 33 Pac. 144, 36 Am. St. Rep. 280. But it does not
pass as appurtenant to land unless the terms of the deed or extraneous evi-
dence show affirmatively that such was the intention of the parties. Bes-
semer Irrigating Ditch Co. v. Woolley, 32 Colo. 487, 76 Pac. 1053, 105 Am.
St. Rep. 91. In Utah it passes, unless expressly reserved. Fisher v. Bounti-
ful City, 21 Utah, 29, 59 Pac. 520. See, also, Frank v. Hicks, 4 Wyo. 502, 35
Pac. 475, 1025; Turner v. Cole, 31 Or. 154, 49 Pac. 971; Tucker v. Jones, 8
Mont. 225, 19 Pac. 571.
17 SCHWAB v. BEAM (C. C.) 86 Fed. 41. See, also, Davis y. Gale, 32 Cal.
26, 91 Am. Dec. 554, where one who appropriated water for a particular min-
ing claim, which be worked out and abandoned, was allowed to apply the wa-
ter to still another claim in priority to one who appropriated before the
first claim was worked out.
18 RODGERS v. PITT (C. C.) 129 Fed. 982. The case of SCHWAB v.
BEAM is contra. The establishment of a military reservation upon a stream
does not prevent an appropriation of water from the stream which does not
interfere with a previous appropriation for the use of such reservation.
Krall v. United States, 79 Fed. 241, 24 ©. C. A. 543.
19 CRESCENT MIN. CO. v. SILVER KING MIN. CO., 17 Utah, 444, 54
Pac. 244, 70 Am. St. Rep. 810; CARDIELLI v. COMSTOCK TUNNEL CO., 2:
Ney. 284, 66 Pac. 950. See Fairplay Hydraulic Min. Co. v. Weston, 29 Colo.
125, 67 Pac. 160; Ripley v. Park Center Land & Water Co., 40 Colo. 129, 90
Pac. 75.
§§ 156-157) POLLUTION OF WATER—DEBRIB. 531
POLLUTION OF WATER—DEBRIS.
156. An appropriator of water may impair the quality of the wa-
ter in the stream only so far as may be necessary to its ap-
plication to his beneficial use, and then not to an extent
unreasonably to interfere with the fair enjoyment of the
water by other appropriators.
157. In California a federal act has created a Débris Commission to
license and regulate placer mining on certain rivers, where
such mining was covering farms and orchards with ruinous
débris.
Because in appropriation law states one beneficial use is as good as
another, and because the application of water to mining uses neces-
sarily makes the undissipated part returned to the stream deteriorate
more or less the quality of the water in the stream, the appropriation
law states have inevitably come to look at the pollution of the water
by a prior mining appropriator with more indulgence than was pos-
sible for an English court. The common-law right of a riparian
proprietor to have the water come down to him substantially un-
diminished in quantity and unimpaired in quality has been changed
in those states to a right on the part of a subsequent appropriator to
have the prior appropriator diminish the quantity of water coming
down and impair its quality only so far as may be the natural and
reasonably necessary consequence of its beneficial use by the prior
appropriator.2° A prior appropriator down the stream can, of course
insist that the subsequent appropriator up the stream treat him with
even more consideration than that.24_ Even in the appropriation law
states, however, a beneficial user of water may not taint the water by
putting in poisonous chemicals; ?* but, short of that, the question has
been one of fact as to whether the deterioration of the quality of the
water is an unreasonable interference with the fair enjoyment of the
water by other appropriators.?*
20 ALDER GULCH CON. MIN. CO. v. HAYES, 6 Mont. 31, 9 Pac. 581;
Suffolk Gold Mining & Milling Co. v. San Miguel Consolidated Mining & Mill-
ing Co., 9 Colo. App. 407, 48 Pac. 828. See criticism of the decree in the
last case in 2 Lindley on Mines (2d Ed.) § 841. But see Otaheite Gold &
Silver Min. & Mill. Co. v. Dean (C. C.) 102 Fed. 929.
21 Phenix Water Co. v. Fletcher, 23 Cal. 481; Wixon vy. Bear River and
Auburn Water & Mining Co., 24 Cal. 367, 85 Am. Dec. 69. But see Atchison
vy. Peterson, 1 Mont. 561; Id., 20 Wall. (U. S.) 507, 22 L. Hd. 414.
22 Crane v. Winsor, 2 Utah, 248.
23 MONTANA CO. v. GEHRING, 75 Fed. 384, 21 C. C. A. 414; Otaheite
Gold & Silver Min. & Mill. Co. v. Dean (C. C.) 102 Fed. 929. Even in Penn-
sylvania, where the riparian right doctrine exists, the doctrine prevailing in
532 WATER RIGHTS AND DRAINAGE, (Ch, 28
Débris.
In a state where placer mining is a leading industry, the fact that
tailings are carried into an irrigation ditch and upon the land below
because of the operation of a placer mine will not justify an injunc-
tion, if the damage to the lower proprietor is nominal or slight.2* The
fact that, in addition to polluting the running water, the appropriator
has caused débris to be deposited on the lower proprietor’s land, is
appropriation law states has practically been adopted with reference to min-
ing. PENNSYLVANIA COAL CO. v. SANDERSON, 113 Pa. 126, 6 Atl. 453,
57 Am. Rep. 445. In that case, after an extended litigation (SANDERSON
v. PENNSYLVANIA COAL CO., 86 Pa. 401, 27 Am. Rep. 711; PENNSYL-
VANIA COAL CO. v. SANDERSON, 94 Pa. 302, 39 Am. Rep. 785; Sander-
son v. Pennsylvania Coal Co., 102 Pa. 370), it was finally decided that one
who, in the ordinary and usual manner, operates a coal mine, may so pump
the water which percolates into his mine that it will drain into the stream
which forms the natural drainage for that region, even though the quantity
of the water may thereby be increased and its quality may be so affected
that the water in the stream is rendered totally unfit for the domestic pur-
poses of lower proprietors. In a later case the Pennsylvania court points out
that the rule thus laid down does not go beyond the proper use of one’s own
land and unavoidable damages to the lower proprietor. Collins v. Chartiers
Gas Co., 131 Pa. 148, 156, 18 Atl. 1012, 6 L. R. A. 280, 17 Am. St. Rep. 791.
In Elder v. Lykens Valley Coal Co., 157 Pa. 490, 27 Atl. 545, 87 Am. St. Rep.
742, it was held that a mineowner who deposits culm or refuse from his mine
in a stream or in a place where ordinary floods will carry it down upon the
land of another is liable to that other for the damages caused thereby. In
Hindson v. Markle, 171 Pa. 188, 33 Atl. 74, which followed Elder v. Lykens
Valley Coal Co., the case of Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126,
€ Atl. 458, 57 Am. St. Rep. 445, is distinguished on the ground that there was
in that case no deposit of any foreign substance on the land of plaintiff, and
that, moreover, the case presented the pollution of a stream from “the mere
flowage of natural water which was discharged by the natural and irresistible
forces necessarily developed in the act of mining in a perfectly lawful
manner.” Compare Roaring Creek Water Co. v. Anthracite Coal Co. of Pitts-
burg, 212 Pa. 115, 61 Atl. 811.
24 McCAULEY v. McKEIG, 8 Mont. 389, 21 Pac. 22. See, also, Fitzpatrick
v. Montgomery, 20 Mont. 181, 50 Pac. 416, 63 Am. St. Rep. 622; Edwards v.
Allouez Min. Co., 38 Mich. 46, 31 Am. Rep. 301. Compare, also, the case where
the erection of dams necessary for working the mine for which water was
appropriated caused the flooding of adjoining land. Stone v. Bumpus. 46
Cal. 218; Jones v. Robertson, 116 Ill. 543, 6 N. E. 890, 56 Am. Rep. 786. But.
where a state statute provides that the miner must take care of his tailings
on his own ground, an injunction will issue against the washing down of tail-
ings dumped by defendant on his own ground and not looked after. Fuller
v. Swan River Placer Min. Co., 12 Colo. 12, 19 Pac. 836. A placer mine owner
may of course be enjoined from so using the waters of the stream as {o ren-
der them unfit for use in supplying the inhabitants of a city for domestic
purposes so long as the injunction does not interfere with the placer mine
owner’s use of the water in the customary manner. Travis Placer Min. Co.
v. Mills, 94 Fed. 909, 37 C. C. A. 536.
$§ 156-157) POLLUTION OF WATER—DEBRIS. 533
however, in all jurisdictions, a clear violation of the lower proprietor’s
rights,*® and in a given case may be a nuisance,?° and of course may
call for and receive injunctive relief.
Because in California hydraulic placer mining not only ruined farms
and orchards, but threatened to interfere with the navigability of the
San Joaquin and the Sacramento rivers, the courts enjoined such min-
ing,?* and the United States government, by the act of March 1,
26 WOODRUFF v. NORTII BLOOMFIELD GRAVEL MIN. CoO. (C. GC.) 18
Fed. 753; Hardt v. Liberty Hill Consolidated Mining & Water Co., 27 Fed.
788; Nelson v. O'Neal, 1 Mont. 284; FITZPATRIOK vy. MONTGOMERY, 20
Mont. 181, 50 Pac, 416, 63 Am. St. Rep. 622; People v. Gold Run Ditch & Min.
Co., 6G Cal. 188, 4 Pac. 1152, 56 Am. Rep. 80; Hobbs v. Amador & Sacra-
mento C. Co., 66 Cal. 161, 4 Pac. 1147; Salstrom v. Orleans Bar Gold Min.
Co. (Cal.) 96 Pac. 294; CARSON v. HAYES, 39 Or. 97, 65 Pac. 814; York
v. Davidson, 89 Or. 81, 65 Pac. 819; Tennessee Coal, Iron & R. Co. vy. Hamil-
ton, 100 Ala, 252, 14 South. 167, 46 Am. St. Rep. 48; Threatt v. Brewer Min.
Co., 49 8. C. 95, 26 S. DH. 970. See County of Yuba v. Cloke, 79 Cal. 239, 21
Pac, 740; Otahelte Gold & Silver Min. & Mill. Co. v.. Dean (C. C.) 102 Fed.
929; Mills’ Ann. St. Colo. § 2398. This is true, even though the miner con-
ducts his mining carefully and in the only feasible way. CARSON vy. HAYES,
supra; Salstrom v. Orleans Bar Gold Min. Co. supra.
In an early California case it was held that a reasonable amount of unap-
propriated public Jand may be appropriated as a place of deposit for tailings,
but that to acquire a right to such ground “the place of deposit must be
claimed as such, or as a mining claim.” Jones y. Jackson, 9 Cal. 237. In
Miser v. O'Shea, 37 Or. 231, 62 Pac. 491, 82 Am. St. Rep. 751, the Oregon
court refused to yleld consent to the doctrine that public domain may be
acquired by depositing tailings upon it. While the reasoning of the Oregon
court, based as it is on the statute of limitations not running against the
United States, is not conclusive, it {s certainly doubtful whether anything
short of a mill site location will perfect a right to a place of deposit for tail-
ings. Compare chapter XIV, § 64, supra. Messrs. Morrison and De Soto,
however, think that an easement for tailings may be acquired in unlocated
public ground, and “advise as strict a location, including staking, notice, and
record, as should be made in the case of the location of the mining or ditch
claim, to which such tailings may be appurtenant.” Morrison’s Mining Rights
(8th Ed.) p. 232. In any event it seems that tailings, which have been de-
posited and kept on public lands under such circumstances as to show an in-
tention not to abandon them, will be protected from location as a placer de-
posit by one who attempts to locate the ground on a discovery of mineral in
the tailings and without showing a discovery elsewhere. RITTER v. LYNCH
(C. C.) 123 Fed. 930. Land on which abandoned tailings have been deposited
is, however, so annlogous to mineral land that the first one to claim it by
mining location may maintain trespass against any one who takes and car-
ries away any of the tailings. ROGERS v. COONEY, 7 Nev. 213.
26 CIHMSSMAN y. ITAL, 381 Mont. 577, 79 Pac. 254, 68 L. R. A. 410;
WOODRUFF v. NORTH BLOOMFIELD GRAVEL MIN. CO. (C. C.) 18 Fed.
TH3. :
27 WOODRUFT v. NORTIL BLOOMFIELD GRAVEL MIN. CO. (C. C.) 18
Fed. 753; Hardt v. Liberty Till Consolidated Mining & Water Co. (C. ©.) 27
534 WATER RIGHTS AND DRAINAGE. (Ch. 28
1893,28 created the California Débris Commission to license and reg-
ulate such mining on those rivers. ‘The constitutionality of that act
has been upheld in one case;?* but it has also been held that one li-
censed by the Débris Commission to engage in hydraulic mining may
nevertheless be enjoined from injuring by such mining the property of
others.*°
DRAINAGE.
158. Water from mine workings may legally drain through subjacent
or adjacent lands, subject, according to the better opinion, to
the right of the proprietor of the subjacent or adjacent lands
to barricade himself against the water.
In the working of mining claims water is often encountered, and
many questions naturally arise in regard to the right of the mine
owner to let the water drain into his neighbor’s territory. Such
questions may come up between adjacent locations, or between super-
jacent and subjacent properties; but in each situation the true con-
clusion would seem to be the same, namely, that the owner of the
lower lying ground may barricade himself against the water which is
seeking the lower level, but cannot complain if by natural drainage it
comes upon his ground.*t In Alaska one whose extralateral right
excavations are threatened with complete flooding through the sink-
ing of shafts by another on unlocatable tide lands may have an in-
junction.?? The owner of the higher ground cannot anywhere cast
upon the lower ground water which, undirected, would not flow upon
the latter; ?* and, wherever Fletcher v. Rylands®* is followed, a mine
Fed. 788; People v. Gold Run Ditch & Min. Co., 66 Cal. 188, 4 Pac. 1152, 56
Am. Rep. 80; United States v. North Bloomfield Gravel Min. Co. (C. C.) 53
Fed. 625. See County of Yuba v. Cloke, 79 Cal. 239, 21 Pac. 740.
2827 Stat. 507, c. 1883 (U. S. Comp. St. 1901, p. 3553). Amended in 1907
(Act Feb. 27, 1907, c. 2077, 34 Stat. 1001 [U. S. Comp. St. Supp. 1907, p. 1064]).
29 United States v. North Bloomfield Gravel Co. (C. C.) 81 Fed. 243; North
Bloomfield Gravel Min. Co. y. United States, 88 Fed. 664, 32 GC. C. A. 84.
30 Sutter County v. Nicols (Cal.) 93 Pac. 872.
31 Baird vy. Williamson, 15 Com. B. (N. 8.) 376; LORD’S EX’RS v. CARBON
IRON MFG. CO., 38 N. J. Eq. 452; Philadelphia R., Coal & Iron Co. v. Taylor,
5 Leg. Gaz. (Pa.) 392. For the different views on this subject, see 830 Am. &
Eng. Ency. Law (2d Ed.) pp. 326-347; 1 Tiffany’s Modern Law of Real Prop-
erty, § 298.
82 Alaska Gold Min. Co. v. Barbridge, 1 Alaska, 311.
33 Locust Mountain Coal & Iron Co. v. Gorrell, 9 Phila. 247; Horner v.
Watson, 79 Pa. 242, 21 Am, Rep. 55.
34L. R. 3 H. L. 830. See Fletcher v. Smith, L. R. 2 App. Cas. 781.
§ 158) DRAINAGE. 535
owner who pens water in an artificial reservoir must keep it in at his
peril.?5
Local Statutes.
In at least one state by statute a reservoir owner seems to be made
an insurer of the persons and property of others from injuries caused
by the leakage, overflow, or giving way of the reservoir,®° while in
several the drainage of mines is regulated.27_ In Arizona the right to
regulate such drainage is based upon Rev.' St. U. S. § 2338 (U. S.
Comp. St. 1901, p. 1436); but in Colorado and Wyoming it is based
upon express provisions in the state constitutions.*®
35 But it has been held that this does not apply to the damming up of wa-
ter necessary to the working of an upper claim, provided only that the water
thrown on the lower thereby would have reached the latter anyhow. JONES
v. ROBERTSON, 116 111. 548, 6 N. E. 890, 56 Am. Rep. 786.
86 See Mills’ Ann. St. Colo. § 2272; Larimer County Ditch Co. v. Zimmer-
man, 4 Colo. App. 78, 34 Pac. 1111; Sylvester v. Jerome, 19 Colo. 128, 34 Pac.
760.
87 Civ. Code Ariz. 1901, pars. 3252-3257; Mills’ Ann. St. Colo. §§ 3172-3180;
Rev. St. Wyo. 1899, § 2535. «+--.«, heirs, executors, administrators, succes-
sors, or assigns to pay, or cause to be paid, to the part.. of the first part as
royalties the sums of money as follows, to wit:
On asphaltum the sum of ten cents per ton for each and every ton of crude
asphalt produced, weighing 2,000 pounds, or the sum of sixty cents per ton on
refined asphalt. On the production of all coal mined under this lease the sum
of eight cents per ton of 2,000 pounds on mine run, or coal as it is taken
from the mines, including what is commonly called “slack.”
And the part.. of the second part further agree.. and bind ..... ieee acne
siecaa dale ».... heirs, executors, administrators, successors, or assigns, to pay, or
cause to be paid, to the lessor.., as advanced annual royalty on this lease,
the sums of money as follows, to wit: Fifteen cents per acre per annum, in
advance, for the first and second years; thirty cents per acre per annum, in
advance, for the third and fourth years, and seventy-five cents per acre per an-
num, in advance, for the fifth and each succeeding year thereafter of the term
for which this lease is to run, it being understood and agreed that said
sums of money so paid shall be a credit on the stipulated royalties should
the same exceed such sums paid as advanced royalty, and, further, that
should the part.. of the second part neglect or refuse to pay such ad-
vanced annual royalty for the period of sixty days after the same becomes
due and payable, such failure or refusal shall work a forfeiture hereof, and,
after ten days’ notice to the parties, the Secretary of the Interior shall have
authority to declare such forfeiture and all royalties paid in advance shall
become the money and property of the lessor.
All royalty accruing for any month shall be due and payable on or before
the twenty-fifth day of the month succeeding.
It is agreed by the parties hereto that the land described herein shall not
be held by the part.. of the second part for speculative purposes, but in good
faith for mining the minerals specified; and a failure for one year by the
part.. of the second part to do a reasonable amount of development work or
of mining shall be held as a want of compliance with the purposes of this
lease and shall render it null and void.
LEASING INDIAN MINERAL LANDS. 638
The part.. of the second part ...... further agree.. and bind.. .
wictseres heirs, executors, administrators, successors, or assigns, ‘to ‘pay, or
cause to be paid, to the part.. of the first part the royalty as it becomes due.
The part.. of the second part further covenant.. and agree.. to excercise
diligence in the conduct of the prospecting and mining operations ............
ache Meo een apie seeeeeeeeeee.. and to open mines and operate the same in. a
spomknianil lice manner and to Ke fullest possible extent on the leased premises;
to commit no waste upon said premises or upon the mines that may be
thereon and to suffer no waste to be committed thereon; to leave in the mines
proper pillars, columns, or such other permanent supports as will prevent
the caving or subsidence of the surface; to take good care of the same and
to surrender and return the premises at the expiration of this lease to the
part.. of the first part, or to whomsoever shall be lawfully entitled thereto, in
as good condition as when received, ordinary wear and tear in the proper
_use of the same for the purposes hereinbefore indicated and unavoidable
accidents excepted, and not to remove therefrom any buildings or improve-
ments erected thereon during said term by .........eeceeee cee eeeeee Ais thhowncee
Fdosduanieneupuaaseeeae ee cee cee cecescccceesceeves. the part.. of the second part, “put
said buildings and ipravements shall remain a part of said land and become
the property of the owner of the land as a part of the consideration for this
lease, in addition to the other considerations herein specified, except engines,
tools, boilers, boiler houses, and machinery, which shal] remain the property of
said part.. of the second part; that ...... will not permit any nuisance to be
maintained on the premises, nor allow any intoxicating liquors to be sold or
given away for any purpose on the premises, and that ...... will not use the
premises for any other purpose than that authorized in this lease, nor allow
them to be used for any other purpose; that ...... will not at any time dur-
ing the term hereby granted assign, transfer, or sublet ...... estate, interest,
or term in said premises and land or the appurtenances thereto to any person
or persons whomsoever without the written consent thereto of the part.. of
the first part being first obtained, subject to the approval of the Secretary of
the Interior.
And the said part.. of the second part further covenant.. and agree..
HAE a 0s -wisnie will allow said lessor.. and ...... agents, from time to time, to
enter upon and into all parts of said premises for purposes of inspection, and
agree.. to keep an accurate account of all mining operations, showing the
whole amount of mineral mined or removed, and make report thereof prompt-
ly, under oath, at the end of each month to the lessor.., and to the Secretary
of the Interior through such officer as he may designate, and that all sums
due as royalty shall be a lien on all impléments, tools, movable machinery, and
other personal chattels used in said prospecting and mining operations, and
upon all the mineral obtained from the land herein leased, as security for
the payment of said royalties.
And the part.. of the second part agree.. that this indenture of lease
shall in all respects be subject to the rules and regulations heretofore or that
may hereafter be lawfully prescribed by the Secretary of the Interior rel-
ative to such mineral leases covering lands of allottees of the Five Civilized
Tribes in Oklahoma, and said part.. of the second part expressly .agree. .
that should ...... sublessees, ...... heirs, executors, administrators, suc-
cessors, or assigns violate any of the covenants, stipulations, or provisions of
634 APPENDIX E.
this lease, or fail, for the period of sixty days, to pay the stipulated monthly
royalty provided for herein, then the Secretary of the Interior shall have
authority in his discretion to avoid this indenture of lease and cause the
same to be annulled, when all the rights, franchises, and privileges of the
part.. of the second part, ...... heirs, sublessees, executors, administrators,
successors, or assigns hereunder shall cease and end without further proceed-
ings.
If the lessee.. make.. reasonable and bona fide effort to find and mine
coal and asphalt in paying quantity, as is herein required of ...... , and such
effort is unsuccessful, ...... may at any time thereafter, with the approval
of the Secretary of the Interior, surrender and wholly terminate this lease
upon the full payment and performance of all ...... then existing obliga-
tions hereunder: Provided, however, that approval of such surrender by
the Secretary will be required only during the time his approval of the
alienation of the land is required by law.
It is further agreed and understood that before this lease shall be in force
and effect the lessee shall furnish a satisfactory bond in accordance with the
regulations prescribed by the Secretary of the Interior, which bond shall be
deposited and remain on file in the Indian Office.
It is expressly understood and agreed by the parties hereto that if the
Secretary of the Interior is at any time satisfied that any of the covenants
contained herein, or that any of the provisions of any regulations heretofore
or that may hereafter be lawfully prescribed by him, have been or are being
violated, he may, after ten days notice to the parties, cancel this lease, and
that his declaration of cancellation shall be effective without resorting to the
courts and without further proceedings, and that the lessor.. shall be entitled
to the immediate possession of the land.
In witness whereof the said parties of the first and second part have here-
unto set their hands and affixed their seals the day and year first above
written.
Witnesses:1
IB 10) ees hone ipa mrteet easter tan isl a
aie lela dteans Rete A Sa hate veeee [a8 to... sinidauacnbatcadvedudviens [Seals
Py Osecssedess Spslenes ccciete Maga aetian
Pi Ouresvscciretns be it eae sige venues
LE aan en |
Minas Copan eeu ec caae nabs
ioe OA I Ota 1 a8 tdsseavensesnaavenenste.LSeald
a |
B® BS aa din ce ea Nares Maet ben the Cee cee ee scam eal
Pe Obucsewe cass Reinet Bee event a |
1Two witnesses to all signatures.
LEASING INDIAN MINERAL LANDS. 635
United States of America, Indian Territory,
Gyibtateeirenas sa iawevene eters Judicial District, ss:*
Be it remembered that on this day came before me, the undersigned........
within and for the ............ judicial district of Oklahoma aforesaid, duly
commissioned and acting aS such,.......... ccc ec ccc cece eee eect e et eenees
to me personally well known ag ............. 00008 the part.. lessor.. in the
within and foregoing lease, and stated that ...... executed the same for the
consideration and purposes therein mentioned and set forth, and I do hereby
so certify.
Witness my hand and seal as such ............ OM THIS «saseene day of
wie d Wekly eevery 190.02
(My commission expires ........... 0.00 )
[Form N.—For Allotteees of the Five Civilized Tribes.]
Transferable Only with Consent of the Secretary of the Interior.
FOR OTHER MINERALS THAN COAL, ASPHALT, OIL, AND GAS.
hi oto weeeees..-Mining Lease.................. Nation.
[Write all names and addresses in full.]
This indenture of lease made and entered into, in quadruplicate, on this
acbaite Mus, day of .........., A. D. 190.., by and between ...............2000e
AiiSsa fyhera Sate raxerelors pieeleaiesndneanaieays Satie eases eRe s Dateien we key earasin aad
ouaiaine sea Ofc came cceaxcrs ema spaArtss of the first AEG, BAA. ane ecawia eed Hider
OF. cic aieieceeeiates part.. of the second part, under and in pursuance of the pro-
visions of existing law, and the rules and regulations prescribed by the
Secretary of the Interior relative to mining leases covering the lands of
allottees of the Five Civilized Tribes.
Witnesseth: That the part.. of the first part for and in consideration of
the royalties, covenants, stipulations, and conditions hereinafter contained
and hereby agreed to be paid, observed, and performed by the part.. of the
second part, ...... heirs, executors, administrators, successors, or assigns,
do.. hereby demise, grant, and let unto the part.. of the second part, ......
heirs, executors, administrators, successors, or assigns, the following described
tract of land lying and being within the ...... Nation and within the Indian
Territory, to Wit:..........000005 ety a Shanda aula dulouacaswuanssastansinG: w¥atsaia uaa ay Nieneenbeay SPeceseaD
of BeeHoti inate oy OE OWtEIY . .., of range ...., of the Indian meridian, ana
containing ...... acres, more or less, for the full term of ...... years from
*This should now be:
State of Oklahoma,
County of ........-6..-, SS?
636 APPENDIX E.
the date hereof, for the sole purpose of prospecting for and mining minerals,
as follows: ......e.. iabsaia ioowiaieban's SrteSavd, sosejiade\e.is) iialfaney Sven evesec8, ovavece-o: 8 Greets se OS
sees Dome e rere e eee reer ene rarer essoreraeeseresseesereseseoeseeeeesesene eee
the visti of the secone: part to occupy so much only of the surface of said
jJand as may be reasonably necessary to carry on the work of prospecting for,
mining, storing, and removing such minerals.
In consideration of the premises, the part.. of the second part hereby
aereé.. nd bd .cnscesceceeg «eo awe heirs, executors, administrators, suc-
COSSOrE, or assigns, to pay, or cause to be paid, to the part.. of the first part,
as royalties, the sums of money as follows, to wit:........ ceenieea nee ere
“And the part.. of the second part further agree.. and bind ........ icheietacetg
ceeaks heirs, executors, administrators, successors, or assigns, to pay, or cause
to be paid, to the lessor.., as advanced annual royalty on this lease, the sums
of money, as follows, to wit: .......... per acre per annum, in advance, for
the first and second years; ........ per acre per annum, in advance, for the
third and fourth years; and ........ per acre per annum, in advance, for
the fifth and each succeeding year thereafter of the term for which this
lease is to run; it being understood and agreed that said sums of money so
paid shall be a credit on the stipulated royalties should the same exceed suclt
sums paid ag advanced royalty; and further, that should the part.. of the
second part neglect or refuse to pay such advanced annual royalty for the
period of sixty days after the same becomes due and payable, the Secretary
of the Interior, after ten days’ notice to the parties thereto, may declare this
lease null and void, and all royalties paid in advance shall become the money
and the property of the lessor...
All royalty accruing for any month shall be due and payable on or before
the twenty-fifth day of the month succeeding.
It is agreed by the parties hereto that the land described herein shall not
be held by the part.. of the second part for speculative purposes, but in
good faith for mining the minerals specified; and a failure for one year by
the part.. of the second part to do a reasonable amount of development work
or of mining shall be held as a want of compliance with the purposes of this
lease and shall render it null and void.
The part.. of the second part further agree... and bind ...........seee ey
ity eas heirs, executors, administrators, successors, or assigns to pay, or cause
to be paid, to the part.. of the first part the royalty as it becomes due.
The part.. of the second part further covenant.. and agree.. to exercise
diligence in the conduct of the prospecting and mining operations, and to
open mines and operate the same in a workmanlike manner and to the fullest
possible extent on the leased premises; to commit no waste upon said prem-
ises, or upon the mines that may be thereon, and to suffer no waste to be
committed thereon; to leave in the mines proper pillars, columns, or such -
other permanent supports to prevent the caving or subsidence of the surface;
to take good care of the same, and to surrender and return the premises at
the expiration of this lease to the part.. of the first part, or to whomsoever
shall be lawfully entitled thereto, in as good condition as when received, ordi-
nary wear and tear in the proper use of the same for the purposes herein-
before indicated and unavoidable accidents excepted, and not to remove
LEASING INDIAN MINERAL LANDS, 637
therefrom any buildings or improvements erected thereon during said term
DY sccwswe as Mase: % ev aite tam RR Rass We Reale Sars awed Dla lee Ww eee le Soleo ee aambre 8 Mopeaierak 4
the part.. of the Securit part, but said buildings and improvements shall ne
main «a part of said land and become the property of the owner of the land
as a part of the consideration for this lease, in addition to the other consid-
erations herein specified, except engines, tools, boilers, boiler houses, and ma-
chinery, which shall remain the property of said part.. of the second part;
that ...... will not permit any nuisance to be maintained on the premises,
nor allow any intoxicating liquors to be sold or given away for any purpose
on the premises, and that ...... will not use the premises for any other pur-
pose than that authorized in this lease, nor allow them to be used for any
other purpose; that ...... will not at any time during the term hereby grant-
_ed assign, transfer, or sublet ...... estate, interest, or term in said premises
and land, or the appurtenances thereto, to any person or persons whomsoever
without the consent and approval of the Secretary of the Interior.
And the said part.. of the second part further covenant.. and agree..
that is... will allow said Jessor.. and ...... agents, from time to time, to
enter upon and into all parts of said premises for purposes of inspection,
and agree.. to keep an accurate account of all mining operations, showing
the whole amount of mineral mined or removed, and make report thereof
promptly, under oath, at the end of each month to the lessor.. and to the
Secretary of the Interior, through such officer as he may designate, and that
all sums due as royalty shall be a lien on all implements, tools, movable ma-
echinery, and other personal chattels used in said prospecting and mining
operations, and upon all the mineral obtained from the land herein leased, as
security for the payment of said royalties.
And the parties hereto expressly agree that this indenture of lease shall in
all respects be subject to the rules and regulations heretofore or that may
hereafter be lawfully prescribed by the Secretary of the Interior relative to
leases covering lands of allottees of the Five Civilized Tribes; and said
part.. of the second part expressly agree.. that should .............. sub-
lessees, ...... heirs, executors, administrators, successors, or assigns violate
any of the covenants, stipulations, or provisions of this lease, or fail for the
period of sixty days to pay the stipulated monthly royalty provided for herein,
the Secretary of the Interior, after ten days’ notice to the parties hereto, shall
be at liberty, in ...... discretion, to cancel and anuul this lease, when all the
rights, franchises, and privileges of the part.. of the second part, ..........
sublessees, executors, administrators, successors, or assigns hereunder shall
cease and end without further proceedings.
If the lessee.. make.. reasonable and bona fide effort to find and mine
a tare Rew in paying quantity, as is herein required of ......, and such effort
is unsuccessful, ...... may at any time thereafter, with the approval of the
Secretary of the Interlor, surrender and wholly terminate this lease upon the
full payment and performance of all ........ then existing obligations here-
under: Provided, however, that approval of such surrender by the Secretary
will be required only during the time his approval of the alienation of the
land igs required by law.
It is further agreed and understood that before this lease shall be in force
and effect the lessee shall furnish a satisfactory bond in accordance with the
regulations prescribed by the Secretary of the Interior.
It is expressly understood and agreed by the parties hereto that if the
638 APPENDIX E.
Secretary of the Interior is at any time satisfied that any of the covenants.
contained herein or that any of the provisions of any regulations heretofore
or that may hereafter be lawfully prescribed by him, have been or are being
violated, he may, after ten days’ notice to the parties, cancel this lease, and
that his declaration of cancellation shall be effective without resorting to
the courts and without further proceedings, and that the lessor.. shall then
be entitled to the immediate possession of the land.
In witness whereof the said parties of the first and second parts have
hereunto set their hands and affixed their seals the day and year first above
written.
Witnesses:1
OS LO os ested cea a eee cscceee -Lpeal.J
as to..... sione® 80 sieveiee samearse s POOH)
AS: Oe siers es einal sien dou @reaeces sbOeal.]
AS LOncwnvacnorcess cae tartans eLSeak]
United States of America, Indian Territory,
Bue ca Uma ane a ranahns Wiame Rate atva ta ye Judicial District, ss: *
Be it remembered that on this day came before me, the undersigned.........
within and for the . ............ judicial district of the Indian Territory
aforesaid, duly commissioned and acting as such, ..........cee ese eees we Rae
to me personally known aS .........+..000% the part.. lessor.. in the within
and foregoing lease, and stated that ...... executed the same for the con-
sideration and purposes therein mentioned and set forth, and I do hereby
so certify.
Witness my hand and seal as such ...... bases OM THIS S access: e400 ... day of
slain oe eaignele caw , 190...
QIy commission expires ............ )
Two witnesses to all signatures.
*This should now be:
State of Oklahoma,
County Of ....eeeeeeee, SS?
LEASING INDIAN MINERAL LANDS. 639
REGULATIONS OF JUNE 20, 1908.
By an act of Congress, approved May 27, 1908, providing for the removal
of restrictions from some of the lands of the Five Civilized Tribes, certain
changes in the regulations applying to those tribes were necessitated, and
they were made by the regulations of June 20, 1908. The regulations relating
to mineral lands were as follows:
REGULATIONS.
The following regulations are hereby prescribed for the purpose of carrying
into effect those provisions of the Act of Congress approved May 27, 1908 [Act
May 27, 1908, c. 199 (35 Stat. 312)]:
* * * * * * * * * * * *
LEASING.
9. Sections 1 to 43, inclusive, of the Revised Regulations of April 20, 1908,
governing the leasing of allotted lands of members of the Five Civilized
Tribes, with reference to oil, gas or other mineral leases are, with the fol-
lowing modifications, hereby repromulgated under and in accordance with and
made applicable to the provisions of [sections 2, 8, and 11 of] said act, and
shall, with said modifications, remain in full force and effect.
* * * * * 7 # * x * * *
10. To expedite necessary investigation and final action leases should here-
after be presented to the district agent of the district in which the leased
land is situate for transmission to the Indian agent at Union Agency.
11. No mineral lease which covers the land of a minor allottee and re-
quires the approval of the Secretary of the Interior shall be for a term ex-
tending beyond the minority of such minor unless the court having jurisdic-
tion of the minor’s estate and the Secretary of the Interior shall approve such
lease.
12. With the approval of the proper court and the Secretary of the Interior,
mineral leases covering land of minor allottees made and approved upon forms
authorized prior to the revised regulations of April 20, 1908, may be modified
to give to the parties thereto any or all of the rights, privileges, conditions
or terms of the lease form approved April 20, 1908.
13. From and after July 1, 1908, mineral leases which require the approval
of the Secretary of the Interior covering lands of Seminole allottees, as pro-
vided in section 11 of the act of May 27, 1908, shall be made under these regu-
lations without the approval of the tribal authorities.
14. Section 10 of the regulations of April 20, 1908, is amended to read as
follows:
“Lessees must procure and file with each lease an affidavit of the Indian
lessor, made before the district agent, United States Indian agent, Union
Agency, if possible, or if not, before a federal judge, clerk of the federal court,
United States commissioner or county or district judge, showing that the
640 APPENDIX E.
lease was understood by the lessor, and bonus agreements, if any. (See form
D prescribed, which also covers lessee’s affidavit of bonus and nondevelop-
ment.)”
* * * * * * * * * * * *
C. F. Larrabee,
Acting Commissioner of Indian Affairs.
Department of the Interior,
June 20, 1908.
Approved:
Jesse BH. Wilson,
Assistant Secretary.
APPENDIX F.
PHILIPPINE MINING LAWS.
(From the Compilation of Laws and Regulations Relating to Public Lands in
the Philippine Islands, Issued by the War RED RELmenty Bureau of 1n-
sular Affairs, February 1, 1908.)
ACTS OF CONGRESS AND THE PHILIPPINE COMMISSION.
CONGRESSIONAL LEGISLATION.
The act of Congress approved July 1, 1902, entitled “An act temporarily
to provide for the administration of the affairs of civil government in the
Philippine Islands, and for other purposes,” granted authority to the Philip-
pine Commission to dispose of the public domain under the conditions set
forth therein. The above act was amended in certain sections by the act of
February 6, 1905, which changed the original measurements from acres, feet,
ete, to the metric system of measurements, and the law as printed here-
with includes all the legislation by Congress relative to the lands of the
Philippine Islands at present in force.
All the acts and regulations of the Philippine Commission are based upon
these two acts of Congress.
[Public—No. 235.]
An Act temporarily to provide for the administration of the affairs of civil
government in the Philippine Islands, and for other purposes, approved
July 1, 1902, as amended by Public—No. 43, approved February 6, 1905.
* * * * * * * ae * e
MINERAL LANDS.
Sec. 20. That in all cases public lands in the Philippine Islands valuable
for minerals shall be reserved from sale, except as otherwsie expressly directed
by law.
Sec. 21. That all valuable mineral deposits in public lands in the Philip-
pine Islands, both surveyed and unsurveyed, are hereby declared to be free
and open to exploration, occupation, and purchase, and the land in which
they are found to occupation and purchase, by citizens of the United States,
or of said Islands: Provided, That when on any lands in said Islands en-
tered and occupied as agricultural lands under the provisions of this Act, but
Cost.M1n.L.—41 (641)
642 APPENDIX F.
not patented, mineral deposits have been found, the working of such mineral
deposits is hereby forbidden until the person, association, or corporation
who or which has entered and is occupying such lands shall have paid to
the Government of said Islands such additional sum or sums as will make
the total amount paid for the mineral claim or claims in which said de-
posits are located equal to the amount charged by the Government for the
same as mineral claims.
Sec. 22. (As amended by act of Congress approved February 6, 1905.)
That mining claims upon land containing veins or lodes of quartz or other
rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valu-
able deposits located after the passage of this Act, whether located by one
or more persons qualified to locate the same under the preceding section, shall
be located in the following manner and under the following conditions: Any
person so qualified desiring to locate a mineral claim shall, subject to the
provisions of this Act with respect to land which may be used for mining,
enter upon the same and locate a plat of ground measuring, where possible,
but not exceeding three hundred meters in length by three hundred meters
in breath, in as nearly as possible a rectangular form—that is to say, all
angles shall be right angles, except in cases where a boundary line of a pre-
viously surveyed claim is adopted as common to both claims, but the lines
need not necessarily be meridional. In defining the size of a mineral claim it
shail be measured horizontally, irrespective of inequalities of the surface of
the ground. ? é
Sec. 28. (As amended by act of Congress approved February 6, 1905.)
That a mineral claim shall be marked by two posts, placed as nearly as pos-
sible on the line of the ledge or vein, and the posts shall be numbered one
and two, and the distance between posts numbered one and two shall not
exceed three hundred meters, the line between posts numbered one and two
to be known as the location line; and upon posts numbered one and two shall
be written the name given to the mineral claim, the name of the locator, and
the date of the location. Upon post numbered one there shall be written, in
addition to the foregoing, “Initial post,” the approximate compass bearing
of post numbered two, and a statement of the number of meters lying to the
right and to the left of the line from post numbered one to post numbered
two, thus “Initial post. Direction of post numbered two i meters of
this claim lie on the right and meters on the left of the line from number
one to number two post.” All the particulars required to be put on number one
and number two posts shall be furnished by the locator to the provincial
secretary, or such other officer as by the Philippine Government may be de-
scribed as mining recorder, in writing, at the time the claim is recorded, and
shall form a part of the record of such claim.
Sec. 24. (As amended by act of Congress approved February 6,1905.) That
when a claim has been located the holder shall immediately mark the line
between posts numbered one and two so that it can be distinctly seen. The
locator shall also place a post at the point where he has found minerals in
place, on which shall be written “Discovery post:” Provided, That when the
claim is surveyed the surveyor shall be guided by the records of the claim,
the sketch plan on the back of the declaration made by the owner when the
claim was recorded, posts numbered one and two, and the notice on number
one, the initial post.
PHILIPPINE MINING LAWS. 648
Examples of Various Modes of Laying Out Claims.
T. Dy a;
No. 2 post. No. 2 post. No. 2 post.
150 meters. 130 m. 100m. 1 200 m. 225 m. Y 7m.
i d| a ae d| |g d
3 Discovery 3 8 oO ‘overy post. 8 3 3
post. O S
1 Discovery post. °
150 m. 150 m. 100 ra. 200 m. 225 m. 75m.
oO i ‘a oy
No. 1 post. No. 1 post, No. 1 post.
Note.—See section 8 of Act No. 624 of the Philippine Commission, which
requires corner posts in addition to above.
Sec. 25. (As amended by act of Congress approved February 6,1905.) That
it shall not be lawful to move number one post, but number two post may be
moved by the deputy mineral surveyor when the distance between posts num-
bered one and two exceeds three hundred meters, in order to place number
two post three hundred meters from number one post on the line of location.
When the distance between posts numbered one and two is less than three
hundred meters, the deputy mineral surveyor shall have no authority to ex-
tend the claim beyond number two.
Sec. 26. That the “location line” shall govern the direction of one side
of the claim, upon which the survey shall be extended according to this Act..
Sec. 27. That the holder of a mineral claim sball be entitled to all min-
erals which may lie within his claim, but he shall not be entitled to mine out-
side the boundary lines of his claim continued vertically downward: Pro-
vided, That this Act shall not prejudice the rights of claim owners nor claim
holders whose claims have been located under existing laws prior to this Act.
Sec. 28. That no mineral claim of the full size shall be recorded without
the application being accompanied by an affidavit made by the applicant or
some person on his behalf cognizant of the facts—that the legal notices and’
posts have been put up; that mineral has been found in place on the claim
proposed to be recorded; that the ground applied for is unoccupied by any
-other person. In the said declaration shall be set out the name of the ap-
plicant and the date of the location of the claim. 'The words written on the
number one and number two posts shall be set out in full, and as accurate a
description as possible of the position of the claim given with reference to
some natural object or permanent monuments.
Sec. 29. (As amended by act of Congress approved February 6,1905.) That
po mineral claim which at the date of its record, is known by the locator to
be less than a full-sized mineral claim, shall be recorded without the word
“fraction” being added to the name of the claim, and the application being
accompanied by an affidavit or solemn declaration made by the applicant
or some person on his behalf cognizant of the facts: That the legal posts
and notices have been put up; that mineral has been found in place on the
644 APPENDIX F.
fractional claim proposed to be recorded; that the ground applied for is un-
oceupied by any other person. In the said declaration shall be set out the
name of the applicant and the date of the location of the claim. The words
written on the posts numbered one and two shall be set out in full, and as
accurate a description as possible of the position of the claim given. A
sketch plan shall be drawn by the applicant on the back of the declaration,
showing as near as may be the position of the adjoining mineral claims and
the shape and size, expressed in meters, of the claim or fraction desired to
be recorded: Provided, That the failure on the part of the locator of a min-
eral claim to comply with any of the foregoing provisions of this section
shall not be deemed to invalidate such location if, upon the facts, it shall
appear that such locator has actually discovered mineral in place on said loca-
tion and that there has been on his part a bona fide attempt to comply with
the provisions of this Act, and that the nonobservance of the formalities here-
inbefore referred to is not of a character calculated to mislead other persons
desiring to locate claims jin the vicinity.
Sec. 80. That in cases where, from the nature or shape of the ground, it
is impossible to mark the location line of the claim as provided by this Act
then the claim may be marked by placing posts as nearly as possible to the
location line, and noting the distance and direction such posts may be from
such location line, which distance and direction shall be set out in the record
of the claim.
See. 31. (As amended by act of Congress approved February 6, 1905.) That
every person locating a mineral claim shall record the same with the pro-
vincial secretary, or such other officer as by the Government of the Philip-
pine Islands may be described as mining recorder of the district within which
the same is situate, within thirty days after the location thereof. Such record
shall be made in a book to be kept for the purpose in the office of the said
provincial secretary or such other officer as by said Government described as
mining recorder, in which shall be inserted the name of the claim, the name
of each in meters, the date of location, and the date of the record. A claim
which shall not have been recorded within the prescribed period shall be
deemed to have been abandoned.
Sec. 32. That in case of any dispute as to the location of a mineral claim
the title to the claim shall be recognized according to the priority of such
location, subject to any question as to the validity of the record itself and
subject to the holder having complied with all the terms and conditions of
this Act.
Sec. 33. That no holder shall be entitled to hold in his, its, or their own
name or in the name of any other person, corporation, or association more
than one mineral claim on the same vein or lode.
Sec. 84. That a holder may at any time abandon any mineral claim by giv-
ing notice, in writing, of such intention to abandon, to the provincial secretary
or such other officer as by the Government of the Philippine Islands may
be described as mining recorder; and from the date of the record of such
notice all his interest in such claim shall cease.
Sec. 35. That proof of citizenship under the clause of this Act relating
to mineral lands may consist in the case of an individual, of his own affida-
vit thereof; in the case of an association of persons unincorporated, of the
affidavit of their authorized agent, made on his own knowledge or upon in-
formation and belief; and in case of a corporation organized under the laws
of the United States, or of any State or Territory thereof, or of the Philippine
PHILIPPINE MINING LAWS. 645
Islands, by the filing of a certified copy of their charter or certificate of in-
corporation.
Sec. 36. (As amended by act of Congress approved February 6, 1905.) That
the United States Philippine Commission or its successors may make regula-
tions, not in conflict with the provisions of this Act, governing the location,
manner of recording, and amount of work necessary to hold possession of a
mining claim, subject to the following requirements:
On each claim located after the passage of this Act, and until a patent has
been issued: therefor, not less than two hundred pesos’ worth of labor shall
be performed or improvements made during each year: Provided, That 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 loca-
tion 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 co-owners to contribute his proportion of the expenditures required
thereby, the co-owners who have performed the labor or made the improve-
ments may, at the expiration of the year, give such delinquent co-owners per-
sonal notice in writing, or notice by publication in the newspaper published
nearest the claim, and in two newspapers published at Manila, one in the
English language and the other in the Spanish language, to be designated by
the Chief of the Philippine Insular Bureau of Public Lands, 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 shall 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 the required expenditures. 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.
Sec. 37. (As amended by act of Congress approved February 6, 1905.) That
a patent for any land claimed and located for valuable mineral deposits may
be obtained in the following manner: Any person, 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
this Act, may file in the office of the provincial secretary, or such other of-
ficer as by the Government of said Islands may be described as mining record-
er of the province wherein the land claimed is located, an application 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 direction of
the Chief of the Philippine Insular Bureau of Public Lands, showing ac-
curately the boundaries of the claim, which shall be distinctly marked by
monuments on the ground, and shall post a copy of such plat, together with
a notice of such application for a patent, in a conspicuous 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, and shall file a copy of the notice in such office, and shall there-
upon be entitled to a patent for the land, in the manner following: The
provincial secretary, or such other officer as by the Philippine Government
may be described as mining recorder, upon the filing of such application,
plat, field notes, notices, and affidavits, shall publish a notice that such an
application has been made, once a week for the period of sixty days, in a
newspaper to be by him designated as nearest to such claim, and in two
646 APPENDIX F.
newspapers published at Manila, one in the English language and one in the
Spanish language, to be designated by the Chief of the Philippine Insular
Bureau of Public Lands; and he shall also post such notice in his office for
the same period. The claimant at the time of filing this application, or at
apy time thereafter within the sixty days of publication, shall file with the
provincial secretary, or such other officer as by the Philippine Government
may be described as mining recorder, a certificate of the Chief of the Philip-
pine Insular Bureau of Public Lands that one thousand pesos’ worth of
labor has been expended or improvements made upon the claim. by himself
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 such period of publication. If no adverse claim
shall have been filed with the provincial secretary, or such other officer, as
by the Government of said Islands may be described as mining recorder, at
the expiration of the sixty days of publication, it shall be assumed that the
applicant is entitled to a patent upon the payment to the provincial treasur-
er, or the collector of internal revenue, of twenty-five pesos per hectare, 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 appli-
cant has failed to comply with the terms of this Act: Provided, That where
the claimant for a patent is not a resident of or within the province wherein
the land containing the vein, ledge, or deposit sought to be patented is lo-
cated, the application for patent and the affidavits required 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 established by said affidavits.
Sec. 38. That applicants for mineral patents, if residing beyond the limits
of the province or military department wherein the claim is situated, may
make the oath or affidavit required for proof of citizenship before the clerk
of any court of record, or before any notary public of any province of the
Philippine Islands, or any other official in said Islands authorized by law to
administer oaths.
Sec. 39. (4s amended by act of Congress approved February 6, 1905.) That
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, ex-
cept the publication of notice and making and filing of the affidavits 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 com-
mence proceedings in a court of competent jurisdiction to determine the ques-
tion 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 posses-
sion of the claim, or any portion thereof, may, without giving further notice,
file a certified copy of the judgment roll with the provincial secretary, or such
other officer as by the Government of the Philippine Islands may be described
as mining recorder, together with the certificate of the Chief of the Philippine
Insular Bureau of Public Lands that the requisite amount of labor has been
expended or improvements made thereon, and the description required in other
PHILIPPINE MINING LAWS. 647
cases, and shall pay to the provincial treasurer or the collector of internal
revenue of the province in which the claim is situated, as the case may be,
twenty-five pesos per hectare for his claim, together with the proper fees,
whereupon the whole proceedings and the judgment roll shall be certified by
the provincial secretary, or such other officer as by said Government may be
described as mining recorder, to the Secretary of the Interior of the Philippine
Islands, and a patent shall issue thereon for the claim, or such portion thereof
as the applicant shall appear, from the decision of the court, rightly to possess.
The adverse claim 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
province wherein the claim is situated, may make oath to the adverse claim
before the clerk of any court of record, or any notary public of any province
or military department of the Philippine Islands, or any other officer authorized
to administer oaths where the adverse claimants may then be. 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 for his portion of the claim,
with the proper fees, and file the certificate and description by the Chief of the
Philippine Insular Bureau of Public Lands, whereupon the provincial secretary
or such other officer as by the Government of said Islands may be described
as mining recorder shall certify the proceedings and judgment roll to the Secre-
tary of the Interior for the Philippine Islands, as in the preceding case, and
patents shall issue to the several parties according to their respective rights.
If, in any action brought pursuant to this section, title to the ground in contro-
versy shall not be established by either party, the court shall so find, and
judgment shall be entered accordingly. In such case costs shall not be allowed
to either party, and the claimant shall not proceed in the office of the provin-
cial secretary or such other officer as by the Government of said Islands may
be described as mining recorder or be entitled to a patent for the ground in
controversy until he shall have perfected his title. Nothing herein contained
shall be construed to prevent the alienation of a title conveyed by a patent or
a mining claim to any person whatever.
Sec. 40. That the description of mineral 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
for claims upon unsurveyed lands, the Chief of the Philippine Insular Bureau
of Public Lands in extending the surveys shall adjust the same to the bounda-
ries 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.
Sec. 41. That any person authorized to enter lands under this Act may enter
and obtain patent to lands that are chiefly valuable for building stone under the
provisions of this Act relative to placer mineral claims.
Sec. 42. That any person authorized to enter lands under this Act may enter
and obtain patent to lands containing petroleum or other mineral oils and
chiefly valuable therefor under the provisions of this Act relative to placer
mineral claims.
Sec, 43. That no location of a placer claim shall exceed sixty-four hectares
for any association of persons, irrespective of the number of persons composing
such association, and no such location shall include more than eight hectares
for an individual claimant. Such locations shall conform to the laws of the
United States Philippine Commission, or its successors, with reference to public
surveys, and nothing in this section contained shall defeat or impair any bona
648 APPENDIX F.
fide ownership of land for agricultural purposes or authorize the sale of the
improvements of any bona fide settler to any purchaser.
Sec. 44. That where placer claims are located upon surveyed lands and con-
form to legal subdivisions, no further survey or plat shall be required, and all
placer mining claims located after the date of passage of this Act shall conform
as nearly as practicable to the Philippine system of public-land surveys and
the regular subdivisions of such surveys; but where placer claims can not be
conformed to legal subdivisions, survey, and plat shall be made as on unsur-
veyed lands; and where by the segregation of mineral lands in any legal sub-
division a quantity of agricultural land less than sixteen hectares shall remain,
such fractional portion of agricultural land may be entered by any party
qualified by law for homestead purposes.
Sec. 45. 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 of the Philippine Islands, 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;
but nothing in this Act shall be deemed to impair any lien which may have
attached in any way whatever prior to the issuance of a patent.
Sec. 46. That the Chief of the Philippine Insular Bureau of Public Lands
may appoint competent deputy mineral surveyors to survey mining claims. The
expenses of the survey of vein or lode claims and of the survey of placer claims
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 such deputy mineral surveyor
to make the survey. The Chief of the Philippine Insular Bureau of Public
Lands 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 province where
mines are situated, or in Manila, for the publication of mining notices and fix
the rates to be charged by such paper; and to the end that the Chief of the
Bureau of Public Lands may be fully informed on the subject such applicant
shall file with the provincial secretary, or such other officer as by the Govern-
ment of the Philippine Islands may be described as mining recorder, a sworn
statement of all charges and fees paid by such applicant for publication and
surveys, and of all fees and money paid the provincial treasurer or the col-
lector of internal revenue, as the case may be, which statement shall be trans-
mitted, with the other papers in the case, to the Secretary of the Interior for
the Philippine Islands.
Sec. 47. That all affidavits required to be made under this Act may be veri-
fied before any officer authorized to administer oaths within the province or
military department where the claims may be situated, and all testimony and
proofs may be taken before any such officer, and, when duly certified by the
officer taking the same, shall have the same force and effect as if taken before
the proper provincial secretary or such other officer as by the Government of
the Philippine Islands may be described as mining recorder. In cases of con-
test 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 such party can not be found, then by publication
at least once a week for thirty days in a newspaper to be designated by the
provincial secretary or such other officer as by said Government may be de-
scribed as mining recorder published nearest to the location of such land and
in two newspapers published in Manila, one in the English language and one in
PHILIPPINE MINING LAWS. 649
the Spanish language, to be designated by the Chief of the Philippine Insular
Bureau of Public Lands; and the provincial secretary or such other officer as
by said Government may be described as- mining recorder shall require proofs
that such notice has been given.
Sec. 48. 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 nonadjacent surface ground may be embraced and included in
an application for a patent for such vein or lode, and the same may be pat-
ented therewith, subject to the same preliminary requirements as to survey
and notice as are applicable to veins or lodes; but no location of such nonadja-
cent land shall exceed two hectares, and payment for the same must be made
at the same rate as fixed by this Act for the superficies of the lode. The own-
er of a quartz mill or reduction works not owning a mine in connection there-
with may also receive a patent for his mill site as provided in this section.
Sec. 49. That as a condition of sale the Government of the Philippine Is-
lands may provide rules for working, policing, and sanitation of mines, and
rules concerning easements, drainage, water rights, right of way, right of Gov-
ernment survey and inspection, and other necessary means to their complete
development not inconsistent with the provisions of this Act, and those condi-
tions shall be fully expressed in the patent. The Philippine Commission or its
successors are hereby further empowered to fix the bonds of deputy mineral
surveyors.
Sec. 50. That whenever by priority 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 damage.
Sec. 51. That all patents granted 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.
Sec. 52. That the Government of the Philippine Islands is authorized to
establish land districts and provide for the appointment of the necessary offi-
cers wherever they may deem the same necessary for the public convenience,
and to further provide that in districts where land offices are established pro-
ceedings required by this Act to be had before provincial officers shall be had
before the proper officers of such land offices.
Sec. 58. (As amended by act of Congress approved February 6, 1905.) That
every person above the age of twenty-one years who is a citizen of the United
States or of the Philippine Islands, or who has acquired the right of a native
of said Islands under and by virtue of the Treaty of Paris, or any association
of persons severally qualified as above, shall, upon application to the proper
provincial treasurer, have the right to enter any quantity of vacant coal lands
of said Islands, not otherwise appropriated or reserved by competent authority, .
not exceeding sixty-four hectares to such individual person, or one hun-
dred and twenty-eight hectares to such association, upon payment to the pro-
vincial treasurer or the collector of internal revenue, as the case may be, of
not less than fifty pesos per hectare for such lands, where the same shall be
650 APPENDIX F.
situated more than twenty-five kilometers from any completed railroad o1
available harbor or navigable stream, and not less than ohe hundred pesos per
hectare of such land as shall be within twenty-five kilometers of such road,
harbor, or stream: Provided, That such entries shall be taken in squares of
sixteen or sixty-four hectares, in conformity with the rules and regulations
governing the public-land surveys of the said Islands in plotting legal subdi-
visions.
Sec. 54. That 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 under
the preceding section of the mines so opened and improved.
See. 55. That all claims under the preceding section must be presented to
the proper provincial secretary within sixty days after the date of actual pos-
session and the commencement of improvements on the land by the filing of a
declaratory statement therefor; and where the improvements shall have been
made prior to the expiration of three months from the date of the passage of
this Act, 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 Act shall be allowed until the expiration of six months from the date of
the passage of this Act.
See. 56. That the three preceding sections shall be held to authorize only
one entry by the same person or association of persons; and no association of
person, 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 therof; and no member of any
association which shall have taken the benefit of such section shall enter or
hold any other lands under their provisions; and all persons claiming under
section fifty-four 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 entry
by any other qualified applicant.
See. 57. That in case of conflicting claims upon coal lands where the im-
provements shall be commenced after the date of the passage of this Act,
priority of possession and improvement, followed by proper filing and continued
good faith, shall determine the preference right to purchase. And also where
improvements have already been made prior to the passage of this Act, division
of the land claimed may be made by legal subdivisions, which shall conform
as nearly as practicable with the subdivisions of land provided for in this Act,
to include as near as may be the valuable improvements of the respective
parties. The Government of the Philippine Islands is authorized to issue all
needful rules and regulations for carrying into effect the provisions of this and
preceding sections relating to mineral lands.
Sec. 58. (As amended by act of Congress approved February 6, 1905.) That
whenever it shall be made to appear to the secretary of any province or the
commander of any military department in the Philippine Islands that any
lands within the province are saline in character, it shall be the duty of said
provincial secretary or commander, under the regulations of the Government
of the Philippine Islands, to take testimony in reference to such lands, to
ascertain their true character, and to report the same to the Secretary of the
Interior for the Philippine Islands; and if upon such testimony the Secretary
of the Interior shall find that such lands are saline and incapable of being pur-
~
PHILIPPINE MINING LAWS. 651
chased under any of the laws relative to the public domain, then and in such
case said lands shall be offered for sale at the office of the provincial secretary
or such other officer as by the said Government may be described as mining
recorder of the province or department in which the same shall be situated, as
the case may be, under such regulations as may be prescribed by said Govern-
ment, and sold to the highest bidder for cash at a price of not less than six
pesos per hectare; and in case such lands fail to sell when so offered, then the
same shall be subject to private sale at such office, for cash, at a price not less
than six pesos per hectare, in the same manner as other lands in the said
Islands are sold. All executive proclamations relating to the sales of public
saline lands shall be published in only two newspapers, one printed in the Hng-
lish language and one in the Spanish language, at Manila, which shall be
designated by said Secretary of the Interior.
Sec. 59. That no Act granting lands to provinces, districts, or municipalities
to aid in the construction of roads, or for other public purposes, shall be so
construed as to embrace mineral lands, which, in all cases, are reserved exclu-
Sively, unless otherwise specially provided in the act or acts making the grant.
Sec. 60. That nothing in this Act shall be construed to affect the rights of
any person, partnership, or corporation having a valid, perfected mining con-
cession granted prior to April eleventh, eighteen hundred and ninety-nine, but
all such concessions shall be conducted under the provisions of the law in force
at the time they were granted, subject at all times to cancellation by reason
of illegality in the procedure by which they were obtained, or for failure to
comply with the conditions prescribed as requisite to their retention in the
laws under which they were granted: Provided, That the owner or owners of
every such concession shall cause the corners made by its boundaries to be
distinctly marked with permanent monuments within six months after this
Act has been promulgated in the Philippine Islands, and that any concessions
the boundaries of which are not so marked within this period shall be free
and open to explorations and purchase under the provisions of this Act.
Sec. 61. That mining rights on public lands in the Philippine Islands shall,
after the passage of this Act, be acquired only in accordance with its provi-
sions.
Sec. 62. That all proceedings for the cancellation of perfected Spanish con-
cessions shall be conducted in the courts of the Philippine Islands having
jurisdiction of the subject-matter and of the parties, unless the United States
Philippine Commission, or its successors, shall create special tribunals for the
determination of such controversies.
* * * * * * * * * * * *
ACTS OF PHILIPPINE COMMISSION.
[No. 624.]
An Act prescribing regulations governing the location and manner of record-
ing mining claims, and the amount of work necessary to hold possession
of a mining claim, under the provisions of the Act of Congress approved
July first, nineteen hundred and two, entitled ‘An Act temporarily to
provide for the administration of the affairs of civil government in the
Philippine Islands, and for other purposes.”
By authority of the United States, be it enacted by the Philippine Commis-
sion, that:
Section 1. The term mineral claim as used in these regulations shall be
understood to mean lode claim, and the term mining claim shall be understood
652 APPENDIX F.
to include both lode and placer claims. A placer claim shall be understood to
mean a claim of land more valuable for placer mining, stone quarrying, or for
the securing of earth for use in tile, brick, pottery, paint, or other manufac-
ture, or of petroleum, guano, or other mineral product, than for other purposes.
The rules and regulations for the securing of claims so defined as placer claims
shall be as for placer claims as mentioned in this act.
Sec. 2. Until other officers may be designated by the Government of the
Philippine Islands as mining recorders, the provincial secretaries shall act as
such in their respective provinces. In provinces or districts where civil gov-
ernment has not been established such military officers as may be designated
for that purpose by the commanding general, Division of the Philippines, shall
act as mining recorders.
Sec. 3. (As amended by Acts Nos. 777 and 1134.) All declarations and
affidavits regarding mining claims, and all other documents and instruments
in writing, of whatever character or nature, alienating, mortgaging, leasing,
or otherwise affecting the possession of mining claims or any right or title
thereto or interest therein, shall be recorded in the order in which they are
filed for record, and from and after such filing for record all declarations and
affidavits regarding mining claims, and all documents and instruments in writ-
ing, of whatever kind or nature, alienating, mortgaging, leasing, or otherwise
affecting the possession of mining claims or any right or title thereto or inter-
est therein shall constitute notice to all persons and to the whole world of the
eontents of said declarations, affidavits, documents, and written instruments
and of the legal effect thereof, and under no circumstances shall any departure
be made from that course.
The form of declaration of location of a mineral claim shall be as follows:
Declaration of Location,
The undersigned hereby declares and gives notice that, having complied with
the provisions of the act of Congress approved July 1, 1902, relative to the
location of mining claims, he has located ...... linear feet on a lode of
mineral-bearing rock, situate in the barrio of .......... -., Witbin the
jurisdictional limits of the municipality of ......, province of ......, district
of ......, island of ...... » Ps I.
That the name of the above location is the ...... mineral claim, and that
, the same was located by him on the ...... day of ......, A. D. 190...
That there is written on post No. 1 (here insert an exact copy of what is
inscribed on post No. 1); and upon post No, 2 (here insert an exact copy of
what is inscribed on post No. 2).
That the said claim is situate (here state as accurately as possible, prefer-
ably by course and distance, the position of the claim with reference to some
natural object or permanent monument).
, Crees tenees sepene vang LOCAIOL
Witness: :
Witness:
Sec. 4. The mining recorder shall note on each instrument filed for record
the year, month, and day, and the hour and minute of the day on which the
PHILIPPINE MINING LAWS 653
same was so filed, and after it has been recorded he shall indorse on the back
thereof a certificate in the following form:
Office of the Mining Recorder.
District of
Province of
seeeeeeeteteneeeesetieaceeed jeeseeteseeeteeeeteeeecetes
190...
as ie caveile we loeeneyalg ueIeeve awe t 4
The within instrument was filed for record in this office at ..... . o'clock
BOA. « ce asis Minutes +24 ews m., on the ...... day of ...... , A. D. 190.., and
has been recorded in Book ...... of Records of Mining Claims, at page .......
eecccecccvccceceeeee, Mining Recorder.
Sec. 5. (As amended by Acts Nos. 859 and 1399.) There shall be paid to
the provincial treasurer, or in the Moro province to the district treasurer of
the proper district, a fee of two Philippine pesos for each declaration of loca-
tion of a mining claim and for each affidavit accompanying such declaration,
and for each document or instrument in writing, of whatever character or na-
ture, alienating, mortgaging, leasing, or otherwise affecting the possession of
mining claims or any right or title thereto or interest therein, filed for record,
and on the presentation of the receipt of the provincial or district treasurer
the said declaration, affidavit, or other document or instrument in writing shall
be recorded by the mining recorder, provided all requirements of the law be-
tore recording shall have been complied with. These fees shall be accounted
for as other collections of the officers receiving them, and deposited for the
credit of the proper province or district, in accordance with section six of act
numbered six hundred and twenty-four.
Sec. 6. The fees collected by authority of the preceding section shall be
turned into the treasury of the province in which the mining claim for the
recording of which said fees may be paid is situate, or in provinces or districts
where civil government has not been established into the office of the Collector
of Internal Revenue.
Sec. 7. The books necessary for the recording of mining claims shall be
provided by the provincial authorities of the respective provinces, or in prov-
inces or districts where civil government has not been established, by the Chief
of the Bureau of Public Lands.
Sec. 8. In addition to the requirements of sections twenty-three and twenty-
four of the Act of Congress approved July first, nineteen hundred and two, in
regard to placing posts numbers one and two on the line of location, and
marking the line between them, each locator of a mineral claim shall establish
each of the four corners of the claim by marking a standing tree or rock in
place, or by setting in the ground, where practicable, a post or stone. Bach
corner shall be distinctly marked to indicate that it is the northeast, southeast,
southwest, or other corner, as the case may be, of the claim in question; and
the posts or stones used to mark such corners shall be of the dimensions re-
quired by these regulations for posts and stones marking corners or angles of a
placer claim.
See. 9. The locator of a placer claim shall post upon the same a notice con-
taining the name of the claim, desiguating it as a placer claim, the name of
each locator, the date of the location, and the number of hectares claimed. He
shall also define the boundaries of the claim by marking a standing tree or
rock in place, or by setting a post or stone at each corner or angle of the claim.
When a post is used it must be at least five inches in diameter or four inches
654 APPENDIX F.
on each side by four feet six inches in length, and, where practicable, set one
foot in the ground and surrounded by a mound of earth or stone four feet in
diameter by two feet in height. When a stone, not a rock in place, is used, it
must be not less than six inches on each side by two and one-half feet in
length, and must be set so as to project half its length above the ground.
Where a stone, a rock in place, is used, a cross must be cut in the stone, the
arms of which cross must be at least four inches long, intersecting, approxi-
mately, at right angles and in their centers, the cutting to be at least one-half
inch deep. The intersection of the arms shall constitute the corner. Each tree,
rock in place, stake, or stone used to designate a corner or angle of a placer
claim must be so marked as to clearly indicate its purpose, and the objects
selected to designate the corners of a claim shall be marked with a series of
consecutive numbers, thus: “Cor. No. 1,” “Cor. No. 2.” ‘Cor. No. 3,’ and so
forth: Provided, That nothing in this section shall be understood to require
the establishment and marking of any corner or angle of a placer claim
located upon surveyed public lands at a point where a corner of the Philip-
pine system of public-land surveys has previously been established, in which
case it shall suffice in describing said claim for record to correctly describe
said corner of the public surveys, and to state that such corner stands for
corner number one, corner number two, or corner number three, and so forth,
as the case may be, of such placer claim.
Sec. 10. Within thirty days after the location thereof every locator of a
placer claim shall record the same with the mining recorder of the province
or district in which the claim is situate.
Sec. 11. The record of a placer claim shall consist of a declaration of loca-
tion reciting all the facts necessary to a perfect identification of the claim, and
shall contain a true copy of the notice posted thereon at the date of location,
as well as a description of the claim as staked and monumented, showing the
length and approximate compass bearing, as near aS may be, of each side or
course thereof, and stating in what manner the respective corners are marked,
whether by a standing tree, rock in place, post, or stone, and giving in de-
tail the distinguishing marks that are written or cut on each, and also stat-
ing as accurately as possible, preferably by course and distance, the position of
the claim with reference to some prominent natural object or permanent monu-
ment.
Sec. 12. No placer claim shall be recorded unless the declaration of loca-
tion be accompanied by an affidavit made by the applicant or some person on
his behalf cognizant of the facts, that the notice required by section nine of
these regulations has been posted upon the claim, and that the ground thereby
embraced is valuable for placer mining purposes; that the ground applied for
is unoccupied by any other person.
Sec. 18. No mining claim shall be recorded unless the declaration be accom-
panied by proof that the locator, or each of them in case there be no more
than one, is a citizen of the United States of America or of the Philippine Is-
lands. The proof of citizenship required by this section may be that set forth
in section thirty-five of the Act of Congress approved July first, nineteen hun-
dred and two.
Sec. 14. If at any time the locator of any mining claim heretofore or here-
after located, or his assigns, shall apprehend that his original notice or decla-
ration was defective, erroneous, or that the requirements of the law had not
been complied with before recording, or shall be desirous of changing his
PHILIPPINE MINING LAWS. 655
boundaries so as to include ground not embraced by the location as originally
made and recorded, or in case the original declaration of location was made
prior to the promulgation of these regulations, and the locator or his assigns
shall desire to conform the location and declaration hereto, such locator or his
assigns may file an amended declaration of location in accordance with the
provisions of the Act of Congress of July first, nineteen hundred and two, and
these regulations, with the mining recorder of the province or district in which
such claim is situate: Provided, That such amended declaration of location
does not interfere at the date of its filing for record with the existing rights
of any person or persons, and no such amended location or the record thereof
shall preclude the locator or his assigns from proving any such title as he or
they may have held under the original location.
Sec. 15. Within sixty days after the expiration of the period fixed by law
for the annual performance of the labor or the making of improvements upon
a mining claim, the locator thereof, or some person on his behalf cognizant of
the facts, shall make and file for record with the mining recorder of the prov-
i or district in which the claim is situate an affidavit in substance as fol-
ows:
Affidavit of Annual Assessment Work.
Philippine Islands.
Province of
District of
Dee REGEES , being first duly sworn, deposes and says that he is a citizen of
the United States of America (or of the Phillippine Islands, as the case may be)
and more than twenty-one years of age; that he resides in.............-0005
Sante ret of | saa , P. I., and is personally acquainted with the mining claim
known as the ...... (lode or placer) claim, situate in the barrio of ...... 3
Province of ...... 9 ASO OF 2o0s4 , P. I., the declaration of location of which
is recorded in the office of the mining recorder of said province (or district),
in Book ...... of Record of Mining Claims, at page ...... ; that between
the: vsseaiecs EY OL) x iciseieis , 190.., and the ...... day of ......, 190.., not less
TOA: oo ons ox dollars’ worth of labor was performed or improvements made up-
on said claim, not including the work done prior to the date of recording the
same. Such work was done or improvements made by and at the expense of
ee ree , the owner of said claim, for the purpose of complying with the laws
of the United States relating to annual assessment work, and ...... (here
name the miners or other persons who did the work) were the persons em-
ployed by said owner who did such work or made such improvements, and
that said work or improvements consisted of and are described as follows, to
wit: ...... (here describe the work done).
(Signature). .......ccece ees eae
Subscribed and sworn to before me THIS! siccces GAY OF cocrorscape 190...
(Signature of officer who administers oath.)
Such affidavit, when recorded, shall be prima facie evidence of the perform-
ance of such labor or the making of such improvements, and shall be received
in evidence by all courts in the Philippine Islands, as shall also the record
thereof or a certified copy of the same.
Sec. 16. Actual expenditures and cost of mining improvements by the claim-
ant or his grantors, having a direct relation to the development of the claim,
656 APPENDIX F.
shall be included in the estimate of assessment work. The expenditures may
be made from the surface, or in running a tunnel, drifts, or cross-cuts for the
development of the claim. Improvements of any other character, such as build-
ings, machinery, or roadways, must be excluded from the estimate unless it is
clearly shown that they are associated with actual excavations, such as cuts,
tunnels, shafts, and so forth, are essential to the practical development of and
actually facilitate the extraction of mineral from the claim.
Sec. 17. The public good requiring the speedy enactment of this bill, the
passage of the same is hereby expedited in accordance with section two of “An
Act prescribing the order of procedure by the Commission in the enactment of
laws,” passed September twenty-sixth, nineteen hundred,
Sec. 18. This Act shall take effect on its passage.
Enacted, February 7, 19038.
[No. 1,128.]
An Act prescribing regulations governing the procedure for acquiring title to
public coal lands in the Philippine Islands, under the provisions of sec-
tions fifty-three, fifty-four, fifty-five, fifty-six, and fifty-seven of the Act of
Congress approved July first, nineteen hundred and two, entitled “An Act
temporarily to provide for the administration of the affairs of civil gov-
ernment in the Philippine Islands, and for other purposes.”
By authority of the United States, be it enacted by the Philippine Commis-
sion that:
Section 1. Any person above the age of twenty-one years, who is a citizen
of the United States or of the Philippine Islands, or who has acquired the
rights of a native of said Islands under and by virtue of the Treaty of Paris,
or any association of persons severally qualified as above, may purchase any
unreserved, unappropriated public land which is chiefly valuable for coal by
proceeding as hereinafter directed: Provided, Taat no individual person shall
be entitled to purchase more than sixty-four hectares and no association more
than one hundred and twenty-eight hectares: And provided further, That
this Act shall be held to authorize but one entry by the same person or as-
sociation of persons, and no association of persons, any member of which
shall have taken the benefit of this Act, either as an individual or as a mem-
ber of any other association, shall enter or hold any other lands under the
provisions hereof, and no member of any association which shall have taken
the benefit of this Act shall enter or hold any other lands under the provisions
hereof: And provided further, That such lands, if previously surveyed by the
Government, shall be taken by legal subdivisions, but if unsurveyed shall be
taken, wherever possible, in the form of squares which shall contain at least
sixteen hectares each.
Sec. 2. A coal claim may be initiated either by filing a declaration of loca-
tion with the mining recorder of the province in which the land is located, or
by actually taking possession of the land and making improvements thereon:
Provided, however, That where claims are initiated by occupation, a proper
declaration of location must be filed with the mining recorder within sixty
days after the date of actual possession and commencement of improvements.
Sec. 3. The declaration of location above mentioned must be executed under
oath, and must describe the land occupied in as definite a manner as practica-
ble, and must contain all necessary allegations to show that applicant has the
qualifications required under section one of this Act, and that the land is of
PHILIPPINE MINING LAWS. 657
the character therein mentioned. In case a right to purchase is based on prior
occupation and improvement, that fact must be set out, and the date of occupa-
tion and amount of improvements stated.
Sec. 4. It shall be the duty of the mining recorder to record declarations of
locations of coal clainis in the sume manuer that declarations of locations of
mining claims are recorded; and for such services he shall require the pay-
ment of a fee of two pesos, Philippine currency, which shall be paid to the
provincial or district treasurer as provided in section five of Act numbered
Six hundred and twenty-four as amended by Act numbered Hight hundred and
fifty-nine.
Sec. 5. All declarations of locations shall be recorded in the order in which
they are filed for record, and the mining recorder shall note on each instru-
ment filed for record the year, month, and day, and the hour and minute of
the day on which the same was filed. After recording the declaration, the min-
ing recorder shall make a true copy of the same and without delay forward it
to the Chief of the Bureau of Public Lands.
Sec. 6. All persons seeking to acquire public lands under the provisions of
this Act must prove their respective rights and pay for the land filed upon
within one year from the time prescribed for filing their claims, and they shall
not take from the land and sell any coal prior to obtaining a patent. ;
See. 7. A patent for land claimed and located for valuable coal deposits
may be obtained in the following manner: Any person or association authoriz-
ed to locate a coal claim under this Act having claimed and located a piece of
land for such purposes, who or which has complied with the terms of this Act,
shall file with the Chief of the Bureau of Public Lands an application for a
patent, under oath, showing such compliance, together with a plat and field
notes of the claim made by or under the direction of the Chief of the Bureau
of Public Lands, and at applicant’s expense, showing accurately the boundaries
of the claim, which shall be distinctly marked by monuments on the ground,
and shall post a copy of such plat, together with a notice of such application
for a patent, in a conspicuous place on the land described 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 plat and notice have been duly posted. Upon the
filing of said application, plat, field notes, notices, and affidavits it shall be the
duty of the Chief of the Bureau of Public Lands to publish once a week a
notice that such application has been made, for the period of nine consecutive
weeks, in a newspaper to be by him designated; also to post a copy of the ap-
plication in his office, and to require such further publication as he, with the
approval of the Secretary of the Interior, may deem advisable. At the expira-
tion of the period 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 in
the Bureau of Public Lands during the said period of publication, it shall be
assumed that the applicant is entitled to a patent, upon payment to the Chief
of the Bureau of Public Lands of fifty pesos per hectare where the land shall
be situated more than fifteen miles from any completed railroad, available
harbor, or navigable stream, and one hundred pesos per hectare for such lands
as shall be within fifteen miles of such road, harbor, or stream, and that no
adverse claim exists: Provided, That where the claimant for a patent is not
a resident of or within the province wherein the land sought to be purchased
is located, the application for patent and the affidavits required to be made in
Cost.M1n.L.—_42
658 APPENDIX F.
this section by the claimant for such patent may be made by his, her, or its au-
thorized agent, where said agent is conversant with the facts sought to be es-
tablished by said affidavits.
Sec. 8. 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 there-
of, 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 com-
mence proceedings in a court of competent jurisdiction to determine the ques-
tion of the right of possession, and prosecute the same with reasonable dili-
gence 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 Chief of the Bureau
of Public Lands, who, in case the conditions of section seven of this Act have
been complied with, shall issue to the claimant a patent for such land as by the
decision of the court he appears to be entitled to.
‘See. 9. All patents for lands disposed of under this Act shall be prepared
in the Bureau of Public Lands and shall issue in the name of the United
States and the Philippine Government under the signature of the Civil Gov-
ernor; but such patents shall be effective only for the purposes defined in sec-
tion one hundred and twenty-two of the Land Registration Act, and the actual
conveyance of the land shall be effected only as provided in said section.
Sec. 10. The Chief of the Bureau of Public Lands, under the supervision of
the Secretary of the Interior, shall prepare and issue such forms and instruc-
tiens consistent with this Act as may be necessary and proper to carry its
provisions into effect, and for the conduct of all proceedings arising hereunder.
Sec. 11. The public good requiring the speedy enactment of this bill, the
passage of the same is hereby expedited in accordance with section two of
“An Act prescribing the order of procedure by the Commission in the enact-
ment of laws,” passed September twenty-six, nineteen hundred.
Sec. 12. This Act shall take effect on its passage.
Enacted, April 28, 1904.
INSTRUCTIONS AND Forms.
Under the authority conferred by section 10, supra, the following instructions
and forms are issued:
1. Land which may be purchased.—Any unclaimed public land containing
valuable deposits of coal is subject to sale under the provisions of this Act.
Prospective purchasers will be required to show by affidavit that the land
sought to be purchased contains such valuable deposits.
2. Who may purchase.—The following-described persons are entitled un-
der the law to purchase public coal land:
(a) Citizens of the United States over the age of twenty-one years.
(b) Natives of the Philippine Islands or persons who have acquired the
rights of natives by virtue of the treaty of Paris of December tenth, eighteen
hundred and ninety-eight, and who are over the age of twenty-one years.
(c) Associations of persons the members of which are severally qualified as
above.
PHILIPPINE MINING LAWS. 659
3. Amount that may be purchased.—An individual may purchase any
amount not exceeding sixty-four hectares. An association is limited to one
hundred and twenty-eight hectares. A purchaser is entitled to make but one
purchase of the maximum amount allowed.
4. Form in which land must be taken.—Where the land sought to be
purchased has been previously surveyed under a regular governmental system
of surveys dividing the territory into subdivisions, purchase must be made by
such subdivisions. But where the land is unsurveyed, it must be taken when
possible in squares which shall contain not less than sixteen hectares, but may
contain any quantity in excess of sixteen hectares to the amount the purchaser
is entitled to purchase.
5. Manner of locating a coal claim.—Any person qualified to purchase
public coal land may initiate a claim to any particular tract by taking posses-
sion of same and within sixty days thereafter filing a declaration of location
thereof with the secretary of the province in which the land is located. This
declaration of location must be executed under oath and must give as definite
a description of the land as it is possible to state without making a survey.
(Form No. 1 should be used.)
In locating a claim locators should exercise great care in marking the cor-
ners of same, and should describe the corners with reference to some promi-
nent natural object or landmark—as a tree or rock on the claim—that is, give
the approximate direction and distance of each corner from said landmark.
Declarations of location of coal claims are recorded in the same manner as
like notices for other mining claims, and the same fees are charged. (See Act
No. 624.)
The mining recorder will as soon as possible after recording a declaration of
location of a coal claim forward a copy of same to the Chief of the Bureau of
Public Lands. :
6. Manner of acquiring title.—An application to purchase coal land must
be filed with the Chief of the Bureau of Public Lands within one year from
the date of filing a declaration of location therefor with the mining recorder.
The first step in the procedure for acquiring title is the filing with the Chief
of the Bureau of Public Lands of an application for survey of the land.
(Form No. 2 should be used in making this application.) The survey is made
under the directions of the Chief of the Bureau of Public Lands, at applicant’s
expense. The Government will take no action on an application for survey
until the estimated cost of making same is deposited with the Chief of the
Bureau of Public Lands.
After a claim has been properly surveyed and claimant has received a plat
thereof and the field notes of survey, he should file his application for a patent
(using form No. 3), together with a copy of the plat and field notes of survey,
with the Chief of the Bureau of Public Lands. On the same date as that of
his application for a patent claimant should post in a conspicuous place on
the claim a notice of his application for a patent (using form No. 4), together
with a copy of the plat of the claim, and should forward to the Chief of the
Bureau of Public Lands an affidavit executed by two disinterested persons
showing that said notice and plat have been posted. (Form No. 5 should be
used in executing this affidavit.)
At the expiration of nine weeks from the date of posting said notice and
plat, the applicant will file another affidavit with the Chief of the Bureau of
Public Lands showing that said notice and plat have been posted on the claim
660 APPENDIX F.
for a period of nine weeks. (Form No. 6 should be used in executing this
affidavit.)
Where the claimant for a patent is not a resident of or within the province
wherein the land sought to be purchased is located, the application for patent
and the affidavits required to be made 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 established by said affidavits.
The Chief of the Bureau of Public Lands will cause a notice to be published
in the newspapers in which official notices are published, calling attention to
each application for a patent, and will cause a like notice to be posted in the
office of the secretary of the province in which the land is located. Said no-
tices will be published for a period of nine weeks.
%. Walue of coal lands.—The price per hectare is fifty pesos, Philippine
currency, where the land is situated more than fifteen miles from any com-
pleted railroad, available harbor, or navigable stream, and one bundred pesos,
Philippine currency, per hectare where the land is within fifteen miles of such
railroad, harbor, or stream. Purchasers will be required to deposit the pur-
chase price with the Chief of the Bureau of Public Lands at the time of filing
the application to purchase.
8. Adverse claims.—Any person claiming an interest in land adverse to
the interest sought to be acquired by an applicant for a patent thereto, must
file a notice of such claim with the Chief of the Bureau of Public Lands prior
to the expiration of the period of publication of the notice of application for
patent above mentioned. And such person must, furthermore, within thirty
days after filing said notice with the Chief of the Bureau of Public Lands,
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 will constitute a waiver of
said adverse claim. (See sec. 8, Act No. 1128.)
9. Prospecting.—The land may be thoroughly prospected and coal neces-
sary for tests may be removed for that purpose, but none may be sold or used
commercially prior to issuance of patent.
10. Timber.—A gratuitous license to cut and use timber for mining pur-
poses may be had on application to the Bureau of Forestry. Said license will
be limited to the claim on which the timber is cut. (See sec. 17, Act No. 1148.)
Manila, P. I., June 10, 1904.
P. S. Black,
Acting Chief Bureau of Public Lands.
Approved August 22, 1904:
Dean C. Worcester, Secretary of the Interior.
Forms for Use in Proceedings to Aquire Title to Public Coal Lands.
Form No. 1.
Declaration of Location of Coal Claim.
The undersigned hereby declares and gives notice that under the provisions
of Act No. 1128, Philippine Commission, ...... has located a coal claim in the
barrio of ......, municipality of ......, province of ......, the boundaries of
PHILIPPINE MINING LAWS. 66L
which are more particularly described as follows, to wit: (Here give as defi-
nite a description as possible of the boundaries of the claim, having reference
to monuments erected on the ground.) And ...... further declares that
acanewe = is over the age of twenty-one years and is a citizen of the United States
(or of the Philippine Islands) and has never held nor purchased any land un-
der the provisions of said Act, either as an individual or as a member of an
association; that said land is unoccupied by any other person, and contains
valuable deposits of coal, and that ...... took possession of the same on the
seoees Gay Of ......, A. D. 19.., and has made improvements consisting of
(Signed) sujoee Beals eaewew sip LOCAtOr:
(Post-office)..... cece eeeee
Subscribed and sworn to before me this ...... day of ......, 19...
(Signature of official).............. wicca arene’
(Official title.)
Notice.—Where a claim is located by an association, it will be necessary for
the locator to show that the several members of the association are each quali-
fied to make a location.
Form No. 2.
Application for Survey of Coal Claim.
eee eeccccccecsensaces 1D. s0
To the Chief of the Bureau of Public Lands, Manila, P. I.
Sir: In compliance with section 7, Act No. 1128, Philippine Commission, I
hereby make application for an official survey of a coal claim located by’
oxovetecave in the barrio of ......, municipality of ......, province of ......,-
and request that you will send me an estimate of the amount to be deposited’
in payment therefor, and after such deposit shall have been made, you will
cause the said claim to be surveyed.
Respectfully, avesations, + © arsra ews sepals weer
Form No. 3.
Application for Patent for Coal Land.
To the Chief of the Bureau of Public Lands, Manila, P. I.
Sint Ty seca , hereby apply, under the provisions of Act No. 1128, Philip~
pine Commission, an act relating to the sale of public coal lands in the Phil-
ippine Islands, to purchase ...... hectares of coal land located in the barrio:
Of sresne » municipality of ...... , province of ......, and more particularly”
described as follows, to wit: (Here give full description.) Which descriptiom
is set forth in the official field notes of survey of said tract hereto attached,
dated ...... , and the official plat of survey, a copy of which is filed herewith;
there is hereby tendered ...... pesos in payment for said land; and I solemn-
ly swear that I am over the age of twenty-one years, a citizen of the United
States (or of the Philippine Islands), 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 de-
scribed land, having frequently passed over same; that my knowledge of said
land is such as to enable me to testify understandingly with regard thereto;
that no portion of said land is in the possession or occupation of-any other per-
662 APPENDIX F.
son, and that it contains valuable deposits of coal and is chiefly valuable there-
for; that I located said land as a coal claim on the ...... day of ...... sian aresiey
and filed my notice of location with the mining recorder of the province of
nesta on the ...... day of .....6, eecee
(Signed) ee ae Snapegs @ 6eleieierats
(Address).........--008.-
: (Date) is cacevecce. ces
Subscribed and sworn to before me this ...... day of ...... , A.D. 19..
(Signature of official).........-.. ce eewee ;
(Official title.)
N. B.—Where the applicant for a patent is an association, evidence must be
submitted showing that the members of the same are severally qualified to
* purchase.
Form No. 4.
Notice of Application for Patent for Coal Land.
Notice is hereby given that in pursuance of the provisions of Act No. 1128,
Philippine Commission, ...... has located a coal claim in the barrio of ...... ’
municipality of ...... , province of ...... , and has made application for a
patent for said 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 Bureau of Public Lands, which field notes of survey describe
the boundaries and extent of said claim on the surface as follows, to wit:
(Here give full description.)
Any and all persons claiming adversely the said described land, or any
portion thereof, are hereby notified that unless their adverse claims are duly
filed according to law within nine weeks from the date hereof with the Chief
of the Bureau of Public Lands at Manila, P. I., said claims will not be con-
sidered by the Government.
(Name of claimant)........... VeNwes Seay
(Post-office)....... cece en aes
Dated on the ground this ...... day of ......, A. D. 19...
Form No. 5.
Proof of Posting Notice and Plat on Coal Claim,
Province of ......, Municipality of .......
veees. and ......, each for himself, and not one for the other, being first
duly sworn according to law, deposes and says, that he is over the age of
twenty-one years, and was present on the ...... day of ...... , A. D., 19..,
when a plat representing the ...... coal claim, and certified to as correct by
the Chief of the Bureau of Public Lands, and designated by him as Coal] Claim
INO) aaa , together with a notice of the intention of ...... to apply for a
patent for said claim and premises so platted, was posted in a conspicuous
place upon said claim, to wit: Upona...... , where the same could be easily
seen and examined; the notice so conspicuously posted upon said claim being
in words and figures as follows, to wit:
Notice of Application for Patent for Coal Land.
Notice is hereby given that in pursuance of the provisions of Act No. 1,128,
Philippine Commission, ...... has located a coal claim in the barrio of ...... ,
municipality of ...... , province of ...... , and has made application for a
PHILIPPINE MINING LAWS. 6638
patent for said 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 Bureau of Public Lands, which field notes of survey describe the
boundaries and extent of said claim on the surface as follows, to wit: (Here
give full description.)
Any and all persons claiming adversely the said described land or any por-
tion thereof so described, are hereby notified that unless their adverse claims
are duly filed according to law within nine weeks from the date hereof with
the Chief of the Bureau of Public Lands at Manila, P. I., said claim will not
be considered by the Government.
(Name of claimant)......... aicisaeealetetsdiatny
(Post Office)... ....ceeeeeeee
Dated on the ground this ...... day of ......, A. D., 19...
Witness:
fet de aes
sceinniees oe
aioe ted SS
Mesut 8
Subscribed and sworn to before me, this ...... day of ......, A. D., 19...
(Signature of official)........... 0.0 eee eee
(Official title.)
Form No. 6.
Proof that Plat and Notice Remained Posted on Claim During Period of
Publication.
sie eS , aresident of the town of ......, province of ......, deposes and says
that he is over the age of twenty-one years, and that he is acquainted with
the coal claim of ......, particularly described as follows, to wit: ...... :
that the official plat of such claim, designated as such by the Chief of the
Bureau of Public Lands, together with a notice of intention to apply for a
patent therefor, was posted thereon on the ...... day of ......, A. D. 19..,
as fully set forth and described in the affidavit of ...... and, wcswseas , dated
ThE: civevie day of ...... , A. D. 19.., which affidavit was duly filed in the
Bureau of Public Lands at Manila, P. I.; and that the plat and notice so
mentioned and described remained continuously and conspicuously posted
upon said coal claim from the ...... day of ...... , A. D. 19.., to the
oeihacaverd day of ......, A. D. 19.., including the nine weeks’ period during
which notice of said application for patent was published in the newspaper.
Subscribed and sworn to before me this ...... day of ......, A. D. 19...
(Signature of official).....................
(Official title.)
APPENDIX G.
THE MINING LAWS OF TEXAS.
Two mining acts have been passed by the Legislature, one in 1889 and
the other in 1895. The Revised Statutes of 1895 contain both of these acts
and they are given in the following pages. For the most part the Texas min-
ing laws follow the United States mining laws, but there are divergencies
of greater or less importance.
MINES AND MINING.
Schools lands reserved, except, etc.
Art. 38481. All the public school, university, asylum and public lands con-
taining valuable mineral deposits are hereby reserved from sale or other
disposition, except as herein provided, and are declared free and open to
exploration and purchase under regulations prescribed by law by citizens of
the United States and those who have declared their intention of becoming
such. . [Acts of 1889, p. 116, § 1.]
To be classified.
Art. 3482. It shall be the duty of the commissioner of the general land
office to have a map made showing the location of all public school, univer-
sity, asylum and public lands which are unsold; and it shall be the duty of the
geological and mineralogical survey to examine all such lands as soon as
practicable, and to designate such tracts as are apparently mineral bearing
as mineral lands for the purpose of this title. If mineral lands are after-
wards claimed to exist at other locations than are so designated, they shall
also be examined and classified accordingly. [Ib., § 2.]
Mining districts.
Art. 3483. It shall be the duty of the commissioner of the general land
office to unite a suitable number of these mineral locations into mining dis-
tricts, in each of which shall be a surveyor who must either be the surveyor
of the district or county or a regularly appointed deputy, and an officer quali-
fied to administer oaths. [Ib., § 3.]
Extent of claims.
Art. 3484. A mining claim upon veins or lodes of quartz or other rocks
in places bearing silver, cinnabar, lead, tin, copper or other valuable metals,
excluding deposits of iron ore, coal, kaolin, baryta, salt, marble, fire clays,
valuable building stones, oil or natural gas, may equal but shall not exceed
one thousand five hundred feet along the vein or lode. No such claim shall
exceed twenty-one acres in total area. The end lines of each claim shall
be parallel to each other, and all claims shall be in the form of a parallelo-
(664)
TEXAS MINING LAWS. 665
gram or square unless such form is prevented by adjoining rights or bounda-
ries of the section in which the claim lies. The locator under this title shall
be entitled to the use of all the superficial area between the enclosing lines
of the claim, and to all minerals thereon and between the side and end
lines extending downward vertically until the rights secured by posting are
forfeited as provided, and in all conflicts priority of location shall decide.
[Ib., § 4.]
Notice to bé posted by locator.
Art. 3485. The locators of any mining claim shall post up at the center of
one of the end lines of the same a written notice, stating the name of the
locator and of the claim, and the date of posting, and describe the claim by
giving the number of feet in length and width, and the direction the claim
lies in length from the notice, together with the section, if known, and the
county; and shall place stone monuments at the four corners, and other-
wise described corners so that they can be readily found. The notice shall
be placed in a conspicuous place so as to be readily seen. [Ib., § 5.]
Preliminaries to application.
Art. 3486. The locators shall, within three months after the date of posting
the required notice, sink a shaft at least ten feet in depth by four feet square,
or a tunnel of the same dimensions ten feet in length, or an open cross cut
twenty feet in length, four feet or more wide and ten feet in depth at its shal-
lowest part, and shall within said time file with the county surveyor or the dis-
trict surveyor of the county, as the case may be, an application in writing for
the survey of their claim, which application shall be accompanied with a fee of
twenty dollars, unless its tender is waived, and also with an affidavit attached
thereto that the required work, signifying it, has been done, and that the lo-
cators have found valuable mineral on the claim; and the affidavit shall state
the date of the first posting of the notice on the claim by the applicants; and,
further, that the notice has not been post-dated or changed in its date. Upon
receiving said application and fee the surveyor shall record the application, to-
gether with the affidavit, and he shall thereupon forthwith proceed to survey said
claim and forward the field-notes to the commissioner of the general land office
within thirty days after filing the application, in default of which he shall
pay the aggrieved party such damages as he may sustain, and it shall be
the duty of the applicants to see that the field-notes are so returned. The
fee of twenty dollars shall cover all the services provided for in this article.
In all other cases enumerated in this article the fee shall be the same allow-
ed county clerks for similar services. [Ib., § 6.]
How payments to the state to be regulated.
Art. 8487. Annually after the filing of the application for a survey as
herein before provided, the claimant shall, until after application is made for
a patent as herein before provided, do one hundred dollars worth of work in
developing each claim; but where claims adjoin, the amount of work may
be done on one for all belonging to the same party. The value of such shall
be estimated at what it could be contracted for at a fair cash price, but the
cost of tools and implements and the expense of going to and returning from
the mine shall not be included in said estimate. And shall in addition to
this amount of work, annually pay to the treasurer of the state the sum of
fifty dollars on each and every claim filed upon, which amount shall be credit-
ed to the fund to which the Jand belongs upon which the claim is located;
provided, that all amounts so paid shall be a credit upon the final payment
666 APPENDIX @.
for such land provided for in article 3489 of this title. Within one month
after the expiration of each year, the owner shall make and file with the
surveyor his affidavit, setting forth specifically what the work consists of in
detail and the value thereof, and shall also file with the surveyor at the
same time the receipt of the state treasurer for the amount of cash payment
provided for herein or a certified copy thereof. Upon the failure of any one
of several co-owners to contribute his proportion of the expenditures re-
quired in this title within the necessary time, the co-owners who have per-
formed the labor or made the improvements, or paid the fees or other ex-
penditures required in this title, may, at the expiration of the year in which
the same is to be done, give notice in writing or notice by publication in a
newspaper published in the county where the mining is, if any; if none in
such county, then in the newspaper published nearest to the mine, for at
least once a week for ninety days. If after such personal notice in writing
or by publication such delinquent should fail or refuse to contribute his pro-
portion of the expenditure required by this title, his interest in the claim
shall become the property of his co-workers who have made the required
expenditures. An affidavit by the co-owners forfeiting the interest of such
delinquent shall, when recorded in the office of the proper surveyor, be suf-
ficient evidence of such delinquency. [Ib., 7.]
Ownership of lodes in case of tunnel, etc.
Art. 3488. When a tunnel is run for the development of a vein or lode,
or for the discovery of mines, the owner of such tunnel shall have the right
of possession of all veins or lodes within two thousand feet from the face of
such claim, on the line thereof, not previously known to exist, discovered in
such tunnel, to the same extent as if discovered from the surface; and loca-
tions on the line 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 fail-
ure to prosecute the work in the tunnel for six months shall be considered as
an abandonment of the right of all undiscovered veins on the line of said tun-
nel. [Ib., § 8.]
Patents.
Art. 3489. Whenever the owners of any mining claim shall desire a patent,
they shall, within five years after the filing of the application for survey,
file their application for a patent upon their claim with the commissioner of
the general land office, accompanied with the receipt of the state treasurer,
showing that twenty-five dollars per acre has been paid by the applicant for
patent to the state treasurer. No patent shall be issued in any case until
the expiration of sixty days from the filing of the application. Upon filing
said application the applicant shall cause to be published for four successive
weeks, one insertion each week, in some newspaper published in the county
in which the mine is situated, if there be any, if not, then in some newspaper
published in the nearest county to the mine in which a newspaper is publish-
ed, a notice stating the fact that application has been filed for patent on the
claim (or claims), describing them clearly. A copy of the printed notice with
affidavit that it has been published as required by this article, and that all
the requirements of this title have been complied with, shall be filed with
the commissioner of the general land office before the patent shall issue.
After the expiration of thirty days after the last insertion of said notice
patent shall issue unless protest has been filed. [Ib., § 9.]
TEXAS MINING LAWS. ‘ 667
Patents not included in article 3495.
Art. 3490. Any person shall have the right to purchase and obtain patent,
by compliance with this article, on any public school, university, asylum and
public lands, containing valuable deposits of kaolin, baryta, salt, marble, fire
clay, iron ore, coal, oil, natural gas, gypsum, nitrates, mineral paints, as-
bestos, marls, natural cement, clay, onyx, mica, precious stones, and stone
valuable for ornamental purposes, or other valuable building material, in
legal subdivisions in quantity not exceeding one section; provided, that
where any such parties shall have heretofore expended or shall hereafter ex-
pend, five thousand dollars in developing the aforesaid mineral resources of
any of said lands, such parties shall have the right to buy one additional sec-
tion and no more, and to include in the purchase any section, or part thereof,
on which the work may have been done. The lands so purchased may be
in different sections, and all embraced in one or more obligations not to ex-
ceed the quantity stated. The purchaser shall pay not less than fifteen dollars
per acre where the lands shall be situated ten mileg or less of [from] any rail-
road in operation, and not less than ten dollars per acre where the land is over
ten miles from such railroad; one-tenth of the purchase money to be paid in
cash to the state treasurer, and the purchaser shall file the treasurer’s re-
eeipt with the commissioner of the general land office, together with an ob-
ligation to pay the state of Texas the remainder in nine equal annual install-
ments, with interest at six per cent per annum from date, subject to a for-
feiture as in other cases. And all said lands are reserved from sale or other
disposition than under this title; and where application is made to buy any
of the lands herein named, except under this title, the purchaser shall swear
that there are none of the minerals named in this title on said lands, so far
as he knows or has reason to believe, or does believe; provided, further,
that any party herein before named who shall, prior to the passage of this
article have been the first to work on said lands for the development of said
mineral resources, and who has abandoned said work, and is qualified at
passage of this article to buy, shall have a prior preference right of doing
so for thirty days after this article goes into effect; provided, further, this
article, shall not authorize the sale of lands containing valuable deposits of
gold, silver, lead, cinnabar, copper, or other valuable metal. [Ib., § 10
(Amend., 1893, p. 100).]
Contesting issuance of patent.
Art. 3491. Any person desiring to contest the issuance of a patent may
do so by filing with the commissioner of the general land office a protest set-
ting forth the grounds of objection generally, and that protestant has an
interest in the subject-matter, which protest shall also state that the same is
presented in good faith and not to injure or delay the applicants, or any of
them, and the same shall be verified by affidavit; whereupon it shall be the
duty of the commissioner to withhold patent until the controversy is ended ;
provided, that if the protestant shall not, within thirty days after the filing
of his protest, institute suit in the court having jurisdiction thereof in the
county where the claims are located, his protest shall constitute no further
barrier to the issuance of a patent. A certified copy of the petition or a cer-
tificate of the clerk of the court where suit is pending shall be sufficient evi-
dence to the commissioner of the pendency of the suit and of the date of filing
said suit. When the land in controversy lies partly in two counties, suit may
be brought in either. More than one claim shall not be embraced in the same
668 2 APPENDIX G.
patent or application. The suits here provided for shall be entitled to pre-
cedence of trial on the docket. [Ib., § 11.]
Location on land disposed of since April 14, 1883.
Art. 3492. When a location has been made and land disposed of by
the State since the passage of an act for disposition of minerals on the land
embraced in article 8481 of this title, if such location was made subsequent
to the disposition by the state of such lands, and the locator or his assignees
have not abandoned said claim, but are working it in good faith, the locator
and his assignees shall nevertheless be entitled to the mineral and to the use
of the superficial area as in other cases; and if the case is such that the
fee in the land can not pass by patent, a patent may issue to all the min-
erals in the claims, and shall be a license from the state to enter upon and
work said claim and extract the mineral therefrom. In cases provided for
in this article when the fee does not pass, the price shall be twenty dollars
per acre, and the locator or his assignee shall in addition, pay to the owner
of the land in fee the fair value of the land so taken up. by his claim,
and roads and fences necessary to give him ingress and egress thereto, and
be liable for any damages which may result to owner of the land in fee. All
other provisions of this title shall apply to said location. (The act referred
to is the act of 1883, page 4.) [Ib., § 12.]
Forfeiture of claims, etc.
Art. 3498. All claims upon which patent has not been applied for within
five years next after the application for survey, or which have not been sur-
veyed and the field-notes returned to the general land office within the
time prescribed therefor as herein before provided, or upon which the assess-
ment work has not been done, an affidavit therefor filed as provided by this
title, shall be and are declared forfeited without judicial action of any kind
and subject to location as originally, but not by any one interested in the
claim at the time of forfeiture; and any location for or on behalf of any
such party shall be wholly void. Whenever any such claim shall be re-locat-
ed, the locators and each of them shall make affidavit that the location is
made without any contract or agreement of any kind that any of the parties
owning an interest in the location before re-location has or is to have any
interest in the same. In all other cases where affidavit is required by this
title it may be made by one or more of the parties cognizant of the facts.
[Ib., § 13.]
Re-location of forfeited claims.
Art. 3494. No claim which has been forfeited for any cause shall be sub-
ject to re-location for a period of thirty days next thereafter; and the par-
ty owning the same may apply to the land commissioner within that time
for relief, and if it appear to him from the proofs submitted that the for-
feiture was not occasioned by the negligence of the owner, but by circum-
stances which he could not reasonably control, the commissioner may, with-
in that time, in his discretion, grant relief against the forfeiture, and if
he grant such relief he shall at once forward his order to that effect to
the surveyor, who shall file the same for record in his office. [Ib., § 14.]
Reservation of mineral in sale of lands.
Art. 3495. Wéehenever any application shall be made to buy or obtain title to
any of the lands embraced in article 3481 of this title, except where the ap-
plication is made under this title, the applicant shall make oath that there
TEXAS MINING LAWS. 669
is not, to the best of his knowledge and belief, any of the mineral embraced
in this title thereon, and when the commissioner has any doubt in relation
to the matter he shall forbear action until he is satisfied. And any sale or
disposition of said lands shall be understood to be with a reservation of the
mineral thereof to be subject to location as herein provided. [Ib., § 15.]
Placer mining.
Art. 3496. Claims usually called placers, including all forms of metallic
deposits, excepting veins of quartz or rock in place, shall be subject to entry
and patent under like circumstances and conditions, and upon similar pro-
ceedings as are provided for vein or lode claims. All placer claims located
shall conform as near as practicable with existing surveys and their sub-
divisions, and no such location shall include more than forty acres for each
individual claimant, and shall not exceed three hundred and twenty acres
for any association of persons. The price which shall be paid for such
placer shall not be less than ten dollars per acre, together with all costs of
proceedings as before provided. [Ib., § 16.]
What may be included in patent.
Art. 8497. When non-mineral land, not contiguous to the vein or lode, is
used by the prospector of such vein or lode for mining or milling purposes,
such non-adjacent surface ground may be embraced and included in an ap-
plication 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 to veins or lodes; but no location of such non-ad-
jacent lands shall exceed ten acres, and payment for the same must be made
at the same rate as fixed by this title 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 a mill site as provided in this article.
{Ib., § 17.]
Timber—Taking timber on mining lands.
Art. 3498. Any owner or worker of mining claim under this title is au-
thorized to fell and remove for building and mining purposes any timber or
any trees growing or being upon unoccupied lands as described in article
38481, said lands being mineral and subject to entry only as mineral lands,
under such rules and regulations as may be prescribed for the protection of
timber and under-growth upon such lands and for other purposes. [Ib., § 18.]
Reserved lands opened to exploration and purchase, etc.
Art. 3498a. All public school, university, asylum and public lands special-
ly included under the operation of this title, all the lands now owned by the
state situated within the reservation known as the “Pacific Reservation,”
which were taken off the market and reserved from sale by an act approved
January 22, 1883, containing valuable mineral deposits, are hereby reserved
from sale or other disposition, except as herein provided, and are declared
free and open to exploration and purchase under regulations prescribed by
law, by citizens of the United States and those who have declared their in-
tention of becoming such; provided, that all who have located and recorded
valid claims under previous valid laws and have not abandoned same, but
are engaged in developing same, shall have a prior preference right for nine-
ty days after the passage of this title in which to re-locate same under this
title. [Acts 1895, p. 197.]
670 APPENDIX G.
Commissioner to map lands.
Art. 3498b. It shall be the duty of the commissioner of the general land
office immediately upon the passage of this title to have a map made showing
the location of all public school, university, asylum and public lands which
are unsold at that date, and it shall be the duty of the geological and
mineralogical survey to examine all such lands as soon as practicable there-
after, and to designate such tracts as are apparently mineral bearing as min-
eral lands for the purpose of this title. If mineral lands are afterwards
claimed to exist at other locations than are so designated they shall also be
examined and classified accordingly. [Ib.]
Mining districts created.
Art. 3498c. It shall be the duty of the commissioner of the general land
office to unite a suitable number of these mineral locations into mining dis-
tricts, in each of which shall be a surveyor, who must either be the sur-
veyor of the district or county or a regular appointed deputy and an officer
qualified to administer oaths. [Ib.]
Mining claims limited, ete.
Art. 3498d. A mining claim upon veins or lodes of quartz or other rocks
in place bearing silver, gold, cinnabar, lead, tin, copper and other valuable
metals, excluding deposits of kaolin, baryta, salt, marble, fire clay, iron ore,
coal, oil, natural gas, gypsum, nitrates, mineral paints, asbestos, marls, nat-
ural cement, clay, onyx, mica, precious stones or any other non-metallic min-
eral and stone valuable for ornamental or building purposes or other valu-
able building material, may equal but shall not exceed one thousand five
hundred feet along the mine or vein or lode. No such claim shall exceed
twenty-one acres in total area. The end lines of each claim shall be parallel
to each other, and all claims shall be in the form of a parallelogram or square,
unless such form is prevented by adjoining rights or boundaries of the section
in which the claim lies. The locator under this title shall be entitled to the
use of all the superficial area between the enclosing lines of the claim, and to
all minerals thereon, and between the side and end lines, extending downwards
vertically, until the rights secured by posting are forfeited as provided; and in
all conflicts priority of location shall decide. [Ib.]
Locator to post claim,
Art. 3498e. The locators of any mining claim shall post up at the center
of one of the end lines of the same a written notice, stating the name of the
location and of the claim and date of posting, and describe the claim by giv-
ing the number of feet in length and width and the direction the claim lies
in length from the notice, together with the section, if known, and the coun-
ty, and shall place stone monuments at the four corners and otherwise de-
scribe the corners so that they can be readily found. The notice shall be
placed in a conspicuous place so it can be readily seen. [Ib.]
Application for survey of claim—Requisites of.
Art. 3498f. The locator shall, within three months after the date of post-
ing the required notice, sink a shaft at least ten feet in depth by four feet
Square, or a tunnel of the same dimensions ten feet in length, or an open
cross cut twenty feet in length, four feet or more wide and ten feet in depth
at its shallowest part, and shall within said time file with the county sur-
veyor or the district surveyor of the county, as the case may be, an applica-
tion in writing for the survey of the claim, which application shall be ac-
TEXAS MINING LAWS. 671
companied by a fee of twenty dollars, unless its tender is waived, and also
with an affidavit attached thereto that the required work, signifying that it
has been done, and that the locators have found valuable minerals on the
claim; and the affidavit shall state the date of the first posting of the no-
tice on the claim by the applicants, and further, that the notice has not been
posted-dated or changed in its date. Upon receiving said application and fee
the surveyor shall record the application, together with the affidavit, and
he shall thereupon forthwith proceed to survey said claim, and forward the
field-notes to the commissioner of the general land office within thirty days
after filing the application, in default of which he shall pay the aggrieved
party such damages as he may sustain, and in addition thereto shall be
deemed guilty of a misdemeanor, and on conviction fined not less than twenty
dollars nor more than one hundred dollars, and it shall be the duty of the
applicant to see that the field-notes are so returned. The fee of twenty dol-
lars shall cover all the services provided for in this title. In all other cases
enumerated in this title the fee shall be the same allowed county clerks for
similar services. [Ib.]
Claimant must do what, pending patent.
Art. 3498g. Annually after the filing of the application for a survey as
hereinbefore provided, the claimant shall, until after the application is made
for a patent, as hereinafter provided, do one hundred dollars’ worth in de-
veloping each claim; but where claims adjoin, the amount of work may be
done on one for all belonging to the same party. The value of such shall
be estimated at what it could be contracted for at a fair cash price, but the
cost of tools and implements and the expense of going to and returning from
the mine shaJl not be included in said estimate. Within one month after the
expiration of each year the owner shall make and file with the surveyor his
affidavit setting forth specifically what the work consists of in detail, and
the value thereof. Upon the failure of any one of several owners to con-
_ tribute his proportion of the expenditures required in this title within the
necessary time, the co-owners who have performed the labor or made the im-
provements or paid the fees or other expenditures required in this title,
may at the expiration of the year in which the same is to be done, give no-
tice in writing or notice by publication in a newspaper published in the coun-
ty where the claim is, if any; if none in such county, then in the newspaper
published nearest the mine, for at least once a week for ninety days. If
after such personal notice in writing or by publication such delinquent shall
fail or refuse to contribute his proportion of the expenditure required by
this title, his interest in the claim shall become the property of his co-workers
who have made the required expenditures. An affidavit by the co-owners
forfeiting the interest of such delinquent shall, when recorded in the office
of the proper surveyor, be sufficient evidence of such delinquency. [Ib.]
Rights accruing to the claimant.
Art. 3498h. When a tunnel is run for the development of a vein or lode
or for the discovery of mines, the owner of such tunnel shall have the right
of possession of all veins or lodes within two thousand feet of the face of
such claim 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 line 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 in-
672 APPENDIX G.
valid; but failure to prosecute the work in the tunnel for six months
shall be considered as an abandonment of the right of all undiscovered veins
on the line of said tunnel. [Ib.]
Conditions precedent to issue of patent.
Art. 3498i. Whenever the owners of any mining claim shall desire a
patent, they shall, within five years after filing of the application for sur-
vey, file their application for a patent upon their claim with the commissioner
of the general land office, accompanied by the receipt of the state treasurer
showing that twenty-five dollars per acre has been paid by the applicant for
patent to the state treasurer. Whereupon such patent shall issue unless
protest is filed as hereinafter provided for in article 3498k. [Ib.]
Right of purchase.
Art. 3498j. Within twelve months after the filing of the affidavit herein-
after provided for, any person or association of persons qualified as re-
quired by article 3498a, shall have the right to purchase and obtain patent
by compliance with this title, or any of the lands of the state which are spec-
ified or included in article 3498a, containing valuable deposits of kaolin, baryta,
salt, marble, fire clay, iron ore, coal, oil, natural gas, gypsum, nitrates, min-
eral paints, asbestos, marl, natural cement, clay, onyx, mica, precious stones
or any other non-metallic mineral and stones valuable for ornamental or
building purposes or other valuable building material, in legal subdivisions,
in quantity not exceeding one section; provided, that where any such par-
ties shall have heretofore expended, or shall hereafter expend, five thousand
dollars in developing the aforesaid mineral resources of any of said lands,
such party shall have the right to buy one additional section and no more,
and to include in the purchase any section or part thereof on which the work
may have been done. The land so purchased may be in different sections,
and all embraced in one or more obligations, not to exceed the quantity
stated. The purchaser shall pay not less than fifteen dollars per acre where
the land shall be situated ten miles or less of [from] any railroad in operation,
and not less than ten dollars per acre where the land is over ten miles from
such railroad, one tenth of the purchase money to be paid in cash to the
state treasurer on or before the expiration of the twelve months aforesaid;
and the purchasers shall file the treasurer’s receipt with the commissioner of
the general land office, together with an obligation to pay the state of. Texas
the remainder in nine equal annual installments, with interest at four per
cent per annum from date, subject to forfeiture as in other cases; and all
said lands are reserved from sale or other disposition than under this title;
and where application is made to buy any of the lands herein named ex-
cept under this title, the purchaser shall swear that there are none of the
minerals named in this title on said lands, so far as he knows or has reason
to believe or does believe; provided, further, that any party hereinbefore
named, who shall prior to the passage of this title have been the first to
work on said lands for the development of said mineral resources and who
has not abandoned said work, and is qualified at passage of this title to
buy, shall have a prior preference right of doing so for thirty days after
this title goes into effect; provided, further, this article shall not authorize
the sale of lands containing valuable deposits of gold, silver, lead, cin-
nabar, copper or other valuable metal; provided, further, that any per-
son desiring to acquire any lands under the provisions of this article shall
have the right to prospect said land for a period of twelve months before
TEXAS MINING LAWS. 673
making any payment thereon, upon condition that said prospector shall file
with the proper surveyor his affidavit in writing, setting forth that he has
gone upon the land in good faith with the intention of purchasing the same
under the provisions of this article, and in said affidavit give a reasonable
description of said land. After the filing of said affidavit the said surveyor
shall immediately forward same to the commissioner of the general land office,
who shall take said section off the market until the expiration of said twelve
months after the filing of said affidavit with the surveyor. [Ib.]
Contest of patent.
Art. 3498k. Any person desiring to contest the issuance of patent may do
so by filing with the commissioner of the general land office a protest set-
ting forth the grounds of objection generally, and that protestant has an in-
terest in the subject matter, which protest shall also state that the same is
presented in good faith and not to injure or delay the applicants or any of
them, and the same shall be verified by affidavit. Whereupon it shall be
the duty of the commissioner to withhold patent until the controversy is
ended; provided, that if the protestant shall not within thirty days after
filing his protest institute suit in the court having jurisdiction thereof in
the county where the claims are located, his protest shall constitute no fur-
ther barrier to the issuance of patent. A certified copy of the petition or
a certificate of the clerk of the court where suit is pending shall be sufficient
evidence to the commissioner of the pendency of the suit, and of the date
of filing said suit. When the land in controversy lies partly in two counties
suit may be brought in either. More than one claim shall not be embraced
in the same patent or application. The suits here provided for shall be en-
titled to precedence of trial on the docket. [Ib.]
Forfeiture of claims.
Art. 34987. All claims upon which patent has not been applied for within
five years next after the application for survey, or which have not been sur-
veyed and the field-notes returned to the general land office within the time
prescribed therefor as hereinbefore provided, or upon which the assessment
work has not been done, an affidavit therefor filed as provided by this article,
shall be and are declared forfeited without judicial action of any kind, and
subject to location as originally, but not by any one interested in the claim
at the time of forfeiture, and any location for or on behalf of any such party
shall be wholly void. Whenever avy such claim shall be re-located, the lo-
eators and each of them shall make affidavit that the location is made with-
out any contract or agreement of any kind that any of the parties owning an
interest in the location before the re-location has or is to have any interest in
the same. In all other cases where affidavit is required by this title it may
be made by one or more of the parties cognizant of the facts. [Ib.]
Re-location of forfeited claim.
Art. 8498m. No claim which has been forfeited for any cause shall be
subject to re-location for a period of thirty days next thereafter, and the
party owning the same may apply to the land commissioner within that time
for relief, and if it appear to him from the proof submitted that the for-
feiture was not occasioned by the negligence of the owner, but by circum-
stances which he could not reasonably control, the commissioner may with-
in that time, in his discretion, grant relief against the forfeiture, and if he
grant such relief he shall at once forward his order to that effect to the sur-
veyor, who shall file the same for record in his office. [Ib.]
Cost. Min.L.—43
674 APPENDIX G.
Applicant to make oath.
Art. 3498p. Whenever any application shall be made to buy or obtain
title to any of the lands embraced in article 3498a, except where the applica-
tion is made under this title, the applicant shall make oath that there is not,
to the best of his knowledge and belief, any of the minerals embraced in this
title thereon, and when the commissioner has any doubt in relation to the
matter he shall forbear action until he is satisfied. Any such sale or dis-
position of said lands shall be undersood to be, with the reservation of the
minerals thereon, subject to location as herein provided. [Ib.]
Placer claims subject to location.
Art. 34980. Claims usually called placers, including all forms of metal-
lic deposits, excepting veins of quartz or rock in place, shall be subject to
entry and patent under like circumstances and conditions and upon similar
proceedings as are provided for vein or lode claims. All placer claims
located shall conform as near as practicable with existing surveys and their
subdivisions, and no such location shall include more than forty ‘acres for
each individual claimant and shall not exceed three hundred and twenty acres
for any association of persons. The price which shall be paid for such placer
shall not be less than ten dollars per acre, together with all costs of pro-
ceedings, as before provided. [Ib.]
Application may embrace non-adjacent non-mineral land.
Art. 3498p. Where non-mineral land not contiguous to the vein or lode
is used by the prospector of such vein or lode for mining or milling purposes,
such non-adjacent surface ground may be embraced and included in an ap-
plication 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 to veins or lodes; but no location of such non-ad-
jacent lands shall exceed ten acres, and payment for the same must be made
at the same rate as fixed by this title for the superficies of the lode. The
owner of a quartz mill or reduction works, not owning a mine in connec-
tion therewith, may also receive a patent for a mill site, as provided in this
section. [Ib.]
Purposes for which timber may be felled.
Art. 3498q. Any owner or worker of mining claim under this title is au-
thorized to fell and remove for building and mining purposes any timber or
tree growing or being upon unoccupied lands as described in article 3498a,
said lands being mineral and subject to entry only as mineral lands, under
such rules and regulations as may be prescribed for the protection of timber
and undergrowth upon such lands and for other purposes. [Ib.]
Vested rights not affected.
Art. 3498r. Nothing in this title shall ever be so construed as to either
destroy, invalidate or impair any valid claim, right or interest existing in,
to or concerning any lands whatever at the passage of this title, of any pre-
emptor, purchaser, claimant, actual settler, locator, or other person whatso-
ever. [Ib.]
Proceeds appropriated.
Art. 3498s. The net proceeds of all sales of mining lands under the pro-
visions of this title shall inure to the benefit of the State and the respective
funds for which the lands mentioned in article 3498a are now set apart un-
der the constitution and laws of the state, and it shall be the duty of the
TEXAS MINING LAWS. 675
comptroller, state treasurer and commissioner of the general land office to
see to it and have said proceeds so paid rightly placed to the credit of the
particular and proper fund. [Ib.]
Surveyors to administer oaths—Repealing clause. :
Art. 3498t. For the purpose of effectually carrying out-the provisions of
this title all county or district surveyors are hereby especially authorized and
empowered to administer oaths, take affidavits and make certificates thereof ;
provided, further, that all laws and parts of laws in conflict with this title,
or any part thereof, are hereby especially repealed. [Ib.]
APPENDIX H.
ILLUSTRATIVE FORMS IN PATENT PROCEEDINGS FOR
: LODE CLAIMS.
(These forms are taken by permission from the thirteenth edition of Mor-
rison’s Mining Rights.)
NOTICE OF APPLICATION FOR PATENT.
Survey No. 11,310.
U. S. Land Office, Pueblo, December 15, 1907.
Notice is hereby given that in pursuance of the act of Congress approved
May 10, 1872, C. A. Wolcott, whose post office is Boulder, Colorado, has made
application for a patent for 1,500 linear feet on the Bear lode, bearing gold
and silver, the same being 365 feet southwesterly and 1,135 feet northeasterly
from discovery shaft thereon, with surface mining ground 300 feet in width,
situate in Cripple Creek mining district, Teller county, state of Colorado, and
described by the official plat and by the field notes on file in the office of the
register of Pueblo land district, Colorado, as follows, viz.:
Beginning at corner No. 1, whence the W. % cor. Sec. 22, T. 15 S., R. 69 W.
of the 6th principal meridian, bears S. 79° 34’ W. 1378.2 feet.
Cor. No. 1, Gottenburg lode (unsurveyed), Neals Mattson, claimant, bears
8. 40° 29’ W. 187.67 feet.
Thence S. 24° 45’ W. 1,500 ft. to cor. No. 2, whence cor. No. 1, sur. No. 2,-
560, Carnarvon lode, bears N. 88° E. 61.6 ft. Thence N. 65° 15’ W. 300 ft.
to cor. No. 8. Thence N. 24° 45’ E. 1,500 ft. to cor. No. 4. Thence S. 65° 15’ E.
300 ft. to cor. No. 1, the place of beginning—containing 8.011 acres (exclusive
of survey No. 2,560 and the Gottenburg lode), and forming a portion of the
west % section 22 in township 15 S., range 69 W. of the sixth principal me-
vidian. The names of the adjoining and conflicting claims as shown by the
plat of survey are the Gottenburg lode on the northwest and the Carnarvon
lode on the south. Cc. A. Woxcort.
Witness:
JOHN C. CLARE.
B. F. PrInson.
PROOF OF POSTING NOTICE AND DIAGRAM ON THE CLAIM.
State of Colorado, Teller County—-ss.:
John C. Clark and B. F. Pinson, each for himself, and not one for the other,
being first duly sworn according to law, deposes and says that he is a citizen
of the United States, over the age of twenty-one years, and was present on
the 15th day of December, A. D. 1907, when a plat representing the claim of
Cc. A. Wolcott, and certified as correct by the United States surveyor general
(676)
FORMS IN PATENT PROCEEDINGS. 677
of Colorado, and designated by him as lot No. 11,810, together with a notice
of the intention of said C. A. Wolcott 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, upon the outside of the door of the shaft house at the
discovery, where the same could be easily seen and examined. A copy of the
notice so posted upon said claim is herewith attached and made a part of this
affdavit. JoHN C. CLARK.
B. F. PINSON.
Subscribed and sworn to before me this 15th day of December, A. D. 1907,
and I hereby certify that I consider the above deponents credible and reliable
witnesses, and that the foregoing affidavit and notice were read by each of
them before their signatures were affixed thereto, and the oath made by them,
[Seal.] Henry Moopy, Notary Public.
i
APPLICATION FOR PATENT.
State of Colorado, Teller County—ss.:
Application for Patent for the Bear Lode Mining Claim. To the Register
and Receiver of the U. S. Land Office at Pueblo, Colorado:
O. A. Wolcott, whose post office address is Boulder, Colorado, being duly
sworn according to law, deposes and says: That in virtue of a compliance
with the mining rules, regulations, and customs by himself (and his grantors)
he, the applicant for patent herein, has become the owner of and is in the ae>
tual, quiet, and undisturbed possession of 1,500 linear feet of the Bear vein,
lode, or deposit, bearing gold and silver, together with surface ground 300 feet
in width, for the convenient working thereof as allowed by local rules and
customs of miners; said mineral claim, vein, lode, or deposit and surface
ground being situate in Cripple Creek mining district, county of Teller, and
state of Colorado, as more particularly set forth and described in the official
field notes of survey thereof, hereto attached, dated December 11, 1907, and
in the official plat of said survey, now posted conspicuously upon said mining
claim or premises, a copy of which is filed herewith. Deponent further states
that the facts relative to the right of possession of himself to said mining
claim, vein, lode, or deposit and surface ground so surveyed and platted are
substantially as follows, to wit: The Bear lode was discovered on or about
the 4th day of July, A. D. 1897, by James A. McFadden, who afterwards, and
before the 28th day of July, A. D. 1897, completed a location of the same as
a mining claim of the length and width aforesaid, having substantially located
the same, and otherwise complied with all local rules and regulations, the laws
of the state of Colorado and of the United States relating to mining claims.
The said discoverer and locator conveyed all his interest in the claim to
Chas. O. Baxter and Frank M. Taylor, who by divers intermediate conveyances
transferred the same to applicant, who thereupon took possession and is the
sole present owner, all of which will more fully appear by reference to the
copy of the original record of location and the abstract of title herewith filed:
the value of the labor done and improvements made upon said Bear Lode Min-
ing Claim by the applicant (and his grantors) being equal to the sum of five
hundred dollars. Said improvements consist of discovery shaft, an incline,
shaft house, a drift, and two-thirds interest in tunnel (but expressly excepting
and excluding from this application all that portion of the ground embraced
in mining claim or survey designated as lot No. 2,560 and the claim of Neals
Mattson on the Gottenburg lode). In consideration of which facts and in con-
formity with the provisions of chapter VI, title 32, of the Revised Statutes of
678 APPENDIX H.
the United States, application is hereby made for and in behalf of said C. A.
Wolcott for a patent from the United States for the said Bear Lode Mining
Claim, vein, lode, or deposit and the surface ground so officially surveyed and
platted. C. A. WoLcort.
_ Subscribed and sworn to before me this 16th day of December, A. D. 1907,
and I hereby certify that I consider the above deponent a credible and reliable
person, and the foregoing affidavit, to which was attached the field notes of
survey of the Bear Lode Mining Claim, was read and examined by him be-
fore his signature was affixed thereto and the oath made by him.
[Seal.] Henry Moopy, Notary Public.
PROOF OF CITIZENSHIP OF NATIVE-BORN CITIZEN.
State of Colorado, County of Teller—ss.:
Cc. A. Wolcott, being first duly sworn according to law, deposes and says
that he is the applicant for patent for the Bear Lode Mining Claim, situate
in Cripple Creek mining district. county of Teller, state of Colorado; that he
is a native born citizen of the United States, born in the county of ......,
state of ...... , in the year ...... , and is now a resident of Boulder, state of
Colorado. C. A. WotLcotTt.
Subscribed and sworn to before me this 15th day of December, A. D. 1907.
[Seal.] Henry Moopy, Notary Public.
PUBLISHER’S CONTRACT.
I, the undersigned, publisher and proprietor of the Cripple Creek Star, a
weekly newspaper published in Cripple Creek, Teller county, state of Colorado,
hereby agree to publish a notice dated U. 8. Land Office, Pueblo, Colo., Decem-
ber 15, 1907, required by act of Congress approved May 10, 1872, of the inten-
tion of C. A. Wolcott to apply for a patent for his claim on the Bear lode,
situate Cripple Creek mining district, county of Teller, state aforesaid, and
to hold the said C. A. Wolcott alone responsible for the amount of our bill for
publishing the same.
And it is hereby expressly stipulated and agreed that no claim shall be made
against the government of the United States, or its officers or agents, for such
publication.
Witness my hand this 16th day of December, A. D. 1907.
P. H. Knowuton, Publisher.
PROOF OF PUBLICATION.
I, P. H. Knowlton, do certify that I am
publisher of the Cripple Creek Star, a week-
[Copy of ly newspaper published in Cripple Creek, in
publication notice the county of Teller, and state of Colorado,
cut from and that the annexed notice was published
paper and pasted in said paper once each and every week for
here.] nine consecutive weeks; the first publication
being on the 18th day of December, A. D.
1907, and the last publication being on the
12th day of February, A. D. 1908.
[The publisher’s receipted P. H. KNow.rton.
bill is commonly attached to Subscribed and sworn to before me this
this blank.] 20th day of February, A. D. 1908.
[Seal.] Henry Moopy, Notary Public.
FORMS IN PATENT PROCEEDINGS. 679
PROOF THAT PLAT AND NOTICE REMAINED POSTED ON CLAIM DUR-
ING TIME OF PUBLICATION.
State of Colorado, County of Teller—ss.:
C. A. Wolcott, being first duly sworn according to law, deposes and says that
he is the claimant of the Bear Lode Mining Claim, Cripple Creek mining dis-
trict, Teller county, state of Colorado, the official plat of which premises, to-
gether with the notice of his intention to apply for a patent therefor, was post-
ed thereon, on the 15th day of December, A. D. 1907, as fully set forth and de-
scribed in the affidavit of John C. Clark and B. F. Pinson, dated the 15th day
of December, 1907, which affidavit was duly filed in the office of the register, at
Pueblo, in this state; and that the plat and notice so mentioned and describ-
ed remained continuously and conspicuously posted upon said mining claim
from the 15th day of December, A. D. 1907, until and including the 19th day
of February, A. D. 1908, including the sixty days’ period during which notice
of said application for patent was published in the newspaper.
Cc. A. Woxcort.
Subscribed and sworn to before me this 20th day of February, A. D. 1908,
and I hereby certify that the foregoing affidavit was read to the said C. A.
Wolcott previous to his name being subscribed thereto.
[Seal.] D. C. CrawrorD, Notary Public.
PROOF OF SUMS PAID.
State of Colorado, County of Teller—ss.:
C. A. Wolcott, having been first duly sworn according to law, deposes and
says that he is a citizen of the United States, over the age of twenty-one years;
that he is the applicant for patent to 1,500 feet upon the Bear Lode, in Cripple
Creek mining district, Teller county, Colorado; that in the prosecution of
such application he has paid the following sums of money, viz.:
For office work in the surveyor general’s office..............0000- gevate GeeO
To HE. E. Chase, mineral surveyor, for surveying and platting......... . 50
To register and receiver, for filing application in land office........... 10
To the Cripple Creek Star, for publishing notice of application........ 20
To the receiver of the local land office, for land................. wens 4D
$155
C. A. Wotcotr.
Subscribed and sworn to before me this 20th day of February, A. D. 1908.
[Seal] D. C. CrawrorpD, Notary Public.
APPLICATION TO PURCHASE.
To the Register and Receiver, United States. Land Office, at Pueblo, Colorado:
The undersigned, claimant under the provisions of the Revised Statutes of
the United States, chapter VI, title 32, and legislation supplemental thereto,
hereby applies to purchase that mining claim known as the Bear Lode, located
in the west half of section 22, township No. 15 S., range No. 69 west of the sixth
principal meridian, designated as lot No. 11,310, said lot No. 11,310 extending
1,500 feet in length along said Bear vein or lode, but expressly excepting and
excluding from this application all that portion of the ground embraced in
680 APPENDIX H.
mining claim or survey designated as lot No. 2,560, the Carnarvon lode, and the
claim of Neals Mattson, on the Gottenburg lode, and also all that portion of
any vein or lode, the top or apex of which lies inside of said excluded ground,
said lode mining claim embracing 8.011 acres, in the Cripple Creek mining dis-
trict, in the county of Teller, and state of Colorado, as shown by the survey
thereof, and hereby agrees to pay therefor forty-five dollars, being the legal
price thereof. C. A. Wotcort.
Dated Pueblo, February 20, 1908.
REGISTER’S CERTIFICATE OF POSTING NOTICE FOR SIXTY DAYS.
(Attached to Bulletin Copy of the Notice of Application for United States
Patent.)
United States Land Office at Pueblo, Colorado, February 21, 1908.
I hereby certify that the official plat of the Bear lode, designated by the sur-
veyor general] as lot No. 11,310, was filed in this office on the 16th day of De-
cember, A. D. 1907, and that a notice, of which the attached is a copy, of the
intention of C. A. Wolcott to apply for a patent for the mining claim or prem-
ises embraced by said plat, and described in the field notes of survey thereof
filed in said application, was posted conspicuously in this office on the 16th
day of December, 1907, and remained so posted until the 19th day of Febru-
ary, 1908, being the full period of sixty consecutive days, during the period
of publication as required by law, and that said plat remained in this office
during that time subject to examination, and that no adverse claim thereto
has been filed. S. A. ABBEY, Register.
REGISTER’S FINAL CERTIFICATE OF ENTRY.
Mineral Entry No. 2,000. Lot No. 11,310.
United States Land Office at Pueblo, Colorado, February 21, 1908.
It is hereby certified that in pursuance of the provisions of the Revised Stat-
utes of the United States, chapter VI, title 32, and legislation supplemental
thereto, C. A. Wolcott, whose post office address is Boulder, Colorado, on this
day purchased that mining claim known as the Bear Lode, in the west 1% of
section 22, in township No. 15 S., range No. 69 W. of the sixth principal me-
ridian, designated as lot No. 11,310, said lot No. 11,310 extending 1,500 feet
in length along said Bear vein or lode, expressly excepting and excluding from
said purchase all that portion of the ground embraced in mining claim or sur-
vey designated as lot No. 2,560, Carnarvon lode, also the claim of Neals Matt-
son, on the Gottenburg lode, and also all that portion of any vein or lode the
top or apex of which lies inside of said excluded ground; said lode mining
claim, as entered, embracing 8.011 acres in the Cripple Creek mining district,
in the county of Teller and state of Colorado, as shown by the plat and field
notes of survey thereof, for which the said party first above named this day
made payment to the receiver in full, amounting to the sum of forty-five dol-
lars.
Now, therefore, be it known that upon the presentation of this certificate
to the Commissioner of the General Land Office, together with the plat and
field notes of survey of said claim and the proofs required by law, a patent
shall issue thereupon to the said C. A. Wolcott, if all be found regular.
S. A. ABBEY, Register.
FORMS IN PATENT PROCEEDINGS, 681
ADVERSE CLAIM.
United States Land Office at Pueblo, Colorado.
In the Matter of the Application of C. A. Wolcott for a United States Pat-
ent to the Bear Lode Mining Claim, Situate in Cripple Creek Mining District,
County of Teller, State of Colorado.
To the Register and Receiver of the United States Land Office and to the
Above-Named Claimant:
Whereas, C. A. Wolcott did, on the 16th day of December, A. D. 1907, file
in the district land office of the United States, at Pueblo, Colorado, a certain
plat of a survey of a certain lode, together with his application for a United
States patent for said lode, naming and calling the said lode in said plat and
application the Bear Lode, situate in Cripple Creek mining district, county of
Teller, state of Colorado, said survey and plat being designated as mineral
survey No. 11,310, and consisting of 1,500 linear feet, together with surface
ground 300 feet in width; and the said C. A. Wolcott did, at the same time
and place, give notice that he would apply for a United States patent for the
above-described lode and premises in substance as follows: -
[Here attach copy of newspaper publication.]
And whereas, the first publication of said notice of said application appear-
ed in the Cripple Creek Star, a weekly newspaper published at Cripple Creek,
in said county and state, on the 18th day of December, A. D. 1907:
Now, therefore, I, Edward F. Bishop, a citizen of the United States over the
age of twenty-one years, residing in and my post-office address being Denver,
in the county of Denver, in said state, do, on this 3d day of February, A. D.
1908, enter this my protest and adverse claim against the issuing of a patent
to the said O. A. Wolcott for his pretended claim upon the so-called Bear Lode,
as set forth in his said plat and field notes as aforesaid, for the following rea-
sons, to wit:
1. The surface ground and veins or lodes contained therein as set forth and
described in the plat an’ field notes of the said C. A. Wolcott, or a great por-
tion thereof, are not the property of the said applicant, neither is he entitled
to hold the same under or by virtue of the local laws, rules, and customs of
miners in said mining district, the laws of the state of Colorado, or the stat-
utes of the United States relating to mining claims.
2. Because a great portion of the premises described in said plat and notice
of said applicant, and claimed by him as the so-called Bear Lode, is claimed
adversely, and is owned by this protestant, and is in fact a portion of the
premises claimed and owned by this protestant.as the Elephant Lode, as will
appear by reference to an abstract of title herewith filed, made a part of this
protest, and marked Exhibit A.
3. Because this protestant (and his grantors) have held, occupied, and pos-
sessed a great portion of the premises set forth and described by the said C.
A. Wolcott in his plat and notice of the so-called Bear Lode, long prior to the
pretended discovery and location of the so-called Bear Lode; such occupation
and possession of this protestant (and his grantors) having been under and by
virtue of a full compliance with the local laws, rules, and customs of said min-
ing district, and the laws of said state, and of the United States, pertaining
to mineral lands. .
682 APPENDIX H.
4, Because this protestant (and his grantors) have held, occupied, and pos-
sessed all that portion of the so-called Bear Lode, as represented on the plat
of a survey made by Thomas L. Darby, United States mineral surveyor, and
colored red, said plat of said survey being herewith filed, marked Exhibit B,
and made a part of this protest, and have held, occupied, and possessed the
same long prior to the pretended discovery and location of the so-called Bear
Lode. And this protestant is the original discoverer and locator of said Hle-
phant Lode (or is a bona fide purchaser for a valuable consideration, from or
through the original discoverer and locator of said Elephant Lode, by convey-
ances) as shown on said abstract. (See Rule 81.)
5. Because a valid discovery, location, and record of said Elephant Lode
was made by this protestant (or his grantors), in strict compliance with said
local laws, rules, and customs, and the laws of the state of Colorado and of
the United States, and while the same was vacant mineral land of the United
States open to occupation, long prior to any pretended discovery or location
thereof by said C. A. Wolcott (or his grantors), and said Elephant Lode hath
been occupied and possessed as aforesaid, ever since its discovery as afore-
said, by this protestant (and his grantors) under and by virtue of such discov-
ery, location, and record.
6. Because the discovery shaft of the so-called Bear Lode was not of the
legal depth of ten feet from the lowest part of the rim at the surface, as re-
quired by law at the date of the pretended record of the same, and has never
been since sunk to that depth.
Wherefore this protestant enters this his protest and adverse claim against
the issuance of a patent to the said C. A. Wolcott for his claim upon the so-
called Bear Lode. Ep. F. BIsHoP.
State of Colorado, County of Teller—ss.:
On this 3d day of February, A. D. 1908, before me, the subscriber, a notary
public in and for said county, personally appeared the above-named Edward
F. Bishop, who, being first duly sworn, saith that he is the adverse claimant
named in the foregoing protest and adverse claim above subscribed by him,
that he has read the same and knows the contents thereof, that the same is
true in substance and in fact and that the said adverse claim is made in good
faith and to protect his better and prior title. Ep. F. BIsHop.
Sworn and subscribed before me this 3d day of February, A. D. 1908.
[Seal.] BE. H. GRUBER, Notary Public.
APPENDIX I.
SAMPLE MINING LAW EXAMINATION QUESTIONS.
MINING LAW.
(February, 1906.)
I.
X. comes to you and says that he has found a small triangular piece of un-
located ground between two well-known mining claims, which he feels sure is
on their pay vein. He engages you to help him make a valid location, which
shall give him all the rights which any one can get in that piece. State ex- -
actly what you have him do and why? Draw a diagram to illustrate. Also
state when his annual labor must begin.
II.
Y. comes to you with the following difficulties:
(a) Y. has laid out a claim on the ground so that it is 200 feet longer and 100
feet wider than the law allows. [His location notice, however, calls for only
the legal length and width. Z., knowing of Y.’s mistake, has located a claim
clear across Y.’8 in such a way as to include Y.’s discovery shaft, which is in
the middle of Y.’s claim. What, if anything, can Y. do?
(b) Y. let the work for 1905 on another claim go undone until December 30th.
That day he took some tools on the claim and picked down some ore in a stope,
intending to keep on working the claim. December 31st, being Sunday, he did
not work; but he left his tools on the claim. At 1:00 a. m. Monday, January
1, 1906, Z. put up a notice of location, and staked off the claim anew. At 7:00
a.m. the same day Y. went on with his work. Z. is now doing the discovery
work in Y.’s old shaft. What, if anything, can Y. do?
III.
G. wants to know:
(a) What he has to do to acquire a tunnel site, and what rights, if any, he
will get against (1) a prior patented claim; (2) a prior unpatented claim; (8)
a subsequent location, which goes to patent before the tunnel gets beneath it,
and before the tunnel cuts any veins apexing in it; also, what, if anything, he
gets, first or last, that he can patent?
(b) What right, if any, an adjoining lode claimant has to follow the dip of
his vein under (1) G.’s prior patented farm; (2) G.’s prior patented placer;
(3) G.’s prior patented lode claim?
(683)
684 APPENDIX IL
IV.
K. wants to know about the following matters:
(a) L. owned the Jobn Doe claim, which was unpatented. In 1905 L. did
not work on the claim; but he paid a watchman $600 to see that the buildings
on it, worth $10,000, and the workings, were not molested. The watchman was
employed January 1, 1905, under a three-year contract; L. intending to work
the mine again in 1908, but not before. January 1, 1906, K. went to relocate
the John Doe claim as the Richard Roe, and put up a location notice, and start-
ed to put up stakes and do discovery work, when the watchman forced him to
leave. K. wants to know what he can do, and whether, if K.’s attempted re-
location is valid, L. can make K. pay for the $10,000 worth of buildings.
(b) What test to apply to determine whether ground is lode or placer, where
(1) K. locates it first as a lode, and M. subsequently locates it as a placer;
(2) where N. locates it first as a placer, and K., making a discovery subsequent-
ly outside the placer lines, projects his lode location over part of the placer,
but along the vein.
Vv.
E. comes to you for advice as to the following:
(a) F. is applying for a patent to a mill site, and the land is mineral. E.
has no interest in the land, but wants to know if he can defeat F.’s applica-
tion, and, if so, how?
(b) R., a junior locator, is seeking to patent his whole claim, which, as sur-
veyed, overlaps H.’s prior claim. E. wants to know how he can protect him-
self and get a patent for (1) the conflict area; and (2) the rest of E.’s claim.
VIL
S. has the following difficulties:
(a) T., who owned the Poodle Dog unpatented claim, conveyed to S. a tri-
angular piece a—b—c, shown in Diagram No. 1.
D1aGRam No. 1.
N
Poodle Dog c aoe
a. b ner
Discovery vein 3
Sed ondary yen
—
g h
, ¢
The deed was drawn by Hastern lawyers, and was an ordinary real estate
quitclaim deed, containing no reference to veins, dips, etc. The triangular piece
extended part way over the discovery vein of the Poodle Dog, which vein dip-
ped to the south. The deed was given in 1904, and in 1905 T. did no work on
the Poodle Dog; but S. did $100 worth of work on the triangular piece. Jan-
uary 1, 1906, T. relocated the Poodle Dog, and now claims (1) that S. has no
interest in the triangular piece; (2) that in any event S. has no extralateral
rights.
SAMPLE EXAMINATION QUESTIONS. 685
(b) S. also took from T. a mining deed to piece e—f—g—h, which included
part of the apex of the secondary vein shown in the diagram. The north part.
of that vein in S.’s ground dips north, the west part west, and the south part
south. §. wants to know: (1) What extralateral rights, if any, he acquired
in that secondary vein; (2) whether the relocation by T. in 1906 destroyed
S.’s rights in this second piece.
VII.
(a) A. makes a lode discovery, and puts up his notice, and starts to do dis-
vovery work. B. comes there the next day, and makes a discovery on adjoin-
ing ground on a separate vein crossing A.’s on the strike. B. then lays out his
claim, crossing A.’s. B. completes his location, including record, before A.
completes his. A., however, completes his location, except that he does not
record his certificate of location for a year Hohe the time fixed by statute.
What are the rights of the parties?
Suppose the senior locator were to abandon his location. What, if anything,
would the junior locator have to do to acquire the conflict area?
(b) X. locates a claim on the ground, doing all preliminary work, and
records his location notice, but then finds out that what he discovered and
worked was a large boulder of float. Y. comes on the ground to make a
location, thinking he can discover ore. X. tries to prevent him, but Y. in-
timidates X. and enters. Y. finds a vein, puts up a notice, and makes location.
Before Y. completes his location, X. also discovers another vein within the
limits of his original location, and without doing any more locating brings
ejectment against Y. Judgment for whom?
VIII, IX, AND X.
In the case of each claim in diagram No. 2, the Mascot being located under
the act of 1866, and all the others being located under the act of 1872, state
why there are or are not extralateral rights, and, if there are any, what
they are; and in the case of the Tramp claim, state what, if any, cross vein
rights there are.
DiaGcram No. 2.
¢c
Te lamp 8
&
Jasco N S
t:n-| Mascot Exton Ng/\ pase Eshens on m Maseot
b
sion
a
Explanation: Vein a-b-b’, is the original discovery vein on all but the
Tramp and the Hoodoo claims. Vein c-d is the discovery vein of the Tramp
claim, #-y is the broad discovery vein of the Hoodoo, but it is partly on the
Mascot extensions Nos. 2, 8, and 4. e-f and g-h are secondary veins. 0-0" is a
broken off part of the vein a-b-b’. All the veins except c-d dip to the south or
southwest, and vein c-d dips to the east. The Mascot claims were located in
the order indicated by their names; then the Hoodoo, then the Tramp.
686 APPENDIX I.
MINING LAW.
(February, 1907.)
I.
What is the test of a discovery of
(a) A prior lode claim as against a subsequent attempted placer location of
the same ground?
(b) A prior placer as against a subsequent attempted lode location?
(c) A prior mill site as against a subsequent attempted lode location?
(d) Oil as compared with precious metals?
In (b) if a lode location may be made, what surface ground may the lode
location occupy?
II.
In diagram No. 1 the Poodle Dog was located by X. in 1900. In 1902 X.
conveyed the triangular piece a—b—c to Y., and the rectangular piece e—f—
g—h to Z. The rectangular piece is nowhere nearer the discovery vein than
500 feet. The questions for you to solve are:
(a) Has Y. any extralateral rights?
(b) Has Z. any extralateral or other rights on the secondary vein?
DiacRamM No. 1.
N
Poodle Dog 5 oe
a. b ——
__ [Discovery vem Ss
Se¢ondary yein
feo
9
, ¢
III.
A. wants to know:
(a) If he can now relocate the Little Dorritt claim, because B., who owned
it, has not paid A. for doing the necessary annual labor in 1906, though A.
has often demanded the money?
(b) When A. must do the annual labor on the Rob Roy claim, located by A.
on January 2, 1907?
(c) Whether A. must perform annual labor on the Keystone placer located
by A.?
(4d) Whether anything is gained by filing an affidavit of annual labor, and,
if so, what?
(e) Whether a state law requiring $200 annual labor would be valid?
: IV, V, VI.
[Same as VIII, IX, and X of preceding paper.]
SAMPLE EXAMINATION QUESTIONS. 687
VII.
(a) What advantages flow from patenting a mining claim that were not
possessed prior to patenting? What disadvantages, if any?
(b) What is the measure of damages where ore is taken from your land,
(1) by innocent mistake, and (2) with wrongful intent?
VIII.
_ X. wants to know whether—having made only one discovery, and having
attempted to locate two full lode claims, one running north from the discovery
and the other south, so that the south end line of the one which is the north
end line of the other cuts across the middle of his discovery shaft—he has
any rights as to either or both claims, or any part of them, as against subse-
quent locators?
IX.
Dracram No. 3.
688 APPENDIX I.
In diagram No. 3 A. located the Senior claim on vein a—b, then B. located
the Junior claim on vein c—d, and then C. located the Freshman claim on vein
e—f. Assume (1) that each made a discovery on unoccupied land of the Unit-
ed States, and then (2) that C.’s sole discovery was on Senior ground within
the Junior lines, and then advise B. whether in either case he can protest or
adverse, and, if so, which, if C. applies for a patent for the whole of the
Freshman claim, including all conflict areas, and A. is not going to adverse?
B. also wants to know whether, if he adverses, and it is too late for A. to
adverse, A. can defeat B.’s adverse by deeding the conflict area of the Senior
to C.?
x,
(a) Give briefly the essential steps in the patenting of a mining claim.
(b) Define (1) the strike of a vein, and (2) the dip of a vein, and explain
briefly the law of cross lodes, and of veins uniting on the strike and on the
dip.
MINING LAW.
(January, 1908.)
(If in answering any question you need any further facts, make all pos-
sible assumptions in regard to them.)
I.
State whether any of the following, and, if any, which get title to the
mining claims located: (1) A Chinaman who locates for himself; (2) a child
of five, whose father locates for the child in the child’s name; (8) a French
corporation; (4) a lunatic; (5) a United States deputy mineral surveyor.
Suppose all five should join in the location of one claim?
II.
A. makes a location, but fails to record his location certificate within the
statutory time. Before the time for A. to record goes by, B. makes and per-
fects a location on a discovery outside of A.’s location, but one-half of B.’s
location overlaps A.’s. To whom does the conflict area belong after the stat-
utory time for A. to record has elapsed?
III.
(a) If a miner is working on the public domain, but has taken no steps
to make a valid location, what rights has he which other prospectors must
respect? May another prospector make a location in such a way as to in-
clude the ground where the first one is working?
(b) Is an unpatented lode claim subject (1) to dower; (2) to execution levy
and sale; (8) to a homestead exemption?
IV.
(a) What is a mill site? How is it located?
(b) Name the two classes of mill sites.
(c) On what, if any, condition is an unpatented mill site retained?
SAMPLE EXAMINATION QUESTIONS. 689
Vv.
(a) If a tunnel site owner discovers a lode in his tunnel, what kind of a
lode must it be for him to get title to it?
(b) Within what surface area must the lode apex for him to acquire rights
in the lode?
(c) To get title to the lode must he make a surface location?
(d) How far may he follow the lode from the tunnel?
VI.
A. was one of several locators of the High Flyer lode claim. He formed
with the others the High Flyer Mining Corporation, the treasury stock of
which was sold to get money to work the mine. Nearly all the other stock-
holders combined to get rid of A., and had a judgment creditor of A. levy
on and sell the stock of A. in A.’s absence and without actual notice to him.
The stock was bought in for less than it was worth. A., hearing of the sale
after it is over, comes to you in December for advice. He tells you that the
assessment work for the year on the High Flyer claim has not been done,
and that B., one of the few stockholders of the High Flyer Company friendly
to A., will fail to do the assessment work which he has been employed to do
if A., or any one whom A. may designate, will relocate the High Flyer and
then convey to B., or to any one whom B. may designate one-third of the
High Flyer. What advice do you give A.?
VII.
(1) A. makes a placer location. In the center a known lode exists, but
it is not known to extend to any of the boundaries of the placer, and A. posts
warnings to all people to keep off. May the lode be located?
(2) Suppose no lode is known to exist in the placer, but in A.’s absence B.
enters the placer, and in exploring finds a lode, which he traces to and through
a boundary of A.’s placer. Suppose B. then goes off the placer and, making
a location 600 feet wide by 1,500 feet long, a large part of which is on A.’s
placer, sinks a discovery shaft outside of A.’s ground which discloses the
vein. What are the rights of the parties?
VIII.
(a) Is “an adverse suit” an action at law or a suit in equity?
(b) Explain how and when an adverse suit arises, in what court it must
be brought, what allegations must be contained in the complaint, and what
kind of a verdict and of a judgment is demanded.
(c) What is the effect on the adverse suit of a nonsuit of plaintiff?
(d) If the adverse suit is decided in favor of the plaintiff in that suit, what
must he do to patent title to the land awarded to him?
IX AND X.
Explain the extralateral right doctrine, and by diagrams illustrate extra-
lateral rights:
(1) On a discovery vein, which crosses both the lines which the locator
meant to be side lines.
Cost. M1n.L.—44
690 APPENDIX I.
(2) On a discovery vein, which crosses twice one boundary line of the
location, but no other line.
(83) On a broad discovery vein, bisected on its strike by the common side
line of two locations.
(4) On a secondary or incidental vein, where the discovery vein crosses
one side line and one end line of the claim, but the secondary or incidental
vein crosses both end lines.
(5) On a secondary or incidental vein, where the discovery vein crosses
both end lines, but the secondary or incidental vein crosses one end line and
one side line, but after it leaves the side line of the location pursues a
course in a second location practically parallel to the discovery vein of the
first location.
TABLE OF CASES CITED.
[THE FIGURES REFER TO PAGES.]
A
Abbott v Smith, 482, 492.
Acme Cement & Plaster Co., 90.
Acme Oil & Min. Co. v. Williams, 479.
Adam v. Norris, 62.
Adams vy. Crawford, 206.
Adams vy. Polglase, 86, 154, 324, 390.
Adams v. Simmons, 226.
Adams y. Stage, 480.
Ahern v. Dubuque Lead & Level Min.
Co., 535.
Ab Hee vy. Crippen, 61.
Ah Yew v. Choate, 113.
Ajax Gold Min. Co. v. Hilkey, 443,
444, 460.
Alaska Copper Co., 226, 227, 228.
Alaska Exploration Co. v. Northern
Mining & Trading Co., 498.
Alaska Gold Min. Co. v. Barbridge,
148, 397, 534.
Alaska Pac. R. & Terminal Co. v.
Copper River & N. W. Ry. Co., 73.
Alaska Placer Claim, 355.
Aldeberan Min. Co., 279, 348, 344.
Alder Gulch Consol. Min. Co. v. Hayes,
531.
Alderson v. Ennor, 516.
Aldritt v. Northern Pac. R. Co., 119.
Alexander v. Sherman, 330, 334.
Alford v. Barnum, 115.
Algonquin Coal Co. v. Northern Coal
& Iron Co., 525.
Alice Lode Min. Claim, 195.
Alice Min. Co., 368, 364.
Allegheny Oil Co. v. Snyder, 473, 474,
479.
Allen v. Dunlap, 208.
Allen v. Myers, 375.
Allen v. Pedro, 70.
Cost.M1n.L.
Alliance Trust Co. v. Hardwood Co.,
517.
Allyn v. Schultz, 377.
Alta Mill Site, 351.
Altoona Quicksilver Min. Co. v. Inte-
gral Quicksilver Min. Co., 276, 280,
377, 378, 523, 524.
Amador Medean Gold Min. Co. v.
South Spring Hill Gold Min. Co.,
450.
Adamor Queen Min. Co. v. De Witt,
248, 522.
Ambergris Min. Co. v. Day, 150, 151,
519.
American Consol. Min. & Mill. Co. vy.
De Witt, 158, 318, 388.
American Window Glass Co. vy. In-
diana Natural Gas & Oil Co., 476.
American Window Glass Co. v. Wil-
liams, 479.
Ames v. Ames, 503.
Ammons vy. Toothman, 502.
Anaconda Copper Min. Co. vy. Butte
& B. Min. Co., 482, 491, 494.
Anaconda Copper Min. Co. v. Heinze,
406, 414.
Anchor vy. Howe, 50, 367, 368.
Anderson v. Besser, 513, 516.
Anderson y. Caughey, 25, 152, 206, 211,
277.
Anderson vy. Hapler, 517.
Anthony yv. Jillson, 168, 211, 249, 250.
Antoine Co. v. Ridge, 497.
Argentine Min. Co. vy. Benedict, 372.
Argentine Min. Co. v. Terrible Min.
Co., 155, 181, 420, 4238, 487, 456.
Argillite Ornamental Stone Co., 148,
347.
Argonaut Consol. Min. & Mill. Co. vy.
Turner, 204, 397. \
(691)
692
CASES CITED.
(The figures refer to pages.]
Argonaut Min. Co. v. Kennedy Min. &
Mill. Co., 415, 416, 417.
Armstrong v. Caldwell, 525.
Armstrong v. Lower, 180, 200, 203,
811, 314, 411, 440.
Arnold v. Bennett, 516.
Arnold v. Weil, 463.
Ashman v. Wigton, 503.
Aspen Consol. Min. Co. v. Williams,
84.
Aspen Min. & Smelting Co. v. Rucker,
518, 521.
Atchison v. Peterson, 527, 531.
Atkins v. Hendree, 18, 152, 198.
Atlantic & G. C. Consol. Coal Co. v.
Maryland Coal Co., 514.
Attorney General y. Morgan, 13.
Aurora Hill Consol. Min. Co. v. Highty-
Five Min. Co., 156, 286, 321, 358, 359.
Aurora Lode v. Bulger Hill & Nug-
get Gulch Placer, 264, 368.
Austin y. Huntsville Coal & Min. Co.,
513.
Axiom Min. Co. v. White, 278, 307.
Aye v. Philadelphia Co., 473, 476, 479,
480, 486.
Ayers v. Daly, 352.
B
Baca Float No. 3, 63.
Backer v. Penn Lubricating Co., 474.
Back y. Sierra Nevada Consol. Min.
Co., 237, 239, 371.
Badger Gold Min. & Mill. Co. v. Stock-
ton Gold & Copper Min. Co., 295,
297, 298, 306, 307, 525.
Bagnall v. L. & N. W. R. Co., 507.
Baillie v. Larson, 243.
Baird v. Williamson, 534,
Baker v. Clark, 484.
Baker vy. Hart, 515.
Baker vy. Pittsburg, C. & W. R. Co.,
504.
Bakersfield & Fresno Oil Co. v. Kern
County, 395, 498.
Baldwin Star Coal Co. v. Quinn, 398.
Baldwin v. Starks, 52.
Ballard v. Golob, 294, 401.
Bamford vy. Lehigh Zine & Iron Co.,
486.
Bank of Hartford County v. Water-
man, 508.
Bannan vy. Graeff, 486.
Barclay v. Abraham, 471.
Barden v. Northern Pac. R. Co., 57, 75,
76, 79.
Barklage v. Russell, 391, 524.
Barnard v. Monongahela Natural Gas
Co., 471, 480. /
Barnette v. Freeman, 160, 162.
Barney v. Conway, 381.
Barnhart v. Lockwood, 474.
Barnsdall v. Boley, 479.
Barrett v. Kansas & Texas Coal Co.,
503.
Barton Coal Co. v. Cox, 515.
Bash vy. Cascade Min. Co., 359, 500.
Basin Mining & Concentrating Co. v.
White, 306, 348.
Baxter Mountain Gold
Patterson, 191, 215.
Bay v. Oklahoma So. Gas, Oil & Min.
Co., 84, 85, 86, 91, 120, 162, 163, 164,
499.
Bay State Petroleum Co. v. Penn Lub-
ricating Co., 473.
Beals v. Cone, 126, 182, 154, 160, 161,
181, 182, 190, 194, 228, 274, 307, 339,
840, 386, 520.
Beard v. Federy, 62.
Beardsley v. Kansas Natural Gas Co.,
475, 521.
Beaudette v. Northern Pac. R. Co., 119.
Becker v. Pugh, 156.
Beck v. O’Connor, 492.
Behrends v. Goldsteen, 92, 151, 368,
370, 374.
Beik vy. Nickerson, 203.
Belcher Consol. Gold Min. Co. v. De-
ferrari, 290, 292.
Belk v. Meagher, 156, 220, 274, 288,
810, 318, 321, 322, 524,
Bell v. Bed Rock Tunnel & Min. Co.,
28, 304, 308.
Bell v. Skillicorn, 405, 406.
Belligerent & Other Lode Mining
. Claims, 420, 422.
Beltz v. Mathiowitz, 56.
Bennet, Jr., 246.
Bennett v. Harkrader, 214, 215, 378,
379, 382.
Bennett v. Waller, 499.
Benson Mining & Smelting Co. v. Al
ta Mining & Smelting Co., 286, 514.
Bentley v. Brossard, 491, 492.
Min. Co. v.
CASES CITED.
693
[The figures refer to pages.]
Benton v. Johncox, 527, 528.
Berentz v. Belmont Oil Min. Co., 510.
Berkey v. Berwind-White Coal Min.
Co., 505, 518.
Bernard v. Parmelee, 380.
Bernardy y. Colonial & United States
Mortg. Co., 501.
Bernier v. Bernier, 54.
Berry v. Woodburn, 482.
Bessemer Irr. Ditch Co. y. Woolley,
530.
Bettman v. Harness, 475.
Beveridge v. Northern Pac. R. Co.,
82,
Bevis v. Markland, 163, 165.
Bewick v. Muir, 143, 145.
Bigelow, 468.
Big Hatchet Consol. Min. Co. v. Col-
vin, 421.
Biglow v. Conradt, 158, 165, 222.
Billings v. Aspen Mining & Smelting
Co., 168, 170.
Bingo Min. Co. v. Felton, 485.
Binswanger v. Henninger, 395, 494.
Bishop v. Baisley, 276, 292, 308.
Bismark Mountain Gold Min. Co. v.
North Sunbeam Gold Co., 190, 214,
215, 220, 223, 285.
Bissell v. Foss, 492.
Black v. Elkhorn Min. Co., 300, 303,
398.
Blackburn v. Portland Gold Min. Co.,
875, 377.
Blackburn v. U. S., 115.
Blackmarr v. Williamson, 491, 492.
Blackmore vy. Reilly, 102.
Blake v. Butte Silver Min. Co., 373.
Blake v. Lobb’s Estate, 486.
Blake v. Thorne, 334.
Blake vy. Toll, 367.
Bluebird Min. Co. v. Largey, 126, 404.
Blue Bird Min. Co. v. Murray, 519.
Bluestone Coal Co. v. Bell, 486.
Board of Control v. Torrence, 94.
Board of Education vy. Mansfield, 99,
102.
Board of Sup’rs of Hancock County v.
Imperial Naval Stores Co., 484.
Bogart v. Amanda Consol. Gold Min.
Co., 458.
Boggs v. Merced Min. Co., 10, 15.
Bolles Woodenware Co. v. U. S., 515.
Bonanza Consol. Min. Co. v. Golden
Head Min. Co., 205, 214, 215.
Bond v. State of California, 69.
Bonesell v. McNider, 357, 366.
Bonner v. Meikle, 97, 98, 100, 150, 158,
159, 370.
Bonner v. Rio Grande S. R. Co., 73, 76.
Book v. Justice Min. Co., 106, 128, 132,
148, 174, 191, 205, 206, 216, 280, 284,
285, 321, 440, 457.
Boston & M. Consol. Copper & Silver
Min. Co. v. Montana Ore Purchas-
ing Co., 405, 452.
Boucher v. Mulverhill, 482. .
Boyd vy. Desrozier, 518.
Boyer v. Fulmer, 486.
Bradbury v. Davis, 500, 501.
Bradford, 171.
Bradford v. Morrison, 395, 497, 498,
509.
Bradley v. Johnson, 524.
Brady v. Husby, 206, 214, 215.
Brady v. Smith, 508.
Brady’s Mortgagee v. Harris, 99.
Bramlett v. Flick, 191, 208, 214, 219,
324.
Branagan y. Dulaney, 453, 454.
Brand v. Consolidated Coal Co., 502.
Brandon y. Ard, 81.
Brandt v. Wheaton, 156.
Bretell v. Swift, 353.
Brewster v. Lanyon Zine Co., 473, 479,
480.
Brewster v. Shoemaker, 149, 160, 242.
Brice, 468.
Brick Pomeroy Mill Site, 226.
Brien v. Moffitt, 385.
Brigham City v. Rich, 65, 69.
Brigham v. Smith, 507.
Bright v. Elkhorn Min. Co., 358, 386.
Brinkmeyer v. Rankin, 521.
Britton v. Turner, 514.
Brockbank v. Albion Min. Co., 193,
194, 195, 250, 314, 317.
Broder v. Natoma Water & Min. Co.,
527.
Brodie Gold Reduction Co., 229, 280.
Brooks v. Cook, 486.
Brooks vy. Kunkle, 472.
Brophy y. O’Hare, 101.
Brothers v. Hurdle, 517,
Brown vy. Baker, 527.
694
CASES CITED.
[The figures refer to pages,]
Brown v. Beecher, 476.
Brown v. Bryan, 493.
Brown y. Caldwell, 517.
Brown y. Challis, 521.
Brown y. Fowler, 476.
Brown vy. Gurney, 222, 302, 318, 326,
327, 339, 359, 365, 379, 389.
Brown vy. Levan, 191, 214.
Brown y. Northern Pac. R. Co., 119.
Brown vy. Ohio Oil Co., 474.
Brown v. Oregon King Min. Co., 220,
223, 320, 325.
Brown vy. Quartz Min. Co., 105.
Brown vy. Spilman, 471, 477.
Brown vy. 249 & 256 Quartz Min. Co.,
158.
Brown vy. Wilmore Coal Co., 486.
Brownfield v. Bier, 151, 261, 263.
Brundy vy. Mayfield, 297.
Bryan v. McCaig, 276, 308.
Buchannan y. Cole, 484.
Buckeye Min. & Mill. Co. vy. Carlson,
125, 148, 488.
Buckley v. Fox, 168.
Butfalo Valley Oil & Gas Co. v. Jones,
479.
Buffalo Zine & Copper Co. v. Crump,
36, 132, 165, 218, 288, 303, 304, 307,
524,
Bulette v. Dodge, 156, 159, 185.
Bullion Beck & Champion Min. Co. v.
Eureka Hill Min. Co., 145, 4388.
Bunker Hill, ete., Co. v. Shoshone Min.
Co., 408.
Bunker Hill & Sullivan Mining & Con-
centrating Co. v. Empire State Idaho
Mining & Developing Co., 1381, 195,
223, 337, 396, 413, $21, 424, 485, 44,
456.
Bunker Hill & Sullivan Mining & Con-
centrating Co. v. Shoshone Min. Co.,
148, 152.
Burfenning v. Chicago, St. P., M. & O.
R. Co., 393.
Burgner v. Humphrey, 505, 506.
Burke y. McDonald, 126, 138, 159, 192,
198, 382.
Burns y. Clark, 105, 158, 159, 226.
Burns v. Schoenfeld, 105, 158.
Burnside y. O'Connor, 153, 313, 388.
Buss v. Dyer, 507.
Butler y. Good Enough Min. Co., 27,
191, 218.
Butte, A. & P. R. Co. v. Montana U. R.
Co., 5238.
Butte City Smoke House Lode Cases,
99, 370, 373, 394, 395.
Butte City Water Co. v. Baker, 21, 23,
212, 213.
Butte Consol. Min. Co. v. Barker, 183,
222, 223, 314, 387.
Butte Hardware Co. v. Cobban, 372.
Butte Hardware Co. v. Frank, 3872,
378, 395, 497, 498, 509, 510.
Butte Land & Inv. Co. v. Merziman,
267, 382.
Butte & B. Consol. Min. Co. v. Mon-
tana Ore-Purchasing Co., 4938, 494,
495.
Butte & B. Min. Co., 363.
Butte & B. Min. Co. v. Sloan, 262, 263.
Butte & B. Min. Co. v. Societe An-
onyme des Mines de Lexington, 135,
413.
Buttz v. Northern Pac. R. Co., 89.
Bybee v. Hawkett, 490.
Byrnes v. Douglas, 523
C
Cagle vy. Dunham, 51.
Cahoon vy. Bayaud, 484.
Cain v. Addenda Min. Co., 369,
Cain v. Carrier, 468.
Caldwell v. Copeland, 525.
Caldwell v. Fulton, 502, 503.
Caledonia, G. M. Co. v. Noonan, 91.
Caledonia Min. Co. v. Rowen, 56.
Caley v. Coggwell, 491.
Cathoun Gold Min. Co. v. Ajax Gold
Min. Co., 16, 248, 398, 396, 397, 401,
453, 454. ;
Callahan v. James, 100, 101, 307.
Calor Oil & Gas Co. v. Franzell, 471.
Cambers vy. Lowry, 104.
Cameron, 354.
Cameron Lode, 99.
Cameron vy. U. S., 64.
Camfield v. U. S., 85.
Campbell v. Ellet, 235, 240, 241, 242.
Campbell v. Golden Cycle Min. Co.,
126.
Campbell vy. Louisville Coal Min. Co.,
505, 506.
Campbell v. Rankin, 26.
Campbell v. Taylor, 3808.
CASES CITED.
695
[The figures refer to pages,]
Cape May Mining & Leasing Co. v.
Wallace, 262, 368, 3U4.
Capital No. 5 Placer Min. Claim, 355.
Capner v. Flemington Min. Co., 509.
Capricorn Placer, 353.
Cardelli v. Comstock Tunnel Co., 530.
Carlin v. Chappel, 505, 507.
Carlin v. Freeman, 191, 314.
Carney v. Arizona, G. M. Co., 270.
Carpenter v. Lingenfelter, 514.
Carr v. Fife, 51.
Carr vy. Huntington Light & Fuel Co.,
475.
Carr v. Quigley, 64.
Caretto & Other Lode Claims, 279, 351.
Carson v. Gentner, 527.
Carson v. Hayes, 533.
Carson City Gold & Silver Min. Co. v.
North Star Min. Co., 161, 393, 396,
897, 406, 416, 417, 421, 427, 500.
Carter v. Bacigalupi, 190, 191, 209,
215, 304.
Carter v. Thompson, 102.
Carter v. Wakeman, 529.
Cascaden v. Bartolis, 100, 148, 164.
Cascaden v. Dunbar, 401, 481, 498.
Cascaden v. Wimbish, 510.
Casey v. Thieviege, 261.
Cassell v. Crothers, 476.
Castillero v. U. S., 2, 61.
Castle v. Womble, 57.
Cates v. Producers’ & Consumers’ Oil
Co., 400.
Catlin Coal Co. v. Lloyd, 525.
Catron v. Laughlin, 62.
Catron v. Old, 433, 434, 448, 444.
Cecil v. Clark, 495.
Cedar Canyon Consol. Min. Co. v. Yar-
wood, 496.
Central Eureka Min. Co. v. East Cen-
tral Eureka Min. Co., 416, 458.
Central Ohio, etc., Co. v. Eckert, 472.
Chaffee, In re, 235.
Chambers v. Harrington, 155, 271, 279.
Chambers vy. Jones, 396.
Chambers v. Smith, 478.
Champion Min. Co. v. Consolidated
Wyoming Gold Min. Co., 436, 457.
Chaney v. Ohio & I. Oil Co., 476.
Chapman v. Toy Long, 270, 396.
Charles O. De Land, 468.
Charles Lennig, 227, 2:0, 238.
Charles S. Morrison, 465, 466.
Chas. W. Steele, 353.
Charlton v. Kelly, 148, 149, 151, 156,
159, 162, 164, 176, 186.
Charter Oak Life Ins. Co. v. Stephens,
509.
Chartiers Block Coal Co. v. Mellon,
504.
Cheeney v. Nebraska & C. Stone Co.,
515.
Cheesman y. Hale, 533.
Cheesman v. Hart, 220, 407, 449.
Cheesman y. Shreeve, 128, 220, 223,
338, 340, 405, 406, 412, 419, 515.
Cherokee Nation yv. Hitchcock, 44.
Chessman, 277.
Chicago & A. Oil & Min. Co. v. United
States Petroleum Co., 476.
Chicago & A. R. Co. v. Brandau, 505,
508.
Childers v. Neely, 491, 492.
Chisholm vy. Eagle Ore Sampling Co.,
489.
Chormicle v. Hiller, 88.
Chrisman v. Miller, 150, 162, 164, 165.
Christian F. Ebinger, 50.
Church of Holy Communion y. Pater-
son Extension R. Co., 508.
Cisna v. Mallory, 483.
City of Deadwood v. Whittaker, 91.
City of Des Moines v. Hall, 101.
City of Leadville v. Bohn Min. Co.,
100, 516.
City of New Haven v. Hotchkiss, 503.
Clark v. Babcock, 486.
Clark v. Barnard, 525.
Clark vy. Fitzgerald, 426,
Clark v. Herington, 80.
Clark v. Nash, 522.
Clark vy. Taylor, 343.
Clark v. Wall, 485, 518.
Clarno y. Grayson, 487.
Clary v. Hazlitt, 267, 394.
Clearwater Short-Line R. Co. v. San
Garde, 191, 215.
Cleary v. Skiffich, 27, 195, 225, 2381,
370, 524.
Cleminger v. Baden Gas Co., 479.
Clemmons vy. Gillette, 68. :
Cleveland v. Eureka No. 1 Gold Min.
& Mill. Co., 287, 326, 356, 372, 391.
Clift v. Clift, 398.
Clifton v. Montague, 486,
Clinton §. Conant, 464,
696
CASES CITED.
[The figures refer to pages.]
Clipper Min. Co., 391. ‘
Clipper Min. Co. vy. Eli Min. & Land
Co., 86, 157, 264, 265, 266, 267, 369,
890, 396. :
Cobb v. Oregon & C. R. Co., 467.
Coffee v. Emigh, 458, 511.
Coffinberry v. Sun Oil Co., 479.
Coffin v. Left Hand Ditch Co., 528.
Cole vy. Cady, 518.
Coleman v. Chadwick, 506.
Coleman y. Coleman, 145, 495.
Coleman vy. Curtis, 282, 288, 284, 285.
Coleman v. Davis, 220.
Coleman v. Homestake Min. Co., 371.
Colgan vy. Forest Oil Co., 474.
Collins v. Bartlett, 342.
Collins v. Bubb, 90.
Collins vy. Chartiers Gas Co., 532.
Collins v. Gleason Coal Co., 505, 507.
Collins v. McKay, 266, 501.
Colman v. Clements, 25, 27.
Colomokas Gold Min. Co., 94.
Colorado Cent. Consol. Min. Co. v.
Turck, 382, 407, 414, 428, 489, 449,
513.
Colorado Coal & Iron Co. vy. U. S., 84,
87, 399.
Colorado M. R. Co. v. Croman, 200.
Columbia Copper Min. Co. v. Duchess
Min: Mill. & Smelting Co., 149, 208,
218.
Colwell vy. Smith, 53.
Combs vy. Virginia Iron, Coal & Coke
Co., 511, 513.
Conant, 464.
Condon v. Mammoth Min. Co., 353.
Cone y. Roxanna Co., 248.
Congdon y. Olds, 490.
Conger v. Weaver, 15.,
Conlin vy. Kelly, 119, 246.
Conn v. Oberto, 299, 303, 304.
Connole v. Boston & M. Consol. Cop-
per & Silver Min. Co., 494.
Connolly v. Hughes, 381.
Conrad v. Morehead, 486.
Consolidated Channel Co. y. Central
Pac. R. Co., 522.
Consolidated Coal Co. of St. Louis v.
Baker, 509.
Consolidated Coal Co. v. Peers, 484,
4385.
Consolidated Rep. M. M. Co, v. Leba-
non M. Co., 179.
Consolidated Wyoming Gold Min. Co.
v. Champion Min. Co., 132, 202, 406,
411, 416, 425, 426, 429, 457.
Consumers’ Gas Trust Co. vy. Littler,
480.
Consumers’ Gas Trust Co. v. Worth,
479.
Continental Divide Min. Inv. Co. vy.
Bliley, 493.
Contreras v. Merck, 378.
Conway vy. Hart, 149, 151, 193, 195, 198,
314.
Coolbaugh v. Lehigh & Wilkes-Barre
Coal Co., 484, 509.
Cooper v. Roberts, 66.
Copper Bullion & Morning Star Lode
Min. Claims, 358.
Copper Glance Lode, 279, 344.
Copper Globe Min. Co. v. Allman, 21,
147, 156, 158, 182, 198, 207, 215, 218,
220, 308, 325.
Copper Hill Min. Co. v. Spencer, 497.
Copper King v. Wabash Min. Co., 518.
Copper River Min. Co. v. McClellan,
174, 400, 483.
Core v. New York Petroleum Co., 480.
Corning Tunnel Co. v. Pell, 234, 242.
Cosmopolitan Min. Co. v. Foote, 441,
449.
Cosmos Exploration Co. y. Gray Eagle
Oil Co., 53, 93.
Costello vy. Mulheim, 525.
Costello v. Scott, 482, 490.
Couch v. Welsh, 485.
County of Yuba v. Cloke, 5383, 534.
Cowell vy. Lammers, 156.
Cox v. Clough, 528.
Cragie v. Roberts, 51, 85.
Craigin v. Powell, 49.
Craig v. Thompson, 156, 190, 215, 223,
324, 338.
Crane y. Winsor, 531.
Cranes Gulch Min. Co. v. Scherrer, 267,
394.
Crary v. Dye, 297, 306.
Crawford v. Forest Oil Co., 514.
Craw vy. Wilson, 481.
Credo Mining & Smelting Co. v. High-
land Min. & Mill. Co., 190, 191, 204,
214.
Creede & C. C. Min. & Mill. Co. v. Uin-
ta Tunnel, Min. & Transp. Co., 153,
160, 161, 175, 201, 233, 287, 239, 241,
248, 371, 394, 396, 397, 401.
CASES CITED.
697
(The figures refer to pages,]
Crescent Min. Co. v. Silver King Min.
Co., 518, 530.
Cripple Creek Gold Min. Co. v. Mt.
Rosa Mining, Milling & Land Co.,
364.
Cresus Min. M. & S. Co. v. Colorado
Land & M. Co., 168, 194, 204.
Cronin v. Bear Creek Gold Min. Co.,
378.
Crosby & Other Lode Claims, 352.
Crossman vy. Pendery, 155. 156, 159.
Crown Point Min. Co. v. Buck, 195.
Crown Point Min. Co. v. Crismon, 192,
282, 288.
Crumbo vy. Wallsend Local Board, 508.
Cruse v. McCauley, 527.
Cullacott v. Cash G. & S. M. Co., 393.
Cunningham vy. Pirrung, 307, 316.
Currency Min. Co. v. Bentley, 382.
D
Daggett v. Yreka Min. & Mill. Co., 185,
206, 413.
Dahl v. Raunheim, 261, 262, 264, 369,
872.
Dale & Bennett v. Goldenrod Min. Co.,
490.
Dall v. Confidence Silver Min. Co., 521.
Dalliba v. Riggs, 520.
Daniel:Cameron, 354.
Darger vy. Le Sieur, 215.
Dark v. Johnston, 473, 475, 485.
Darley Main Colliery Co. v. Mitchell,
508. -
Darling Placer Claim, 361.
Darvill v. Roper, 144.
David Hunter, In re, 235.
Davidson v. Bordeaux, 149, 284,
Davidson v. Calkins, 375, 512.
Davidson v. Eliza Gold Min. Co., 357,
366.
Davidson v. Fraser, 370, 371, 372.
Davis, 64.
Davis v. Butler, 303, 304.
Davis v. Dennis, 173, 303, 512.
Davis v. Gale, 530.
Davis v. McDonald, 380, 384.
Davis v. Shepherd, 195, 197, 396, 415,
419, 421, 449, 456, 525.
Davis. v. Wiebbold, 97, 100, 115,
394,
285.
203,
Dayton Gold & Silver Min. Co. v. Sea-
well, 523.
De Cambra v. Rogers, 51.
Decker v. Howell, 490, 492.
Deeney y. Mineral Creek Mill. Co., 176,
210, 223, 878, 384.
Deffeback v. Hawke, 21, 97, 112, 359,
394,
De Land, 468.
Delaware, L. & W. R. Co. v. Gleason,
126. :
Delaware, L. & W. R. Co. v. Sanderson,
484,
Dellapiazza v. Foley, 492.
Delmoe v. Long, 297.
Del Monte Min. & Mill. Co. v. Last
Chance Min. & Mill. Co., 16, 17, 148,
185, 195, 408, 418, 419, 421, 422, 424,
425, 426, 427, 484, 435, 441, 450, 451.
Del Monte Min. & Mill. Co. v. New
York & L. C. Min. Co., 417.
De Long v. Hine, 351.
De Necochea y. Curtis, 529.
Deniss v. Sinnott, 376.
Denniston v. Haddock, 503.
Deno v. Griffin, 286, 384, 393.
Denver & R. G. R. Co. v. Wilson, 73.
Derry v. Ross, 303.
Deseret Salt Co. v. Tarpey, 75, 78.
Desloge v. Pearce, 485.
Detlor v. Holland, 120, 473.
De Wolfskill v. Smith, 341.
Diamond [ron Min. Co. v. Buckeye
Iron Min. Co., 486.
Diamond Plate Glass Co. v. Echelbarg
er, 476. ‘
Dibble v. Castle Chief Gold Min. Co.,
282, 2838, 307, 520.
Dickey v. Coffeyville Vitrified Brick
& Tile Co., 475.
Dill v. Fraze, 478.
Dillon v. Bayliss, 214, 215.
Dimick v. Shaw, 517.
Dodge v. Chambers, 491.
Doe v. Sanger, 204, 221, 419.
Doe v. Tyler, 196.
Doe y. Waterloo Min. Co., 26, 172, 183,
188, 192, 210, 224, 406, 408, 414, 419,
439, 499.
Doherty v. Morris, 281, 332, 338, 335.
Dolan y. Passmore, 213. ;
Dolles v. Hamberg Consol. Mines, 279.
Donahue v. Meister, 208, 376,
698
CASES CITED.
{The figures refer to pages,]
Donk Bros. Coal & Coke Co. v. No-
vero, 509.
Donovan vy. Consolidated Coal Co., 518,
515.
Doolan vy. Carr, 64, 393.
Doon y. Tesch, 383.
Doran vy. Central Pae. R. Co., 18, 72, 73.
Dorr y. Reynolds, 484.
Dorsey v. Newcomer, 482, 490, 493.
Dotson y. Arnold, 386.
Dougherty v. Chestnutt, 515.
Doughterty v. Creary, 492.
Doughty v. Minneapolis, St. P. & S.
S. M. R. Co., 73.
Douglass v. Byrnes, 523.
Dower vy. Richards, 101, 243.
Doyle v. Burns, 481.
Drake v. Gilpin Min. Co., 334,
Draper v. Douglass, 498.
Drummond v. Long, 191, 215,
Ducie v. Ford, 373.
Duffield v. Hue, 474.
Duffy v. Mix, 498.
Duffy Quartz Mine, 102.
Dufresne v. Northern Light Min. Co.,
389.
Duggan v. Davey, 187, 1388, 139, 140,
406, 414, 519.
Duke v. Hague, 476.
Duluth & Iron Range R. Co. v. Roy,
54, 330, 334.
Dunean v. Fulton, 190, 191, 221, 223,
312, 336.
Duncan v. Navassa Phosphate Co., 119.
Dunham v. Kirkpatrick, 120, 245.
Dunlap v. Pattison, 173.
Dunphy, 346.
Du Prat v. James, 156, 281, 288, 320.
Durant v. Corbin, 91, 1738.
Durant Min. Co. v. Percy Consol. Min.
Co., 518, 514, 515.
Durell v. Abbott, 379.
Durgan v. Redding, 370, 378.
Duryea v. Boucher, 259.
Duryea v. Burt, 490, 492.
Duxie Lode, 181.
Dywinnell v. Dyer, 21.
Dye v. Crary, 297, 306.
E
Early v. Friend, 495.
East Central Eureka Min. Co. v. Cen-
tral Eureka Min. Co., 407, 415, 416,
458,
East Jersey Iron Co. v. Wright, 485.
Eaton v. Norris, 188, 219.
Eberle v. Carmichael, 149, 278, 279, 481.
Eberville v. Leadville Tunneling, Min-
ing & Drainage Co., 524.
Ebinger, Christian F., 50.
Eclipse Gold & Silver Min. Co. v.
Spring, 878, 416, 440.
Eclipse Mill Site, 360.
Eclipse Oil Co. v. South Penn Oil Co.,
472.
Edsall v. Merrill, 494, 495.
Edwards v. Allouez Min. Co., 532.
Edwards v. McClurg, 484
Ege v. Kille, 514.
Hilers v. Boatman, 156, 187, 194, 198,
206, 214, 412, 513. ~
Elda Min. & Mill. Co., 84.
Elda Min. & Mill. Co. v. Mayflower
Gold Mining Co., 364.
Elder v. Horseshoe Min. & Mill. Co.,
294, 295, 296.
Elder v. Lykens Valley Coal Co., 582.
Electro Magnetic M. & D. Co. v. Van
Auken, 104, 182, 183.
Elijah M. Dunphy, 346.
Elison, 350.
Elk Fork Oil & Gas Co. v. Jennings,
476, 479.
Ellet v. Campbell, 235, 241, 242.
El Paso Brick Co., 352.
Emblen vy. Lincoln Land Co., 50.
Emerson y. McWhirter, 28, 277, 288,
307.
Emery v. League, 472.
Empire Gold Min. Co. y. Bonanza Gold
Min. Co., 518.
Empire Mill. & Min. Co. v. Tombstone
Mill. & Min. Co., 424.
Empire State-Idaho Mining & Develop-
ing Co. v. Bunker Hill & Sullivan
Mining & Concentrating Co., 195,
222, 396, 397, 421, 485, 437, 488, 456,
521.
English v. Johnson, 26. 28, 161, 198.
Enid & A. R. Co. v. Kepaart, 73.
Enterprise Min. Co. v. Rico-Aspen Con-
sol. Min. Co., 234, 235, 237, 248, 244,
371.
Entwhistle v. Henke, 485.
Erhardt v. Boaro, 116, 157, 158, 177,
185, 192, 207, 208, 274. 517.
Drickson v. Michigan Land & Iron Co.,
506, 507.
CASES CITED.
699
(The figures refer to pages.]
Ervin v. Masterman, 492.
Erwin, Appeal of, 489.
Erwin vy. Perego, 152.
Estes v. Timmons, 51.
Esther F. Files, 465.
Eubanks v. Petree, 482, 483.
Eureka Consol. Min. Co. v. Richmond
Min. Co., 18, 125, 126, 128, 130, 136,
401, 417, 419.
F
Fairplay Hydraulic Min. Co. v. Wes-
ton, 930.
Fairview Coal Co. v. Hay, 506.
Fanker v. Anderson, 478.
Farmers’ Loan & Trust Co. v. Grape
Creek Coal Co., 520.
Farmington Gold Min. Co. v. Rhymney
Gold & Copper Co., 188, 190, 191,
218, 214, 215.
Farrell v. Lockhart, 151, 152, 153, 196,
219, 222, 303, 309, 311, 312, 318, 323,
324, 388, 389, 390.
Farrington yv.-Wilson, 302, 407.
Faubel v. McFarland, 293, 306, 525.
Faull v. Cooke, 528.
Faxon v. Barnard, 215, 218.
Federal Oil Co. vy. Western Oil Co.,
472, 473. 474, 479.
Fee v. Durham, 318, 319, 320.
Ferguson vy. Neville, 168.
Ferrell v. Hoge, 160.
Ferris v. Baker, 490, 491.
Ferris v. Coover, 302.
Field v. Grey, 156.
Field v. Tanner, 223,
Figg v. Hensley, 287.
Files, 465.
Finnerty v. Fritz, 488.
Finney v. Berger, 68.
First Nat. Bank v. G. V. B. Min. Co.,
491, 492.
Fisher vy. Bountiful City, 530.
Fisher v. Seymour, 152, 160.
Fisk Min. & Mill. Co. v. Reed, 535.
Fissure Min. Co. v. Old Susan Min.
Co., 188, 191, 218, 214, 237, 238, 278,
281, 282.
Fitzgerald v. Clark, 412, 414, 426.
Fitzpatrick v. Montgomery, 532, 533.
Flagstaff Silver Min. Co. v. Tarbet, 16,
17, 140, 420, 423, 513.
Flaherty v. Gwinn, 25, 28.
284, 290, 317, 318.
Flavin v. Mattingly, 190.
Fleetwood Lode, G9.
Fleming vy. Daly, 149, 182.
Fletcher v. Smith, 584.
lick v. Gold Hill & L. M. Min. Co.,
220.
Florence Oil & Refining Co. v. Orman,
473, 479.
Florida Center & P. R. Co., 120.
Florida Town Imp. Co. v. Bigalsky, 91.
Floyd v. Montgomery, 171, 282.
Foote v. National Min. Co., 131, 182.
Forbes v. Gracey, 145, 509.
Ford v. Campbell, 211, 212, 213, 215,
219, 220, 306, 325.
Forderer y. Schmidt, 297.
Forsythe v. Weingart, 87.
Forsyth v. Wells, 514, 516.
Fort Maginnis, 92.
Foster v. Elk Fork Oil & Gas Co., 476,
479.
Foster v. Lumbermen’s Min. Co., 489.
Four Hundred & Twenty Min. Co. v.
Bullion Min. Co., 521, 524, 525.
Fox v. Hale & Norcross Silver Min.
Co., 108, 489.
Fox v. Mackay, 384, 396.
Fox v. Myers, 148, 150, 161, 207, 210.
Irranceeur v. Newhouse, 152, 393, 398.
Frank A. Maxwell, 171.
Frank v. Bauer, 486.
Vrank y. Hicks, 530.
Tranklin Coal Co. v. McMillan, 515.
Frasher v. O’Connor, 70.
Frederick A. Williams, 355.
IFvedricks v. Klauser, 275, 276, 277,
278, 279.
Freeman, In re, 226,
Freeman v. Hemenway, 490.
Freezer v. Sweeney, 119, 250.
Fremont v. Flower, 392.
Fremont v. U. S., 13.
French v. Lancaster, 90.
Frisholm v. Fitzgerald, 222, 223,
339.
Fritzler v. Robinson, 486.
Fuhr v. Dean, 484.
Fulkerson y. Chrisna Min. & Imp. Co.,
m12y
Fuller v. Harris, 24, 26, 214, 218.
Fuller v. Swan River Placer Min. Co.,
hee, :
338,
Fulmele v. Camp, 53.
Funk v. Haldeman, 474, 485.
700
CASES CITED.
[The figures refer to pages,]
Funk v. Sterrett, 192.
Furr v. Dean, 485.
G
Gabathuler, John U., 94.
Gadbury v. Ohio & I. Consol. Natural
& Illuminating Gas Co., 479, 480.
Gage v. Gage, 495.
G. A. Khern, 361.
Galbraith v. Shasta Iron Co., 220, 394,
396, 397.
Gale v. Best, 63, 396.
Gale v. Petroleum Co., 476.
Gallagher v. Gray, 88.
Gallagher v. Hicks, 485, 503.
Gamer v. Glenn, 190, 214.
Gardner v. Bonestell, 51.
Garfield Min. & Mill. Co. vy. Hammer,
168.
Garrard v. Silver Peak Mines, 66, 71,
120, 393.
Garside v. Norval, 493, 496.
Garthe vy. Hart, 321, 498.
Garvey v. Elder, 284.
Gary v. Todd, 120.
Gaylord v. Place, 396.
Gear v. Ford, 275, 276, 308.
Gelcich vy. Moriarty, 207.
Gemmell vy. Swain, 156, 159.
George F. Brice, 468.
Gerbauser, 362,
Germania Iron Co. v. U. S., 53.
German Ins. Co. v. Hayden, 387.
Gibson, 67.
Gibson v. Anderson, 90, 91.
Gibson v. Chouteau, 14, 223.
Gill v. Fletcher, 502, 525.
Gill v. Weston, 120, 245.
Gillespie Tool Co. v. Wilson, 478.
Gillis v. Downey, 287, 326, 367, 372,
379. ,
Gilpin Co. Min. Co. v. Drake, 191, 215.
Gilpin v. Sierra Nevada Consol. Min.
Co., 405, 414.
Girard v. Carson, 152, 180, 377.
Gird v. California Oil Co., 120, 173,
208, 245, 270, 279.
Glacier Mountain Silver Min. Co. v.
Willis, 24, 198, 236, 523, 524.
Glasgow v. Chartiers Oil Co., 472.
Glasgow v. Fairlie, 119.
Glass y. Basin Mining & Concentrat-
ing Co., 216.
Gleeson vy. Martin White Min. Co., 19,
80, 86, 97, 102, 152, 187, 188, 192,
200, 203, 206, 224.
Godfrey v. Faust, 277, 280, 283.
Gohres v. Illinois Min. Co., 199.
Goldberg v. Bruschi, 151, 291, 307, 308,
317, 318, 320.
Golden and Cord Lode Mining Claims,
297, 387.
Golden Chief A Placer Claim, 253.
Golden Crown Lode, 354.
Golden Empire Min. Co., 346.
Golden Fleece Gold & Silver Min. Co.
y. Cable Consol. Gold & Silver Min.
Co., 26, 168, 169, 204, 211, 321.
Golden Link Mining, Leasing & Bond-
ing Co., 154.
Golden v. Murphy, 405, 520.
Golden Reward Min. Co. v. Buxton
Min. Co., 51, 357, 489, 515.
Golden Rule, etc., Co., 345, 348.
Golden Terra Min. Co. v. Mahler, 153.
Golden Terra Min. Co. v. Smith, 91.
Gold Hill Quartz Min. Co. v. Ish, 15,
56, 87.
Goller y. Fett, 494, 498.
Gonu v. Russell, 290, 291.
Gonzales y. French, 52, 85.
Gordon v. Darnell, 488.
Gore v. McBrayer, 25, 174.
Gorlinski, Robert, 49.
Gorman Mining Co. v. Alexander, 168.
Gowdy v. Kismet Gold Min. Co., 153,
313, 388.
Graham v. Carpenter, 50.
Graham y. Pierce, 495.
Grand Canyon R. Co. v. Cameron, 73,
97, 368, 370, 372, 387.
Grand Cent. Min. Co. v. Mammoth
Min. Co., 118, 126, 128, 182, 135, 140,
396, 406, 412, 413.
Gray Copper Lode, 341.
Gray v. Truby, 103, 182.
Great Southern Gas & Oil Co. v. Lo-
gan Natural Gas & Fuel Co., 515.
Great Western Oil Co. v. Carpenter,
473.
Greenwall v. Low Beechburn Coal Co.,
508.
Gregory v. Pershbaker, 182, 135, 186,
137, 160, 165.
CASES CITED.
701
{The figures refer to pages.)
Griffin v. American Gold Min. Co., 373.
Griffin v. Fairmont Coal Co., 507.
Gross v. Hughes, 356, 357, 366.
Grubb v. Bayard, 475, 485.
Gruwell v. Rocca, 168, 374.
Guffey Petroleum Co. v. Jeff Chaison
Townsite Co., 479, 522.
Guffey Petroleum Co. y. Oliver, 472,
479,
Gumbert v. Kilgore, 505.
Gustin vy. Embury-Clark Lumber Co.,
514,
G. V. B. Min. Co. v. First Nat. Bank,
491, 492. :
Gwillim v. Donnellan, 149, 180, 181,
311, 388, 395.
H
Hague v. Wheeler, 471.
Habn v. James, 212, 379.
Hain v. Mattes, 244, 280, 377, 378.
Hale, 277.
Hale & Norcross Gold & Silver Min.
Co. v. Storey County, 498.
Hall vy. Abraham, 485, 487, 513.
Hall vy. Arnott, 223.
Hall v. Duke of Norfolk, 508.
Hall v. Equator Mining & Smelting
Co., 401, 487, 453.
Hall v. Hale, 273.
Hall v. Kearny, 278, 280, 281.
Hall v. Vernon, 521.
Hallack v. Traber, 340, 401, 496.
Hamburg Min. Co. v. Stephenson, 226,
361.
Hamilton v. Delhi Min. Co., 143, 145,
510.
Hamilton vy. Huson, 159.
Hamilton v. Southern Nev. Gold & Sil-
ver Min. Co., 356, 359, 366, 370, 371,
525.
Hammer v. Garfield Min. & Mill. Co.,
191, 214, 307, 308.
Hammond vy. Rose, 528.
Hammon v. Nix, 510.
Hancock vy. Diamond Plate Glass Co.,
472,
Hand v. Cook, 170, 171, 349.
Hansen y. Fletcher, 190, 191, 198, 199,
206, 214, 215.
Hanson v. Craig, 165.
Hard Cash & Other Mill Site Claims,
227, 228, 229, 238.
Hardt y. Liberty Hill Consol. Mining
& Water Co., 533.
Hargrave v. Cook, 527.
Harkrader y. Carroll, 304.
Harkrader v. Goldstein, 100.
Harlan v. Lehigh Coal & Navigation
Co., 484.
Harrington v. Chambers, 116, 126, 155,
182.
Harris v. Equator Min. & S. Co., 395,
498, 524.
Harris v. Heirs of Ralph H. Chapman,
468.
Harris v. Helena Gold Min. Co., 377.
Harris v. Kellogg, 168, 285, 307, 308.
Harris v. Lloyd, 493.
Harris v. Ohio Oil Co., 475, 480.
Harrison v. Hoff, 517.
Hartman v. Smith, 99, 227, 228, 231,
239, 409.
Hartney v. Gosling, 491, 492.
Hartwell v. Camman, 502.
Harvey v. Ryan, 25.
Haskell v. Sutton, 476.
Haskins v. Curran, 490.
Hastings & D. R. Co. v. Whitney, 53.
Hauswirth v. Butcher, 198.
Hawkins y. Spokane Hydraulic Min.
Co., 496.
Hawley v. Diller, 52.
Haws vy. Victoria Copper Min. Co., 25,
186, 206, 210, 211.
Hayes v. Lavagnino, 126, 130, 148, 149,
161, 311.
Haynes v. Briscoe, 295, 353.
Headley v. Hoopengarner, 475.
Healey v. Rupp, 160, 179, 356, 368, 369,
374, 380.
Hecla Consol. Min. Co., 180, 230.
Heil v. Martin, 19, 86, 97, 152, 200.
Heine v. Roth, 86, 148.
Heinze v. Boston & M. Consol. Copper
& Silver Min. Co., 406, 412.
Helbert v. Tatem, 378.
Helena Gold & Iron Co. v. Baggaley,
218, 219, 221, 328, 324.
Helena, etc., Co. v. Dailey, 370.
Heller v. Dailey, 476. y
Heman vy. Griffith, 176.
Henderson v. Ferrell, 479.
Henderson vy. Fulton, 118, 119, 182.
Hendler v. Lehigh Val. R. Co., 118,
119,
702
CASES CITED.
[The figures refer to pages,]
Hendricks y. Spring Valley Min. & Irr.
Co., 508.
Hendrie & Bolthoff Mfg. Co. v. Parry,
520.
Henne y. South Penn Oil Co., 473.
Henshaw v. Clark, 152.
Herdie vy. Young, 516.
Hermocilla v. Hubbell, 66, 70.
Herriman Irr. Co. v. Butterfield Min.
& Mill. Co., 523.
Herron y. Eagle Min. Co., 498.
Hess v. Winder, 159, 185.
Hewitt v. Schultz, 53.
Heydenfeldt v. Daney Gold & Silver
Min. Co., 66, 68.
Hibberd v. Slack, 65.
Hickey v. Anaconda Copper Min. Co.,
21, 212, 217, 273, 394, 421, 439.
Hicks v. Bell, 9, 11.
Hidden Treasure Consol. Quartz Mine,
279, 344, 351.
Hidee Gold Min. Co., 195, 421.
Higgins v. Armstrong, 491.
Higgins v. Houghton, 66.
Higgins v. Mining Co., 510.
Highland Boy Gold Min. Co. vy. Strick-
ley, 522, 523.
Hill v. Martin, 80, 102,
Hill v. Pardee, 505.
Hill v. Taylor, 520.
Hindson v. Markle, 532.
Hirschler vy. McKendricks, 277, 282,
292.
Hoban v. Boyer, 152, 379.
Hobart v. Ford, 522.
Hobart v. Murray, 484.
Hobbs v. Amador & Sacramento C. Co.,
533.
Hodges v. Brice, 480.
Hogan and Idaho Placer
Claims, 253.
Holbrooke y. Harrington, 294.
Holladay Coal Co. v. Kirker, 465.
Holland v. Mt. Auburn Gold Quartz
Min. Co., 188.
Holman v. Central Montana Mines Co.,
351, 366, 368.
Holmes v. Salmanca Gold Min. & Mill.
Co., 379.
Holter v. Northern Pace. R. Co., 81.
Holt v. Murphy, 401.
Homer Santee, 347.
Homestake Min. Co., 414,
Mining
Honaker v. Martin, 277, 292,
Hooper, 119.
Hooper vy. Ferguson, 84.
Hope, Appeal of, 484.
Hope Min. Co. v. Brown, 148, 234, 235,
237, 371, 412.
Hopkins v. Butte Copper Co., 376, 378.
Hopkins v. Noyes, 156, 498.
Hopper v. Nation, 55.
Horner v. Watson, 506, 534,
Horsky v. Moran, 100.
Horst v. Shea, 398, 524.
Horswell v. Ruiz, 156, 419.
Hosack v. Crill, 484, 485, 503.
Hosford v. Metcalf, 485.
Hough v. Hunt, 276, 277.
Houssiere-Latreille Oil Co. v. Jen-
nings-Heywood Oil Syndicate, 473.
Howard v. Perrin, 75.
Howeth v. Sullenger, 186, 198.
Hoyt v. Weyerhaeuser, 52, 54, 80.
H. P. Bennet, Jr., 246.
Hudepohl v. Liberty Hill Consol. Min-
ing & Water Co., 488.
Huff v. McCauley, 485.
Huggins v. Daley, 473, 475, 476, 477,
479,
Hughes v. Devlin, 395, 521.
Hulings v. Ward Townsite, 99, 101.
Hulst v. Doerstler, 305, 306, 333.
Humbird v. Avery, 53.
Hunter, In re, 235.
Hunt v. Eureka Gulch Min. Co., 366.
Hunt vy. Patchin, 323, 329, 496.
Hunt v. Steese, 115.
Huss v. Jacobs, 301, 502.
Hustler and New Year Lode Claims,
195.
Hutchings v. Low, 85.
Hutchinson v. Kline, 496, 503.
Hyman v. Wheeler, 132,
Iams v. Carnegie Natural Gas Co., 476,
Toa. Central Ass’n of Wyoming, 379,
faahe Min. & Mill. Co. v. Davis, 143,
ioe Placer Mining Claims, 253.
ae Silver Min. & Mill. Co. v. Raff,
CASES CITED.
703
(The figures refer to pages.]
Illinois & St. L. R. & Coal Co. v. Ogle,
515.
Indiana Natural Gas & Oil
Pierce, 476.
Indianapolis Natural Gas Co. vy. Kib-
bey, 477.
Indian Reservation, 91.
Ingemarson v. Coffey, 184.
Ingle v. Bottoms, 476.
Integrity Min. & Mill. Co. v. Moon, 518.
Interstate Coal & Iron Co. vy. Clint-
wood Coal & Timber Co., 502, 503.
Tola Lode Case, 384.
Iron Silver v. Louisville, 139.
Iron Silver Min. Co. vy. Campbell, 262,
369, 373, 399, 414.
Iron Silver Min. Co. v. Cheesman, 117,
126, 127, 128, 134, 135, 413, 440.
Iron Silver Min. Co. vy. Elgin Mining
& Smelting Co., 405, 415, 419, 422,
425.
Iron Silver Min. Co. v. Mike & Starr
Gold & Silver Min. Co., 128, 261, 263,
267, 414.
Iron Silver Min. Co. v. Murphy, 140,
148, 412.
Iron Silver Min. Co. v. Reynolds, 267.
Irwin v. Strait, 528.
Isabella Gold Min. Co. v. Glenn, 486.
Isom v. Rex Crude Oil Co., 120.
Ivanhoe Min. Co. v. Keystone Consol.
Min. Co., 15, 66, 67, 70.
Ivy Coal & Coke Co. v. Alabama Coal
& Coke Co., 514.
J
Jack Pot Lode Min. Claim, 420.
Jackson v. Dines, 190, 215.
Jackson vy. Feather River & Gibson-
ville Water Co., 497, 498.
Jackson v. McFall, 378, 379.
Jackson y. O’Hara, 473.
Jackson vy. Prior Hill Min. Co., 310.
Jackson v. Roby, 270, 277, 279, 280,
ORE.
Jackson vy. White Cloud Gold Min. &
Mill. Co., 172.
James Carretto
Claims, 278, 351.
James D. Negus, 465.
James vy. Germania Iron Co., 52, 54,
392.
Co, Vv.
and Other Lode
Jamestown vy. Northern Pac. R. Co.,
bed,
Jamestown & N. R. Co. v. Jones, 71,
74,
James W. Logan, 14s.
Jantzon y. Arizona Copper Co., 168,
220.
J. B. Chaffee, In re, 235.
Jefferson Iron Works vy. Gill Bros., 504.
Jefferson Min. Co. v. Anchoria-Leland
Min. & Mill. Co., 373, 404, 486, 439,
441, 443, 456,
Jeffords v. Hine, 51.
Jennings v. Rickard, 493.
Jennison v. Kirk, 6, 15, 527.
Jessie BE. Oviatt, 463.
J. M. Guffey Petroleum Co. -v. Jeff
Chaison Townsite Co., 479, 522.
J. M. Guffey Petroleum Co. v. Oliver,
472, 479.
Johanson v. Washington, 49, 65, 69.
Johanson y. White, 157.
John Hunter, In re, 235,
Johnson v. Drew, 51.
Johuson v. Hurst, 55.
Johnson y. Johnson, 392.
Johnson v. Leonhard, 463, 466.
Johnson v. McLaughlin, 27, 28, 218,
274.
Johnson v. McMillan, 467.
Johnson v. Parks, 206, 221.
Johnson v. Young, 222, 223, 307, 340.
Johnston vy. Crimpton, 119.
Johnston v. Morris, 56, 68,
John U. Gabathuler, 94.
Jones v. Adams, 528.
Jones American Ass’n, 502,
Jones Clark, 492, 493.
Forest Oil Co., 471.
Hoover, 53.
Jackson, 238, 239, 5383.
Jones v. Pacifie Dredging Co., 377.
Jones v. Prospect Mountain Tunnel
Co., 187, 405.
Jones v. Robertson, 532, 535.
Jones v. Wagner, 505.
Jones Lode, 195, 226, 365.
Jordan v. Duke, 223, 320, 323.
Jordan vy. Schuerman, 228, 337.
J. S. Wallace, 368.
Jupiter Min. Co. v. Bodie Consol. Min.
Co., 28, 25, 28, 126, 182, 148, 160,
188, 191, 192, 198, 205, 211, 214, 279,
440.
v.
Vv.
Vv.
Vv.
Vv.
704
CASES CITED.
[The figures refer to pages,]
Justice Min. Co. v. Barclay, 278, 281,
288, 289.
Justice Min. Co. v. Lee, 169.
K
Kahn v. Central Smelting Co., 491, 492,
495. :
Kahn vy. Old Tel. Min. Co., 401, 493.
Kannaugh vy. Quartette Min. Co., 356,
380.
Katherine Davis, 64.
Katz v. Walkinshaw, 472.
Keeler v. Trueman, 377, 395, 498.
Kelley v. Ohio Oil Co., 471, 474.
Kelly v. Keys, 476.
Kendall v. San Juan Min. Co., 90, 91.
Kendall v. San Juan Silver Min. Co.,
389.
Kennedy v. Dickie, 51.
Kennedy Mining & Milling Co. v. Ar-
gonaut Mining Co., 417, 458.
Keppler v. Becker, 378.
Kern Oil Co. v. Clarke, 69, 93.
Kern Oil Co. v. Clotfeter, 246.
Kern Oil Co. v. Crawford, 251, 252,
255, 256.
Keystone Lode & Mill Site v. State of
Nevada, 66.
Khern, 361.
Kimberly v. Arms, 490, 492, 493.
King v. Amy & Silversmith Consol.
Min. Co., 420, 423.
King v. Bradford, 119.
King v. Edwards, 7, 28.
King v. McAndrews, 52, 90.
King y. Randlett, 498.
Kingsley v. Hillside Coal & Iron Co.,
484, 503.
Kinney v. Consolidated Va. Min. Co.,
497.
Kinney v. Fleming, 174, 191, 205, 208,
805, 324.
Kinney v. Lundy, 222, 316.
Kinney v. Van Bokern, 368.
Kinsley v. New Vulture Min. Co., 277.
Kirby v. Potter, 87.
Kirchner v. Smith, 491.
Kirk v. Clark, 244, 281.
Kirk v. Meldrum, 151, 260, 381.
Kirwan v. Murphy, 55, 56.
Kistler v. Thompson, 505.
Kitchen v. Smith, 476,
Kitcherside vy. Myers, 53.
KXleppner v. Lemon, 471.
Klopenstine v. Hays, 278, 288, 289, 292.
Knickerbocker v. Halla, 297.
Knight v. United Land Ass’n, 60.
Knight v. U. S., 48.
Knotts v. McGregor, 478.
K. P. Min. Co. v. Jacobson, 487.
Krall v. United States, 530.
Kramer vy. Settle, 174, 280.
i
Lacey v. Woodward, 159, 288, 290, 303,
318.
Lackawanna Placer Claim, 354.
Laesch v. Morton, 494.
La Grande Inv. Co. v. Shaw, 148, 160.
Lakin v. Dolly, 393.
Lakin v. Roberts, 393.
Lalande v. Townsite of Saltese, 101,
102, 370.
Lamb vy. Northern Pac. R. Co., 82.
Landregan v. Peppin, 376.
Lange v. Robinson, 151, 375.
Langmede v. Weaver, 475.
Lanyon Zine Co. v. Freeman, 120, 470.
Largey v. Bartlett, 487.
Larimer County Ditch Co. v. Zimmer-
man, 535.
Larkin v. Upton, 140, 148, 234, 412.
Larned v. Jenkins, 17, 100, 101, 414.
Last Chance Min. Co. v. Bunker Hill
& §S. Mining & Concentrating Co.,
220, 324, 396, 423, 487, 525.
Last Chance Min. ‘Co. v. Tyler Min.
Co., 204, 384, 419, 423, 425, 426.
Latham, 353.
Laughing Water Placer, 253, 287, |
Lauman v. Hoofer, 152, 310, 385.
Lavagnino v. Uhlig, 151, 152, 153, 170,
196, 219, 222, 289, 290, 311, 312, 318,
321, 322, 323, 324, 349, 379, 388, 389,
890, 434, 486, 524.
Lawrence y. Robinson, 482, 490, 492.
Lawson y. Kirchner, 474, 476.
Lawson v. United States Min. Co., 147,
871, 372, 396, 397, 406, 421, 437.
Lazarus’ Estate, In re, 484.
Leach vy. Potter, 84.
Leadville Co. v. Fitzgerald, 133, 184,
135, 405, 412, 413, 414.
CASES CITED.
705
{The figures refer to pages.]
Lebanon Min. Co. v. Consolidated Re-
publican Min. Co., 501.
Lebanon Min. Co. v. Rogers, 18.
Ledbetter v. Borland, 393.
Ledoux y. Forester, 161, 186, 198.
Lee v. Johnson, 51, 52.
Lee v. Stahl, 457.
Lee Doon v. Tesh, 377.
Leet v. John Dare Silver Min. Co., 27,
143.
Le Fevre vy. Amonson, 374, 3887.
Leffingwell, 171.
Leggatt v. Stewart, 198.
Lehigh Zinc & Iron Co. v. New Jersey
Zine & Iron Co., 517.
Lellie Lode Min. Claim, 200, 410, 458.
Le Marchel v. Teagarden, 54, 392.
Le Neve Mill Site, 229, 230.
Lenfers v. Henke, 521.
Lennig, 227, 230, 238.
Levy v. Gause, 62.
Liddia Lode Mining Claim, 359.
Lily Min. Co. v. Kellogg, 357, 373.
Lincoln-Lucky & Lee Min. Co. v. Hen-
dry, 512.
Lincoln v. Rodgers, 238.
Little Dorrit Gold Min. Co. vy. Arapa-
hoe Gold Min. Co., 278, 288, 300, 307,
309.
Little Gunnell Co. v. Kimber, 149, 277,
290, 308, 314, 328, 342.
Little Josephine Min. Co. v. Fullerton,
457.
Little Pittsburg Consol. Min. Co. v.
Little Chief Consol. Min. Co., 515.
Little Pittsburgh Consolidated Min. Co.
vy. Amie Min. Co., 180, 181.
Littler v. Robinson, 510.
Livingston v. Moingona Coal Co., 505.
Lizzie Elison, 350.
Lloyd v. Catlin Coal Co., 505, 518.
Lockhart vy. Farrell, 152, 153, 381, 388,
389.
Lockhart v. Johnson, 64, 218, 324, 325,
832, 335.
Lockhart vy. Leeds, 219, 333, 334, 400,
517, 518.
Lockhart v. Rollins, 276, 282, 309, 321,
334, 497.
Lockhart v. Wills, 64, 184, 220, 325,
304, 309, 333, 335.
Lockwood v. Lunsford, 485,
Cost.Min.L.—45
Locust Mountain Coal & Iron Co. v.
Gorrell, 534.
Loeser v. Gardiner, 188, 255, 256, 303,
308.
Logan, 148.
Logan Natural Gas & Fuel Co. v. Great
Southern Gas & Oil Co., 479.
Lohmann v. Helmer, 170, 395, 498.
Londonderry Min. Co. v. United Gold
Mines Co., 191, 214.
Lone Acre Oil Co. v. Swayne, 495.
Lone Jack Min. Co. v. Megginson, 168.
Lone Tree Ditch Co. v. Cyclone Ditch
Co., 528.
Long, In re, 226.
Long v. Isaksen, 84, 119.
Loomis v. Bedel, 499.
Lord v. Carbon Iron Mfg. Co., 507.
Lord’s Ex’rs v. Carbon Iron Mfg. Co.,
534.
Lorenz v. Waldron, 159.
Louisville Gas Co. v. Kentucky Heat-
ing Co., 471.
Louisville Gold Min. Co. v. Hayman
Mining & Tunnel Co., 351, 352.
Lovely Placer Claim, 277.
Lowry v. Silver City Gold & Silver
Min. Co., 334.
Lowther Oil Co. v. Guffey, 475.
Lowther Oil Co. v. Miller-Sibley Oil
Co., 478, 476, 477, 478, 479, 480.
Lozar vy. Neill, 381.
Lucky Find Placer Claim, 287, 326,
391.
Lulay v. Barnes, 525.
Luthye y. Northern Pac. R. Co., 82.
Lux v. Haggin, 527.
Lyman v. Schwartz, 491, 492,
Lynch v. Burford, 478.
Lynch v. U. S., 81, 118.
M
Mabel Lode, 226.
Mable Min. Co. v. Pearson Coal &
Iron Co., 518.
McBride v. Whitaker, 56.
McBurney v. Berry, 212.
McCann vy. McMillan, 191, 211, 218,
805, 309.
McCarthy v. Speed, 149, 266, 328, 331,
832, 333, 377.
706
CASES CITED.
[The figures refer to pages,]
McCauley v. McKeig, 532.
McCloud v. Central Pac. R. Co., 80.
McCombs v. Stephenson, 118.
McConaghy v. Doyle, 151, 261, 262,
268.
McConnell y. Blood, 342.
McConnell y. Pierce, 502, 5038.
MeCord v. Oakland Quicksilver Min.
Co., 493, 494.
McCormick v. Baldwin, 278, 292.
McCormick v. Parriott, 282, 520,
McCormick v. Sutton, 100.
McCormick v. Varnes, 414, 423.
McCowan v. Maclay, 217, 524.
McCreery v. Haskell, 70.
McCullagh vy. Rains, 484.
McCulloch y. Murphy, 174, 271, 284,
285, 307.
McDermott Min. Co. v. McDermott,
835, 502.
McDonald v. Montana Wood Co., 255,
260, 270.
McElligott v. Krogh, 195, 196, 200, 204,
419, 448.
McEvoy v. Hyman, 205, 223, 336, 337,
838, 384.
McFadden v. Mountain View Min. &
Mill. Co., 53, 90, 91, 368.
McFeters v. Pierson, 142, 148, 168,
395.
McGarrity v. Byington, 28, 275, 280.
McGinnis v. Egbert, 155, 180, 181, 182,
223, 278, 284, 285, 325, 337, 382.
McGlenn vy. Wienbroeer, 119.
McGonigle v. Atchison, 516. ;
McGowan v. Alps Consol. Min. Co.,
391.
McGowan v. Bailey, 495.
McGowan v. Maclay, 524.
McGrath v. Bassick, 282.
McGuire v. Brown, 528.
McIntosh v. Price, 199, 215, 258, 259.
Mack v. Mack, 482.
Mackall v. Goodsell, 84.
Mackay v. Fox, 369, 377, 384, 385.
McKay v. McDougall, 278, 290, 291,
301, 303, 318.
McKay v. Neussler, 282, 294,
McKenzie y. Coslett, 483.
McKeon v. Bisbee, 395.
McKiernan yv. Hesse, 342.
McKinley Creek Min. Co. v. Alaska
United Min. Co., 168, 188, 191, 236,
252, 255, 256, 257.
McKinley v. Wheeler, 171, 172, 173.
McKinstry v. Clark, 149, 180.
McKnight v. Manufacturers’ Natural
Gas Co., 480.
McLaughlin v. Thompson, 185, 483.
McLucas v. St. Joseph & G. I. R. Co.,
74,
MeMahon v. Meehan & Larson, 174,
491, 493.
McMaster, 368.
MeMillen v. Ferrum Min. Co., 149, 154,
180, 181, 2138, 312, 520.
MeNeil v. Pace, 320.
McPherson y. Julius, 151, 189, 198.
McQuiddy v. California, 57, 119, 120,
246,
McShane v. Kenkle, 148, 155.
McWilliams v. Winslow, 151, 309, 381.
Madar v. Norman, 491, 493.
Madden y. Lehigh Valley Coal Co.,
506.
Madison Placer Claim, 376.
Maginnis, Fort, 92.
Magruder vy. Oregon & C. R. Co., 56,
57.
Mahoganey No. 2 Lode Claim, 66, 69.
Majors v. Rinda, 84.
Malaby vy. Rice, 371, 372, 400, 401.
Malcomson vy. Wappoo Mills, 484.
Malecek v. Tinsley, 156, 177, 188, 207.
Mallett v. Uncle Sam Goid & Silver
Min. Co., 28, 3806, 307.
Malone v. Jackson, 156, 278, 317, 322,
323.
Maloney v. King, 406, 515.
Manhattan Oil Co. v. Carrell, 473.
Manley v. Boone, 521.
Mann v. Budlong, 275.
Manners Const. Co. v. Rees, 85.
Manning v. Frazier, 485, 502.
Manning v. San Jacinto Tin Co., 64.
Manning v. Strehlow, 382.
Mansfield Coal & Coke Co. v. Mellon,
504,
Mantle v. Noyes, 373.
Manuel v. Wulff, 168, 395.
Manufacturers’ Gas & Oil Co. v. In-
diana Natural Gas & Oil Co., 471,
474,
Manville v. Parks, 490, 492.
Marburg Lode Mining Claim, 287, 326.
Mares v. Dillon, 21, 212, 875, 376.
Marks v. Gates, 482, 490, 491.
Marquez vy. Frisbie, 51, 53.
CASES CITED.
70T
(The figures refer to pages.]
Marshall v. Harney Peak Tin Min.,
Mill. & Mfg. Co., 186, 308.
Marshall Silver Min. Co. v. Kirtley,
877.
Marsh v. Holley, 493.
Mars v. Oro Fino Min. Co., 377.
Martel v. Jennings-Heywood Oil Syn-
dicate, 473, 495.
Martin v. Browner, 98.
Marvel v. Merritt, 144.
Marvin v. Brewster Iron Min. Co., 502,
503, 507.
Mary Darling Placer Claim, 361.
Mary McM. Latham, 353.
Mathews v. People’s Natural Gas Co.,
472, 478.
Mathews Slate Co. v. New Empire
Slate Co., 487.
Matko v. Daley, 316.
Matlock v. Stone, 168, 377.
Mattingly v. Lewisohn, 282, 308, 378.
Matulys v. Philadelphia & Reading
Coal & Iron Co., 505, 508.
Maxwell, 171.
Mayer v. Carothers, 525.
Maye v. Yappen, 514.
Mayflower Gold Min. Co., 344.
Meadows, Paris, 49.
Meagher vy. Reed, 491, 492.
Medley v. Robertson, 68.
Meehan v. Nelson, 489.
Melder v. White, 74.
Melton v. Lambard, 494, 498.
Merced Min. Co. v. Fremont, 10.
Merced Oil Min. Co. v. Patterson, 160,
299.
Merk y. Bowery Min. Co., 487.
Merrill v. Dixon, 66.
Merritt v. Judd, 341.
Mery v. Brodt, 88.
Metcalf v. Prescott, 192, 215.
Meydenbauer vy. Stevens, 31, 135, 148,
156, 188, 203, 205, 206, 220, 397.
Meyer-Clarke-Rowe Mines Co. v. Stein-
field, 205.
Meylette v. Brennan, 481, 482.
Michael v. Mills, 147, 151, 152, 180,
264,
Mickle v. Douglas, 506.
Migeon v. Montana Cent. R. Co., 126,
128, 150, 261, 303.
Milford Metal Mines Inv. Co., 352.
Miller v. Butterfield, 482.
Miller vy. Chrisman, 157, 160, 162, 163,
164, 166, 211, 254, 499.
Miller v. Girard, 180, 311.
Miller vy. Hamley, 181, 302, 306.
Miller v. Taylor, 184, 314.
Miller Placer Claim, 253.
Milligan v. Savery, 375.
Mills v. Fletcher, 274, 284,
Mills v. Hartz, 473, 479.
Mill Site, 351, 360.
Milwaukee Gold Extraction Co. vy. Gor-
don, 223, 337, 381.
Minah Consol. Min. Co. v. Briscoe,
334.
Mineral Farm Min. Co. v. Barrick, 51,
359, 390.
Minneapolis, St. P. & S. S. M. R. Co.
v. Doughty, 71.
Minnesota & M. Land & Improvement
Co. v. Brasier, 524.
Miser v. O’Shea, 238, 239, 5383.
Missouri, K. & T. R. Co. v. Roberts,
74, 90.
Missouri, K. & T. R. Co. v. Watson, 74.
Mitchell y. Cline, 173, 521.
Mitchell v. Hagood, 168.
Mitchell v. Hutchinson, 252.
Moffat v. Blue River Gold Excavating;
Co., 303, 307, 317, 321, 381.
Molina vy. Luce, 152.
Monk, In re, 23.
Monster Lode Mining Claim, 344.
Montague v. Labay, 389.
Montana Cent. R. Co., 74.
Montana Cent. R. Co. v. Migeon,. 261,
262, 263.
Montana Co. v. Clark, 405, 419.
Montana Co. v. Gehring, 531.
Montana Co. v. St. Louis Min. & Mill.
Co., 519, 520.
Montana Copper Co. v. Dahl, 261.
Montana Min. Co. v. St. Louis Mining
& Milling Co., 384, 407, 484, 444,
458, 500, 513.
Montana Ore Purchasing Co. v. Bos-
ton & M. Consol. Copper & Silver
Min. Co., 97, 102, 411, 412, 452, 458s.
Mont Blane Consol. Gravel Min. Co. v.
Debour, 377, 380.
Montrozona Gold Min. Co. y. Thatch-
er, 488, 514.
Moore v. Brown, 48.
Moore v. Griffin, 502, 503.
708
CASES CITED.
(The figures refer to pages,]
Moore v. Hamerstag, 174, 498.
Moore vy. Indian Camp Coal Co., 503.
Moore v. Robbins, 51, 398.
Moore v. Smaw, 9, 10, 13, 61, 392.
Moore v. Steelsmith, 148, 174, 205,
255, 3895.
Moore Consol. Min. Co. v. Nesmith,
350.
Moorhead v. Erie Min. & Mill. Co.,
158, 222, 290, 311, 312.
Morenhaut v. Wilson, 304, 308, 494.
Morgan v. Tillottson, 270.
Morgan v. Varick, 517.
Moritz v. Lavelle, 481.
Morning Star Lode Mining Claims,
358.
Morrill v. Northern Pac. R. Co., 119.
Morrison, 465, 466.
Morrison v. Regan, 191, 213, 214, 223,
338.
Morrow v. Matthew, 483.
Morton v. Solambo Copper Min. Co.,
5, 210.
Moss v. Dowman, 51.
Mountain View Min. & Mill.
McFadden, 375.
Mt. Diablo Mill. & Min. Co. v. Cal-
lison, 143, 187, 275, 276, 280, 281, 440.
Mt. Rosa Mining, Milling & Land Co.
v. Palmer, 265, 267, 268, 512.
Mower v. Fletcher, 70.
Moxon v. Wilkinson, 259.
Moyer v. Preston, 529.
Moyle v. Bullene, 99, 152, 180, 222, 339.
Muhlenberg v. Henning, 486.
‘Muldoon vy. Brown, 216.
Muldrick v. Brown, 148, 182, 518.
Mullan v. U. S., 67, 81.
Mullins v. Butte Hardware Co., 521.
Murdock-West Co. v. Logan, 476.
Murley v. Ennis, 174, 183, 302, 311,
481, 482.
Murray v. Allred, 120, 470.
Murray v. Barnhart, 473.
Murray v. Haverty, 493.
Murray v. Montana Lumber & Mfg.
Co., 369, 400.
Murray v. Polglase, 286, 367, 377, 380.
Murray v. Tingley, 529.
Murray Hill Min. & Mill. Co. v. Ha-
venor, 285, 380.
Muskett v. Hill, 485.
Mutchmor v. McCarty, 215, 220, 261,
263, 268.
’
Co. v.
Mutual Mining & Milling Co. v. Cur-
rency Co., 158, 318, 366, 388.
Myers v. Spooner, 218.
N
Nadger Gold Min. & Mill. Co. v. Stock-
ton Gold & Copper Min. Co., 295.
Narver v. Eastman, 87.
Nash v. McNamara, 324.
National Light & Thorium Co. v. Alex-
ander, 484, 486.
National Mining & Exploration Co.,
226.
National Oil & Pipe Line Co. v. Teel,
479.
National Transit Co. v. Weston, 517.
Navajo Indian Reservation, 90.
Negaunee Iron Co. v. Iron Cliffs Co.,
502, 518.
Negus, 465.
Neilson v. Champagne Min. & Mill. Co.,
390, 400.
Neilson v. Champaigne Min. & Mill.
Co., 286, 327.
Nelson v. Northern Pac. R. Co., 75.
Nelson v. O’Neal, 533.
Nesbitt v. De Lamar’s Nevada Gold
Min. Co., 288, 373.
Neuebaumer v. Woodman, 185.
Nevada Ditch Co. v. Bennett, 529.
Nevada Lode, 386.
Nevada Sierra Oil Co. v. Home Oil
Co., 149, 157, 160, 165, 311, 520.
Nevada Sierra Oil Co. v. Miller, 162.
New American Oil Co. v. Troyer, 473.
Newbill v. Thurston, 192, 207.
New Dunderberg Min. Co. v. Old, 17,
52, 416, 423.
New England & Coalinga Oil Co. v.
Congdon, 156, 162, 165, 276.
Newhall v. Sanger, 63.
Newman v. Newton, 379.
New Sharlston Collieries Co. v. Earl
of Westmoreland, 506.
Ney Year Lode Claims, 195.
New York Hill Co. v. Rocky Bar Co.,
371, 372, 386.
New York & N. E. R. Co. v. Com’rs,
507.
Nielson v. Champagne Min. & Mill, Co.,
344, 348.
Niles v. Kennan, 304,
Nisbet v. Nash, 492.
CASES CITED.
709
{The figures refer to pages.}
Noble v. Union River Logging R. Co.,
53.
Nolan v. Lovelock, 492.
Nome-Sinook Co. v. Simpson, 370.
Nome & Sinook Co. v. Townsite of
Nome, 99.
Noonan y. Caledonia Gold Min. Co., 91.
Noonan vy. Pardee, 504, 505, 508.
Norfleet v. Russell, 499.
Norman v. Phenix Zine Mining &
Smelting Co., 36.
North American Exploration Co. v.
Adams, 230.
North Bloomfield Gravel Min. Co. v.
United States, 534.
North Clyde Quartz Mining Claim and
Mill Site, 351.
Northern Lumber Co. v. O’Brien, 53,
81.
Northern Pac. R. Co., 353.
Northern Pac. R. Co. v. Cannon, 80.
Northern Pac. R. Co. v. Idaho, 81.
Northern Pac. R. Co. v. McCormick,
73.
Northern Pac. R. Co. v. Murray, 73,
75.
Northern Pac.
Northern Pace.
Northern Pac.
79, 118, 121.
Northern Pac. R. Co. v. Townsend, 74.
Northern Pac. R. Co. v. Wass, 81.
Northmore v. Simmons, 27, 273, 274.
North Noonday Min. Co. y. Orient Min.
Co., 25, 117, 182, 155, 160, 169, 172,
187, 188, 191, 192, 211, 214, 440.
North Star Lode, 368, 369, 373.
Northwestern Ohio Natural Gas Co. v.
Tiffin, 474.
Noyes v. Black, 156.
Noyes v. Clifford, 151, 261, 262, 263, 267,
268, 284, 369, 372, 399.
Noyes v. Mantle, 262, 268, 369, 372.
No. 5 Min. Co. v. Bruce, 488.
0
Oberto v. Smith, 299, 304.
O’Brien v. Boland, 488.
O’Connell v. Pinnacle Gold Mines Co.,
895.
O’Donnell v. Glenn, 155, 181, 182, 216.
Ohio Oil Co. y. State of Indiana, 471,
474,
R. Co. v. Sanders, 76.
R. Co. v. Smith, 74, 98.
R. Co. v. Soderberg, 53,
O’Keefe v. Cannon, 262.
Olippey Min. Co. v. Eli Mining & Land
Co., 157.
Olive Land & Development Co. v. Olm-
stead, 165.
Omaha & Grant Smelting & Refining
Co. v. Tabor, 514, 515.
Omar v. Soper, 156, 177, 210, 219, 220,
306, 324, 325.
O’Neill v. Risinger, 472, 473.
Oolagah Coal Co. v. McCaleb, 518.
Ophir Silver Min. Co. v. Superior
Court, 405, 406, 517.
Opie v. Auburn Milling Co., 386.
Orchard v. Alexander, 359.
Oreamuno v. Uncle Sam Gold & Silver
Min. Co., 29, 308, 307. .
Oregon King Min. Co. v. Brown, 187,
188, 209.
Oregon Short Line R. Co. v. Fisher, 73.
Oregon Short Line R. Co. v. Quigley,
74, 85. - .
Oregon Short Line R. Co. v. StBIREE,
71, 74.
Oregon & C. R. Co., 80.
Oregon & C. R. Co. v. U. S., 76, 80, 81.
Original Company of Williams & Kel-
linger v. Winthrop Min. Co., 23, 27,
278, 274.
Ormund v. Granite Mt. Min. Co., 149,
519.
Orr v. Haskell, 26.
Osborn y. Froyseth, 80.
Oscamp v. Crystal River Min. Co., 222,
290, 305, 390, 395.
Osgood v. El Dorado Water & Deep
Gravel Min. Co., 528.
Otaheite Gold & Silver Min. & Mill.
Co. v. Dean, 531, 533.
Oury v. Goodwin, 523.
Overman Silver Min. Co. v. Corcoran,
147, 523.
Oviatt, 463.
Owers v. Killoran, 369, 373.
P
Pacific Coast Marble Co. v. Northern
Pac. R. Co., 118, 119, 120.
Pacific Coast Min. & Mill. Co. v. Spar-
go, 152.
Pacific Live Stock Co. v. Isaacs, 517.
Packer v. Heaton, 276, 280.
Page v. Fowler, 517.
710
CASDS CITED.
[The figures refer to pages.]
Page v. Summers, 483.
Palmer v. Truby, 478.
Paragon Min. & Development Co. v.
Stevens County Exploration Co., 316,
324.
Pardee v. Murray, 454, 518, 525.
Paris Gibson, 67.
Paris Meadows, 49.
Parish Fork Oil Co. v. Bridgewater
Gas Co., 478, 476, 479.
Parker v. Furlong, 518.
Parker v. Parker, 520.
Parley’s Park Silver Min. Co. v. Kerr,
26, 378.
Parrott Silver & Copper Co. v. Heinze,
406, 420, 423, 426.
Paterson v. Ogden, 450.
Patten v. Conglomerate Min. Co., 415.
Patterson v. Hewitt, 401, 518.
Patterson v. Hitchcock, 188, 200, 203,
511.
Patterson v. Keystone Min. Co., 497.
Patterson v. Tarbill, 192.
Paul vy. Cragnaz, 484, 494.
Paul Jones Lode, 195, 226, 365.
Payton v. Burns, 211.
Peabody Gold Min. Co. v. Gold Hill
Min. Co., 54, 204, 393, 897, 400.
Peacock Mill Site, 360.
Pearsall & Freeman, 252.
Pelican & Dives Min. Co. v. Snodgrass,
160, 290, 314, 315, 325.
Penn y. Oldhauber, 27, 282.
Pennsylvania Coal Co. v. Sanderson,
532.
Pennsylvania Consol. Min. Co. v. Grass
Valley Exploration Co., 411, 413.
Pennsylvania Min. Co. v. Bales, 3877,
378.
Pennsylvania Min. Co. v. Smith, 487.
Pennsylvania Min. & Imp. Co. v. Ever-
ett & M. C. R. Co., 78, 74.
Pennybecker v. McDougal, 342.
Penny y. Central Coal & Coke Co., 519.
People v. De France, 519.
People vy. District Court, 493, 522.
People v. Gold Run Ditch & Min. Co.,
533, 534.
People v. Naglee, 168.
People v. Pittsburgh R. Co., 522.
People’s Gas Co. v. Tyner, 471.
Peoria & Colorado Mill. & Min. Co. vy.
Turner, 151, 180, 3038, 327.
Peralta v. U. S., 60.
Perego y. Dodge, 375, 379.
Pereles v. Weil, 463.
Perigo v. Erwin, 25, 176, 196.
Perry County Coal Min. Co. v. Maclin,
505.
Peters v. Tonopah Min. Co., 210.
Peters v. U. S., 50.
Peters v. Van Horn, 93.
Peterson v. Bullion-Beck & Champion
Min. Co., 486.
Peterson y. Hall, 502.
Peyton v. Desmond, 51, 5:
Pharis v. Muldoon, 290, 291, 303, 318.
Phelps v. Church of Our Lady Help of
Christians, 119.
Phelps v. Kellogg, 499.
Phenix Mill. & Min. Co. v. Lawrence,
156.
Phifer v. Heaton, 119.
Philadelphia R., Coal & Iron Co. vy.
Taylor, 534.
Phillips v. Brill, 156, 164, 179, 180.
Phillips v. Collinsville Granite Co.,
503, 505.
Phillips v. Hamilton, 479, 480.
Phillips v. Salmon River Mining & De-
velopment Co., 148, 145, 510.
Phillips v. Smith, 156, 157, 378, 381.
Phillpotts v. Blasdel, 208, 501.
Phoenix Min. & Mill. Co. v. Scott, 395,
497, 498, 509.
Phenix Water Co. v. Fletcher, 531.
Pico y. Columet, 495.
Pierce v. Barney, 525.
Pierce v. Pierce, 493.
Pilot Hill & Other Lodes, 200, 414.
Pittsburg Concentrating & Min. Co. v.
Glick, 489.
Pittsburg Vitrified Pav. & Bldg. Brick
Co. v. Bailey, 488.
Plummer v. Hillside Coal & Iron Co.,
478, 484, 508, 525.
Plummer v. Iron Co., 503.
Poe y. Ulrey, 471, 473, 475, 480. /
Poire v. Leadville Imp. Co., 161, 393.
Poire v. Wells, 96, 161, 393.
Pollard v. Shively, 187, 194, 205, 213,
215.
Poplar Creek Consol. Quartz Mine, 149,
180.
Porter v. Tonopah North Star Tunnel
& Development Co., 151, 206.
CASES CITED.
711
{The figures refer to pages.]
Potter v. U. S., 50.
Poujade v. Ryan, 25, 206.
Powell v. Ferguson, 370.
Power y. Sla, 212, 283, 308, 809, 326.
Pralus v. Pacific Gold & Silver Min.
Co., 26.
Pratt v. United Alaska Min. Co., 198,
258.
Preston vy. Hunter, 216, 218, 325.
Preston v. White, 120, 470, 502.
Preteca v. Maxwell Land Grant Co.,
517.
Price v. Black, 479.
Price v. McIntosh, 27, 220, 253.
Prince v. Lamb, 483, 491.
Princeton Min. Co. v. First Nat. Bank
of Butte, 172.
Pringle v. Vesta Coal Co., 504.
Prosser v. Finn, 171.
Prosser v. Parks, 19, 26, 27, 161.
Providence Gold Min. Co. v. Burke,
168, 169, 215, 307, 310, 376.
Providence Gold Min. Co. v. Marks,
376, 378.
Purdum y. Laddin, 28, 213, 215.
Purtle v. Steffee, 88.
P. Wolenberg, 391.
Pyke v. Burnside, 529,
Q
Queen, The, y. Earl of Northumber-
land, 11.
Quigley v. Gillett, 307, 308, 368, 381.
Quimby v. Boyd, 190, 282, 283, 379.
Quinn v. Baldwin Star Coal Co., 464.
R
Rablin, 252.
Rader v. Allen, 398.
Rara Avis G. & S. M. Co. v. Bouscher,
276.
Raunheim y. Dahl, 261.
Rawlings v. Armel, 473, 476, 479.
Rawlings v. Casey, 378.
Raymond v. Johnson, 481.
Raynolds v. Hanna, 484.
Reagan v. McKibben, 199, 481, 498.
Rebecca Gold Min. Co. v. Bryant, 287,
827, 358, 359.
Redden v. Harlan, 158, 160, 165.
Redfield v. Parks, 398, 525.
Red Mount Consol. Min. Co. v. Esler,
495.
Red Wing Gold Min. Co. v. Clays, 405.
Reed vy. Munn, 511.
Keed v. Nelson, 465, 466.
Reedy v. Wesson, 511.
Keiner v. Schroeder, 147, 149, 180.
Reins v. Murray, 250.
Remmington vy. Baudit, 276, 281.
Reno Smelting, Milling & Reduction
Works y. Stevenson, 528.
Renshaw v. Switzer, 808, 321.
Repeater & Other Lode Claims, 297.
Republican Min. Co. v. Tyler Min. Co.,
426.
Resurrection Gold Min. Co. v. Fortune
Gold Min. Co., 515.
Revenue Min. Co. v. Balderston, 31.
Rex vy. Brettell, 144.
Rex v. Sedgley, 144.
Reynolds v. Iron Silver Min. Co., 264,
267, 399, 404, 408.
Reynolds v. Pascoe, 149, 152, 180.
Rialto No. 2 Placer Min. Claim, 253.
Riborado v. Quang Pang Min. Co., 26.
Rice v. Rigley, 483.
Richards v. Dower, 243.
Richards vy. Wolfling, 281, 340.
Richlands Oil Co. v. Morriss, 474, 476.
Richmond Min. Co. of Nevada v. Eu-
reka Consol. Min. Co., 125, 378, 401,
417, 458.
Richmond Min. Co. v. Rose, 198, 377,
380, 384, 393.
Richmond Natural Gas Co. vy. Daven-
port, 471, 472.
Richter v. State of Utah, 69, 119.
Rico-Aspen Consol. Min. Co. v. Enter-
prise Min. Co., 242.
Rico Lode, 352.
Riley v. North Star Min. Co., 452, 458.
Ripley v. Park Center Land & Water
Co., 580.
Risch vy. Wiseman, 151, 524.
Riste v. Morton, 191, 298.
Ritter v. Lynch, 5383.
Roaring Creek Water Co. v. Anthra-
cite Coal Co. of Pittsburg, 532.
Robert Gorlinski, 49.
Robert S. Hale, 277.
Roberts v. Date, 305, 338, 483.
Roberts v. Jepson, 245,
Roberts v. Richards, 39.
712
CASES CITED.
[The figures refer to pages.]
Roberts v. Wilson, 26.
Roberts & Corley v. McFadden, Weiss
& Kyle, 472.
Robertson v. Smith, 15, 105, 158.
Robertson v. Youghiogheny River Coal
Co., 504, 506.
Rockwell v. Graham, 372,
Rodgers v. Pitt, 530.
Rogers, 245.
Rogers v. Clark Iron Co., 53.
Rogers v. Cooney, 489, 533.
Romance Lode Mining Claim, 359.
Roman Placer Mining Claim, 258, 254.
Rorer Iron Co. v. Trout, 486.
Rose No. 1 and Rose No. 2 Lode
Claims, 171.
Rose v. Richmond Min. Co., 368, 377,
878, 381, 384, 393.
Rosenthal v. Ives, 26, 377.
Roseville Alta Min. Co. v. Iowa Gulch
Min. Co., 342, 395, 498.
Rosina T. Gerbauser, 362.
Rough v. Simmons, 378.
Rowland v. Cox, 478.
Roxanna Gold Mining & Tunneling Co.
vy. Cone, 457.
Royston y. Miller, 278, 279, 297, 332,
496. :
Ruffners v. Lewis’ Ex’rs, 495.
Rush y. French, 28, 156, 174.
Russell v. Chumasero, 190, 191, 192.
Russell v. Dufresne, 149, 152.
Russell v. Hoyt, 217, 220.
Russell v. Maxwell Land Grant Co.,
349.
Russell v. Wilson Creek Consolidated
Min. & Mill. Co., 342, 348.
Rutter v. Shoshone Min. Co., 376.
Ryan v. Granite Hill Mining & Deyvel-
opment Co., 97, 370.
$
Sage v. Maxwell, 80.
Sage v. Rudnick, 75.
Sage v. U. S., 75.
St. Clair v. Cash Gold Min. & Mill. Co.,
514.
St. John v. Kidd, 26, 301, 303, 498.
St. Joseph & D. C. R. Co. v. Baldwin,
TA,
St. Louis Min. & Mill. Co. v. Montana
Min. Co., 373, 383, 405, 406, 415, 483,
487, 441, 444, 517.
St. Louis Smelting & Refining Co. v.
Kemp, 6, 142, 148, 270, 278, 280, 393.
St. Paul, M. & M. R. Co. v. Donohue,
76, 81.
St. Paul & P. R. Co. v. Northern Pac.
R. Co., 78.
Salmon y. Symonds, 87.
Salstrom v. Orleans Bar Gold Min. Co.,
533.
Salt Lake Hardware Co. v. Chainman
Mining & Electric Co., 510.
Samuel E. Rogers, 245.
Samuel McMaster, 368.
Sanders v. Noble, 192, 218, 221, 324.
Sanderson v. Pennsylvania Coal Co.,
532.
Sand Point Water & Light Co. v. Pan-
handle Develop. Co., 529.
Sands v. Cruikshank, 161.
Sandy River Cannel Coal Co. v. White
House Cannel Coal Co., 514.
Sanford v. Sanford, 52.
San Jose Land & Water Co. v. San
Jose Ranch Co., 81.
San Miguel Consol. Gold Min. Co. v.
Bonner, 203, 411.
San Pedro & Canon del Agua Co. v. U.
S., 58, 62, 400.
Santee, 347.
Sarah L. Bigelow, 468.
Satisfaction Extension Mill Site, 227.
Saunders v. La Purisima Gold Min.
Co., 70.
Saunders v. Mackey, 2938, 330, 332, 333,
334.
Scheel vy. Alhambra Min. Co., 239.
Schneider vy. Hutchinson, 71.
Schrimpf vy. Northern Pac. R. Co., 119,
120.
Schroder v. Aden Gold Min. Co., 379.
Schultz v. Allyn, 377.
Schultz v. Keeler, 173.
Schwab v. Beam, 530.
Score y. Griffin, 147, 148,
Scott v. Maloney, 368, 376.
Scranton v. Phillips, 506, 507.
Sears v. Taylor, 26.
Seidler v. Lafave, 191, 192, 206.
Seidler v. Maxfield, 192, 215.
Selma Oil Claim, 376.
Senior vy. Anderson, 529.
Settembre v. Putnam, 493.
Settle v. Winters, 487.
CASES CITED.
713
[The figures refer to pages.]
Seymour vy. Fisher, 204, 222, 340.
Seymour K. Bradford, 171.
Shafer v. Constans, 370, 524.
Shannon v. U. §8., 14.
Sharkey y. Candiani, 160, 174, 192,
209, 801, 305, 394, 396.
Sharp v. Behr, 486.
Shattuck v. Costello, 151, 191.
Shaw v. Kellogg, 68, 87.
Shaw v. Wallace, 145.
Shea v. Nilima, 168, 481.
Shenandoah Land & Anthracite Coal
Co. v. Hise, 486.
Shepard v. Murphy, 218, 219.
Shepherd v. Bird, 119.
Shepherd v. McCalmont Oil Co., 473,
475, 477.
Shepley v. Cowan, 50.
Sherlock v. Leighton, 278, 280, 281,
807, 309, 377.
Shiver v. U. S., 85.
Shoemaker v. U. 8., 18, 37.
Shoshone Min. Co. v. Rutter, 126, 340,
375, 501.
Shreve v. Copper Bell Min. Co., 117,
501.
Sierra Blanc Mining & Reduction Co.
vy. Winchell, 152, 160, 208, 328, 324.
Sierra Grande Min. Co. v. Crawford,
28%,
Silsby v. Trotter, 484, 485.
Silver Bow M. & M. Co. v. Clark, 99,
872, 401.
Silver vy. Bush, 470.
Silver City Gold & Silver Min. Co. v.
Lowry, 153, 160, 181, 311, 381, 525.
Silver King Lode, 385.
Silver Peak Mines v. Hanchett, 517.
Silver Peak Mines v. Valcalda, 227,
230.
Silver Star Mill Site, 360.
Single v. Schneider, 514, 516.
Sisson v. Sommers, 27, 29, 183, 274.
Sjoli v. Dreschel, 80.
Skillman vy. Lachman, 492.
Slaght v. Northern Pac. R. Co., 73.
Slater v. Haas, 492.
Slavonian Min. Co. vy. Perasich, 273,
284, 290, 291, 321, 322.
Slothower v. Hunter, 2138, 215, 218,
310, 337, 359.
Smart vy. Jones, 489.
Smith v. Cascaden, 215.
Smith v. Denniff, 527.
Smith v. Imperial Copper Co., 378.
Smith v. Forbes, 521.
Smith v. Jones, 487, 521.
Smith v. McKerracher, 50.
Smith v. Newell, 161, 205, 214, 216, 220.
Smith v. Northern Pac. R. Co., 75.
Smith v. Reynolds, 488.
Smith v. Seattle, 508.
Smith v. Sherman Min. Co., 145.
Smith v. U. S., 50.
Smoot v. Consolidated Coal Co., 502,
516.
Smuggler Min. Co. v. Trueworthy, 386.
Smythe v. Henry, 302, 407.
Snoddy v. Bolen, 100.
Snoddy v. Clark, 100.
Snodgrass v. South Penn Oil Co., 472.
Snow v. Nelson, 488.
Snyder v. Burnham, 490.
Snyder v. Wallace, 370.
Sousa v. Pereira, 73.
Souter v. Maguire, 211.
Southbridge Sav. Bank v. Mason, 342.
South Dakota vy. Vermont Stone Co.,
67.
South End Min. Co. y. Tinney, 286, 307;
826, 391, 524, 525.
Southern California R. Co. vy. O’Don-
nell, 73, 200, 203.
Southern Cross Gold Min. Co. of Ken-
tucky v. Sexton, 52, 286, 287, 297,
356.
Southern Cross Gold & Silver Min. Co.
vy. Europa Min. Co., 186, 191, 211.
Southern Nevada Gold & Silver Min.
Co. v. Holmes Min. Co., 414, 420,
423.
Southern Pac. R. Co. v. Allen Gold
Min. Co., 81.
Southern Pac. R. Co. vy. Lipman, 75.
Southern Pac. R. Co. v. U. §., 68, 76.
South Star Lode, 262, 363.
Spalding v. Chandler, 90.
Sparrow v. Strong, 15, 66.
Speed v. McCarthy, 332.
Spokane & B. C. R. Co. v. Washington
& G. N. R. Co., 71, 81. /
Sprague v. Locke, 518.
Standard Quicksilver Co. v. Habishaw,
87, 393.
Stanley v. Mineral Union, 67.
Starn v. Huffman, 479,
714
CASES CITED.
[The figures refer to pages.]
Starr v. Huffman, 480.
State v. District Court, 97, 195, 406,
421, 486, 519, 520.
State v. Ohio Oil Co., 474.
State v. Tanner, 70.
State of California, 65, 68, 69, 70.
State of California v. Wright, 68. _
State of Kansas v. State of Colorado,
528.
State of Utah, 66, 67.
State of Utah v. Allen, 67.
State of Washington v. McBride, 56.
Steel v. Gold Lead M. Co., 308, 373.
Steel v. St. Louis Smelting & Refining
Co., 96, 97, 392, 393.
Steele, 353.
Steele v. Tanana Mines R. Co., 73, 86,
151, 162.
Steelsmith v. Fisher Oil Co., 477.
Steelsmith v. Gartlan, 478, 475.
Steen v. Wild Goose Min. Co., 220.
Stemmons v. Hess, 356.
Stemwinder Min. Co. v. Emma & Last
Chance Consol. Min. Co., 198.
Stephens v. Golob, 297, 333.
Stephenson v. Wilson, 525.
Stevens y. Gill, 117, 118, 134, 413.
Stevens v. Grand Cent. Min. Co., 371,
401, 496.
Stevens v. Williams, 132, 183, 1384, 140,
141, 414.
Steves v. Carson, 376.
Stewart v. Douglas, 482.
Stewart v. Gold & Copper Co., 168, 169.
Stewart v. McHarry, 51.
Stewart v. Westlake, 334.
Stickley v. Mulrooney, 494.
Stinchfield v. Gillis, 126, 455.
Stinson v. Hardy, 485.
Stoakes v. Barrett, 9.
Stockbridge Iron Co. v.
Works, 519.
Stolp v. Treasury Gold Min. Co., 282,
344, 374, 381.
Stone v. Bumpus, 275, 5382.
Stone v. Geyser Quicksilver Min. Co.,
303, 306.
Stone v. Marshall Oil Co., 515.
Strang v. Ryan, 27, 224, 331, 333.
Strasburger v. Beecher, 308.
Strepey v. Stark, 176, 182, 215, 220,
223, 336, 337.
Strettell v. Ballou, 521.
Cone Iron
Strickley v. Highland Boy Gold Min.
Co., 522.
Strickley v. Hill, 168, 169, 380.
Stuart v. Adams, 488, 490.
Stuart v. Com., 509.
Sturr v. Beck, 528.
Suessenbach v. First Nat. Bank, 872,
395, 401.
Suffolk Gold Min. & Mill. Co. v. San
Miguel Consol. Min. & Mill. Co., 531.
Sullivan v. Hense, 25.
Sullivan v. Iron Silver Min. Co., 263,
264, 267.
Sullivan v. Schultz, 88, 105, 158.
Sullivan v. Sharp, 152, 153, 154, 210,
222, 289, 290, 338, 339.
Sult v. Hochstetter Oil Co., 120, 470,
473.
Summerville v. Appolo Gas Co., 473.
Sunnyside Coal & Coke Co. v. Reitz,
515.
Surprise Fraction and Other Lode
Claims, 372.
Sutter County v. Nicols, 534.
Swearingen v. Steers, 519.
Sweeney yv. Hanley, 496.
Sweet v. Brown, 499.
Sweet v. Webber, 148, 249, 250, 252,
260, 270, 274, 282.
Swigart v. Walker, 287.
Sylvester v. Jerome, 535.
T
Table Mt. Tunnel Co. v. Stranahan, 27,
497.
Tabor v. Dexler, 128, 133.
Talbott v. King, 99, 372, 394, 396, 401.
Talmadge v. St. John, 191, 218, 214,
215, 219.
Tam v. Story, 277, 342, 344.
Tanner v. Treasury Tunnel, Mining &
Reduction Co., 248, 522, 523.
Tartar v. Spring Creek Water & Min-
ing Co., 151, 227.
Taylor v. Castle, 492.
Taylor v. Middleton, 188, 303.
Taylor v. Parenteau, 194, 203.
Telluride Additional Townsite, 99.
Temescal Oil Mining & Development
Co. v. Salcido, 205, 250, 256, 278, 292,
305.
CASES CITED.
715
[The figures refer to pages]
Tennessee Coal, Iron & R. Co. v. Ham-
ilton, 533.
Tennessee Oil, Gas & Mineral Co. v.
Brown, 472, 484.
Terrell v. Hoge, 166.
Terrible Min. Co. v. Argentine Min.
Co., 155, 181, 182, 203.
Territory v. Lee, 168.
Territory v. Mackey, 118.
Territory v. Persons, 63.
Territory of New Mexico, 65.
Thallmann v. Thomas, 52, 156, 157,
325, 335, 400.
Thallman v. Thomas, 205.
Thayer v. Spratt, 88.
Thomas v. Chisholm, 171, 377.
Thomas v. Elling, 371, 387.
Thomas Iron Co. vy. Allentown Min.
Co., 519.
Thompson v. Burk, 162, 334.
Thompson v. Jacobs, 272, 273.
Thompson v. Spray, 173, 174, 176, 211,
224, 336.
Thomson v. Allen, 308.
Thornton v. Kaufman, 378.
Threatt v. Brewer Min. Co., 533.
Tilden v. Intervener Min. Co., 356.
Tinkham v. McCaffrey, 84, 225.
Tipton Gold Min. Co., 346.
Tischler v. Pennsylvania Coal Co., 505,
508.
Tombstone Mill. & Min. Co. v. Way Up
Min. Co., 414, 423, 489.
Tombstone Townsite Cases, 102, 339,
396.
Tomera Placer Claim, 175.
Tom Moore Consol. Min. Co. v. Ne-
smith, 350.
Tonopah Fraction Min. Co. v. Doug-
lass, 168, 378.
Tonopah & S. L. Min. Co. v. Tonopah
Min. Co. of Nevada, 153, 154, 155,
160, 181, 204, 206, 222, 223, 224, 289,
833, 336, 337, 521.
Topsey Mine, 352.
Tornanses vy. Melsing, 168.
Tough Nut and Other Lode Claims,
353.
Tough Nut No. 2 and Other Lode Min-
ing Claims, 343.
Tousley vy. Galena Min. & Smelting Co.,
100.
Traphagen v. Kirk, 19, 79, 86, 97, 102,
152, 157, 200.
Travis Placer Min. Co. v. Mills, 532.
Traylor v. Barry, 520.
Treadway v. Sharon, 342.
Treadwell v. Marrs, 205, 221.
Treasury Tunnel, Mining & Reduction
Co. v. Boss, 153, 181, 210, 312.
Tredinnick v. Red Cloud Consol. Min.
Co., 148, 145, 510.
Trees v. Eclipse Oil Co., 472, 474.
Trevaskis v. Peard, 284, 396, 308.
Tripp v. Dumphy, 276, 359.
Trustees of Hawesville v.
Heirs, 101.
Tuck v. Downing, 491.
Tucker v. Jones, 530.
Tucker v. Masser, 393.
Tulare Oil & Min. Co. vy. Southern
Pac. R. Co., 56, 119.
Tuolumne Consol. Min. Co. v. Maier,
152, 160, 161, 180.
Turner v. Cole, 530.
Turner v. Sawyer, 294, 296, 297, 338,
371.
Tuttle v. White, 515.
Twaddle v. Winters, 528.
Two Sisters Lode & Mill Site, 227.
Tyee Consol. Min. Co. v. Jennings, 524.
Tyee Consol. Min. Co. v. Langstedt,
398, 524.
Hawes’
‘Tyler Min. Co. v. Last Chance Min.
Co., 221, 312, 426.
Tyler Min. Co. v. Sweeney, 302, 306,
419, 423, 426, 428,
U
Uinta Tunnel, Min. & Transp. Co. v.
Ajax Gold Min. Co., 175, '248, 398.
Uinta Tunnel, Min. & Transp. Co. v.
Creede & Cripple Creek Min. & Mill.
Co., 220.
Union Coal Co. v. City of La Salle,
100, 516. .
Union Consol. Silver Min. Co. v. Tay-
lor, 497.
Union Min. & Mill. Co. v. Leitch, 177,
192, 210.
Union Nat. Bank of St. Louis v.
Matthews, 171.
716
CASES CITED.
(The figures refer to pages.]
Union Oil Co., 119, 120, 166, 245, 246,
470.
Union Pac. R. Co. v. Harris, 7?
U. S. vy. Alaska Packers’ Ass’n, 89.
U. 8S. v. Bachelder, 72.
U. S. v. Blendauer, 93.
U. S. v. Bowen, 21.
U.S. v. Burkett, 53.
U. S. v. Central Pac. R. Co., 79, 115.
U. S. v. Chandler-Dunbar Water Pow-
er Co., 399.
U. S. v. Chicago, M. & St. P. R. Co., 70,
76.
U.S. v. Citizens’ Trading Co., 54.
U.S. v. Clark, 399.
U.S. v. Four Bottles Sour Mash Whis-
ky, 90.
U. S. v. Homestake Min. Co., 515.
U. S. v. Iron Silver Min. Co., 53, 125,
128, 186, 262, 276, 349, 393, 899.
U. S. v. Keitel, 463.
U. S. v. King, 348, 349, 393, 399.
U.S. v. Laam, 53.
U. S. v. McLaughlin, 60, 64.
U. S. v. Marshall Silver Min. Co., 394.
U. S. v. Maxwell Land Grant Co., 53.
U. S. v. Missouri, K. & T. R. Co., 80.
U. S. v. Montana Lumber Co., 75.
U. S. v. Moore, 89.
U. 8S. v. North Bloomfield Gravel Co.,
534.
U. S. v. Northern Pac. R. Co., 392.
U. S. v. Omdahl, 39.
U. S. v. Oregon & C. R. Co., 75, 76.
U. S. v. Reed, 84, 115.
U. S. v. Rio Grande Dam & Irrigation
Co., 528.
U. S. vy. Robbins, 463.
U. S. v. Rossi, 114, 118.
U. S. v. Rumsey, 398.
U. S. v. St. Anthony R. Co., 72.
U. S. v. San Pedro & Canon del Agua
Co., 61, 62.
U. S. v. Schlierholz, 48.
U. S. v. Schurz, 53.
U. S. v. Trinidad Coal & Coking Co.,
173, 462, 463.
U. 8. v. Ute Coal & Coke Co., 514, 515.
516.
U. 8. v. Winona & St. P. R. Co., 54,
392, 393, 399, 400.
United States Min. Co. v. Lawson, 396,
437.
Upton vy. Larkin, 160, 179, 180, 215.
Upton v. Santa Rita Min. Co., 210, 216,
524.
Utah Min. & Mfg. Co. v. Dickert &
Myers Sulphur Co., 284, 334.
Utah, N. & C. R. Co. v. Utah & C. R.
Co., 53.
V
Valcalda v. Silver Peak Mines, 227,
229, 358.
Van Buren vy. McKinley, 26, 212, 213.
Vandoren v. Plested, 119.
Van Horn v. State, 120, 203, 245.
Van Valkenburg v. Huff, 174, 224, 317.
Van Wagenen y. Carpenter, 496.
Van Zandt v. Argentine Min. Co., 148,
154, 182, 407, 412, 447, 449.
Venedocia Oil & Gas Co. v. Robinson,
479.
Venture Oil Co. v. Fretts, 473.
Vietti v. Nesbitt, 488.
Virginia Coal & Iron Co. vy. Kelly, 496
503.
Vogel v. Warsing, 190, 215, 220.
Voleano Lode Min. Claim, 195.
W
Wagner v. Dorris, 282.
Wagner vy. Mallory, 474.
Wagstaff v. Collins, 85.
Wailes v. Davies, 212, 2138, 219, 220,
275, 277, 308, 321, 325.
Wakeman v. Norton, 200, 2038, 404,
405, 406, 411, 428.
Walbridge v. Board of Com’rs of Rus-
sell County, 75.
Walker v. Bruce, 490.
Walker v. Pennington, 212, 218.
Wallace, 368.
Wallace v. Elm Grove Coal Co., 502,
525.
Waller v. Hughes, 498.
Wallula Pac. R. Co. v. Portland & S. R.
Co., 58, 75.
Walrath v. Champion Min. Co., 185,
415, 416, 418, 419, 420, 439, 440, 441,
442, 444, 447, 448, 449, 460, 461.
Walsh v. Erwin, 188, 205.
Walsh v. Henry, 156, 184.
Walsh v. Mueller, 149, 203.
Walton v. Wild Goose Mining & Trad-
ing Co., 247,
CASES CITED.
717
[The figures refer to pages,]
‘War Dance Lode, 195.
Wardell v. Watson, 504.
Ware v. Smith, 185.
Ware v. White, 156, 211, 214, 317.
Waring v. Crow, 303, 306, 307, 331.
Warnock v. De Witt, 194, 328, 329.
Waterhouse v. Scott, 357, 366, 368.
Waterloo Min. Co. v. Doe, 182, 147,
158, 161, 182, 397, 419, 429.
Waterman v. Banks, 479.
Waters v. Stevenson, 513.
Watervale Min. Co. v. Leach, 200, 203,
204, 397, 428, 454.
Watford Oil, etc., Co. v. Shipman, 476.
Watson v. Mayberry, 152, 180, 196,
322.
Weaver v. Berwind-White Coal Co.,
504, 505, 506.
Webb v. American Asphaltum Min.
Co., 118 119, 182, 136.
Webb v. Carlon, 216.
Wedekind v. Bell, 450.
Weed v. Snook, 162, 165, 166, 222, 499.
Weese v. Barker, 156, 218, 494.
Weill v. Lucerne Min. Co., 224, 303,
304, 306, 501.
Wells v. Davis, 191, 206.
Wells v. Mantes, 529.
Wemple v. Yosemite Gold Min. Co.,
509.
Wenner v. McNulty, 148, 212.
Western Indiana Coal Co. v. Brown,
505.
West Granite Mountain Min. Co. v.
Granite Mountain Min. Co., 196.
Westmoreland Coal Co.’s Appeal, 145.
Westmoreland & Cambria Natural Gas
Co. v. De Witt, 470.
Wettengel v. Gormley, 477.
Wetzstein v. Largey, 301, 328, 401, 511.
Weymouth v. Chicago & N. W. R. Co.,
514.
Whalen Consol. Copper Min. Co. v.
Whalen, 282.
Wharton v. Stoutenburgh, 486.
Wheeler v. Smith, 118, 119, 246.
Wheeler v. West, 484, 485.
W. H. Hooper, 119.
W. H. Leffingwell, 171.
White v. Lee, 250, 251.
White v. Whitcomb, 98.
White v. Yawkey, 514.
Whitehouse v. Cummings, 507.
White Star Min. Co. v. Hultberg, 395.
Whiting v. Straup, 153, 156, 160, 165,
166, 178.
Whitney v. Haskell, 161.
Wholey v. Cavanaugh, 499.
Wiese v. Union Pac. R. Co., 75.
Wight v. Dubois, 356, 373, 386, 387.
Wilcox yv. Eastern Oregon Land Co.,
5.
Wilcox v. McConnell, 402.
Wilhelm v. Silvester, 454.
Wilkins v. Abell, 484.
Wilkinson vy. Northern Pac. R. Co., 73.
Willard v. Tayloe, 488.
Willeford v. Bell, 148, 186, 187.
William Rablin, 252.
William S. Chessman, 277,
Williams, 355.
Williams v. Eldora Enterprise Gold
Min. Co., 510.
Williams v. Gibson, 504, 506.
Williams v. Hawley, 276
Williams v. Hay, 506.
Williams vy. South Penn Oil Co., 502,
504.
Williams v. U. 8., 54.
Williamson v. Jones, 495.
Williamson v. U. S., 463, 469.
Willitt v. Baker, 287, 320, 377, 381.
Wills v. Blain, 307, 310.
Willson v. Cleaveland, 308.
Wilmore Coal Co. v. Brown, 480, 486.
Wilms v. Jess, 505, 506.
Wilson v. Freeman, 176, 221, 314, 344,
3874, 381, 382.
Wilson v. Harnette, 520.
Wilson v. Hoffman, 517.
Wilson v. Philadelphia Co., 476.
Wilson v. Triumph Consol. Min. Co.,
168, 169, 191, 278.
Wilson v. Youst, 474.
Wiltsee v. King of Arizona Min. &
Mill. Co., 211, 216, 221, 222.
Windmuller v. Clarkson, 482.
Winscott v. Northern Pac. R. Co., 56.
Wisconsin Cent. R. Co. v. Forsythe, 52,
64.
Wisconsin Cent. R. Co. v. Price Coun-
ty, 69, 70.
Wixon v. Bear River & Auburn Water
& Mining Co., 531.
Wolenberg, 391.
Wolfe v. Childs, 494, 495,
718
CASES CITED.
[The figures refer to pages.]
Wolfley v. Lebanon Min. Co., 15, 17,
415.
Wolverton y. Nichols, 375, 380.
Woodland Oil Co. v. Crawford, 475.
Wood Placer Mining Co., 252, 258.
Woodruff v. North Bloomfield Gravel
Min. Co., 23, 27, 533.
Woods vy. Holden, 385, 410, 450, 451.
Woodside v. Ciceroni, 485.
Woodworth v. McLean, 488.
Woody vy. Bernard, 27, 36, 282.
Woody vy. Hinds, 378.
Worthen v. Sidway, 250, 252, 288, 290,
306, 307, 318, 395.
Wright v. Guier, 517.
Wright v. Killian, 282.
Wright v. Lyons, 21, 189, 194.
Wright v. Sioux Consol. Min. Co., 350.
Wright v. Town of Hartville, 370, 374.
Wulf v. Manuel, 308.
Wyatt v. Larimer & Weld Irr. Co.,
530.
Y
Yandes v. Wright, 504, 505, 506.
Yankee Lode Claim, 342, 343.
Yarwood v. Johnson, 279, 282, 283,
807, 310, 333,
Yellow Poplar Lumber Co. v. Thomp-
son’s Heirs, 508, 525.
Yolo County v. Nolan, 56.
York v. Davidson, 533.
Yosemite Gold Min. & Mill.
Emerson, 29, 206, 290, 310.
Yosemite Valley Case, 85.
Youghiogheny River Coal Co. vy. Alle-
gheny Nat. Bank, 504.
Young v. Ellis, 484.
Young v. Forest Oil Co., 478.
Young v. Goldsteen, 97, 370, 375.
Yreka Min. & Mill. Co. v. Knight, 205,
214, 278.
Yuba County v. Cloke, 533, 534.
Co. ve
Z
Zeckendorf v. Hutchison, 299.
Zephyr and Other Lode Min. Claims,
244.
Zerres v. Vanina, 205, 206, 212, 213,
218, 219, 220, 307, 311, 325.
Zimmerman v. Funchion, 199, 258.
Zimmerman v. McCurdy, 53.
Zollars v. Evans, 159, 182, 203.
INDEX.
[THE FIGURES REFER TO PAGES.]
ABANDONMENT,
see Forfeitures ; Relocation.
of claims, definitions, 300-805.
of discovery on lode claim, 158, 154, 159.
of discovery of junior claim by owner of conflicting senior claim and
amendment of junior claim’s certificate, 222-224.
of rights under tunnel site location, 237.
of blind veins in tunnel site location, 242,
distinguished from forfeiture, 300-305.
question of fact for jury, 308.
intent as element, 303-305.
must be bona fide, 305, 306.
of part of location, 306.
by co-tenants, 306, 307, 331.
burden of proof, 307-309.
pleading, 308, 309.
pleading in adverse proceedings, 380.
of oil or gas lease, 480.
of mining leases, 486.
ABSTRACTS OF TITLE,
on application for patent, 354.
ABUTTING OWNERS,
rights to minerals under streets in townsite entries, 100.
ACCOUNTING,
in general, 519.
between co-owners, 494, 495.
ACTIONS,
see Accounting; Adverse Claims and Proceedings; Condemnation;
Ejectment; Injunction; Limitation of Actions; Partition; Person-
al Injuries; Possessory Actions; Quieting Title; Replevin; Tres-
pass; Trial; Trover.
mining remedies in general, 512-525.
ACTS OF CONGRESS,
regulation of mining in general, 539-564.
Revised Statutes of the United States, 539-547.
acts supplemental to Revised Statutes, June 6, 1874, expenditures, 547.
Cost.M1n.L. (719)
720 INDEX.
[The figures refer to pages.]
ACTS OF CONGRESS—Continued,
June 6, 1874, first annual expenditure, 547.
February 11, 1875, expenditure in tunnel, 548.
May 5, 1876, Kansas and Missouri, 548.
June 3, 1878, use of timber, 548.
January 22, 1880, application for patent by agent, and annual expend-
iture, period, 549.
March 38, 1881, judgment on adverse, 549, 550.
April 26, 1882, verification of adverse by agent, proof of citizenship,
550.
March 38, 1888, Alabama, 550.
May 17, 1884, Alaska, 550, 551.
August 30, 1890, right of way for ditches and canals, 551.
March 8, 1891, town sites on mineral lands, reservoirs, 551, 552.
August 4, 1892, building stone lands, 552.
November 3, 1898, suspension of requirement of annual expenditure
except as to South Dakota, 552, 553.
July 18, 1894, suspension of requirement of annual expenditure ex-
cept as to South Dakota, 553.
March 2, 1895, Wichita lands (Oklahoma), 553.
February 11, 1897, petroleum or other oil lands, 553, 554.
June 4, 1897, forest reserves, 554, 555.
June 10, 1896, Ft. Belknap Indian reservation, 555.
June 10, 1896, Blackfoot Indian reservation, 555.
June 10, 1896, San Carlos Indian reservation, 555.
May 14, 1898, Alaska, Canadians, 556.
June 6, 1900, Alaska, 556, 557.
June 6, 1900, Comanche, Kiowa, and Apache lands, 558.
January 31, 1901, saline lands, 558.
May 27, 1902, Uintah and White River Utes, 558, 559.
February 12, 1903, oil lands, annual expenditure, 559.
March 3, 1903, Uncompahgre Indian reservation, 559.
April 23, 1904, Flathead Indian reservation, 560.
April 27, 1904, Crow Indian reservation, 560, 561.
December 21, 1904, Yakima Indian reservation, 561.
March 8, 1905, Shoshone or Wind River Indian reservation, 561, 562.
March 22, 1906, Colville Indian reservation, 562.
June 21, 1906, Coeur d’Alene Indian reservation, 563.
March 2, 1907, Alaska mining claims, annual expenditure on, 562, 563.
May 28, 1908, Alaska, coal lands, 563, 564.
ACTS OF LOCATION,
see Location.
ADIT,
definitions, 103, 104, 182, 183.
as equivalent of discovery shaft, 182, 183.
ADJACENT SUPPORT,
see Lateral Support.
ADVERSBD CLAIMS AND PROCEEDINGS,
see Protest.
adverse proceedings in general, 366-385.
between claimants of lodes and placers, 364, 369.
INDEX. 721
[The figures refer to pages.]
ADVERSB CLAIMS AND PROCEEDINGS—Continued,
filing claim, 366, 367.
description in adverse claim, 367.
verification, 367, 368.
appeals from decisions of land office, 368,
amendment, 368, 369.
who must adverse, 369.
who may or may not adverse, 369-373.
waiver of rights, 369, 3738, 874.
failure to adverse, effect, 378.
court proceedings on adverse claims, 374-385.
jurisdiction, 374, 375.
nature and form of action, 375, 376.
right to jury trial, 375, 376.
time for commencement of, 374, 376, 377.
parties, 377.
pleading, 377-380.
intervention, 380.
trial, 380, 381.
nonsuit, 381.
verdict, 381, 382.
judgment, 382, 383.
relation of land department to court proceedings, 383-385.
federal statutes relating to, 542, 549, 550.
land office regulations, 580, 581.
forms, 681, 682.
ADVERSE POSSESSION,
of mining property in general, 523-525.
as excuse for failure to perform annual labor, 283, 284.
application for patent on title based on, 354, 355.
AFFIDAVITS,
see Verification.
as to performance of annual labor, 284-286.
verification of, on application for patent, federal statutory provisions, 545.
of citizenship, federal statutory provisions, 550.
AFTER-ACQUIRED TITLE,
passing of, 501, 502.
AGENT,
see Principal and Agent.
AGRICULTURAL LANDS,
see Homestead Entries.
effect of surveyor’s return, 56, 57.
segregation from mineral lands, federal statutes, 546.
ALABAMA,
mineral lands, federal legislation relating to, 35, 550.
ALASKA,
application to, of American mining law, 31.
federal legislation relating to, 35, 550, 551, 556, 557, 562-564,
coal lands, federal statutes, 35, 563, 564.
Cost. M1n.L.—46
722 INDEX.
(The figures refer to pages.]
ALASKA—Continued,
instructions from Interior Department, 612.
land office regulations, 601-609.
right of aliens to locate claims, 169.
extension to, of federal mining laws, 550, 551, 557.
mining privileges of Canadians, federal statutes, 169, 556.
recording notice of location and other papers relating to mineral property,
federal statutes, 556, 557.
improvements, requirements, and affidavits, federal statutes, 284, 285, 562.
land office regulations as to mineral lands, 584, 585.
miners’ rules, federal statutes, 557.
ALIENS,
right to locate mining claims, 167-170.
federal statutory provisions, 539.
rights of alien heirs, 170.
AMENDMENT,
of location notice, 210.
of record of lode location, 221-224.
of certificate of location of placer claim, 260.
relocation by, 335-341.
of adverse claim, 368, 369.
of pleading in adverse proceedings, 378
AMERICAN MINING LAW,
definitions, 1.
ANNUAL EXPENDITURE,
see Improvement Requirements.
ANNUAL LABOR,
see Improvement Requirements.
ANSWER,
in adverse suit, 379.
APACHE INDIAN LANDS,
mineral rights, federal statutes, 558.
APEX,
see Subsurface Rights.
definitions, 105, 187-140.
judicial or theoretical apex, 450, 451.
APPEAL,
in land office, 50.
from decision of land office in adverse proceedings, 368.
APPENDICES,
United States Revised Statutes and acts of Congress, 539-564.
land office regulations, 565-592.
coal land laws and land office regulations relating thereto, 593- 614,
timber and stone lands, regulations of-land office, 615-617.
Indian lands, regulations of Department of Interior as to leasing, 618-640.
Philippine mining laws, 641-663.
Texas mining laws, 664-675.
forms in patent proceedings for lode claims, 676-682,
examination questions in mining law, 683-690.
INDBX. 923
[The figures refer to pages.]
APPLICATION,
see Adverse Claims and Proceedings; Lode Claims; Patents.
for entry of timber or stone lands, 468.
for order of survey, 345, 346.
for patent, 3843-365.
for patent to lode claims, form, 677, 678.
to purchase lode claim, form, 679, 680.
APPROPRIATION,
see Water Rights.
as basis of right, recognition by miners’ rules, 5.
ARIZONA,
mineral lands, federal legislation and territorial code, 36.
ARKANSAS,
mineral lands, applicability and operation of federal and state laws, 36.
ASPHALT LANDS,
Indian lands, lease of, Interior Department regulations, 631-635.
mineral, 119, 1386, note.
ASSAY,
definitions, 108, note, 489.
ASSESSMENT WORK,
see Improvement Requirements.
ASSOCIATIONS,
corporation as an association under placer mining law, 172, 173.
entry of coal lands by, 462. ‘
entry of timber and stone lands by, 467.
B
BACK STOPING,
definitions, 104.
BAR DIGGINGS,
definitions, 108.
BASE ORES,
definitions, 107, note.
BEDDED DEPOSITS,
definitions, 125.
BEHRING SEA,
regulations as to mining on lands bordering on, 557.
BLANKET VEINS,
subsurface rights, 414.
BLANKS,
see Forms.
not furnished, land office regulations, 584,
BLIND VEINS,
see Location.
definition, 234.
in tunnel sites, location of, 239-242.
abandonment of, 242.
724 INDEX.
{The figures refer to pages.]
BLOSSOM,
definitions, 105.
BLOW OUT,
definitions, 105.
BONANZA,
definitions, 107.
BONDS,
title bonds coupled with mining leases, 487, 488.
BOOMING,
definitions, 110.
BOUNDARIES,
see Location; Subsurface Rights.
lode locations, marking of on the ground, 184-196.
placer locations, marking of on the ground, 249-258,
of lode claims, changing, 204, 205.
maintaining, 205.
mill site locations, 229, 230.
tunnel site locations, 235, 236.
adoption of, on relocation, 194, 195, 314.
relocation on change of, 335-341.
BREAST,
definitions, 104.
BRECCIA,
definitions, 124, note.
BRECCIATED VEIN,
definitions, 106.
BUILDING STONBP LANDS,
see Timber and Stone Lands.
BURDEN OF PROOF,
see Abandonment; Forfeiture.
C
CALIFORNIA,
origin and development of mining law in, 2-14.
mineral lands, present statutory regulations, 36.
adjudication of Mexican land grants in, 60-62.
water right system, 527, 528.
CALIFORNIA DIEBRIS COMMISSION,
creation of, 534.
CANADIANS,
mining privileges in Alaska, federal statutes, 169, 556.
CANALS,
see Water Rights.
CANCELLATION OF ENTRY,
see Entries.
CANCELLATION OF PATENT,
see Patents.
INDEX. 725
[The figures refer to pages.]
CAP,
definitions, 106.
CERTIFICATES,
of location of lode claim, 211-224,
of placer claim, 259, 260.
amendment of, relocation by, 335-341.
amendment to aid in survey, 345, 347.
of intention to hold claim in lieu of annual labor, 283, 284
of surveyor general as to improvement work, 348, 349.
of abstracts of title on application for patent, 354.
as to litigation affecting title by adverse possession, 355.
of entry, form of register’s, 680.
of posting notice of intention to apply for patent, form of register’s, 680.
CHAMBER DEPOSITS,
definitions, 125.
CHARGES,
see Fees.
CHIMNEY,
definitions, 106, 107.
CHUTH,
definitions, 106, 107.
CITIZENSHIP,
location by alien, 167-170.
proof of, on application for patent, 351-353.
federal statutory provisions, 540, 550.
CLAIMS,
see Adverse Claims and Proceedings; Location; Lode Claims; Milt
Sites; Placer Claims; Tunnel Sites.
COAL LANDS,
Alaska, extension of laws of United States to, 35.
federal statutes, 563, 564, 600, 601.
land office regulations, 601-609.
instructions from Interior Department, 612.
entry and patent, 462-466.
ordinary cash entry, 463-465.
preference rights, 465, 466.
federal statutes, 593, 594.
Indian lands, leases, 467.
Interior Department regulations, 618-628, 631-635, 639, 640
land office regulations, 594-600.
Department of Interior instructions, 610-614.
COLLATERAL ATTACK,
on patent, 392, 393.
COLORADO,
adjudication of Mexican land grants in, 61-63.
mineral lands and mining operations, present legislation relating to,
36.
mining locations on state lands, 67.
water right system, 528.
726 INDEX.
{The figures refer to pages.]
COLVILLE INDIAN LANDS,
mineral rights, federal statutes, 562.
COMMANCHE INDIAN LANDS,
mineral rights, federal statutes, 558.
COMMISSIONER OF GENERAL LAND OFFICH,
general statement of duties, 49.
COMPROMISE,
of adverse suits, 383.
of extralateral rights, 458.
CONCENTRATES,
definitions, 107, note.
CONDEMNATION,
rights in general, 522, 523.
right of way through tunnel site location, 243, 244.
CONFLICTS,
see Adverse Claims and Proceedings; Subsurface Rights.
affecting patent proceedings, 364, 365.
land office regulations, 572, 574, 590.
CONGRESS,
see Acts of Congress.
power to withdraw contest from land department, 50.
CONNECTICUT,
mineral lands, exception from operation of federal legislation, 36.
CONTACT DEPOSITS,
definitions, 125.
CONTACT VEINS,
definitions, 123.
CONTESTS,
_in land department, 50.
CONTIGUOUS,
definition, 279, note.
CONTINUITY,
definition, 413.
CONTINUITY OF VEIN,
see Subsurface Rights.
CONTRACTS,
see Grub Stakes; Leases; Title Bonds; Vendor and Vendee.
mining contracts in general, 481-489.
grub staking contracts, 481-483.
mine working contracts, 488.
ore contracts, 489.
CONVEYANCES,
of mining property in general, 497-511.
deeds in settlement of extralateral rights, 383, note, 458.
statute of frauds, 497.
necessity of writing, 497-499.
necessity of seal, 498.
INDEX. (27
(The figures refer to pages.]
CONVEYANCES—Continued,
unperfected claims, 498.
quitclaim deeds, 499.
warranty deeds, 499.
the special “dips, spurs,” etc., clause, 500.
after-acquired title, 501, 502.
easements on severance, 502-508.
severance of surface and subsurface rights, effect of right to subjacent
support, 502-508.
effect on right to lateral support, 508.
examination of title, 510, 511.
CO-OWNERS,
see Forfeitures.
rights in general, 493-496.
forfeitures for failure to contribute to improvement requirements, 293-299.
abandonment of claim, 306, 307.
relocation by, 331-833.
application for patent, verification, 352, 353.
title of co-owners applying for patents, 354.
adverse proceedings by, 371, 372.
protests by, 387.
accounting between, 494, 495.
surface and subsurface owners, 496. i
fiduciary relationship of, 331, 332, 333, note, 496.
adverse possession as between, 525.
federal statutory provisions, 541.
CORPORATIONS,
right to locate mining claims, 171-173.
foreign corporations, right to make location, 172.
verification of certificate of location, 212.
annual labor on location, 277.
proof of citizenship on application for patent, 351.
purchase by director of a relocation of corporate mining property, 334,
335.
application for patent, verification, 352.
CO-TENANTS,
see Co-owners.
CQSUR D’ALENE INDIAN LANDS,
mining rights, federal statutes, 562.
COUNTRY ROCK,
definitions, 103, 125, note.
COURSE,
definitions, 140.
COURT OF PRIVATE LAND CLAIMS,
adjudication of Spanish and Mexican grants, 61-63.
COURTS,
see Adverse Claims and Proceedings.
attitude toward the miner, 29, 30.
review of decisions of land department, 51-54.
728 INDEX.
(The figures refer to pages.]
CRADLH,
definitions, 108.
CREVICE,
definitions, 182.
CRIBBING, :
definitions, 104, 105.
CROSS CUT,
definitions, 103.
extralateral rights do not include right to cross cut, 415.
CROSS VEINS,
subsurface rights, 453-455.
veins crossing on strike, 453-455.
CROW INDIAN LANDS,
mineral rights, federal statutes, 560-561.
CUSTOMS AND USAGES,
see Miners’ Rules.
origin and adoption, 1-8.
origin of, history of rules relating to, supplemental to statutory regula-
tions, 23-28.
proof of, 26.
as to value of labor, 282.
D
DAMAGES,
exemplary damages for wrongful taking of ore, 515.
measure of, for wrongful taking of ore, 513-516.
DEATH,
of co-owner, effect as to notice to contribute to improvements, 294.
of lessor as terminating optional oil and gas lease, 472.
of mining partner, 491.
DEBRIS,
see California Débris Commission; Tailings.
DECLARATORY STATEMENT, :
on application to enter coal lands under preference right, 466.
use of term in Montana, 212.
DEEDS,
see Conveyances.
DEEP PLACERS,
definitions, 109, note, 136.
DEFINITIONS,
see Words and Phrases,
DELAWARE,
mineral lands, exception from operation of federal legislation, 37.
lack of present state legislation relating to, 37.
DELECTUS PERSONA,
see Mining Partnerships.
INDEX. 729
[The figures refer to pages.]
DEPARTURE OF VEIN,
see Subsurface Rights.
DEPOSITS,
of fees of surveyor general, 346.
DEPUTY MINERAL SURVEYORS,
appointment, 49.
locations by, 170, 171.
DESCENT,
of unpatented claims, 395, note.
DESCRIPTION,
tying claim to natural objects and monuments, 190, 191, 213-216.
in notice of location of lode claim, 209.
in certificate of location of lode claim, 213-216,
in notice of location of placer claim, 258, 259.
in certificate of location of placer claim, 260.
in application for patent, 350, 351.
federal statutory provisions, 541, 543.
DESCRIPTIVH REPORT,
see Patents.
DESERT LAND ENTRIES,
in general, 88.
DIGGINGS,
definitions, 108.
DIKE,
definitions, 123.
DIP OF VEIN,
see Subsurface Rights.
location based solely on discovery on the dip, 148 note, 412 note.
definitions, 105, 140, 141.
DIPS, SPURS, AND ANGLES CLAUSE,
see Conveyances.
DISCOVERY,
see Discovery Shaft.
definitions, 147-149.
requisites and sufficiency in general, 147-166.
as basis of right, recognition by miners’ rules, 5.
lode claims, 147-161, 176-178.
originality not necessary, 148.
finding float does not constitute, 148.
rock in place as necessary element, 148,
as question for jury, 149.
parties affected, 149-151.
evidence, 150.
priorities between discoverers, 152-154, 157-159, 160.
abandonment of, 158, 154, 159.
discovery shaft distinguished from discovery, 154, 155.
possession for purpose of, 155-159.
good faith of discoverer, 156, 157.
730 INDEX.
[The figures refer to pages.]
DISCOVERY—Continued,
notice, 159, 160, 176-178.
relation to location, 159-161.
number of locations allowed to discoverer, 161.
time for completion of discovery work, 183, 184.
oil and gas, 470-474.
placer claims, 162-166, 247, 248.
priority between discoverers of placer claims, 162.
possession for the purpose of, 164, 165.
joint locations, 166.
number of acres allowed, 166.
number of locations for each discoverer, 166.
notice, 247, 248.
DISCOVERY NOTICBR,
see Discovery; Location.
DISCOVERY SHAFT,
in general, 178-184, 248, 249.
reasons for, 179.
right to make two locations from one shaft, 179, 180.
relation to location, 180, 181.
essentials of, 181, 182.
equivalents of, 182, 183.
time to complete, 183, 184.
effect of failure to complete, 184.
in placer claim, 248, 249.
DISSHISIN,
effect of on recovery for ore taken, 517.
DISSEMINATIONS,
definitions, 125.
DISTRICT LAND OFFICES,
see Land Office.
DISTRICT OF COLUMBIA,
mineral lands, exception from operation of federal legislation, 37.
DISTRICT RULES,
see Miners’ Rules.
DISTRICTS,
see Mining Districts.
DITCHES,
see Drainage; Water Rights.
DOWER,
effect of patent on right to claim, 398, note
DOWN CAST,
definitions, 104.
DRAINAGE,
of mines, 534, 535.
DREDGING,
definitions, 110.
INDEX. 731
[The figures refer to pages.]
DRIFT MINING.
definitions, 109.
DUMPS,
definitions, 107.
use of mill sites, 227.
for tunnel site locations, 238, 239.
hydraulic mining, 533, note.
EASEMENTS, E
right of owner to maintain adverse proceedings, 372.
surface and subsurface rights, 496, 504-508.
subjacent support, 504-508.
lateral support, 508.
on severance, 502-508.
EJECTMENT,
by adverse claimant, 375, 376.
to recover mining claims in general, 512.
EMINENT DOMAIN,
see Condemnation.
EMPLOYES,
relocation by, 334, 335.
END LINES,
see Subsurface Rights.
location of claims in general, 184-197.
ENTRIES,
see Coal Lands; Desert Land Entries; Patents; Timber and Stone
Lands; Townsites.
cancellation of, 286, 287, 327.
in patent proceedings, 358, 359.
EQUITY,
relief against patent wrongfully secured, 53, 399, 400.
suits to quiet title, 375, 512.
injunction, 517, 518.
power to order inspection and survey of mining claims, 519, 520.
ESTOPPEL,
of grantor to claim extralateral rights, 452.
to claim title acquired after conveyance, 501, 502.
EVIDENCE,
nonmineral character of homestead entry, 84, 85.
mineral lands in Indian reservations, 91.
discovery of lode claims, 150.
explanation of certificate of lode claim, 215.
lode location certificate as evidence, 220, 223.
existence of known lode or vein, 261-264.
benefit of annual labor on one claim for group, 278.
benefit of work outside of claim, 281.
of forfeiture for failure to perform annual labor, 283, 307-309,
732 INDEX.
{The figures refer to pages.]
EVIDPNCE—Continued,
proof of annual labor, 284-286.
of forfeiture of rights of co-owner, 296, 297,
in suit to set aside patent, 399.
to hold patentee as trustee, 400.
presumptions as to subsurtace rights, 404-409.
citizenship, federal statutory provisions, 540.
possessory rights, land office regulations, 579, 580.
EXAMINATION OF TITLH,
see Mining Claims; Title.
EXAMINATIONS IN MINING LAW,
sample questions, 683-690.
EXCEPTIONS,
of known mines in town-site entries, 101,
* effect of unauthorized, in patents, 394.
EXCESSIVE LOCATIONS,
lode claims, 196-204.
tunnel sites, 236.
placer claims, 258.
EXCUSES,
for failure to perform annual labor, 283, 284.
EXEMPLARY DAMAGES,
see Damages.
EXPENDITURES,
see Improvement Requirements.
EXTRALATERAL RIGHTS,
see Subsurface Rights.
definitions, 138.
FACE OF TUNNEL,
definitions, 104, 232, 234.
FAHLBAND,
definitions, 124.
FAULTING,
definition, 106.
FEDERAL COURTS,
jurisdiction of adverse proceedings, 375.
FEDERAL STATUTES,
see Acts of Congress.
Revised Statutes relating to mining rights, 589-547.
other federal statutes relating to mining rights, 547-564.
FEES,
of surveyor, 346, 582.
proof of, 358, 545, 575, 679.
excessive, 582.
paid to register and receiver, 582.
INDEX. 933
[The figures refer to pages.]
FIDUCIARIES,
see Co-owners; Tenancy in Common,
relocation by, 831-335.
FIELD NOTES,
of surveyors, 347-349.
SILING,
adverse claim, 366, 367.
application for patent, 355.
FISSURE VEINS,
definitions, 122, 123.
FIXTURES,
forfeiture of, on relocation, 341, 342.
FLATHEAD INDIAN LANDS,
mining rights, federal statutes, 560.
FLOAT,
definitions, 105.
FLOATS,
definitions, 60.
mining locations on float Mexican land grants, 64.
FLOOR,
definitions, 104, 105.
FLORIDA,
mineral lands, present state of legislation affecting, 37.
FOLLOWING LODE ON DIP,
see Extralateral Rights.
FOOT WALL,
definitions, 105.
FOREIGN CORPORATIONS,
see Corporations.
applications for patents by sister state, 351.
FOREST RESERVES,
relation to mineral lands, 92, 93.
federal statutes, 554, 555.
land office regulations, 585.
FORFEITURES,
see Relocation.
definitions, 300-305.
of mining rights in general, noncompliance with rules, 27-29.
of railroad land grants, 80, 81.
of blind veins in tunnel site location, 242.
of claims, definitions, 300-305.
failure to perform annual labor, 283.
to co-owners, 293-299.
distinguished from abandonment, 300-305.
734 INDEX.
[The figures refer to pages.]
FORFEITURES—Continued,
burden of proof, 307-309.
pleading, 308, 309.
resumption of work, 288-292, 317-320.
relocation by forfeiting owners, 327-341,
pleading in adverse proceedings, 380.
of improvements on relocation, 341, 342.
FORMS,
adverse claim, 681, 682.
amended location certificate, 217.
application to purchase coal lands, 596-598.
application for patent to lode claim, 677, 678.
application to purchase lode claim, 679, 680.
certificate of entry of lode claim, 680.
certificate of lode location, 217.
certificate of posting notice of intention to apply for purchase of lode
claim, 680.
leases of Indian land, 628-638.
coal and asphalt lands, 631-635.
oil and gas lands, 628-631.
other mineral lands, 635-638.
- notice, application for patent, 676. ;
application for coal entry, 598, 599.
lode discovery, 177, 178.
lode location, 207, 208.
placer discovery, 248.
placer location, 259.
co-owner’s notice to contribute for improvement requirements, 295, 296.
proofs, of citizenship, 678.
of plat and notice of application for patent remaining posted on claim,
679.
posting of plat and notice of application for patent to lode claim, 676,
677.
of sums paid in prosecution of application for patent, 679.
of publication of notice of application for patent, 678.
register’s certificate, of posting, 680.
of final entry, 680.
protests, 681, 682.
publisher’s contract, for notice of application to patent lode claim, 678.
FT. BELKNAP LANDS,
act of Congress, 555.
FRAUD,
ground for setting aside patent, 53, 54, 399, 400.
FRAUDS, STATUTE OF,
application to conveyance of mining claim, 497.
application to grub stake contracts, 481.
application to ore contracts, 489.
FREE MILLING ORES,
definitions, 107.
INDEX. 735
(The figures refer to pages.]
G
GANGUE,
definitions, 106.
GANGUE MINERALS,
definitions, 106, note.
GAS,
see Oil and Gas Lands.
GEORGIA,
mineral lands, exception from operation of federal statutes and present
status of state legislation affecting, 37.
GOUGE,
definitions, 106.
GRANTS,
see Mexican Land Grants; Railroad Land Grants; School Land Grants.
GRUB STAKES,
definitions, 481.
contracts, 481-483.
HANGING WALL,
definitions, 105.
HAWAII,
mineral lands, present state of legislation affecting, 37.
HEADING,
definitions, 104.
HEIRS,
rights of alien heirs, 170.
HISTORY,
of American mining law in general, 1-47.
HOMESTEAD ENTRIES,
in general, 83-87.
federal statutory provisions, 546.
HORSE,
definitions, 106.
HYDRAULIC MINING,
see Water Rights.
definitions, 108, 109.
I
IDAHO,
mineral lands, present state of legislation affecting, 37.
IDENTITY OF VEIN,
see Subsurface Rights.
ILLINOIS,
mineral lands, exception from operation of federal laws, and present state
legislation, 38.
736 INDEX.
(The figures refer to pages.]
IMPREGNATIONS,
definitions, 123, 124.
IMPROVEMENT REQUIREMENTS,
see Affidavits; Relocation; Spanish War Volunteers.
annual labor, 271-299.
in tunnel site locations, 244.
claims located prior to act of 1872, 272.
claims located subsequent to act of 1872, 272-299,
computation of time for performance, 273.
power of states to regulate, 273, 274.
purpose of requirements, 274,
within boundaries of claim, 275-280.
kinds allowed, 275-282.
on one claim for a group, 278-280.
work outside of claim or group of claims, 280, 281.
work in tunnel, 281, 282.
amount required, 282, 283.
excuses for failure to perform, 283, 284.
certificate in lieu of, 283, 284.
prevention of performance, 284.
proof of, 284-286.
pending patent proceedings, 286, 287.
resumption of work, 288-292, 317-320.
partitioned and divided claims, 298, 299.
forfeiture for failure to perform, 300-342.
forfeiture of rights of co-owners, 293-299.
notice to co-owners failing to contribute, 293-296.
forfeitures for failure to meet requirements, 300-342.
condition precedent to application for patent, 343-344.
effect of patent, 286, 396.
federal statutes relating to, 541, 549.
suspension of, except as to South Dakota, federal statutes, 552, 553.
in Alaska, federal statutes, 562, 563.
IMPROVEMENTS,
definition, 275, note.
forfeiture of, on relocation, 341, 342.
as condition precedent to application for patent, 348, 344,
INCLINE DRIFT,
definitions, 104.
INDEMNITY LANDS,
grant for school purposes, 65, 68-70.
railroad land grants, 80, 81.
under forest reserve laws, 65, 93.
INDIANA,
mineral land, exception from operation of federal statutes and present
state legislation affecting, 38.
INDIAN LANDS,
see Location.
applicability of federal legislation to Indian Territory, 44.
mineral lands in Indian Teserya tions, 89-91,
lease of coal lands, 467.
INDEX. G37
[The figures refer to pages.]
INDIAN LANDS—Continued,
mining claims on, federal statutes, 558-562.
Interior Department, instructions as to leasing mineral lands, 618-640.
INDIAN TERRITORY,
see Oklahoma.
mineral lands and mining operations, applicability and operation of fed-
eral legislation relating to, 44.
INFANTS,
see Minors.
INHERITANCE.
see Descent.
INJUNCTION,
relief against interference with mining rights, 517, 518.
restraining injuries from drainage, 534.
restraining pollution of water, 532-534.
IN PLACE,
see Railroad Land Grants; Rock in Place; School Land Grants.
INSPECTION,
of mines and mining claims under order of court, 519, 520.
INTERIOR DEPARTMENT,
see Land Office.
instructions as to coal lands, 610-614.
regulations for the leasing of Indian mineral lands, 618-640.
INTERVENTION,
in adverse suit, 380.
INTRALIMITAL RIGHTS,
see Subsurface Rights.
definitions, 404.
IOWA,
mineral land, exception from operation of federal statutes and present
state of legislation affecting, 38.
IRRIGATION,
see Water Rights.
JACKSONVILLE MINING CAMP,
miners’ regulations, 3, 4.
JOINT LOCATIONS,
see Discovery.
JUDGMENT,
adverse proceeding by judgment creditor, 372.
in adverse proceedings, 382, 383.
copy of judgment roll of adverse suit filed in land office, 385.
as lien on mining claim, 509.
JUDICIAL APEX,
definitions, 450, 451.
subsurface rights, 434436.
Cost.M1n.L.—_47
738 INDEX.
[The figures refer to pages.]
JUNIOR LOCATIONS,
rights as against relocation by third persons, 152-154, 222, 311-313, 388—
390.
JURISDICTION,
of adverse proceedings, 374, 375.
of applications for patent, 350-352, 356, 357.
JURY,
right to jury trial in adverse proceedings, 375, 376.
view by, under order of court, 520.
K
KANSAS,
mineral lands and mining operations, present state of legislation affecting,
38.
exception from operation of federal mining laws, 548.
KENTUCKY,
mineral lands and mining operations, exception from operation of federal
statutes and present state of legislation affecting, 38.
KIOWA INDIAN LANDS,
mineral rights, federal statutes, 558.
KNOWN LODES,
see Lode Claims; Patents; Placer Claims.
definitions, 260-264.
KNOWN MINES,
definitions, 101.
KNOWN VEINS,
see Known Lodes.
LABOR,
see Improvement Requirements.
LAGGING,
definitions, 105.
LAND DEPARTMENT,
see Land Office.
LAND GRANTS,
see Mexican Land Grants; Railroad Land Grants; School Land
Grants.
relation to mineral lands, 59-82.
LAND OFFICH,
see Commissioner of the General Land Office; Courts; Receivers;
Registers; Secretary of the Interior; Surveys.
in general, 48-58.
attitude of the courts towards, 50-54.
location of local offices, 58.
attitude toward courts in adverse proceedings, 383-385.
rules and regulations, mining and mineral lands in general, 565-592.
coal lands, 593-614.
timber and stone lands, 615-617.
INDEX. 739
{The figures refer to pages.]
LATERAL DRIFTS,
definitions, 104.
LATERAL SUPPORT,
effect of severance of title as between surface and subsurface rights, 508.
LEASES,
see Coal Lands; Forms.
mining leases, 484-487.
relocation by lessee, 334.
coal lands of Indians, 467.
abandonment, 486.
coupled with options or title bonds, 487, 488.
Indian lands, federal statutes, 558.
Interior Department regulations, 618-640.
oil and gas leases, 470-480.
LEVELS,
definitions, 104.
LICENSES,
oil and gas licenses, 472-476.
mining licenses in general, 484-487.
right of licensee to recover for taking of ore by trespasser, 515, 516.
right of licensee to injunction, 518, note.
LIENS,
see Mechanics’ Liens.
adverse proceedings by lien claimants, 372, 373.
on mining claims, 509, 510.
LIEU LANDS,
grants for school purposes, 65, 68-70.
railroad land grants, 80, 81.
under forest reserve laws, 65, 93.
LIFTS,
definitions, 104.
LIMITATIONS OF ACTIONS,
see Adverse Possession.
mining remedies in general, 523-525.
effect of patent, 398, 524.
to set aside patent, 399.
LINE OF TUNNEL,
definitions, 232, 234, 235.
LINES OF TUNNEL,
definitions, 235, 236.
LOCATION,
history of legislation relating to, 14-21.
definitions, 142, 143, 175, 176.
on surveyed and unsurveyed land, 57.
on Mexican land grants, 63, 64.
on school land grants, 67, 70, 71.
on railroad land grants, 79, 80.
740 INDEX,
[The figures refer to pages.]
LOCATION—Continued,
on homestead entries, 84-87.
on timber or stone entries, 87, 88.
on desert land entries, 88.
on Indian reservations, 89-91.
on military, reservations, 91, 92.
on parks and forest reserves, 92, 93.
on reservoir sites, 94.
on townsite entries, 96, 102.
relation to discovery, 159-161.
lode claims, 159-161, 175-224.
time for after discovery, 159, 160.
relation to discovery, 159-161.
number allowed to each discoverer, 161.
discovery notice, 176-178.
discovery shaft, 178-183.
equivalents of discovery shaft, 182, 183.
time for completion of discovery work, 183, 184.
marking on the ground, 184-196.
time for marking boundaries, 191, 192.
excessive locations, 196-204.
changing boundaries, 204, 205.
notices of location, posting, 205-210.
recording, 211-224.
within placer claims, 260-269.
placer claims in general, 245-269.
on surveyed and unsurveyed land, 57, 252-254,
number of locations for each discoverer, 166.
number of acres for each discovery, 166.
joint locations, 166, 254.
by corporations, 172, 173.
oil lands, 245, 246.
salt lands, 246.
stone lands, 246.
building stone lands, 246.
notice of discovery, 247.
discovery work, 248, 249.
marking location on ground, 249-258,
excessive location, 258.
notice of location, 258, 259.
record of location certificate, 259, 260.
amended certificate, 260.
persons entitled to locate claims, 167-174.
aliens, 167-170.
land office employés, 170, 171.
corporations, 171-173.
minors, 173.
agents, 173, 174.
mill sites, 225-231.
tunnel sites, 232-244,
notice, 232, 233.
marking lines, 235, 236.
excessiveness, 236,
INDEX. FAL
[The figures refer to pages.]
LOCATION—Continued,
dumps, 238, 239.
blind veins, 239-242,
right of way through other claims, 248, 244.
annual labor, 244.
advantage of patent, 395-398. :
_ federal statutory provisions, 5389-541.
miners’ rules, 541.
LODE,
see Known Lodes; Lode Claims; Subsurface Rights.
definitions, 105, 117, 122-135.
LODE CLAIMS,
see Abandonment; Adverse Claims and Proceedings; Discovery; Dis-
covery Shaft; Forfeitures; Improvement Requirements; Location;
Patents ; Relocation; Subsurface Rights.
history of legislation relating to lode mining, 14-21.
definitions, 122-135, 260-264.
distinguished from placer claims, 185-137.
mill sites, 225-231.
known lodes, definition, 260-264.
in placer claims, effect of patent, 363, 364, 399.
applications for patents, 345-359, 368, 364.
survey requirements, 345-349.
application, 345, 346. , .
deposit of fees, 346.
order, 346, 347.
approval, 347-349.
field notes, 347-349.
plats, 348, 349.
surveyor general’s certificate, 348, 349.
application papers, 349-359.
notice of application, 349, 350.
the application, 350, 351.
verification, 351-353.
proof of citizenship, 351-353.
publishers’ agreement, 353.
title based on adverse possession, 354, 355.
abstract of title, 354.
filing, 355.
publication of notice, 356.
proof of publication and of posting, 358.
proof of fees paid, 358.
the application to purchase, 358.
transfer pending application, 359.
death of applicant, 359.
entry, 358.
forms, 676-678.
lodes within placers, 363, 364.
land office regulations, 570-576.
length of, federal statutory provisions, 539, 540.
subsurface rights, federal statutory provisions, 540, 545.
description, federal statutory provisions, 543.
G42 INDEX.
[The figures refer to pages.]
LODE CLAIMS—Continued,
expenditures on tunnel considered as being on lode, federal statutory pro-
visions, 548.
‘land office rules and regulations, 565-567, 570-576.
forms used in proceedings to obtain patent, 676-682.
notice of application for patent, 676.
application for patent, 677, 678.
proof of citizenship of claimant, 678.
proof of publication of notice of application for patent, 678.
contract for publishing notice of application for patent, 678.
proof of posting notice of application for patent on claim, 676,
proof that notice and plat remained posted, 679.
proof of sums paid, 679.
application to purchase, 679, 680.
certificate of posting notice and plat in land office, 680.
certificate of entry, 680.
adverse claim, 681, 682.
protest, 681, 682.
LOUISIANA,
mineral lands, applicability of federal laws, and present state of legisla-
tion affecting, 38.
M
MAINE,
mineral lands, exception from operation of federal laws and present state
of legislation relating to, 38, 39.
MANHOLB,
definitions, 104.
MAPS,
see Plats.
accompanying application for patent, 348, 349, 355.
MARKING LOCATION,
see Boundaries; Location.
MARYLAND,
mineral lands, exception from operation of federal laws and present state
of legislation relating to, 39.
MASSACHUSETTS,
mineral lands and mining operations, exception from operation of federal
laws and present state of legislation relating to, 39.
MEASURE OF DAMAGES,
see Damages.
MECHANICS’ LIENS,
on mining claims, 509, 510.
MEETINGS,
miners’ meetings, 3-8.
MEXICAN LAND GRANTS,
history and general statement of, 59-64.
conflicting railroad grants, 76,
INDEX. 743
{The figures refer to pages.]
MICHIGAN,
mineral lands and mining operations, present state of legislation relating
to, 39.
exception from operation of federal mining laws, 547.
MILITARY RESERVATIONS,
relation to mining locations, 91, 92.
MILL HOLES,
definitions, 104,
MILL RUN,
definitions, 108, note.
MILL SITES,
see Adverse Claims and Proceedings; Dumps; Location; Subsurface
Rights.
in general, 225-231.
patents, 360, 361.
federal statutory provisions, 545.
land office regulations, 577, 578.
MINE,
definitions, 143-146.
MINERAL,
construction of the word “mineral” as used in statutes, 30, 121.
definitions, 111-121.
land department rulings, 119, 120.
what constitutes, under placer claim laws, 245, 246.
MINERAL LANDS,
definitions, 111-121.
building stone land, 67, 246.
oil lands, 245, 246.
salt lands, 246.
reservation of, in Mexican land grants, 62, 63.
reservation of, in state school land grants, 65-70.
reservation of, in railroad land grants, 75-81.
granite quarries as mineral lands, 79.
proof of mineral characteristics in homestead entries, 84, 85.
proof of mineral characteristics in Indian reservation, 91.
effect of surveyor general’s return, 56, 57.
land office regulations as to determination of mineral character, 583, 584
MINERAL SURVEYORS,
see Deputy Mineral Surveyors.
MINERS’ RULES,
origin and adoption, 1-8.
proof of, 26.
rules supplemental to statutory regulations, 23-29,
construction by courts, 29. 30.
federal statutory provisions, 541.
MINING CLAIM,
see Location.
definitions, 142, 148.
as property, 395, note.
744 INDEX.
[The figures refer to pages.]
MINING CLAIM—Continued,
conveyances, 497-511.
character of property rights in, as affecting, 497, 498.
examinations of title, 510, 511.
mortgages of, 509.
liens on, 509, 510.
MINING CONTRACTS,
in general, 481-489,
MINING DISTRICTS.
definitions of, 24.
origin and history of rules relating to, supplemental to statutory regula-
tions, 23-28.
MINING LEASES,
see Coal Lands; Leases.
MINING LICENSES,
see Licenses.
MINING PARTNERSHIPS,
in general, 490-493.
definitions, 490.
relocation by partner, 335.
grub stake contracts distinguished, 481, 482.
working contracts distinguished, 488.
authority of partners, 492.
tenancies in common distinguished, 493.
distinguished from ordinary partnerships, 491-493.
doctrine of delectus persone inapplicable. 491, 492.
MINNESOTA,
mineral lands and mining operations, federal and state legislation af-
fecting, 40, 547.
MINORS,
right to locate) mining claims, 173.
MISSISSIPPI,
mineral lands and mining operations, applicability of federal laws and
present state of legislation relating to, 40.
MISSOURI, “
mineral lands and mining operations, present state of legislation affecting,
41.
exception from operation of federal mining laws, 548.
MONTANA,
mineral lands and mining operations, applicability of federal laws and
present state of legislation relating to, 41.
“MONUMENTS,
see Boundaries.
adopting, in making relocation, 194, 195, 314.
marking location of lode claims, 188-196, 314.
marking location of placer claims, 249-258.
MORTGAGES,
adverse proceedings by mortgagee, 371, 372.
of mining claims in general, 509.
INDEX. 745
(The figures refer to pages.]
N
NAMES,
amendment as to, 222-224,
patents, 359.
NATIONAL PARKS,
relation to mineral lands, 92.
NEBRASKA,
mineral lands and mining operations, applicability of federal laws and
present state of legislation relating to, 41.
NEVADA,
mineral lands and mining operations, applicability of federal laws and
present state of legislation relating to, 41.
locations on state lands, 67.
adjudication of Mexican land grants in, 61-63.
NEW HAMPSHIRE,
mineral lands and mining operations, exception from operation of federal
laws and present state of legislation relating to, 42.
NEW JERSEY,
mineral lands and mining operations, exception from operation of federal
laws and present state of legislation affecting, 42.
NEW MEXICO,
mineral Jands and mining operations, applicability of federal laws and
state of legislation relating to, 42.
adjudication of Mexican land grants in, 61-63.
NEWSPAPERS,
see Publication.
publishers’ agreements on application for patent, 353.
form of publisher’s contract on application to patent lode claim, 678.
form of proof of publication of notice of application for patent, 678.
NEW YORK,
mineral lands and mining operations, exception from operation of federal
laws and present state of legislation relating to, 42.
prerogative rights, 13.
NONSUIT,
in adverse proceedings, 381.
NORTH CAROLINA,
mineral lands and mining operations, exception from operation of feder-
al laws and present state of legislation relating to, 43.
NORTH DAKOTA,
mineral Jands and mining operations, applicability of federal laws and
present state of legislation affecting, 43.
NORTHERN PACIFIC RAILROAD,
see Railroad Land Grants.
NOTICH,
see Forms; Location.
claim of mineral characteristics defeating railroad grants, 80.
discovery as element of location, 176-178, 247, 248.
746 INDEX.
[The figures refer to pages.]
NOTICE—Continued,
lode claims, posting notices, 205-210.
placer claims, posting notices, 258, 259.
tunnel site location, 232, 233.
blind veins, 240.
failure of co-owner to contribute to improvement requirements, 293-296.
application for patent, 349, 350.
publication of notice of application for patent, 356.
proof of publication of application for patent, 358.
application for coal land entry, 463, 464, 466.
application for entry of timber and stone lands, 468.
appropriation of water rights, 528, 529.
application for patent to lode claim, form, 676.
application for patent, form of publisher’s contract, 678.
of intention to apply for patent, form of proof of posting, 680.
0
OHIO, :
mineral lands and mining operations, applicability and operation of fed-
eral laws and present state of legislation relating to, 43.
OIL AND GAS LANDS,
discovery of, 162-164.
possession to support discovery of, 164, 165.
location of, 245, 246.
leases, 470-480.
waste of oil or gas. 471, note.
federal statutes, 558, 554, 559.
entry of oil lands, federal statutes, 553, 554.
annual labor on Oj] lands, federal statutes, 559.
Indian lands, Interior Department regulations, 618-631.
OKLAHOMA,
mineral Jands and mining operations, applicability of federal laws and
present state of legislation relating to, 43, 44.
OPEN CUT,
definitions, 104.
OPTIONS,
oil and gas leases, 472.
coupled with mining leases, 487.
ORE,
definitions, 106, note.
ORE CHANNELS,
definitions, 124, 125.
ORE CONTRACTS,
in general, 489.
OREGON,
mineral lands and mining operations, federal laws and present state of
legislation relating to, 44.
OUTCROP,
definitions, 105.
INDEX. TA%
[The figures refer to pages.]
OVERHAND STOPING,
definitions, 104.
PANNING,
definitions, 108.
PARALLELISM OF END LINES,
see Subsurface Rights.
PARKS,
see Location; Natural Parks.
PARTIES,
see Discovery.
to adverse proceedings, 377-380.
PARTITION,
of mining property, 521, 522.
PARTITIONED CLAIMS,
right of co-owners, 298, 299.
PARTNERSHIPS, !
see Mining Partnerships.
PATENTS,
see Adverse Claims and Proceedings; Forms; Protest.
history of legislation relating to, 14-21.
definitions, 392.
authority of court to set aside, 53, 399, 400.
effect as to lands included in Mexican grants, 61-64.
right to make mining location before and after patent, homestead entries,
84-87.
timber and stone entries, 87, 88.
desert entries, 88.
townsite entries, 99-102.
effect on excessive location, 204, 397.
annual labor requirements pending patent proceedings, 286, 287.
no annual labor requirement after patent, 286, 396.
application, as affecting right to relocation, 326, 327.
improvement requirements as condition precedent, 348, 344.
uncontested, 343-365.
inclusion of more than one claim, 344.
lode claims, 345-359.
survey requirements, 345-349.
application, 345, 346.
deposit of fees, 346.
order, 346, 347.
approval, 347-349.
field notes, 347-349.
plats, 348, 349.
surveyor general’s certificate, 348, 349.
application papers, 349-359.
notice of application, 349, 350.
the application, 350, 351.
748 INDEX.
{The figures refer to pages.]
PATENTS—Continued,
verification, 351-353.
proof of citizenship, 351-353.
publishers’ agreement, 353.
title based on adverse possession, 354, 355.
abstract of title, 354.
filing, 355.
publication of notice, 356.
proof of publication and of posting, 358.
proof of fees paid, 358.
the application to purchase, 358.
transfer pending application, 359.
death of applicant, 359.
entry, 358.
lodes within placers, 363, 364.
federal statutory provisions, 541-545.
land office regulations, 570-576.
forms used in proceedings to procure, 677-682.
millsites, 360, 361.
federal statutory provisions, 545.
land office regulations, 577, 578.
placer claims, 361-365.
descriptive reports of mineral surveyors, 362.
effect on right to known lodes, 260-267, 363, 364, 399.
federal statutory provisions, 541-545.
land office regulations, 576, 577. -
collateral attack, 392, 393.
conclusiveness, 392-394.
nature of, 52, note, 392-394
advantages of, 395-398.
direct attack on, 399, 400.
application of doctrine of relation, 401, 402.
effect on right to mortgage claim, 509.
examination of title of patented and unpatented claims, 519, 511,
effect on liens, 510.
effect on water rights, 527, 528.
federal statutory provisions, 539-564.
land office regulations, 570-579.
PAY STREAK,
definitions, 107.
PEDIS POSSESSIO,
definitions, 156.
lode claims, 155-159.
placer claims, 164, 165.
PENNSYLVANIA,
mineral lands and mining operations, exception from operation of federal
laws and present state of legislation relating to, 44.
PERSONAL INJURIES,
actions for, 523.
PETROLEUM,
see Oil and Gas Lands.
INDEX. 749
[The figures refer to pages.]
PIILIPPINE ISLANDS,
mining law, status of, 44.
mining laws, 641-668.
PINCH,
definitions, 106.
PLACER,
definitions, 122, 185-137, 245.
PLACER CLAIMS,
see Abandonment; Adverse Claims and Proceedings; Discovery; Dis-
covery Shaft; Forfeitures; Improvement Requirements; Location;
Oil and Gas Lands; Patents; Subsurface Rights; Water Rights.
definitions, 122, 185-187, 245.
discovery of, 162-166.
location of, in general, 245-269.
patents, 361-365.
federal statutory provisions, 541-545.
land office regulations, 576, 577. ;
known lodes in placer claims, effect of patent, 260-267, 363, 364, 399.
examination for, on conveyance, 511.
oil lands, entry of, 245, 246.
salt lands, entry of, 246.
entry of, federal statutory provisions, 548, 544.
building stone entries, 246.
federal statutes, 552.
land office regulations, 576, 577.
PLACER MINING,
history of legislation relating to, 14-21.
PLATS,
accompanying applications for patent, 348, 349, 355.
accompanying adverse claims, 368.
of surveys for patents, 347-349.
PLEADING,
see Abandonment.
in adverse proceedings, 377-380.
POCKET,
definitions, 106.
POLLUTION,
of water, 531-534.
PORTO RICO,
mineral lands and mining operations, lack of legislation relating to, 45.
POSSESSION,
see Pedis Possessio.
to support discovery of lode claim, 155-159.
to support discovery of placer claim, 164-166.
POSSESSORY ACTIONS,
mining remedies in general, 512-516.
federal statutory provisions, 539.
750 INDEX.
[The figures refer to pages.]
POSSESSORY RIGHTS,
see Adverse Possession; Patents.
application for patent based on, 354, 355.
land office regulations, 579, 580. _
POSTING,
notice of location, of lode claim, 205-210.
of placer claim, 259.
notice of application for patent, 350, 358.
form, 676, 677.
notice of application for entry of coal lands, 464, 466.
notice of application for entry of timber and stone lands, 468,
POSTS,
marking location of lode claims, 188-196.
PREFERENCE RIGHT,
what constitutes, 465, note.
to enter coal lands, 465, 466. i
federal statutes, 593, 594,
PREMATURE RELOCATION,
in general, 321-327.
PREROGATIVE RIGHTS,
in mining property, 9-13.
PRINCIPAL AND AGENT,
right to locate mining claims, 173, 174.
ratification of acts of agent, 174.
verification of certificate of location, 212.
relocation by agent, 334, 335.
verification of application for patent, by agent for principal, 352,
application for patent by agent, federal statutes relating to, 549.
verification of adverse claim by agent, 368.
federal statutory requirements, 550.
PRIORITIES,
see Discovery; Junior Locations; Relocation; Subsurface Rights.
as to discoveries of lode claims, 150, 160.
as to discoveries of placer claims, 150, 165.
lode locations, effect of record, 219.
senior and junior locators, effect of resumption of work, 289, 290.
determination of, on protest, 388-390.
between water rights, 529, 530.
PROOF OF PUBLICATION,
see Publication.
PROSPECTING,
definitions, 105.
contracts, 481-483.
PROSPECTING PAN,
definitions, 108.
PROTEST,
definition, 366.
as to classification of land by land department, 81, 82.
against patent applications, 386-391.
INDEX. 751
[The figures refer to pages.] v
PROTLEST—Continued,
persons entitled, 386, 387.
not allowed, where adverse proper, 388-391.
form, 681, 682.
PUBLICATION,
publisher’s agreement in patent proceedings, 353.
of notice of application for patent, 356.
proof of, 358.
form of proof, 678.
of notice of application for entry of coal lands, 464, 466.
of notice of application for entry of timber and stone lands, 468.
of notice of forfeiture for failure of co-owner to contribute to improve-
ment, 293-296.
PUBLIC LANDS,
see Surveys.
federal statutes relating to entry of, 539-564.
PUBLIC USB, °
see Condemnation.
Q
QUESTIONS FOR JURY,
see Abandonment; Adverse Claims and Proceedings; Discovery; Subsur-
face Rights.
QUIETING TITLE,
by adverse claimant, 375, 376.
to mining claim in general, 512.
QUITCLAIM DEEDS,
see Conveyances.
RAILROAD LAND GRANTS,
in general, 71-82.
rights of way, 72-74.
Northern Pacific Railroad, 75, 76.
in place or designated sections, 75-80.
lieu or indemnity lands, 80, 81.
classification of railroad lands, 81, 82.
right of railroad to maintain adverse proceedings, 372.
RAISE,
definitions, 104.
RATIFICATION,
see Principal and Agent.
RECEIVERS,
in land offices, 49, 50.
of mining property, 520.
RECORDS,
mining district, 25-27.
location papers of lode claims, 210-223.
752 INDEX.
[The figures refer to pages.]
RECORDS—Continued,
notice of location, 210.
location certificate, 212, 216-218.
amendment, 210, 221-224, 335-341.
notice of location of placer claim, 259, 260.
notice of forfeiture of rights of co-owner, 298.
failure to record as giving right to relocation, 325, 326.
REESE RIVER DISTRICT,
miners’ regulations, 16.
REFRACTORY ORES,
definitions, 107.
REGISTERS,
in land offices, 49, 50.
REGULATIONS,
see Rules.
RELATION,
application of doctrine, to relocation by amendment, 223, 337-341,
to water rights, 528, 529.
to discovery and the acts of location, 160.
to patents, 401, 402.
RELOCATION.
see Forfeitures; Junior Locations.
failure to do discovery work, 184.
changing boundaries of lode claims, 204, 205.
tight of former locator on resumption of work after a relocation becomes
forfeitable, 288, 289.
kinds of, 309, 310.
abandonment or forfeiture as condition precedent, 309, 310.
of claims in general, 309-341.
by third persons, 310-327.
rights of prior junior locators, 152-154, 222, 311-313, 388-390.
acts constituting, 314-317.
new discovery not necessary, 314.
time for performance of acts of, 315.
notice, 315, 316.
resumption of work by prior locator, 288-292, 317-320.
trespass in making, 317-320.
premature relocation, 321-327.
record of original location, failure to make, 325, 326.
patent, application for, as affecting, 286, 287, 326, 327.
by forfeiting owners, 327-341.
by co-tenant, 331-333.
by fiduciaries other than co-tenants, 333-335.
by amendment, 335-341.
relation back on amendment of certificate of location, 228, 337-341.
acts accompanying relocation by amendment, 341.
forfeiture of improvements, 341, 342.
pleading in adverse proceedings, 380.
protest, effect, 888-891.
INDEX. 753
[The figures refer to pages.]
REPLEVIN,
of minerals wrongfully removed, 516, 517.
REPORTS,
descriptive, of mineral surveyors of placer claims, 362.
RESERVATIONS,
see Forest Reserves; Indian Lands; Location; Military Reserva-
tions.
of mineral lands, railroad grants, 72-81.
Mexican land grants, 62, 63.
state land grants, 66.
townsite patents, 101.
federal statutory provisions, 539.
public land reservations, 89-94.
effect of unauthorized, in patents, 394.
in patents, for rights of way, federal statutes relating to, 551.
RESERVOIRS,
relation of reservoir sites to mineral lands, 94,
duties of owners, 534, 535.
selection of sites for, federal statutes, 552.
RESUMPTION OF WORK,
see Forfeitures; Improvement Requirements; Relocation.
definitions, 291, 292.
effect in general, 288-292, 317-320.
REVISED STATUTES OF THE UNITED STATES,
relating to mining rights, 589-547.
Tule of statutory construction, 20, 21,
REVOCATION,
of oil or gas lease, 472, 475.
RHODE ISLAND, i
mineral lands and mining operations, exception from operation of federal
laws and present state of legislation relating to, 45.
RIFFLES,
definitions, 109.
RIGHT OF WAY,
see Condemnation; Railroads.
tunnel site locations, 243, 244.
ROCKER,
definitions, 108.
ROCK IN PLACKH,
definitions, 132-135.
ROOF,
definitions, 104, 106.
RULES,
see Miners’ Rules.
land office rules, 565-592.
Cost. Min. L.—48
Gad INDEX.
[The figures refer to pages:]
S
SALES,
by mining partners, 491.
SALINE LANDS,
location of, as placers, 247.
location of, federal statutes, 558.
land office regulations, 570.
SALT LANDS,
see Saline Lands.
SAMPLE ASSAY,
definitions, 108, note.
SAN CARLOS LANDS,
act of Congress, 555.
SCHOOL LAND GRANTS,
in general, 64-71.
in place or designated sections, 64, 65.
lieu or indemnity lands, 65-70.
mineral lands in, 66, 67.
when title passes, 68.
SECRETARY OF THE INTERIOR,
as head of land department, 48.
SELVAGE,
definitions, 106.
SET WORK,
definitions, 105.
SEVERANCE,
see Easements.
SHAFT,
definitions, 103.
discovery shaft as element of location, 178-183,
SHOSHONE INDIAN LANDS,
mining rights, federal statutes, 561, 562.
SIDE LINES,
see Subsurface Rights.
SIZE OF CLAIMS,
see Excessive Locations.
SLUICE BOX,
definitions, 109, note.
SMELTING,
definitions, 107, note.
SOLE,
definitions, 104.
SORTING ORE,
definitions, 107.
SOUTH CAROLINA,
mineral lands und mining operations, exception from operation of federai
legislation, 45.
INDEX. 755
[The figures refer to pages.]
SOUTH DAKOTA,
mineral lands and mining operations, application and operation of federal
and state legislation relating to, 45.
suspension of improvement requirements, federal statutes, 552, 553.
SOVEREIGNTY, .
rights as between the United States and the several states, 9-14.
prerogative rights, 11, 12.
SPACE OF INTERSECTION,
what constitutes, 453, 454.
SPANISH WAR VOLUNTEERS,
exemption from assessment work, 283.
SPUR,
definitions, 106.
STATE COURTS,
jurisdiction of adverse proceedings, 375.
STATE SCHOOL LANDS,
see School Land Grants.
STATES,
sovereignty over mining property, 9-14.
history of state legislation relating to mining rights supplemental to fed-
eral legislation, 21-23.
enumeration of states to which American mining law is applicable, 31.
mining law status of the different states and territories, 31-47.
state school land grants, 64-71. ;
when title passes in state land grants, 68-71.
STATUTE OF FRAUDS,
see Frauds, Statute of.
STATUTE OF LIMITATIONS.
see Limitation of Actions.
STATUTES,
construction of mining statutes, 29, 30.
construction of federal Revised Statutes, 20, 21.
Revised Statutes of the United States and subsequent acts of Congress,
539-564,
Philippine mining laws, 641-663.
Texas mining laws, 664-675.
STONE LANDS,
see Timber and Stone Lands.
STOPING,
definitions, 104.
STREETS,
wrongful removal of ore under, 516.
STRIKE,
see Subsurface Rights.
definitions, 140.
STULLS,
definitions, 105.
756 INDEX.
[The figures refer to pages.]
SUBJACENT SUPPORT,
effect of severance of title as between surface and subsurface rights, 502-
508.
SUBSURFACE RIGHTS, ;
see Apex; Judicial Apex; Theoretical Apex.
in general, 403-461.
effect of patent, 397.
question for jury, 404.
presumptions, 404-409.
dependent on vein apexing in mining location, 409, 410.
agricultural grants, veins apexing in, 409.
patented townsites, veins apexing in, 409.
placer claims, veins apexing in, 409.
mill sites, veins apexing in, 409.
dependent on identity, continuity, and dip of vein, 410-414.
identity and continuity of vein, 413.
dipping of vein as affecting, 414.
cross cuts not allowed, 415.
divergence of end lines on dip, 415-417, 420-422.
convergence of end lines on dip, 415-417, 420-422,
method of exercise of, 415.
parallelism of end lines, 415-422.
under act of 1866, 415-417.
under act of 1872, 417-452.
veins crossing side lines as end lines, 422-425.
veins crossing one end line and one side line, 426.
veins crossing only one end line and no other line, 427, 428.
veins not reaching boundary line, 428, 429.
veins going out of opposite boundary lines and returning through still an-
other, 429-432.
veins entering and departing through only one boundary line, 433.
veins covered by conflicting surface locations, 434-436.
veins bisected on strike by common side line of adjoining locations, 437,
438,
veins splitting on strike, 439.
veins secondary or incidental, 440-449.
veins dipping under prior patented mining land, 449.
veins dipping under prior agricultural grant, 450.
theoretical apex, 450, 451.
rights of graritor and grantee of part of Jocated apex, 451, 452.
conveyance of part of location, 451, 452.
cross veins, 453-455. ;
crossing of extralateral rights on dip of same vein, 456.
veins uniting on dip and on strike, 457.
compromise agreements, 383, 458.
conveyance, 458, 497-502.
subjacent suppurt, severance of title between surface and subsurface rights,
502-508.
federal statutory provisions, 540.
SUMP,
definitions, 104.
INDEX. (57
[The figures refer to pages.]
SUPPLIES,
furnishing of, under grub stake contract, 481-483.
SUPPORT,
see Lateral Support; Subjacent Support.
SURVEYOR GENERAL,
general statement of duties, 49.
return of, 56, 57. ;
SURVEYS,
see Lode Claims.
public land surveys, 54-57.
as conditions precedent to patent, 345-349.
of placer claims, 361, 362.
on conveyance of unpatented claims, 511.
of mines and mining claims under order of court, 519, 520.
conformity of placer claims to, 252-254.
federal statutory provisions, 543, 544.
land office regulations, 581, 582, 585-592.
T
TAILINGS,
see Dumps.
definitions, 107. note, 110.
use of mill sites, 227, 238, 533, note.
dumping grounds under tunnel site locations, 238.
pollution of water, 532--534.
TAXATION,
taxes as lien on mining claim, 509.
TENANCY IN COMMON,
see Co-owners.
of mining property, 493-496.
accounting between co-tenants, 494, 495.
does not exist between surface and subsurface owners, 496.
fiduciary relationship of co-tenants, 496.
TENNESSEE,
mineral lands and mining operations, exception from operation of federal
laws and present state of legislation relating to, 45.
TERRITORIES,
enumeration of territories to which American mining law is applicable, 31.
TEXAS,
exception from operation of federal legislation relating to mining, 45.
mining laws of, 664—675.
THEORETICAL APEX,
definitions, 450, 451.
subsurface rights, 450, 451.
THREATS,
as excuse for failure to perform discovery work, 154.
as excuse for failure to perform annual labor, 284.
758 INDEX.
[The figures refer to pages.]
TIDE LANDS,
mining rights in, 148, note.
TIMBER,
definitions, 104.
use for mining and domestic purposes, federal statutes relating to, 548, 549.
TIMBER AND STONE LAND,
timber and stone entries in general, 87, 88.
location of building stone lands as placer claims, 246.
entry, 467-469.
federal statutes, 548, 552.
forest reservations, federal statutes, 554, 555.
land office regulations, 585.
act of Congress of June 3, 1878, for disposal of land in certain states, 548,
615.
act of Congress of August 4, 1892, making act of June 8, 1878, applicable to
all public land states, 552, 615.
land office regulations, 615-617.
TIME,
of passage of title to state land grants, 68-71.
for completion of discovery work of lode claims, 183, 184.
for marking boundaries of lode claims, 191, 192.
for posting notice of location of lode claim, 210.
for record of lode location papers, 218.
for giving notice of tunnel site location, 232.
for completion of discovery work of placers, ,248,
for marking location of placer claims, 257-258.
for filing affidavit as to performance of annual labor, 285,
for resumption of work on claim, 290, 291, 318-820.
for performance of acts of relocation, 315.
for publication of notice of application for patent, 356.
for filing adverse claim, 356, 357, 366, 367.
for commencement of adverse proceedings, 376, 377.
for entry of coal land under preference right, 465, 466.
as essence of option to purchase mining property, 487.
as essence of mine working contract, 488, note.
of taking effect of patent as affecting water rights, 527, 528.
TITLE,
see Adverse Possession; After-Acquired Title; Conveyances.
when title to school land grants passes to state, 68.
effect of patent, 395-398.
application of doctrine of relation on granting patent, 401, 402,
oil and gas, time of vesting, 474476.
examination of, on conveyance of mining claim, 510, 511.
TITLE BONDS,
coupled with mining leases, 487, 488.
TOP,
see Apex.
definitions, 104, 137-140.
INDEX. 759
[The figures refer to pages.]
TOWN SITES,
see Location.
relation to mineral lands, 95-102.
lands subject to entry, 96.
effect of actual occupancy, 97, 98.
relation of act of 1891 to earlier acts, 98-100.
known veins, 101, 102.
exception of mill sites from town-site patent, 231.
entries, federal statutes, 551, 552.
TRANSFERS,
see Conveyances,
TREATMENT,
definitions, 107.
TRESPASS,
see Damages.
for wrongful taking of ore, 513-516.
initiation of mining location on homestead entry, 85, 86.
in making location, 156, 157, 164.
in making relocation, 317-327.
TRIAL,
in adverse proceedings, 380-382,
TROVER,
for wrongful removal of mineral, 516, 517.
TRUSTEES,
application for patent by, 353.
patentees as trustees for others, 54, 400, 401.
TUNNEL,
definitions, 103.
annual labor, 244.
federal statutory provisions, 548.
TUNNEL SITES,
see Abandonment; Adverse Claims and Proceedings; Location.
federal statutory provisions, 540.
land office regulations, 567, 568.
U
UINTA INDIAN LANDS,
mineral rights, federal statutes, 558.
UNCANCELED APPLICATION FOR PATENT,
see Patents.
UNCOMPAHGRE INDIAN LANDS,
mining claims on, federal statutes, 559, 560.
UNDERGROUND DISCOVERY.
validity of, 149, note.
of blind veins, 239-242.
UNDERHAND STOPING,
definitions, 104.
760 INDEX,
(The figures refer to pages.]
UNION OF VEINS,
on the dip, 457.
on the strike, 457.
UNITED STATES,
sovereignty over mining property, 9-14.
territory and lands subject to federal regulation, 32-34.
federal statutory provisions, 539-564,
UP CAST,
definitions, 104.
UTAH,
application and operation of federal legislation relating to mines and min-
erals, 45.
adjudication of Mexican land grants in, 61-63.
UTE INDIAN LANDS,
mineral tands, federal statutes, 558.
Vv:
VALUABLE MINERAL DEPOSITS,
definitions, 111-121.
VEINS.
see Lode; Lode Claims; Subsurface Rights.
definitions, 105, 117, 122-135.
known veins, definition, 260-264.
VENDOR AND VENDEE,
relocation by vendor, 334, 335.
VERDICT,
in adverse proceedings, 380-382.
VERIFICATION,
see Affidavits.
of location certificate of lode claim, 216, 217, note.
of location certificate of placer claim, 260.
of application for patent, 351, 353.
of adverse claim, 367, 368.
of affidavits on application for patent, federal statutory provisions, 545.
VERMONT,
mineral lands and mining operations, exception from operation of federal
laws and present state of legislation relating to, 46.
VERTICAL SUPPORT,
see Subjacent Support. =
VIEW,
by jury under order of court, 520.
VIRGINIA,
mineral lands and mining operations, exception from operation of federa:
laws and present state of legislation relating to, 46.
VUG,
definitions, 107.
INDEX. 761
[The figures refer to pages.]
WAIVER, W
of forfeiture of rights of co-owner failing to contribute, 298.
of adverse claim, 369.
WARRANTY DEEDS,
see Conveyances.
WASHINGTON,
mineral lands and mining operations, application and operation of federal
and state legislation relating to, 46.
WASTE,
by co-tenant, 494.
of oil and gas, 471, note.
WATER RIGHTS,
in general, 526-535.
reservoirs, sites, 94.
duties and ‘iabilities of owners, 534, 535.
appropriation, 526-530.
California system, 527, 528.
Colorado system 528.
débris, 531-534.
pollution, 5381-534.
drainage, 534, 535.
tederal statutory provisions, 546.
reservation of rights of way for ditches or canals in patents, federal stat-
utes relating to, 551.
WEST VIRGINIA,
mineral lands and mining operations, exception from operation of federal
laws and present state of legislation relating to, 46
WHITE RIVER UTE INDIAN LANDS, .
act of Congress, 558.
WICHITA LANDS,
act of Congress, 553.
WIND RIVER INDIAN LANDS.
mining rights, federal statutes, 561, 562.
WINZE,
definitions, 104.
WISCONSIN,
mineral lands and mining operations, application and operation of federal
and state legislation relating to, 46, 547.
WORDS AND PHRASES,
“abandonment,” 300-305.
“adit,” 1038, 104, 182, 183.
“adverse claim,” 366.
“amalgam,” 107.
“American mining law,” 1.
“apex,” 105, 137-140.
762 INDEX,
[The figures refer to pages.]
WORDS AND PHRASES—Continued,
“appropriation of water,’ 529, note.
“assay,” 108, note, 489,
“back,” 104.
“pack stoping,” 104.
“par diggings,” 108.
“base ores,” 107, note.
“pedded deposits,” 125.
“blanket veins,” 414.
“blind veins,” 2384.
“blossom,” 105.
“plow out,” 105,
“ponanza,” 107.
“booming,” 110.
“breast,” 104.
“breccia,” 124, note.
“precciated vein,” 106.
“cap,” 106.
“chamber deposits,” 125.
“chimney,” 106, 107.
“chute,” 106, 107.
“clean up,” 107, 109.
“concentrates,” 107, note.
“contact deposits,” 125.
“contact veins,’ 123.
“contiguous,” 279, note.
“continuity,’ 413.
“country rock,’ 103, 125, note.
“course,” 140.
“cradle,” 108.
“crevice,” 182.
“cribbing,” 104, 105.
“eross cut,” 103. .
“deep placers,” 109, note, 136.
“diggings,” 108.
“dike, 123.
“dip,” 105, 140, 141.
“discovery,” 147-149.
“disseminations.” 125,
“down cast,” 104.
“dredging,” 110.
“drift,” 104.
“drift mining,” 109.
“dry blowing,” 110.
“dump,” 107.
“extralateral right,” 188.
“face of tunnel,” 104, 232, 234.
“Fahlband,” 124.
“faulting,” 106.
“feeder,” 106.
“fissure veins,” 122, 123.
“float,” 105.
INDEX. 763
(The figures refer to pages.]
WORDS AND PHRASHS—Continued,
“floats,” 60.
“floor,” 104, 105.
“foot wall,” 105.
“forfeitures,” 300-305.
“free milling ores,” 107.
“gangue,” 106.
“gangue minerals,” 106, note.
“gouge,” 106.
“grub stake contracts,” 481.
“hanging wall,” 105.
“heading,” 104.
“horse,” 106.
“hydraulic mining,” 108, 10Q
“identity,” 413.
“impregnations,” 123, 124,
“improvement,” 275, note.
“incline drift,” 104.
“intralimital rights,” 404,
“Judicial apex,” 450, 451.
“known lodes,” 260-264.
“known mines,” 101.
“known veins,” 260-264.
“lagging,” 105.
“lateral drifts,” 104.
“ledge,” 117, 122-135.
“levels,” 104.
“lifts,” 104.
“line of tunnel,” 232-236.
“location,” 142, 148, 175, 176.
“lode,” 117, 122-185.
“manhole,” 104.
“mill holes,” 104.
“mill run,” 108, note,
“mine,” 143-146.
“mineral,” 111-121.
“mineral deposits,” 111-121,
“mining claim,” 142, 143.
“mining districts,” 24.
“mining partnerships,” 490.
“nuggets,” 109.
“open cut,” 104.
“ore,” 106, note.
“ore channels,” 124, 125.
“outcrop,” 105.
“overhand stoping,” 104.
“panning,” 108.
“patent,” 392.
“paying quantity,” 478, note.
“pay streak,” 107.
“nedis possessio,” 156.
“pinch,” 106.
764 INDEX.
[The figures refer to pages.]
WORDS AND PHRASES—Continued,
“placer,” 122, 1385-187, 245.
“placer claim,” 122, 135-137.
“pocket,” 106.
“preference right,” 465, note.
“prospecting,” 105.
_ “prospecting pan,” 108.
“protest,” 366.
“raise,” 104.
“refractory ores,’’ 107.
“resumption of work,” 291, 292.
“riffles,” 109.
“rocker,” 108.
“rock in place,” 1382-135.
“roof,” 104, 106.
“sample assay,” 108, note.
“selvage,” 106.
“set work,’ 105.
“shaft,’”’ 103.
“sluice box,” 109, note.
“smelting,” 107, note.
“sole,” 104.
“sorting ore,” 107.
“space of intersection,” 453, 454.
-“spur,” 106.
“stoping,” 104.
“strike,” 140.
“stulls,” 105.
“sump,” 104.
“surface,” 504, note.
“tailings,” 107, note, 110.
“theoretical apex,” 450, 451.
“timber,” 104.
“top,” 104, 137-140.
“treatment,” 107.
“tunnel,” 103.
“anderhand stoping,” 104.
“up cast,” 104.
“valuable mineral deposits,” 111-121.
“vein,” 105, 117, 122-135.
“vug,” 107.
“winze,” 104.
WORKING CONTRACTS,
in general, 488.
WRITING,
necessity of in conveyance, 497-499.
WYOMING,
mineral lands and mining operations, application and operation of federal
laws and present state of legislation relating to, 47.
adjudication of Mexican land grants in, 61-63.
INDEX. 765
[The figures refer to pages.]
; Y
YAKIMA INDIAN LANDS,
mineral rights, federal statutes, 561.
YELLOWSTONE PARK,
mineral lands in, 92.
YOSEMITE PARK,
mineral lands in, 92,
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. The Federal Executive.
. Federal Jurisdiction.
. The Powers of Congress.
. Interstate Law.
. Republican Government Guarantied.
11.
12.
13;
14.
15.
16.
17.
18.
19.
20.
21.
22;
Executive Power in the States.
Judicial Powers in the States.
Legislative Power in the States.
The Police Power.
The Power of Taxation.
The Right of Eminent Domain.
Municipal Corporations.
Civil Rights, and Their Protection by the Constitution.
Political and Public Rights.
Constitutional Guaranties in Criminal Cases.
Laws Impairing the Obligation of Contracts.
Retroactive Laws.
C6559-3
Childs on Suretyship and
Guaranty.
1907. 572 pages. $3.75 delivered.
By FRANK HALL CHILDS,
of the Chicago Bar.
TABLE OF CONTENTS.
Chap.
1. Definitions, Parties, Distinctions, and Classifications.
2. Formation of the Contract.
3. The Statute of Frauds.
4. Construction of the Contract.
5. Rights and Liabilities as Between the Creditor and the Sure-
ty.
6. Rights and Liabilities of the Surety and of the Principal as to
each other.
“1
. Rights and Liabilities of Co-Sureties as to each other.
8. Parties to Negotiable Instruments Occupying the Relation of
Sureties.
9. Official Bonds.
10. Judicial Bonds.
11. Bail Bonds and Recognizances.
C6559-4
Chap.
Clark on Contracts.
1904. 693 pages. $3.75 delivered.
By WM. L. CLARK, Jr.
Second Edition: By FRANCIS B. TIFFANY.
TABLE OF CONTENTS.
. Contract in General.
. Offer and Acceptance.
. Classification of Contracts.
. Requirement of Writing.
. Consideration.
. Capacity of Parties.
. Reality of Consent.
. Legality of Object.
. Operation of Contract.
. Interpretation of Contract.
. Discharge of Contract.
. Agency.
3. Quasi Contract.
C6550-5
Clark on Corporations.
1907. 721 pages. $8.75 delivered.
By WM. L. CLARK, Jr.,
Author of “Criminal Law,” “Criminal Procedure,” and “Contracts.”
Second Edition: By FRANCIS B. TIFFANY.
TABLE OF CONTENTS.
; Chap.
1. Of the Nature of a Corporation.
. Creation and Citizenship of Corporations.
. Effect of Irregular Incorporation.
. Relation between Corporation and its Promoters.
. Powers and Liabilities of Corporations.
. Powers and Liabilities of Corporations.
Powers and Liabilities of Corporations,
. The Corporation and the State.
ooA oan wh
. Dissolution of Corporations.
rary
Oo
. Membership in Corporations.
a
a
. Membership in Corporations.
rs
tho
. Membership in Corporations.
b
w
. Management of Corporations—Officers and Agents.
b
sy
. Rights and Remedies of Creditors.
H
Ot
. Foreign Corporations.
Appendix.
C6559-6
wv
Clark’s Criminal Law.
1902. 517 pages. $3.75 delivered.
By WM. L. CLARK, Jr.,
Author of a “Handbook of the Law of Contracts.”
Second Edition: By FRANCIS B. TIFFANY.
TABLE OF CONTENTS.
Chap.
1. Definition of Crime.
. Criminal Law.
. Classification of Crimes.
. The Mental Element in Crime.
. Persons Capable of Committing Crime.
. Parties Concerned.
. The Overt Act.
. Offenses against the Person.
SBaOoN DA FWD
. Offenses against the Person.
H
°
. Offenses against the Habitation.
ht
b
. Offenses against Property.
Hw
bo
. Offenses against the Public Health, Morals, ete.
b
ow
. Offenses against Public Justice and Authority.
b
iy
. Offenses against the Public Peace.
H
OO
. Offenses against the Government.
He
a
. Offenses against the Law of Nations,
H
1
. Jurisdiction.
b
wo
. Former Jeopardy.
Clark’s Criminal Procedure,
1895. 665 pages. $3.75 delivered.
By WM. L. CLARK, Jr.,
Author of a “Handbook of Criminal Law,” and a “Handbook of
Contracts.”
TABLE OF CONTENTS.
Chap.
1. Jurisdiction.
2. Apprehension of Persons and Property.
3. Preliminary Examination, Bail, and Commitment.
4. Mode of Accusation.
5. Pleading—The Accusation.
6. Pleading—The Accusation.
7. Pleading—The Accusation.
8. Pleading—The Accusation.
9. Pleading—The Accusation.
10. Pleading and Proof.
11. Motion to Quash.
12. Trial and Verdict.
13. Proceedings after Verdict.
14. Evidence.
15. Habeas Corpus.
C6559-8
Croswell on Executors and
Q@oministrators.
1897. 696 pages. $3.75 delivered.
By SIMON GREENLEAF CROSWELL,
Author of “Electricity,” “Patent Cases,” etc.
TABLE OF CONTENTS.
Chap.
Part 1—DEFINITIONS AND DIVISION OF SUBJECT.
1. Definitions and Division of subject.
Part 2—APPOINTMENT AND QUALIFICATIONS.
Appointment in Court.
Place and Time of Appointment and Requisites Therefor.
Who may Claim Appointment as Executor.
Who may Claim the Right to Administer.
Disqualifications for the Office of Executor or Administrator.
. Acceptance or Renunciation.
. Proceedings for Appointment of Executors and Administra-
tors.
9. Special Kinds of Administrations.
10. Foreign and Interstate Administration.
11. Joint Executors and Administrators.
12. Administration Bonds.
Part 3—POWERS AND DUTIES.
13. Inventory—Appraisement—Notice of Appointment.
14. Assets of the Estate.
15. Management of the Estate.
16. Sales and Conveyances of Personal or Real Assets.
17. Payment of Debts and Allowances—Insolvent Estates.
18. Payment of Legacies.
19. Distribution of Intestate Estates.
20. Administration Accounts. °
Part 4—TERMINATION OF OFFICE.
21. Revocation of Letters—Removal—Resignation.
Part 5.—REMEDIBES.
22. Actions by Executors and Administrators.
23. Actions against Executors and Administrators.
24. Statute of Limitations—Set-off.
25. Evidence and Costs.
1G OTR Gob
C6559-9
Eaton on Equity.
1901. 734 pages. $3.75 delivered.
By JAMES W. EATON,
Editor 3d Edition Collier on Bankruptcy, Co-Editor American
Bankruptey Reports, Eaton and Greene’s Negotiable
Instruments Law, ete.
TABLE OF CONTENTS.
Origin and History.
General Principles Governing the Exercise of Equity Jurisdiction.
Maxims.
Penalties and Forfeitures.
Priorities and Notice.
Bona Fide Purchasers Without Notice.
Equitable Estoppel.
Election.
Satisfaction and Performance.
Conversion and Reconversion.
Accident.
Mistake.
Fraud.
Equitable Property.
Implied Trusts.
Powers, Duties, and Liabilities of Trustees.
Mortgages.
Equitable Liens.
Assignments.
Remedies Seeking Pecuniary Relief.
Specific Performance.
Injunction.
Partition, Dower, and Establishment of Boundaries.
Reformation, Cancellation, and Cloud on Title.
Ancillary Remedies.
C6559-10
Chap.
Setter on Equity.
1895. 463 pages. $3.75 delivered.
By NORMAN FETTER.
TABLE OF CONTENTS.
1. Nature and Definition of Equity.
2. Principles Defining and Limiting Jurisdiction.
8. The Maxims of Equity.
4. The Doctrines of Equity.
5. The Doctrines of Equity.
6. The Doctrines of Equity.
7. Grounds for Equitable Relief.
8. Property in Equity—Trusts.
9. Property in Equity—Mortgages, Liens, and Assignments.
10. Equitable Remedies.
11. Equitable Remedies.
12. Equitable Remedies.
18. Equitable Remedies.
14. Reformation, Cancellation, and Quieting title.
15. Ancillary Remedies.
C6559-11
Gardner on Wills.
1903. 726 pages. $3.75 delivered.
By GEORGE E. GARDNER,
Professor in the Boston University Law School.
TABLE OF CONTENTS.
Chap.
L.
2. Form of Wills.
3.
4. Agreements to Make Wills, and Wills Resulting from Agree-
co Ot
-1
© @
18.
19.
20.
21.
22,
23.
24.
History of Wills—Introduction.
Nuncupative, Holographic, Conditional Wills.
ment.
. Who may be a Testator.
. Restraint upon Power of Testamentary Disposition—Who may
be Beneficiaries—What may be Disposed of by Will.
. Mistake, Fraud, and Undue Influence.
. Execution of Wills.
. Revocation and Republication of Wills.
10.
11.
12.
18.
14,
15.
16.
17.
Conflict of Laws.
Probate of Wills.
Actions for the Construction of Wills.
Construction of Wills—Controlling Principles.
Construction—Description of Subject-Matter.
Construction—Description of Beneficiary.
Construction—Nature and Duration of Interests.
Construction—Vested and Contingent Interests—Remainders
—Executory Devises.
Construction—Conditions.
Construction—Testamentary Trusts and Powers.
Legacies — General — Specific — Demonstrative — Cumulative
—Lapsed and Void — Abatement — Ademption — Advance-
ments.
Legacies Charged upon Land or Other Property.
Payment of the Testator’s Debts.
Election. 5
Rights of Beneficiaries Not Previously Discussed.
C6559-12
George on Partnership.
1897. 616 pages. $3.75 delivered.
By WILLIAM GEORGE.
TABLE OF CONTENTS.
Chap.
1. Definition and Establishment of Relation.
2. Kinds of Partnerships and Partners.
3. Characteristic Features of Partnerships.
4, Implied Rights and Liabilities Inter Se.
5. Articles of Partnership.
6. Rights and Liabilities as to Third Persons.
7. Actions Between Partners.
8. Actions Between Partners and Third Persons.
9. Dissolution.
10. Limited Partnerships.
11. Joint-Stock Companies.
C6559-13
Glenn’s Snternational Law,
1895, 478 pages.’ $3.75 delivered.
By CAPT. EDWIN F. GLENN,
Acting Judge Advocate, United States Army.
TABLE OF CONTENTS.
INTRODUCTION.
Chap.
1. Persons in International Law.
2. The Commencement of States—Fundamental Rights and Du-
ties.
. Territorial Property of a State.
. Territorial Jurisdiction.
. Jurisdiction on the High Seas and Unoccupied Places.
The Agents of a State in International Relations.
. Intervention.
. Nationality.
. Treaties.
10. Amicable Settlement of Disputes.
11. International Relations in War.
12. Effects of War—As to Persons.
13. Effects of War—As to Property.
14. Postliminium.
15. Military Occupation.
16. Means of Carrying on Hostilities.
17. Enemy Character.
18. Non-Hostile Relations.
19. Termination of War.
20. Of Neutrality in General.
21. The Law of Neutrality between Belligerent and Neutral States.
22. Contraband.
23. Blockade.
24, Visit and Search, and Right of Angary.
Appendix.
aD OR &
oO @
C6559-14
Hale on Sailments and
Carriers.
1896. 675 pages. $3.75 delivered.
By WM. B. HALE.
TABLE OF CONTENTS.
Chap.
1
2.
. In General.
Bailments for Sole Benefit of Bailor.
. Bailments for Bailee’s Sole Benefit.
. Bailments for Mutual Benefit—Pledges.
. Bailments for Mutual Benefit—Hiring.
. Innkeepers.
. Carriers of Goods.
. Carriers of Passengers.
. Actions against Carriers.
C6559-15
Chap.
to
10.
11.
13.
14.
Hale on Damages.
1896. 476 pages. $3.75 delivered.
By WM. B. HALE,
Author of “Bailments and Carriers.”
TABLE OF CONTENTS.
. Definitions and General Principles.
. Nominal Damages,
. Compensatory Damages.
. Bonds, Liquidated Damages and Alternative Contracts,
. Interest.
. Value.
. Exemplary Damages.
. Pleading and Practice.
. Breach of Contracts for Sale of Goods.
Damages in Actions against Carrier.
Damages in Actions against Telegraph Companies.
. Damages for Death by Wrongful Act.
Wrongs Affecting Real Property.
Breach of Marriage Promise.
C6559-16
Hale on Corts.
1896. 636 pages. $3.75 delivered.
By WM. B. HALE.
Author of “Bailments and Carriers,” etc.
TABLE OF CONTENTS.
Chap.
1. General Nature of Torts.
2. Variations in Normal Right to Sue.
3. Liability for Torts Committed by or with Others.
4, Discharge and Limitation of Liability for Torts.
5. Remedies for Torts—Damages.
6. Wrongs Affecting Freedom and Safety of Person.
7. Injuries in Family Relations.
8. Wrongs Affecting Reputation.
9. Malicious Wrongs.
10. Wrongs to Possession and Property.
11. Nuisance.
12. Negligence.
18. Master and Servant.
C6559-17
Hopkins on Real Property.
1896. 589 pages. $3.75 delivered.
By EARL P. HOPKINS, A. B. LL. M.
TABLE OF CONTENTS.
Chap.
1. What is Real Property.
2. Tenure and Seisin.
3. Estates as to Quantity—Fee Simple
4. Estates as to Quantity—Estates Tail.
. Estates as to Quantity—Conventional Life Estates.
Ot
G. Estates as to Quantity—Legal Life Estates.
7. Estates as to Quantity—Less than Freehold.
8. Estates'as to Quality on Condition—on Limitation.
9. Estates as to Quality—Mortgages.
10. Equitable Estates.
11. Estates as to Time of Enjoyment—Future Estates.
12. Estates as to Number of Owners—Joint Estates.
13. Incorporeal Hereditaments.
14. Legal Capacity to Hold and Convey Realty.
1. Restraints on Alienation.
16. Title.
6559-18
Hughes on Cdmiralty.
1901. 504 pages. $3.75 delivered.
By ROBERT M. HUGHES, M. A.
TABLE OF CONTENTS.
The Origin and History of the Admiralty, and its Extent in the
United States.
Adniralty Jurisdiction as Governed by the Subject-Matter.
General Average and Marine Insurance.
Bottomry and Respondentia ; and Liens for Supplies, Repairs, and
Other Necessaries.
Stevedores’ Contracts, Canal Tolls, and Towage Contracts.
Salvage.
Contracts of Affreightment and Charter Parties.
Water Carriage as Affected by the Harter Act of February 13, 1893.
Admiralty Jurisdiction in Matters of Tort.
The Right of Action in Admiralty for Injuries Resulting Fatally.
Torts to the Property, and Herein of Collision.
The Steering and Sailing Rules.
Rules as to Narrow Channels, Special Circumstances, and General
Precautions.
Damages in Collision Cases.
Vessel Ownership Independent of the Limited Liability Act.
Rights and Liabilities of Owners as Affected by the Limited Lia-
bility Act.
The Relative Priorities of Maritime Claims.
A Summary of Pleading and Practice.
APPENDIX.
. The Mariner’s Compass.
2. Statutes Regulating Navigation, Including:
(1) The International Rules.
(2) The Rules for Coast and Connecting Inland Waters.
(8) The Dividing Lines between the High Seas and Coast Wa-
ters.
(4) The Lake Rules.
(5) The Mississippi Valley Rules.
(6) The Act of March 3, 1899, as to Obstructing Channels. '
38. The Limited Liability Acts, Including:
(1) The Act of March 3, 1851, as Amended.
(2) The Act of June 26, 1884.
. Section 941, Rev. St., as Amended, Regulating Bonding of Ves-
sels.
. Statutes Regulating Evidence in the Federal Courts.
. Suits in Forma Pauperis.
. The Admiralty Rules of Practice.
Ne
we
a1 Or
C6559-19
Hughes on Sederal
Surisdiction and Procedure.
1904. 634 pages. $3.75 delivered.
By ROBERT M. HUGHES, of the Norfolk Bar,
Author of ‘Hughes on Admiralty,” and Lecturer at the George
Washington University Law School.
TABLE OF CONTENTS.
Chap.
1. Introduction—What it Comprehends.
2. The District Court—Its Criminal Jurisdiction and Practice.
3. Same—Continued.
4. The District Court—Criminal Jurisdiction—Miscellaneous
Jurisdiction.
5. The District Court—Bankruptcy.
6-8. Same—Continued.
9. The District Court—Miscellaneous Jurisdiction.
10. The Circuit Court—Original Jurisdiction.
11-12. Same—Continued.
18. The Circuit Court—Jurisdiction by Removal.
14-15. Same—Continued.
16. The Circuit Court—Jurisdiction by Removal—Original Juris-
diction of the Supreme Court—Other Minor Courts of Orig-
inal Jurisdiction.
17. Procedure in the Ordinary Federal Courts of Original Juris-
diction—Courts of Law.
18. Procedure in the Ordinary Federal Courts of Original Juris-
diction—Courts of Equity.
19. Same—Continued.
20. Appellate Jurisdiction—The Circuit Court of Appeals.
21. Appellate Jurisdiction—The Supreme Court.
22. Procedure on Error and Appeal.
The U. 8. Supreme Court Rules and the Rules of Practice for the
Courts of Equity of the United States are given in an appendix.
C6559-20
Sngersoll on Public
_ Corporations.
1904. 788 pages. $3.75 delivered.
By HENRY H. INGERSOLL, LL. D.,
Dean of the University of Tennessee School of Law.
TABLE OF CONTENTS.
Part 1—QUASI CORPORATIONS.
Chap.
1. Nature, Creation, Classification.
2. Quasi Corporations—Liabilities, Elements, Counties, Property,
ete.
3. Same—Continued.
4
. Same—Continued.
Part 2.—MUNICIPAL CORPORATIONS.
5. Municipal Corporations.
6. Their Creation—How—By What Bodies—Subject to What Re-
strictions, ete.
7. Their Alteration and Dissolution.
8. The Charter.
9. Legislative Control.
10. Proceedings and Ordinances.
11. Officers, Agents, and Employés.
12. Contracts.
13. Improvements.
14. Police Powers and Regulations.
15. Streets, Sewers, Parks, and Public Buildings.
16. Torts.
17. Debts, Funds, Expenses, and Administration.
18. Taxation.
19. Actions.
Part 3—QUASI PUBLIC CORPORATIONS.
20. Quasi Public Corporations.
21. Railroads.
22, Electric Companies.
23. Water and Gas Companies.
24. Other Quasi Public Corporations.
C6559-21
Saggard on Torts.
1895. 2 vols. 1807 pages. $7.50 delivered.
By EDWIN A. JAGGARD, A. M., LL. B.,
Professor of the Law of Torts in Minnesota University Law School.
Chap.
oO Oo NH DD
11.
12.
13.
14.
TABLE OF CONTENTS.
Part 1—IN GENERAL
. General Nature of Torts.
. Variations in the Normal Right to Sue.
. Liability for Torts Committed by or with Others.
. Discharge and Limitation of Liability for Torts.
. Remedies.
Part 2—SPECIFIC WRONGS.
. Wrongs Affecting Safety and Freedom of Persons.
. Injuries in Family Relations.
. Wrongs Affecting Reputation.
. Malicious Wrongs. .
. Wrongs to Possession and Property.
Nuisance.
Negligence.
Master and Servant.
Common Carriers.
C6559-22
WicKelvey on Evidence.
1907. 540 pages. $3.75 delivered.
By JOHN JAY McKELVEY, A. M., LL. B,,
Author of “Common-Law Pleading,” ete.
Second Edition.
TABLE OF CONTENTS.
Chap.
1. Introductory.
2. Judicial Notice.
3. Questions of Law and Questions of Fact.
4. Burden of Proof.
5. Presumptions.
6. Admissions.
7. Confessions.
8. Matters Excluded as Unimportant, or as Misleading, though
Logically Relevant.
9. Character.
10. Opinion Evidence.
11. Hearsay.
12. Witnesses.
13. Examination of Witnesses.
14. Writings.
15. Demurrers to Evidence.
C6559-23
Morton on Bills and Wotes.
1900. 600 pages. $3.75 delivered.
By PROF. CHARLES P. NORTON.
Third Edition: By Francis B. Tiffany.
TABLE OF CONTENTS.
Chap.
1. Of Negotiability so far as it Relates to Bills and Notes.
2. Of Negotiable Bills and Notes, and their Formal and Hssen-
tial Requisites.
3. Acceptance of Bills of Exchange.
4. Indorsement.
5. Of the Nature of the Liabilities of the Parties.
6. Transfer.
7. Defenses as against Purchaser for Value without Notice.
8. The Purchaser for Value without Notice.
9. Of Presentment and Notice of Dishonor.
10. Checks.
Appendix.
CG559-24
Shipman on CommonLaw
Chap.
1.
2.
3.
10.
11.
Pleading.
1895. 615 pages. $3.75 delivered.
By BENJAMIN J. SHIPMAN, LL. B.
Second Edition.
TABLE OF CONTENTS.
Forms of Action.
Forms of Action.
The Parties to Actions.
. The Proceedings in an Action.
. The Declaration.
. The Production of the Issue.
. Materialty in Pleading.
. Singleness or Unity in Pleading.
. Certainty in Pleading.
Consistency and Simplicity in Pleading.
Directness and Brevity in Pleading.
. Miscellaneous Rules.
Appendix.
C6559-25
Chap.
Shipman on Equity
Pleading.
1897. 644 pages. $3.75 delivered.
By BENJ. J. SHIPMAN, LL. B.,
Author of “Shipman’s Common-Law Pleading.”
TABLE OF CONTENTS.
1. Equity Pleading in General.
2. Parties.
3. Proceedings in an Equitable Suit.
4, Bills in Equity.
5. The Disclaimer.
6. Demurrer.
7. The Plea. ,
8. The Answer.
9. The Replication.
Smith's € lomentary Faw.
1896. 3867 pages. $3.75 delivered.
BY WALTER DENTON SMITH,
Instructor in the Law Department of the University of Michigan.
Chap.
TU UB o9 bo
am
S90
24.
25.
26.
27.
TABLE OF CONTENTS.
Part 1—ELEMENTARY JURISPRUDENCE.
. Nature of Law and the Various Systems.
Government and its Functions.
Government in the United States.
The Unwritten Law.
Equity.
The Written Law.
The Authorities and their Interpretation.
. Persons and Personal Rights.
Property.
. Classification of the Law.
Part 2—THE SUBSTANTIVE LAW.
. Constitutional and Administrative Law.
. Criminal Law.
. The Law of Domestic Relations.
. Corporeal and Incorporeal Hereditaments.
. Estates in Real Property.
. Title to Real Property.
. Personal Property.
. Succession After Death.
. Contracts.
. Special Contracts.
. Agency.
. Commercial Associations.
. Torts.
Part 3—THE ADJECTIVE LAW.
Remedies.
Courts and their Jurisdiction.
Procedure.
Trials.
C6559-27
Ciffany on gency.
1903. 609 pages. $3.75 delivered.
By FRANCIS B. TIFFANY,
Author of “Death by Wrongful Act,” “Law of Sales,’ ete.
TABLE OF CONTENTS.
Chap.
Part 1—IN GENERAL.
1. Introductory—Definitions.
2. Creation of the Relation of Principal and Agent—Appointment.
8. Same (continued)—Ratification.
4. What Acts Can be Done by Agent—Illegality—Capacity of
Parties—Joint Principals and Agents.
Delegation by Agent—Subagents.
. Termination of the Relation.
. Construction of Authority.
ABA
Part 2—RIGHTS AND LIABILITIES BETWEEN BEINGIPAL
AND THIRD PERSON.
8. Liability of Principal to Third Person—Contract.
9. Same (continued).
10. Admissions by Agent—Notice to Agent.
11. Liability of Principal to Third Person—Torts and Crimes.
12. Liability of Third Person to Principal.
Part 3—RIGHTS AND LIABILITIES BETWEEN AGENT AND
THIRD PERSON.
13. Liability of Agent to Third Person (including parties to con-
tracts).
14, Liability of Third Person to Agent.
Part 4—RIGHTS AND LIABILITIES BETWEEN PRINCIPAL
AND AGENT.
15. Duties of Agent to Principal.
16. Duties of Principal to Agent.
Appendix.
C6559-28
Ciffany on Persons and
Chap.
S200
11.
12.
138.
NQnT PwWPH
Domestic Relations.
1896. 589 pages. $3.75 delivered.
By WALTER C. TIFFANY.
TABLE OF CONTENTS.
Part 1—HUSBAND AND WIFBP.
. Marriage.
. Persons of the Spouses as Affected by Coverture.
Rights in Property as affected by Coverture.
Contracts, Conveyances, ete., and Quasi-Contractual Obliga-
tions.
. Wife’s Equitable and Statutory Separate Estate.
. Antenuptial and Postnuptial Settlements.
. Separation and Divorce.
Part 2—PARENT AND CHILD.
. Legitimacy, Illegitimacy, and Adoption.
. Duties and Liabilities of Parents.
. Rights of Parents and of Children.
Part 3—GUARDIAN AND WARD.
Guardians Defined—Selection and Appointment.
Rights, Duties, and Liabilities of Guardians.
Termination of Guardianship—Enforcing Guardian’s Liability.
Part 4—INFANTS, PERSONS NON COMPOTES MENTIS,
AND ALIENS.
14. Infants. :
15. Persons Non Compotes Mentis and Aliens.
16.
Part 5—MASTER AND SERVANT.
Creation and Termination of Relation.
C6559-29
Tiffany on Sales.
1908. 534 pages. $3.75 delivered.
By FRANCIS B. TIFFANY, A. B., LL. B.
(Harvard.)
Author of “Tiffany on Death by Wrongful Act.”
Second Edition.
TABLE OF CONTENTS.
Chap.
1. Formation of the Contract.
2. Formation of the Contract—Under the Statute of Frauds.
3. Effect of the Contract in Passing the Property—Sale of Spe-
cifie Goods.
4. Effect of the Contract in Passing the Property—Sale of Goods
not Specific.
5. Fraud, and Retention of Possession.
6. Illegality.
7. Conditions and Warranties.
8. peitoumemest
9. Rights of Unpaid Seller against the Goods.
10. Action for Breach of the Contract.
Appendix: Sales Act—English Sale of Goods Act.
Dance on Insurance.
1896. 683 pages. $3.75 delivered.
By WILLIAM REYNOLDS VANCE,
Professor of Law in the George Washington University.
The principal object of this treatise is to give a consistent state-
ment of logically developed principles that underlie all contracts of
insurance, with subsidiary chapters treating of the rules peculiar
to the several different kinds of insurance. Special attention has
been given to the construction of the standard fire policy.
This treatment will help to bring about, we believe, the much
desired clarification of this branch of the law.
The chapters cover,—
Historical and Introductory.
Nature and Requisites of Contract.
Parties.
Insurable Interest.
Making the Contract.
The Consideration.
Consent of the Parties—Concealment.
Consent of the Parties—Warranties.
Agents and their Powers.
Waiver and Estoppel.
The Standard Fire Policy.
Terms of the Life Policy.
Marine Insurance.
Accident Insurance.
Guaranty, Credit, and Liability Insurance.
Appendix.
C6559-31
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